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EXHIBIT 99.1
ASSET PURCHASE AGREEMENT
DATED JANUARY 5, 1999
by and among
PUBLIC SERVICE CELLULAR, INC.,
POWERTEL, INC.,
ICEL, INC.
and
INTERCEL LICENSES, INC.
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TABLE OF CONTENTS
ARTICLE 1: PURCHASE OF ASSETS.................................................1
1.1 AGREEMENT TO PURCHASE AND SELL ASSETS OF SELLER AND ICL......1
1.2 EXCLUDED ASSETS..............................................5
1.3 LEASE OF TOWER SPACE TO PURCHASER............................6
ARTICLE 2: PURCHASE PRICE AND WORKING CAPITAL.................................7
2.1 PURCHASE PRICE...............................................7
2.2 ALLOCATION OF PURCHASE PRICE.................................7
2.3 ADJUSTMENTS AND PAYMENT OF PURCHASE PRICE AT CLOSING.........7
2.4 CURRENT ASSET POST-CLOSING ADJUSTMENT TO PURCHASE PRICE;
CLOSING SCHEDULES; PRORATIONS................................9
ARTICLE 3: ASSUMPTION OF LIABILITIES.........................................12
3.1 LIMITATION ON ASSUMPTION OF LIABILITIES.....................12
3.2 ASSUMPTION OF CERTAIN LIABILITIES...........................12
ARTICLE 4: TITLE AND RISK OF LOSS............................................13
4.1 TITLE AND RISK OF LOSS......................................13
ARTICLE 5: REPRESENTATIONS AND WARRANTIES
OF POWERTEL, ICEL AND ICL............................................14
5.1 DUE INCORPORATION...........................................15
5.2 DUE AUTHORIZATION...........................................15
5.3 NO BREACH...................................................15
5.4 CLEAR TITLE.................................................16
5.5 CONDITION OF ASSETS; INVENTORY..............................16
5.6 LITIGATION..................................................17
5.7 LABOR MATTERS...............................................17
5.8 TAXES.......................................................17
5.9 EMPLOYEE BENEFITS...........................................18
5.10 FULL DISCLOSURE.............................................18
5.11 FINANCIAL STATEMENTS........................................19
5.12 ABSENCE OF CERTAIN DEVELOPMENTS.............................19
5.13 PROPRIETARY RIGHTS AND SOFTWARE.............................21
5.14 COMPLIANCE WITH LAWS........................................21
5.15 OPERATING CONTRACTS AND CUSTOMER CONTRACTS..................22
5.16 REAL ESTATE.................................................22
5.17 [Intentionally omitted].....................................24
5.18 BOOKS AND RECORDS...........................................24
5.19 CELLULAR EMPLOYEES..........................................24
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5.20 LICENSES AND PERMITS........................................25
5.21 SUFFICIENCY OF ASSETS.......................................25
5.22 OTHER MATERIAL CONTRACTS AND OBLIGATIONS....................25
5.23 INSOLVENCY..................................................26
5.24 SUBSIDIARIES................................................27
5.25 CUSTOMERS...................................................27
5.26 PRODUCTS LIABILITY CLAIMS...................................27
5.27 INSURANCE...................................................27
5.28 BROKERS.....................................................27
5.29 CGSA........................................................28
5.30 NETWORK.....................................................28
5.31 RELATIONSHIP WITH RELATED PERSONS...........................28
5.32 EXCLUSIVITY OF REPRESENTATIONS..............................28
ARTICLE 6: REPRESENTATIONS AND WARRANTIES OF PURCHASER.......................28
6.1 DUE INCORPORATION...........................................29
6.2 DUE AUTHORIZATION...........................................29
6.3 NO BREACH...................................................29
6.4 FULL DISCLOSURE.............................................30
6.5 QUALIFICATIONS OF PURCHASER.................................30
6.6 BROKERS.....................................................31
ARTICLE 7: PERFORMANCE BY SELLER AND ICL PENDING CLOSING.....................31
7.1 ACCESS TO INFORMATION.......................................31
7.2 CELLULAR BUSINESS AS USUAL..................................32
7.3 LIENS.......................................................33
7.4 EMPLOYEES AND PAY INCREASES.................................33
7.5 RESTRICTIONS ON NEW CONTRACTS...............................33
7.6 PRESERVATION OF CELLULAR BUSINESS AND
NON-SOLICITATION OF EMPLOYEES...............................34
7.7 PAYMENT AND PERFORMANCE OF OBLIGATIONS......................35
7.8 RESTRICTIONS ON SALE OF ASSETS..............................35
7.9 CONSENTS....................................................36
7.10 CAPITAL EXPENDITURES........................................36
7.11 NO SOLICITATION OF OTHER OFFERS OR NEGOTIATION..............36
7.12 ACCOUNTS RECEIVABLE.........................................37
7.13 INVENTORY...................................................37
7.14 INSURANCE...................................................37
7.15 FILING REPORTS AND MAKING PAYMENTS..........................37
7.16 MONTHLY REPORTING...........................................37
7.17 EMPLOYEES AND EMPLOYEE BENEFITS.............................37
7.18 SUPPLEMENTAL DISCLOSURE.....................................37
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ARTICLE 8: MUTUAL COVENANTS AND CONDITIONS PRECEDENT
TO OBLIGATIONS.......................................................38
8.1 FCC.........................................................38
8.2 PROCEEDINGS.................................................39
8.3 HSR ACT.....................................................39
8.4 PROMPT NOTICE...............................................40
8.5 EMPLOYEES...................................................40
8.6 PURCHASE OF PCS EQUIPMENT...................................40
8.7 MUTUAL COVENANTS............................................41
ARTICLE 9: CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS...................41
9.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES..................41
9.2 COMPLIANCE WITH COVENANTS AND AGREEMENTS....................41
9.3 NO ADVERSE CHANGE...........................................42
9.4 APPROVAL BY COUNSEL.........................................42
9.5 CONSENTS AND APPROVALS......................................42
9.6 FINANCING...................................................43
ARTICLE 10: CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER AND ICL............43
10.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES..................43
10.2 COMPLIANCE WITH COVENANTS AND AGREEMENTS....................43
10.3 APPROVAL BY COUNSEL.........................................44
10.4 REQUIRED GOVERNMENTAL APPROVALS.............................44
10.5 PURCHASER'S FINANCING.......................................44
ARTICLE 11: INDEMNIFICATION..................................................44
11.1 INDEMNIFICATION BY SELLER...................................44
11.2 INDEMNIFICATION BY PURCHASER................................46
11.3 PROCEDURE FOR INDEMNIFICATION...............................46
11.4 LIMITATIONS.................................................47
11.5 ARBITRATION.................................................49
11.6 LIQUIDATED DAMAGES..........................................50
ARTICLE 12: CLOSING..........................................................50
12.1 DATE OF CLOSING.............................................50
12.2 DOCUMENTS TO BE DELIVERED BY POWERTEL, ICEL AND/OR ICL......51
12.3 DOCUMENTS TO BE DELIVERED BY PURCHASER......................53
ARTICLE 13: PERFORMANCE FOLLOWING THE DATE OF CLOSING........................54
13.1 COLLECTION OF RECEIVABLES...................................54
13.2 FURTHER ACTS AND ASSURANCES.................................54
13.3 USE OF NAME.................................................55
13.4 PRESERVATION OF AND ACCESS TO RECORDS.......................55
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ARTICLE 14: TERMINATION......................................................55
14.1 TERMINATION.................................................56
14.2 CURE BY POWERTEL............................................56
14.3 RETURN OF DOCUMENTS AND NONDISCLOSURE.......................57
ARTICLE 15: MISCELLANEOUS....................................................57
15.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES
AND COVENANTS...............................................57
15.2 BROKERS.....................................................57
15.3 COOPERATION.................................................57
15.4 PUBLIC ANNOUNCEMENTS........................................58
15.5 SALES, USE AND DEED TAXES...................................58
15.6 NOTICES.....................................................58
15.7 ENTIRE AGREEMENT............................................59
15.8 REMEDIES CUMULATIVE.........................................59
15.9 SPECIFIC PERFORMANCE........................................59
15.10 AMENDMENTS..................................................59
15.11 SUCCESSORS AND ASSIGNS......................................59
15.12 COSTS.......................................................60
15.13 GOVERNING LAW...............................................60
15.14 COUNTERPARTS................................................60
15.15 HEADINGS....................................................60
15.16 NUMBER AND GENDER...........................................60
15.17 KNOWLEDGE...................................................60
15.18 SEVERABILITY................................................60
15.19 PARTIES IN INTEREST.........................................61
15.20 WAIVER......................................................61
15.21 CONSTRUCTION................................................61
15.22 OTHER ACQUISITIONS BY PURCHASER. ..........................61
15.23 OTHER FCC MATTERS...........................................61
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is made and
entered into as of the 5th day of January, 1999, by and among Public Service
Cellular, Inc., a Georgia corporation ("Purchaser"), InterCel Licenses, Inc., a
Delaware corporation ("ICL"), ICEL, Inc., a Delaware corporation ("ICEL"), and
Powertel, Inc., a Delaware corporation ("Powertel"). (Powertel and ICEL are
collectively referred to herein as "Seller," and any obligation of "Seller" in
this Agreement or in any of the agreements entered into in connection herewith
shall be a joint and several obligation of both Powertel and ICEL.)
WHEREAS, Seller is engaged in the business (the "Cellular
Business") of providing cellular telephone and related services under the name
"InterCel" in the following five rural service areas ("RSAs") in western Georgia
and eastern Alabama: ▇▇▇▇▇▇▇ ▇ - ▇▇▇▇▇▇▇▇ (▇-▇); ▇▇▇▇▇▇▇ ▇ - ▇▇▇▇▇▇▇▇ (▇-▇ and
B-2); Alabama 8 - ▇▇▇ (B-2); and Alabama 5 - Cleburne (B-3) (collectively, the
"Territory"), and ICL owns the Federal Communications Commission ("FCC")
Licenses (as defined herein) required to operate the Cellular Business in the
Territory (the parties acknowledge that the spelling of county names above may
be incorrect and that the spelling used is as such names appear on the
applicable FCC Licenses);
WHEREAS, Seller and ICL desire to sell and assign, and
Purchaser desires that Purchaser or a wholly-owned subsidiary of Purchaser or
other entity whose ultimate shareholders are the same as the shareholders of
Purchaser (a "Subsidiary") purchase, substantially all of the assets and rights
and assume certain obligations of Seller related to the Cellular Business and
all of the assets and rights of ICL (but none of the liabilities or obligations
of ICL, other than those related to the FCC Licenses) on the terms and
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the foregoing premises,
the mutual covenants contained herein and for other good and valuable
consideration, the receipt and sufficiency of which hereby are acknowledged, the
parties hereto agree as follows:
ARTICLE 1: PURCHASE OF ASSETS
1.1 AGREEMENT TO PURCHASE AND SELL ASSETS OF SELLER AND ICL. On
the Date of Closing (as hereinafter defined), Purchaser agrees to purchase, or
cause a Subsidiary to which this Agreement has been assigned pursuant to Section
15.11 hereof to purchase, from Seller and ICL, and Seller and ICL agree to sell,
assign, transfer, convey and deliver to Purchaser or to such Subsidiary to the
extent owned or held by any of them and used in the Cellular Business, on the
terms and subject to the conditions set forth in this Agreement, all of the
assets, properties, contract rights, operations and business of Seller and ICL
of every kind, nature and description whatsoever
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and wherever the same may be located, which are owned or held by Seller and ICL
and used in the operation of the Cellular Business (but excluding the assets
specifically identified as "Excluded Assets" in Section 1.2 hereof). The assets,
properties and contracts to be purchased by Purchaser or a Subsidiary and sold
by Seller and ICL pursuant to this Agreement (collectively, the "Assets")
include, without limitation, the following, but only to the extent that the
following are owned or held by Seller or ICL and used in the operation of the
Cellular Business and are not Excluded Assets:
(a) All of Seller's and ICL's right, title and interest in and
to any and all federal, state, foreign and common law
trademarks, trademark registrations and applications therefor,
service marks, service ▇▇▇▇ registrations and applications
therefor, copyrights, copyright registrations and applications
therefor, trade names, assumed names, logos, patents, patent
applications, technology, know-how, trade secrets, processes,
formulas, drawings, designs and similar intellectual property
and proprietary rights of any kind as they relate to the
Cellular Business and as are set forth on Schedule 1.1(a), as
well as Seller's and ICL's transferable interests in any and
all federal, state and foreign common law rights protecting
the same, including the name "InterCel", but excluding any
such items listed on Schedule 1.2(b) (the "Proprietary
Rights");
(b) All of Seller's right, title and interest in and to any
and all equipment, (including all cellular and microwave radio
frequency equipment, all cellular switching equipment, all
cellular and microwave antennae, all coaxial and fiber cable
(other than fiber cable currently leased by Powertel from
ITC&Deltacom, Inc., Interstate Telephone Company, and Valley
Telephone Company, which is used in the Cellular Business as
set forth on Schedule 1.2(b)), transmitters and receivers,
voice mail equipment, DC power boards, AC power boards,
batteries, and battery chargers), machinery, cell site
equipment, testing equipment, furniture, fixtures,
furnishings, tooling, personal property, shelving, patterns,
molds, office equipment, computer hardware, trade fixtures,
retail leasehold improvements, equipment shelters and
buildings at tower locations, other improvements (except those
that are Excluded Assets), tools and other tangible personal
property owned or leased by Seller at any of the locations and
used by Seller in the operation of the Cellular Business,
including, but not limited to, those items described in
Schedule 1.1(b) hereto, together with any manufacturer, vendor
or installer warranties thereon, but excluding those items
listed on Schedule 1.2(b);
(c) All of Seller's right, title and interest in and to any
vehicles used in the Cellular Business, including, but not
limited to, those vehicles described on Schedule 1.1(c) hereto
(the "Vehicles");
(d) All of Seller's telephone numbers, telephone directory
advertisements (provided that Purchaser agrees that after the
Closing it shall not renew any advertisements which refer to
Powertel or to services provided by Powertel); NXX
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blocks, E-mail addresses, post office boxes and customer
prospect lists used or contemplated by Seller to be used in
the Cellular Business, including but not limited to those
items listed on Schedule 1.1(d), but excluding those items
listed on Schedule 1.2(b);
(e) All of Seller's and ICL's business records which arise
from or which are used in connection with the operation of the
Cellular Business, including, but not limited to, customer
lists, lists of suppliers, accounting records (including
ancillary records, paid invoices and work papers related
thereto), correspondence, computer and billing tapes, files,
research data, advertising data, contracts and other records
and information necessary for Purchaser to carry on the
Cellular Business on and after the Date of Closing;
(f) All of Seller's contract rights and benefits in and to the
contracts (including contracts for provision of services to
customers ("Customer Contracts")), contracts in progress,
commitments, leases, licenses and other agreements which arise
from or are used in connection with the operation of the
Cellular Business and any amendments thereto (collectively,
other than Customer Contracts and other than leases, licenses
and other agreements relating to or creating a leasehold
interest or right to use the Real Estate governed pursuant to
other provisions of this Agreement (such as the Assigned
Leases and the Easements), the "Operating Contracts") in
effect on the Date of Closing. Schedule 1.1(f) lists all
Operating Contracts which are in effect on the Date of Closing
and which are material, in Seller's reasonable judgment, but
in any event, Schedule 1.1(f) includes the following types of
contracts: (i) all contracts which expire automatically or
with notice more than one (1) year after the date hereof; (ii)
all contracts which require aggregate annual payments by any
party thereto in excess of $12,000; (iii) all contracts for
the employment of any Cellular Employee (as defined in Section
5.7); (iv) contracts for the sale (other than in the Ordinary
Course of Business (as defined in Section 7.2)) of any
material Assets; and (v) all contracts with agents of the
Seller who sell goods or services related to the Cellular
Business; provided, that Schedule 1.1(f) may not include
certain roaming contracts that Seller, in its reasonable
judgment, deems not to be material to the Cellular Business;
(g) All of Seller's and ICL's FCC cellular, microwave and
other governmental licenses used in the Cellular Business (the
"FCC Licenses"), including, but not limited to, those
described in Schedule 1.1(g) hereto, and all certificates,
franchises, registrations, permits, consents and approvals or
rights to use licenses with respect to the Cellular Business
(together with the FCC Licenses, the "Licenses");
(h) All of Seller's prepaid expenses, credit memos and
deposits relating to the Cellular Business, the categories of
which are described in Schedule 1.1(h) hereto;
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(i) All of Seller's office, shop and other supplies relating
to the Cellular Business which are on hand as of the Date of
Closing;
(j) All of Seller's accounts receivable, notes receivable and
other rights to the payment of money relating to the Cellular
Business which remain uncollected on the Date of Closing,
whether or not evidenced by a writing or reflected on the
balance sheets to be delivered by Seller to Purchaser pursuant
to Sections 5.11 and/or 7.16 hereof (the "Receivables");
(k) All of Seller's inventory relating to the Cellular
Business which is on hand as of the Date of Closing, including
raw materials, work in process and finished goods, the
categories of such inventory together with their approximate
aggregate value as set forth on the books of Seller as of
September 30, 1998 being described in Schedule 1.1(k) hereto
(the "Inventory");
(l) All of Seller's right, title and interest in and to the
plans, specifications, blueprints, repair and operating
manuals, warranties, guaranties, maintenance records,
information regarding assessments and/or insurance and other
written information relating to any of the Assets;
(m) All of Seller's rights in software and software program
documentation in computer readable and hard-copy forms
reasonably acceptable to Purchaser used in the Cellular
Business (except for shrink-wrapped software, which will be
transferred only to the extent transferable) including, but
not limited to, Seller's rights in the software used in the
Cellular Business' customer billing system and any maintenance
and operational software associated therewith, all contracts
pursuant to which Seller licenses software related to the
Cellular Business, and the software described in Schedule
1.1(m) hereto (the "Software") (Schedule 1.1(m) also indicates
which items set forth on such Schedule (other than
shrink-wrapped software) are not fully installed);
(n) The nonexclusive right to use, pursuant to and subject to
the terms and conditions of the Tower Space Leases (as
hereinafter defined) and the Assigned Leases (as hereinafter
defined) all of Seller's rights, if any, in and to any
easements and permits used in the Cellular Business,
including, but not limited to, the easements and permits
described in Schedule 1.1(n) hereto (the "Easements"), but
excluding those easements and permits listed on Schedule 1.2
(b);
(o) All of Seller's rights and claims against third parties,
other than Purchaser or any Subsidiary, that relate to the
Cellular Business;
(p) All of Seller's supply of brochures, displays, models and
other marketing materials relating to the Cellular Business on
hand as of the Date of Closing, as well
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as the camera ready art, negatives, proofs and other
reproduction materials for the same, except as set forth on
Schedule 1.2(b);
(q) All of Seller's goodwill as a going concern and other
intangible personal property relating to the Cellular
Business, to the extent transferable;
(r) Cash of Seller in an amount equal to all (i) deposits of
customers of the Cellular Business that exist as of the Date
of Closing, and (ii) prepayments by customers of the Cellular
Business to the extent such prepayments relate to services to
be rendered on or after the Date of Closing ("Customer Cash");
(s) All of Seller's rights and interests in all retail store
leases, all retail kiosk leases, the lease for the Cellular
Business' headquarters in Lanett, Alabama, and all leases
pursuant to which Seller leases space for cellular antennae on
towers owned by parties other than Powertel or its affiliates,
all of which are listed on Schedule 1.1(s) (collectively, the
"Assigned Leases");
(t) All accretions and additions to the Assets that occur
prior to the Date of Closing, less property disposed of or
consumed in the Ordinary Course of Business (as hereinafter
defined) without breach of the terms of this Agreement prior
to the Date of Closing; and
(u) All other assets and rights of Seller and ICL relating to
the Cellular Business not specifically enumerated or excluded
herein.
1.2 EXCLUDED ASSETS. Notwithstanding anything contained in this
Agreement to the contrary, Purchaser will not purchase, and Seller and ICL will
not sell, any of the following assets (the "Excluded Assets"):
(a) All cash and cash equivalents of Seller on hand or on
deposit in bank accounts as of the Date of Closing in excess
of an amount equal to Customer Cash;
(b) Those assets listed on Schedule 1.2(b) hereto;
(c) The corporate minute books, stock books and other
corporate records of Seller and ICL having exclusively to do
with the corporate organization and capitalization of Seller
and ICL as well as Seller and ICL's tax records and
nontransferable insurance contracts; and
(d) All assets that are not owned or held by Seller or ICL and
used in the operation of the Cellular Business.
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1.3 LEASE OF TOWER SPACE TO PURCHASER. On the Date of Closing,
Purchaser or a Subsidiary agrees to lease from Powertel or a subsidiary, and
Powertel or a subsidiary agrees to lease to Purchaser or a Subsidiary, space on
and around each of the towers, described on Schedule 1.3, that Powertel or a
subsidiary owns in the Territory and upon which Seller's cellular and microwave
antennae used in the Cellular Business are currently located including all
towers owned by Powertel or a subsidiary on real property leased by Powertel or
a subsidiary. Each of the Tower Space Leases shall reflect the rates, terms and
conditions set forth in the Form of Tower Space Lease attached as Exhibit
1.3(a). Schedule 1.3(b) sets forth the periods during which each Tower Space
Lease shall remain in effect, the identities of the towers on which Powertel
shall be permitted to sectorize without any additional rent, and the identities
of the towers on which Powertel shall be considered to be "first on the tower,"
and those on which Purchaser will be considered to be "first on the tower." In
addition to the tower space to be leased pursuant to the Tower Space Leases, the
Tower Space Leases shall include the right to use those parcels of land and the
improvements located thereon shown on the diagrams and drawings attached as
Schedule 1.3(c) (collectively, the "Drawings") for the installation, monitoring,
maintenance, repair, upgrading, and operation of Equipment (as defined in the
Tower Space Leases) in connection with the Cellular Business and as otherwise
permitted under the Tower Space Leases; provided, however, that Purchaser,
Seller and ICL acknowledge and agree that the Drawings may be inexact and that
the parcels of land and improvements as to which rights shall be granted under
the applicable Tower Space Lease shall (i) be located in their entirety on
portions of the Real Estate which is either owned by Powertel or a subsidiary of
Powertel or which is leased by Powertel or a subsidiary of Powertel, (ii) not
encroach on areas occupied by the towers or other equipment currently located on
such Real Estate or upon areas upon which any utility facilities which are shown
on the Surveys (as defined below) are located, (iii) not violate any Applicable
Laws, and (iv) any fences or other improvements constructed by Purchaser shall
not prevent Powertel from having reasonable and necessary access to its
equipment presently located on the land surrounding the tower. Purchaser shall
be entitled to install any additional equipment as permitted under the
applicable Tower Space Lease within the boundaries of the leased parcel of land.
In order to specifically delineate the portion of the Real Estate to be
subjected to the applicable Tower Space Lease, Powertel shall on or before March
15, 1999 furnish to Purchaser surveys (the "Surveys") of the Real Estate owned
or leased by Powertel, which Surveys shall show the as-built location of
existing towers, structures and improvements (including, without limitation, all
visible utility facilities) and the proposed location (which location shall be
substantially the location shown on the applicable Drawing as the same may be
modified to comport with the requirements of clauses (i), (ii) and (iii) above)
of each parcel of land to be subjected to the applicable Tower Space Lease.
Purchaser agrees to reimburse Powertel for the reasonable survey costs
attributable to the staking and depicting of the land to be subject to the Tower
Space Lease. Within ten (10) days of Purchaser's receipt of each such Survey,
Purchaser shall notify Powertel of any objections to the location of the land to
be subjected to any Tower Space Lease. In the event Purchaser objects to the
proposed location of the land to be subjected to any Tower Space Lease,
Purchaser shall designate a reasonably comparable parcel of land that satisfies
the requirements of clauses (i), (ii), (iii) and (iv) above and obtain from
Powertel approval of same, which approval shall not be unreasonably withheld or
delayed. Powertel and Purchaser shall agree upon the location of the land to be
subjected to the Tower Space Leases for all tower sites on or
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before April 15, 1999. Upon agreement by Powertel and Purchaser as to the
location of such land, in the event such agreed location is different from
Powertel's initial proposal, Purchaser shall obtain, at Purchaser's expense, an
update to the applicable Survey(s) showing the location of the land to be
subjected to the applicable Tower Space Lease and deliver the same to Powertel
prior to commencement of any improvements on such site. Additionally, Purchaser
agrees that upon completion of all improvements to the land subject to the Tower
Space Leases and the installation of its generator and other equipment on such
land, Purchaser shall provide an as-built survey of such land showing the
location of such generator and equipment.
ARTICLE 2: PURCHASE PRICE AND WORKING CAPITAL
2.1 PURCHASE PRICE. The purchase price for the Assets and the
Agreement Not To Compete provided for in Section 12.2(i) hereof (the "Agreement
Not To Compete") shall be the sum of Eighty-nine Million Dollars ($89,000,000)
(the "Purchase Price"), subject to adjustment as provided herein.
2.2 ALLOCATION OF PURCHASE PRICE. Purchaser shall, in a reasonable
manner after appropriate consultation with Powertel, determine the fair market
value of the Assets, and Purchaser shall allocate the Purchase Price among the
Assets and the Agreement Not to Compete in accordance with said determination
and Section 1060 of the Internal Revenue Code of 1986, as amended (the "Code").
Such allocation shall be communicated by Purchaser to Powertel as soon as
practical after it is available. Purchaser and Powertel shall file, in
accordance with Section 1060 of the Code, an Asset Allocation Statement on Form
8594 (which conforms with such allocation) with its federal income tax return
for the tax year in which the Date of Closing occurs and shall contemporaneously
provide the other party with a copy of the Form 8594 being filed. Each party
agrees not to assert, in connection with any tax return, audit or other similar
proceeding, any allocation of the Purchase Price which differs from the
allocation determined by Purchaser hereunder.
2.3 ADJUSTMENTS AND PAYMENT OF PURCHASE PRICE AT CLOSING.
(a) Eighty-two Million Seven Hundred Seventy Thousand Dollars
($82,770,000) (the "Cash Portion of the Purchase Price") shall
be paid by Purchaser to Powertel by wire transfer of
immediately available funds to Powertel's designated
account(s) on the Date of Closing. The balance of the Purchase
Price (the "Indemnity Fund") shall be deposited on the Date of
Closing with Columbus Bank & Trust (the "Escrow Agent") to be
held in escrow pursuant to a Post Closing Escrow Agreement in
substantially the form of Exhibit 2.3(a) attached hereto (the
"Post Closing Escrow Agreement"). The Indemnity Fund shall be
held for a period of six (6) months after the Date of Closing,
which period is subject to increase as provided for in Section
2.4(f) hereof (the "Hold Back Period"), to protect Purchaser
with respect to (i) the matters as to which Seller is required
to indemnify Purchaser against hereunder pursuant to the
provisions of Article 11 hereof, and (ii) any reduction in the
Purchase
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Price, pursuant to the provisions of Section 2.4 hereof. The
Indemnity Fund, less (x) the amount of all claims validly made
by Purchaser for indemnification and determined to be payable
pursuant to Article 11 hereof and (y) the amount of any
reduction in the Purchase Price pursuant to the provisions of
Section 2.4 hereof, together with any interest or income on
the amounts specified in items (x) and (y), shall be paid to
Powertel together with any interest or income thereon on the
business day immediately following the expiration of the Hold
Back Period.
(b) At the Closing, the Cash Portion of the Purchase Price
shall be adjusted downward in the following amounts:
(i) Seventy-five Thousand Dollars ($75,000) for
each of the retail locations listed in Schedule
2.3(b)(i) that Purchaser cannot occupy and use on the
Date of Closing, because of (x) Seller's failure to
perform its obligations under this Agreement, (y)
Seller's negligence or wilful misconduct or (z)
Seller's inability to deliver to Purchaser a consent
to the assignment of the lease for such location
which would allow Purchaser to occupy such location
under the same terms and conditions (with the
exception of minor variations which do not affect the
economic terms of the lease) under which Seller
presently occupies such location; and
(ii) Two Hundred Thousand Dollars ($200,000) for
each of the towers listed on Schedule 2.3(b)(ii) that
Purchaser cannot occupy and use on the Date of
Closing, because of (x) Seller's failure to perform
its obligations under this Agreement, (y) Seller's
negligence or wilful misconduct or (z) Seller's
inability to deliver to Purchaser a consent to the
assignment of the lease for such tower which would
allow Purchaser to occupy such tower under the same
terms and conditions (with the exception of minor
variations which do not affect the economic terms of
the lease) under which Seller presently occupies such
tower; and
(iii) At the option of the Purchaser exercised
pursuant to Section 2.3(c) below, by Five Hundred
Thousand Dollars ($500,000) if Purchaser is unable to
use the ▇▇▇▇▇▇▇ switch or the building in which the
▇▇▇▇▇▇▇ switch is located on the Date of Closing
under the terms and conditions set forth in the form
of License Agreement attached as Exhibit 2.3(b) (the
"License Agreement") because of (x) Seller's failure
to perform its obligations under this Agreement, (y)
Seller's negligence or wilful misconduct or (z)
Seller's inability to deliver the License Agreement
to Purchaser in the form attached as Exhibit 2.3(b)
(with the exception of minor variations which do not
affect the economic terms of the License Agreement);
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provided, that if Seller is able to provide Purchaser a
comparable alternative prior to the Date of Closing, as
determined by Purchaser in its reasonable discretion, then the
Purchase Price shall not be so adjusted.
In the event the Purchase Price is reduced or Seller provides
Purchaser a comparable alternative prior to the Date of
Closing (as determined by Purchaser in its reasonable
discretion) pursuant to this Section 2.3(b), then Purchaser
shall not have the right to pursue any other remedies against
Seller which relate solely to its inability to occupy and use
such premises on the Date of Closing.
(c) In the event that Purchaser is unable to use the
▇▇▇▇▇▇▇ switch or the building in which the ▇▇▇▇▇▇▇ switch is
located on the Date of Closing under the terms and conditions
set forth in the License Agreement for the reasons set forth
in Section 2.3(b)(iii), and Seller has been unable to provide
Purchaser a comparable alternative prior to the Date of
Closing, as determined by Purchaser in its reasonable
discretion, Purchaser shall have the option to either (i)
reduce the Cash Portion of the Purchase Price, as set forth in
Section 2.3(b)(iii) or (ii) refuse to consummate the
transaction contemplated hereby without any liability.
2.4 CURRENT ASSET POST-CLOSING ADJUSTMENT TO PURCHASE PRICE;
CLOSING SCHEDULES; PRORATIONS.
(a) Within one hundred twenty (120) days following the
Date of Closing and after appropriate consultation with
Seller, Purchaser shall prepare and deliver, or cause to be
prepared and delivered, to Seller a schedule of certain of the
current assets of the Cellular Business transferred to
Purchaser and certain of the current liabilities of the
Cellular Business assumed by Purchaser, prepared as set forth
herein (the "Closing Schedule"). The Closing Schedule shall be
prepared as of the close of business on the Date of Closing in
accordance with generally accepted accounting principles and
on a basis consistent with the procedures used in preparing
the December 31, 1997 balance sheet of the Cellular Business
identified on Schedule 5.11 hereto, but shall include only the
following selected current assets, current liabilities and
accruals:
(i) Only the following current assets of the
Cellular Business shall be included in the Closing
Schedule (the "Scheduled Assets"):
(1) The Inventory which is on hand as of
the close of business on the Date of
Closing and which consists of new
(as opposed to used, reconditioned
or other inventory which is not new)
models manufactured after August 31,
1996, undamaged, and usable and
saleable as new at customary prices
in the
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Ordinary Course of Business, valued
in accordance with generally
accepted accounting principles;
(2) The Receivables reflected on
Seller's books as of the Date of
Closing which remain uncollected as
of the close of business on the Date
of Closing, but which have been
collected by Purchaser within ninety
(90) days after the Date of Closing,
provided that Purchaser shall
exercise its reasonable best efforts
to collect such Receivables within
such ninety (90) day period; and
(3) Prepaid insurance and other expenses
which are transferable to and are
transferred to Purchaser; and
(4) Customer Cash which is transferred
to Purchaser at the Closing, but
excluding any other cash.
(ii) Only the following current liabilities of
the Cellular Business shall be included in the
Closing Schedule (the "Scheduled Liabilities"):
(1) The trade accounts payable of the
Cellular Business assumed by
Purchaser pursuant to Section 3.2(a)
hereof;
(2) The payroll related expenses
existing on the Date of Closing
assumed by Purchaser pursuant to
Section 3.2(c) hereof;
(3) All accrued liabilities and
operating expenses of Seller
including customer deposits, in an
amount equal to deferred revenue and
those described in Section
2.4(a)(iii) hereof; and
(4) All liabilities assumed by Purchaser
pursuant to Sections 3.2(b) and
3.2(e) hereof to the extent the same
may be reflected on the opening
balance sheet of Purchaser in
accordance with generally accepted
accounting principles consistently
applied.
(iii) In addition, the Closing Schedule shall
reflect such adjustments as are necessary to fairly
prorate operating expenses (including ad valorem
taxes and other similar taxes assessed on the Assets)
between Seller and Purchaser as of the opening of
business on the Date of Closing, and appropriate
adjustments to or eliminations of intercompany
accounts.
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(iv) In addition, the Closing Schedule shall
reflect adjustments arising out of breaches of the
representations and warranties set forth in Section
5.8.
(b) The Closing Schedule shall not include or reflect any
Excluded Assets or any liabilities of Seller which are not
assumed by Purchaser, including any expenses or costs of
Seller described in Section 15.12.
(c) After Seller's receipt of the Closing Schedule,
Seller shall have thirty (30) days within which to review and
confirm the accuracy of the Closing Schedule. Purchaser shall
allow Seller and its representatives to review such books,
records and documents, including work papers, as may be
reasonably necessary or helpful for Seller to determine the
accuracy of the Closing Schedule. In the event Seller
disagrees in good faith with any aspect of the Closing
Schedule, Seller shall, within the thirty (30) day review
period, notify Purchaser in writing of the disagreement,
specifying the item or items in question and the nature of the
disagreement and the amount of any proposed good faith
adjustments thereto. If Seller fails to give such notice to
Purchaser of an objection or the intention of making such an
objection within the specified period, then Seller shall be
deemed to have accepted the Closing Schedule. If, however,
Seller gives such notice to Purchaser and Purchaser does not
accept any of Seller's proposed adjustments, Purchaser shall
notify Seller in writing of the same within fifteen (15) days
of Purchaser's receipt of Seller's proposed adjustments.
Purchaser's failure to object to Seller's proposed adjustments
within the specified period shall be deemed to constitute
acceptance of Seller's proposed adjustments and such
adjustments shall be deemed to be incorporated into the
Closing Schedule.
(d) In the event that Purchaser does not accept any of
Seller's proposed adjustments, any outstanding issues not
resolved through negotiations in good faith within ten (10)
business days after Purchaser's notice to Seller shall be
resolved through arbitration as set forth in Section 11.5
hereof.
(e) As soon as the final Closing Schedule has been
approved by the parties or prepared at the direction of the
arbitrators, as the case may be, the Purchase Price shall be
adjusted upward or downward, on a dollar for dollar basis, as
follows: To the extent that the Scheduled Assets less the
Scheduled Liabilities (the "Net Scheduled Assets") is greater
or less than zero, the Purchase Price shall be adjusted upward
or downward, as the case may be, dollar for dollar by the
amount of any such excess or deficit, and Purchaser shall, in
the case of an excess, pay such excess to Seller in
immediately available funds within ten (10) days of the
determination of the amount of such excess together with
interest thereon calculated from the Date of Closing at the
rate of 7.5% per annum, or in the case of a deficit, Purchaser
and Seller shall instruct the Escrow Agent to distribute to
Purchaser that portion of the Indemnity Fund equal to the
deficit together with any interest thereon; provided, however
that
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in the event that the parties agree on the final Closing
Schedule or receive the arbitrators' final decision after the
first anniversary of the Date of Closing, and such agreement
or determination indicates that a deficit exists, Seller shall
pay to Purchaser an amount equal to the downward adjustment
together with interest thereon calculated from the Date of
Closing to the end of the Hold Back Period at the rate earned
on the Indemnity Fund and from the end of the Hold Back Period
to the date of payment at the rate of 7.5% per annum. Such
distribution or payment pursuant to this Subsection 2.4(e)
shall be Purchaser's exclusive remedy on account of the
deficit, provided, however, that the rights and remedies for
breaches of the representations, warranties and covenants set
forth in this Agreement shall not thereby be diminished.
(f) If arbitration is used to resolve any issue hereunder
and if the time period to complete the arbitration process
will end more than six (6) months after the Date of Closing,
the expiration of the Hold Back Period shall be extended to
the date ten (10) business days after the arbitrators' final
decision is delivered to Purchaser and Seller but in no event
shall such period extend past the first anniversary of the
Date of Closing. If the Hold Back Period is so extended, the
parties agree to jointly provide notice to the Escrow Agent
informing the Escrow Agent of such extension.
ARTICLE 3: ASSUMPTION OF LIABILITIES
3.1 LIMITATION ON ASSUMPTION OF LIABILITIES. Except as
specifically set forth in Section 3.2 hereof, Seller and ICL shall transfer the
Assets to Purchaser on the Date of Closing free and clear of all Liens (as
hereinafter defined) other than Permitted Liens (as hereinafter defined), and
Purchaser shall not, by virtue of its purchase of the Assets, assume or become
responsible for any debts, liabilities or obligations of Seller and ICL whether
fixed, contingent, known, unknown or otherwise.
3.2 ASSUMPTION OF CERTAIN LIABILITIES. Notwithstanding the
provisions of Section 3.1 hereof to the contrary, Purchaser covenants and agrees
that on the Date of Closing, it shall execute and deliver to Seller an
Assignment and Assumption Agreement in substantially the form of Exhibit 3.2
hereto (the "Assumption Agreement"), pursuant to which it will assume and agree
to perform and discharge the following debts, liabilities and obligations of
Seller and ICL:
(a) All of Seller's trade accounts payable (being
maintained by Seller consistent with its past practices)
arising out of the operation of the Cellular Business in the
Ordinary Course of Business which (i) are reflected on
Seller's books and records as of the Date of Closing and (ii)
remain unpaid as of the opening of business on the Date of
Closing;
(b) All debts, liabilities and obligations of Seller
arising under the Operating Contracts (i) which are listed on
Schedule 1.1(f) or (ii) which require aggregate
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annual payments of less than $12,000 and which have a duration
of less than one year after the date of this Agreement
(provided that the maximum aggregate liability assumed by
Purchaser pursuant to this subparagraph (b)(ii), determined as
if Purchaser on the date of Closing provided notice of
termination to the other parties to all such agreements, shall
not exceed $50,000), except that Purchaser does not assume any
liabilities for products sold or services rendered in
connection with the operation of the Cellular Business under
such Operating Contracts prior to the Date of Closing and
provided that liabilities assumed hereunder are only assumed
to the extent they accrue after the Date of Closing and are
not attributable to any default of Seller thereunder except
for trade payables assumed pursuant to subsection (a) above;
(c) All amounts accrued as of the close of business on
the Date of Closing for wages, salaries and vacation and sick
leave, payable to those employees who are employed by
Purchaser on the Date of Closing and who will be listed on
Schedule 3.2(c), which Schedule will be attached hereto at the
Closing (collectively, the "Hired Employees");
(d) Seller's obligation to provide cellular telephone and
related services to its customers in accordance with the
Customer Contracts in effect on and after the Date of Closing;
(e) All liabilities and obligations of Seller for the
Assigned Leases as accrued on and after the Date of Closing;
and
(f) all obligations under the FCC Licenses.
ARTICLE 4: TITLE AND RISK OF LOSS
4.1 TITLE AND RISK OF LOSS.
(a) Seller and ICL shall bear all costs and expenses and
assume and bear all risk of loss, damage or destruction of or
to the Assets due to theft, expropriation, seizure,
destruction, damage, fire, earthquake, flood, lightning,
discharge of a halon fire repression system or other cause or
casualty until title thereto is passed to Purchaser at the
Closing (as hereinafter defined).
(b) If, after September 30, 1998 but prior to the Date of
Closing, any material Assets shall have suffered, sustained or
incurred any material loss, damage or destruction, including,
without limitation, any environmental contamination or
pollution, and Seller shall not have elected at its sole
option and expense to wholly repair or replace and has not
repaired or replaced the Assets which suffered, sustained or
incurred the material loss, damage or destruction on or before
the Date of Closing
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with assets which are as nearly identical as practicable in
value, form and function, Purchaser shall have the right, at
its sole discretion and election, to either (i) terminate this
Agreement, or (ii) complete the purchase contemplated by this
Agreement, in which event:
(x) Seller shall assign and transfer to
Purchaser and Purchaser shall be
entitled to receive all insurance
proceeds (including any business
interruption insurance proceeds
relating to periods following the
Closing) and other compensation
collected by reason of such loss,
damage or destruction, together
with any rights to receive any
uncollected insurance proceeds or
other compensation relating to such
loss, damage or destruction and an
amount equal to the sum of the
aggregate amount of any applicable
deductibles under any insurance
policies covering the lost, damaged
or destroyed Assets plus any
self-insured retentions; or
(y) Purchaser shall be entitled to
reduce the Purchase Price by an
amount equal to the lesser of the
cost of repair, or the replacement
cost of the Asset; or
(z) Purchaser shall be entitled to
utilize alternatives (x) and (y)
concurrently but not with respect
to any single Asset.
If Purchaser elects to complete the purchase contemplated
hereby notwithstanding any such loss, damage or destruction, and if Seller
assigns such insurance proceeds and other compensation and any other rights
thereto to Purchaser, then Seller shall be released from any and all liability
or responsibility with respect to such loss, damage or destruction, but shall
reasonably cooperate with Purchaser, at no cost or expense to Purchaser, in
collecting all insurance proceeds and other compensation with respect thereto.
The Purchase Price in such event shall be reduced by the amount of any
deductible amounts under such insurance policies and self-insured retentions
which are not paid by Seller to Purchaser.
ARTICLE 5: REPRESENTATIONS AND WARRANTIES
OF POWERTEL, ICEL AND ICL
As an inducement for Purchaser to enter into this Agreement
and consummate the transactions contemplated hereby, intending that Purchaser
rely thereon in entering into and performing this Agreement, Powertel, ICEL and
ICL, jointly and severally warrant and represent to Purchaser that each and all
of the following are true and correct as of the date of this Agreement and will
be true and correct at and as of the Closing:
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5.1 DUE INCORPORATION. Powertel, ICEL and ICL are each
corporations which are duly organized, validly existing and in good standing
under the laws of the State of Delaware, and each has all requisite power and
authority, corporate and otherwise, to own, operate and lease its properties and
assets and to conduct the Cellular Business as it is now being conducted and,
with respect to ICL, to hold the FCC Licenses. Powertel, ICEL and ICL are each
duly qualified to transact business as a foreign corporation and is in good
standing under the laws of every state or jurisdiction in which the nature of
its activities or properties owned, leased or operated makes such qualification
necessary and in which the failure to be so qualified could reasonably be
expected to have a material adverse effect on the properties, assets, revenues,
business, operations, financial condition or prospects of the Cellular Business
that, if quantifiable, could reasonably be expected to have an adverse impact on
the Cellular Business equal to or greater than $25,000 (a "Material Adverse
Effect"). Neither Powertel, ICEL nor ICL are not subject to any agreement,
commitment or understanding which materially restricts or may materially
restrict the conduct of the Cellular Business in any jurisdiction or location.
5.2 DUE AUTHORIZATION. The execution, delivery and performance of
this Agreement, including the documents, instruments and agreements to be
executed and/or delivered by Powertel, ICEL and ICL pursuant to this Agreement,
and the consummation of the transactions contemplated hereby and thereby have
been duly and validly authorized by all necessary corporate action on the part
of Powertel, ICEL and ICL. The obligations of Powertel, ICEL and ICL hereunder
and thereunder are or will be upon such execution or delivery valid and legally
binding, and this Agreement and the documents, instruments and agreements to be
executed and/or delivered by Seller and ICL pursuant to this Agreement are or
will be upon such execution and delivery enforceable against Seller and ICL, in
accordance with their respective terms, except as such enforcement may be
limited by applicable bankruptcy, reorganization, insolvency, moratorium or
other similar laws presently or hereafter in effect affecting the enforcement of
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in equity),
including, among others, limitations on the availability of equitable remedies.
5.3 NO BREACH. Powertel, ICEL and ICL have full corporate power
and authority to sell, assign, transfer, convey and deliver to Purchaser the
Assets to be sold hereunder and to otherwise perform their obligations under
this Agreement and the documents, instruments and agreements to be executed
and/or delivered by them pursuant hereto, in each case except as provided in
Schedule 5.3. The execution and delivery of this Agreement, including the
documents, instruments and agreements to be executed and/or delivered by Seller
and ICL pursuant to this Agreement, and the consummation of the transactions
contemplated hereby and thereby will not, except where caused by a breach of
this Agreement by Purchaser: (i) violate any provision of the Certificate of
Incorporation or Bylaws (or comparable governing documents or instruments) of
Powertel, ICEL or ICL; (ii) violate any applicable law, statute, ordinance,
rule, regulation, code, license, certificate, franchise, permit, writ, ruling,
award, executive order, directive, requirement, injunction (whether temporary,
preliminary or permanent), judgment, decree or other order (collectively
"Applicable Laws") issued, enacted, entered or deemed applicable by any court or
any other federal, state, county, municipal or other governmental department,
commission, board, agency
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or instrumentality (collectively a "Governmental Authority"), having
jurisdiction over Seller or ICL or any of their respective properties or assets;
(iii) except as provided in Schedule 5.3 hereto, require any filing with, permit
from, consent or approval of, or the giving of any notice to, any Governmental
Authority or any third party; (iv) except as provided in Schedule 5.3 hereto,
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give another party any rights of
termination, cancellation or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, franchise, permit,
lease, contract, agreement or other instrument or obligation to which Powertel,
ICEL or ICL is a party, or by which they or any of their respective properties
or assets may be bound, including the Operating Contracts; or (v) result in the
creation or imposition of any Lien, except for Permitted Liens, on any of the
Assets, excluding from the foregoing clauses (ii), (iii), (iv) and (v)
violations, breaches, defaults, and Liens which, and filings, notices, permits,
consents and approvals the absence of which, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect or prevent or
materially delay the Closing.
5.4 CLEAR TITLE. On the Date of Closing, Seller and ICL will
convey to Purchaser good and marketable title to all of the Assets, free and
clear of any and all liens, encumbrances, security devices, security interests,
financing statements, mortgages, pledges, conditional sales agreements, factor's
liens, environmental liens, charges, leases, leasehold interests, licenses,
sales taxes, use taxes, tax claims, judgments, restrictions, covenants,
easements, attachments, equities, liabilities or claims of any kind, nature or
description whatsoever (collectively "Liens"), except (i) Liens for current
taxes not yet due and payable, and (ii) the Liens described in Schedule 5.4 (the
foregoing (i) and (ii) are herein referred to as "Permitted Liens").
5.5 CONDITION OF ASSETS; INVENTORY. All of the Assets to be
purchased and sold hereunder (i) have been maintained in all material respects
in accordance with general industry practices, (ii) are in good operating
condition and repair, subject only to ordinary wear and tear, and (iii) are
usable and fit in all material respects in accordance with general industry
practices for their intended purpose. Seller shall use its reasonable best
efforts and shall cooperate with Purchaser with respect to the transfer to
Purchaser of all existing manufacturers', vendors', installers' or other
warranties for the Assets which are in effect as of the Date of Closing. No
additional expenditures are required in order to equip each of the twenty-six
(26) current cellular sites with digital capability.
All of the Inventory being purchased and sold hereunder,
including raw materials, work in process and finished goods, consists of items
which are models manufactured after August 31, 1996 , undamaged and of a type
and quantity saleable at customary prices in the Ordinary Course of Business.
The items of Inventory have been purchased in the Ordinary Course of Business
and are consistent with the anticipated requirements of the Cellular Business in
the reasonable judgment of Seller and consistent with past practices, and the
volume of purchases thereof and of orders therefor have not been reduced or
increased in anticipation of the consummation of the transactions contemplated
hereby.
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5.6 LITIGATION. Except as described in Schedule 5.6 hereto, there
are no claims, demands, actions, suits, investigations or other proceedings at
law or in equity which are pending or, to the knowledge of Powertel, ICEL or
ICL, threatened, against or affecting any of Powertel, ICEL, ICL, the Assets, or
the Cellular Business before or by any court, Governmental Authority or other
person or entity wherein an unfavorable decision, ruling or finding could,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect or impair the ability of Powertel, ICEL or ICL to consummate the
transactions contemplated hereby. Except as provided in Schedule 5.6 hereto,
neither Powertel, ICEL nor ICL is a party to or subject to the provisions of any
writ, ruling, award, executive order, directive, requirement, injunction
(whether temporary, preliminary or permanent), judgment, decree or other order
issued, enacted, entered or deemed applicable by any court or other Governmental
Authority which could, individually or in the aggregate, have a Material Adverse
Effect or impair the ability of Powertel, ICEL or ICL to consummate the
transactions contemplated hereby.
5.7 LABOR MATTERS. There are no pending or, to the knowledge of
Seller, threatened labor disputes, disturbances, claims, grievances,
arbitrations or other proceedings of any character with respect to the Cellular
Business or the employees of Seller who are listed on Schedule 5.7(a)
(collectively, the "Cellular Employees"), which, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.
Except as described in Schedule 5.7(b) hereto, with respect to the Cellular
Business and the Cellular Employees, neither Powertel nor ICEL is a party to any
collective bargaining agreement or is obligated to contribute, currently or as a
result of any withdrawal, with respect to any pension or health or welfare fund
pursuant to any collective bargaining agreement or otherwise. In addition,
except as described in Schedule 5.7(b) hereto, during the last three (3) years
with respect to the Cellular Business and the Cellular Employees:
(a) Seller has not been involved in any discussion with any
unit or group of employees seeking to become the bargaining
unit for any of its employees nor, to the knowledge of Seller,
has there been any threat of such discussions;
(b) Seller has not experienced any work stoppages, walkouts,
strikes or other material labor disputes, disturbances or
proceedings; and
(c) No claims have been made against Seller by any former or
present employee who worked in the Cellular Business based on
employment discrimination, wrongful discharge, unfair labor
practices, or claims under ERISA, except for routine claims
for benefits.
5.8 TAXES. Except as set forth on Schedule 5.8 hereto, all
federal, state, county, local and foreign income, ad valorem, excise, transfer,
sales and use, gross receipts, gross revenue, withholding, franchise, payroll,
property, Social Security, unemployment, customs, duties and other taxes
(including any interest and penalties relating thereto) and assessments of any
kind whatsoever (collectively "Taxes") attributable to the Assets and/or the
Cellular Business which are due and payable by Seller or ICL have been duly
reported, fully paid and discharged as reported, and there
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are no unpaid Taxes currently due and payable which are or could become a Lien
on any of the Assets. Except as set forth on Schedule 5.8 hereto, all tax
returns and other documents of every kind required to be filed by or on behalf
of Seller and ICL with respect to the Cellular Business and operations of Seller
and ICL have been timely filed on or before their due dates with the appropriate
Governmental Authority and the taxes shown thereon as due have been timely paid
and all such tax returns filed by or on behalf of Seller and ICL related to the
Cellular Business have been accurately prepared and have been made on a proper
basis. Where required, timely estimated payments or installment payments of tax
liabilities have been made to each appropriate Governmental Authority in amounts
sufficient to avoid underpayment penalties or late payment penalties applicable
thereto. Seller and ICL have not waived any restrictions on assessment or
collection of any Taxes or consented to the extension of any statute of
limitations relating to any Taxes with respect to the Cellular Business or
operations of Seller and ICL.
5.9 EMPLOYEE BENEFITS. Except as described in Schedule 5.9 hereto
with respect to the Cellular Business, Seller does not maintain or contribute to
any bonus, stock option, restricted stock, stock purchase, profit-sharing,
deferred compensation, severance, pension, retirement, disability, medical,
dental, health or life insurance, death benefit, incentive or other compensation
or retirement plans, policies, arrangements or agreements which are currently in
effect. Without limiting the generality of the foregoing provision of this
Section, except as described in Schedule 5.9 hereto, there are no pension plans,
welfare plans or employee benefit plans qualified under Section 401(a) of the
Code to which Seller is required to contribute. Except as set forth in Schedule
5.9, each employee benefit plan which is intended to be qualified under Section
401(a) of the Code has received a favorable determination letter, and to the
knowledge of the Seller, there are no circumstances which would disqualify any
such employee benefit plan. Except as described in Schedule 5.9 hereto or
reflected on the Closing Schedules, Seller has not or will not have any unfunded
liability for services rendered in connection with the Cellular Business as of
the Date of Closing under any pension, profit sharing, medical benefit or
disability plan or any other similar plan, and Purchaser will not incur any
liability under any such plans as a result of the consummation of the
transactions contemplated hereby. Neither Seller, nor any of its "subsidiaries"
contributes to or has any liability (including but not limited to withdrawal
liability) with respect to any multi-employer plan. For purposes of this
Section, "subsidiaries" shall include all corporations and all trades or
businesses (whether or not incorporated) which may be liable for any income tax,
loss of tax deduction, excise taxes, penalties or other similar consequences
under the Employee Retirement Income Security Act of 1974, as amended, or under
the Code by reason of its ownership affiliation with Seller. Schedule 5.9 hereto
describes all grants of shares of common stock of Powertel pursuant to the 1995
Employee Restricted Stock Plan and all grants of options to purchase shares of
common stock of Powertel pursuant to 1991 Employee Stock Option Plan and any
other stock option plans or otherwise held by each of the Cellular Employees.
5.10 FULL DISCLOSURE. No representation or warranty made by
Powertel, ICEL or ICL in this Agreement contains or will contain any untrue
statement of a material fact or omits or will omit, to state a material fact
necessary to make the statements contained herein and therein not misleading.
All written information and materials provided by or on behalf of Seller and ICL
to
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Purchaser or its agents or employees in connection with Purchaser's examination
of the Cellular Business and the Assets have in each case, been true and correct
in all material respects, or, where such written information is a summary or
description, have fairly summarized or described the subject matter of the
writing.
5.11 FINANCIAL STATEMENTS. Seller has furnished to Purchaser true
and correct copies of the unaudited financial statements for the Cellular
Business and the audited consolidated financial statements of Powertel
identified in Schedule 5.11 hereto. At least fifteen (15) days prior to the Date
of Closing, Powertel shall provide to Purchaser audited financial statements
(including a balance sheet, income statement and cash flow statement) for the
Cellular Business for the years ended December 31, 1996, 1997 and 1998. All of
said financial statements, including any notes thereto, fairly present (or, in
the case of audited financial statements to be delivered to Purchaser prior to
the Date of Closing, will fairly present) the financial position and condition
of the Cellular Business as of their respective dates and the results of their
respective operations for the periods covered in accordance with generally
accepted accounting principles applied on a consistent basis; provided, however,
that the unaudited financial statements set forth on Schedule 5.11 do not
contain the footnotes required by generally accepted accounting principles, are
condensed and are subject to year-end audit adjustments which are of normal size
and type. Since September 30, 1998, there have been no material adverse changes
in the properties, assets, liabilities, revenues, expenses, operations,
financial condition or prospects of the Cellular Business taken as a whole from
that reflected in the financial statements set forth on Schedule 5.11. Except
for debts, liabilities and obligations (i) reflected or reserved against in the
balance sheet of the Cellular Business as of September 30, 1998 (the "Balance
Sheet Date"), (ii) incurred in the Ordinary Course of Business since the Balance
Sheet Date, or (iii) described on Schedule 5.11, the Cellular Business has no
debts, liabilities or obligations of any nature, whether secured, unsecured,
known, unknown, accrued, absolute, fixed, contingent or otherwise, whether due
or to become due which are material, individually or in the aggregate. All of
the audited financial statements to be furnished by Powertel pursuant to this
Section 5.11 shall be prepared by the accounting firm of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP,
pursuant to an engagement letter between Purchaser, Powertel and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP. Powertel hereby consents to the use by Purchaser of such audited financial
statements in any future filing with the Securities and Exchange Commission, and
to any distribution by Purchaser of such audited financial statements. Upon the
Closing or other termination of this Agreement pursuant to Section 14.1 hereof,
Purchaser shall pay all fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP incurred in
connection with the preparation of such audited financial statements referred to
in this Section 5.11, provided that such fees and expenses shall not exceed
$50,000.
5.12 ABSENCE OF CERTAIN DEVELOPMENTS. Except for the transactions
contemplated by this Agreement or as otherwise set forth on Schedule 5.12
hereto, since the Balance Sheet Date, each of Powertel, ICEL and ICL has
conducted the Cellular Business in the Ordinary Course of Business and, with
respect to the Cellular Business, has not:
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(a) Sold, assigned or otherwise transferred any properties or
assets with an individual or aggregate value in excess of
$10,000 except in the Ordinary Course of Business;
(b) Suffered any material loss or waived or released any
material right or claim, whether or not in the Ordinary Course
of Business;
(c) Suffered, sustained or incurred any material damage,
destruction or casualty loss to any properties or assets,
whether or not covered by insurance; (d) Engaged in any
transaction not in the Ordinary Course of Business;
(e) Made any capital expenditure exceeding $10,000
individually or $25,000 in the aggregate except as set forth
on Schedule 7.17;
(f) Mortgaged, pledged or otherwise encumbered any of its
properties or assets, whether or not in the Ordinary Course of
Business;
(g) Incurred any debts, liabilities or obligations, absolute
or contingent, known or unknown in an aggregate amount in
excess of $12,000, except current liabilities incurred in the
Ordinary Course of Business;
(h) Other than in Ordinary Course of Business, increased the
salary, wage or other compensation or level of benefits
payable or to become payable by Seller to any of the Cellular
Employees or agents for the Cellular Business, except as
provided in Schedule 5.7(a);
(i) Loaned money to any person or entity, or guaranteed any
loan to any person or entity, whether or not in the Ordinary
Course of Business other than Accounts Receivable in the
Ordinary Course of Business;
(j) Except as described in Schedule 1.1(f) hereto, amended or
terminated any of the Operating Contracts or Licenses, except
in the Ordinary Course of Business;
(k) Changed accounting methods or practices (including,
without limitation, any change in depreciation, amortization
or cost accounting policies or rates);
(l) Suffered, sustained or incurred any Material Adverse
Effect in the properties, assets, revenues, business,
operations, financial condition or prospects of Seller;
(m) Received notice from any customer, supplier, vendor,
Governmental Authority or any other person or entity which
could reasonably be expected to have, give rise to, or result
in a Material Adverse Effect (other than notices received from
the FCC which affect the wireless or cellular industry
generally); or
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(n) Entered into any agreement or understanding to do any of
the foregoing.
5.13 PROPRIETARY RIGHTS AND SOFTWARE. The Proprietary Rights listed
on Schedule 1.1(a) hereto include all of the federal, state, foreign and common
law trademarks, trademark registrations and applications therefor, service
marks, service ▇▇▇▇ registrations and applications therefor, copyrights,
copyright registrations and applications therefor, trade names, assumed names,
logos, patents, patent applications, technology, know-how, trade secrets,
processes, formulas, drawings, designs and other similar intellectual property
and/or proprietary rights of any kind (collectively "Intellectual Property")
used by Seller, in connection with the operation of the Cellular Business, all
of which will be transferred to Purchaser on the Date of Closing. There is no
Intellectual Property used in connection with the operation of the Cellular
Business which is not listed on Schedule 1.1(a) hereto and which will not be
transferred to Purchaser on the Date of Closing. Schedule 1.1(m) hereto contains
a list of all of the computer software and software programs used by Seller in
the conduct of the Cellular Business and identifies which such software and
software documentation will be transferred to Purchaser on the Date of Closing
(except for shrink-wrapped software, which will be transferred only to the
extent transferable). Seller has no knowledge of any asserted claim that the
operations of the Cellular Business or the possession or use in the Cellular
Business of any of the Assets, including the Proprietary Rights and/or Software,
infringes any Intellectual Property rights of another; Seller has no reason to
believe that the operation of the Cellular Business or the possession or use in
connection with the operation of the Cellular Business of any of the Assets,
including the Proprietary Rights and/or Software, infringes any valid and
enforceable Intellectual Property rights of another; Seller has the right to use
all of the Proprietary Rights; Seller has not entered into any agreements,
contracts or licenses that would impair its rights to transfer its rights in and
to the Proprietary Rights and/or Software to Purchaser; Seller has no reason to
believe that any of the Proprietary Rights are, or are claimed to be, invalid;
and, except as provided in Schedule 1.1(m) hereto, Seller is not obligated under
any license, agreement or otherwise to pay royalties, fees or other payments
with respect to any of the Proprietary Rights and/or Software. Except as
provided in Schedule 5.3 hereto, the sale and/or assignment of the Proprietary
Rights and Software and the right to use the same to Purchaser on the Date of
Closing does not require any filing with, permit from, consent or approval of,
or the giving of any notice to, any Governmental Authority or any third party.
5.14 COMPLIANCE WITH LAWS. The Cellular Business has been operated,
and the Assets have been used, in compliance with all requirements of insurance
carriers, the Licenses and of all Applicable Laws issued, enacted, entered or
deemed applicable by any court or other Governmental Authority having
jurisdiction over Powertel, ICEL, ICL and/or the Cellular Business or any of
their respective properties or assets, including full compliance with the terms
and conditions in all Federal Aviation Administration determinations of no
hazard to air traffic safety relating to any tower or other structure on which
any antennas of Seller are mounted in the Territory, except where failure to
comply would not have a Material Adverse Effect on the Cellular Business; and
Seller and ICL have not received any actual notice of, and have no reasonable
basis to anticipate that any presently existing circumstances are likely to
result in, any violation of a material nature of
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any Applicable Laws issued, enacted, entered or deemed applicable by any court
or other Governmental Authority respecting the Assets or the Cellular Business.
5.15 OPERATING CONTRACTS AND CUSTOMER CONTRACTS. Schedule 1.1(f)
hereto includes (i) all material contracts, commitments, leases, licenses and
other agreements of Seller which relate to or are used in connection with the
operation of the Cellular Business (except for such agreements that relate to
real estate, which are listed on Schedule 1.1(s) or Schedule 1.3), and (ii) all
contracts which require aggregate annual payments by any party thereto in excess
of $12,000 or expire automatically or with notice more than one (1) year after
the date hereof. All of the Operating Contracts and Customer Contracts were made
in the Ordinary Course of Business, are valid, binding and currently in full
force and effect, and the performance by the parties thereto will not,
individually or in the aggregate, have a Material Adverse Effect on the Cellular
Business. Seller is not in default in any material respect under any of the
Operating Contracts or Customer Contracts and no event has occurred which,
through the passage of time or the giving of notice, or both, would constitute a
default or give rise to a right of termination or cancellation under any of the
Operating Contracts or Customer Contracts, or cause the acceleration of an
obligation of Seller, or result in the creation of any Lien (other than a
Permitted Lien) upon any of the Assets. To the knowledge of Seller no other
party is in default under any of the Operating Contracts nor has any event
occurred which, through the passage of time or the giving of notice, or both,
would constitute a default or give rise to a right of termination or
cancellation under any of the Operating Contracts, or cause the acceleration of
any obligation owed to Seller. Except as described on Schedule 1.1(f) hereto,
none of the Operating Contracts have been canceled, terminated, amended or
modified and, to the best of the knowledge of Seller all parties to such
Operating Contracts are in all material respects in compliance therewith. Except
as provided in Schedule 5.3 hereto, all of the Operating Contracts are
assignable to and assumable by Purchaser without the consent or approval of any
person or entity and such consents and approvals for Operating Contracts
designated as Material Contracts on Schedule 1.1(f), if any, as are required
shall be obtained by Seller prior to the Date of Closing. All Customer Contracts
are assignable to Purchaser.
5.16 REAL ESTATE.
(a) As used in this Agreement, "Real Estate" refers to
the real estate owned or leased by Powertel and used in the
operation of the Cellular Business listed on Schedule 1.1(s)
or Schedule 1.3.
(b) With respect to the Assigned Leases:
(i) Schedule 1.1(s) contains a complete and
accurate listing (naming the landlord and tenant,
giving date of the lease and any and all amendments
thereto, and giving if readily available, the legal
description and street address of the premises
leased) of each Assigned Lease.
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(ii) Each Assigned Lease is in full force and
effect and none has been canceled, terminated or
modified, with the exception of minor variations
which do not affect the economic terms of any
Assigned Lease.
(iii) Powertel is not in default under the terms
of any Assigned Lease and, to the knowledge of
Powertel, the landlord under each Assigned Lease is
not in default, and no event has occurred which
through the passage of time or the giving of notice,
or both, would constitute a default by any party or
give rise to a right or termination or cancellation
to any other party.
(iv) Powertel has provided Purchaser with a
complete and accurate copy of each Assigned Lease
including any and all amendments or modifications
thereto.
(c) Seller has no knowledge of any planned public
improvement including, but not limited to, construction or
widening of any road or highway; installation of any medians;
installation of any water, sewerage, gas or any other type of
pipe, main, pumping station or other facility, which could,
individually or in the aggregate, result in an assessment in a
material amount against or otherwise could, individually or in
the aggregate, reasonably be expected to have a Material
Adverse Effect on any of the Real Estate subject to the
Assigned Leases.
(d) To the knowledge of Seller, there are no condemnation
proceedings pending or threatened with respect to all or any
part of the Real Estate.
(e) To the knowledge of Seller, there are no private
restrictions, covenants, reservations or agreements which
could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect on the present use
or occupancy by Seller for the Cellular Business of any parcel
of Real Estate.
(f) Each parcel of the Real Estate to the extent used in
the Cellular Business has been operated and is in full
compliance with all Applicable Laws, except where any such
operation or non-compliance would not have a Material Adverse
Effect.
(g) All of Seller's buildings, structures, fixtures and
other improvements that will be sold or leased to Purchaser
pursuant hereto and that are located on the Real Estate are in
good repair, free of defects (latent or patent) (except for
minor defects which in the aggregate do not have a Material
Adverse Effect), are fit for their current uses and have not
had a discharge of a halon fire repression system in the past
three years. All such buildings, structures, fixtures and
improvements conform to Applicable Laws (including, but not
limited to, for purposes hereof, zoning and land use laws,
ordinances and regulations, and building codes, except where
any such nonconformance could not reasonably be expected to
have a Material Adverse Effect.
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All such buildings, structures, fixtures and improvements lie
entirely within the boundaries of each parcel of Real Estate,
except where the failure to be entirely within such boundaries
could not reasonably expected to have a Material Adverse
Effect.
(h) All of the towers and transmission equipment related
to the Cellular Business constructed or placed by Seller on
the Real Estate and all equipment installed by Seller at the
site of each Assigned Lease or Tower Space Lease related to
its use of tower space for the Cellular Business have been
constructed, installed, and registered with the FCC, and
installed in accordance with the specifications set forth in
the FCC filing relating thereto (if any), and have been
constructed and are operated in compliance with their
respective forms 489 (Notification of Completing Construction)
filed with the FCC (if applicable).
(i) Seller's present uses of the improvements located on
the Real Estate do not in any respect infringe upon the rights
of any other person or entity, except where any such
infringement would not have a Material Adverse Effect.
(j) No real estate, other than the retail locations,
tower sites and headquarters listed on Schedule 1.1(s), the
tower sites listed on Schedule 1.3, the switch location
referred to in the License Agreement, and the corporate
headquarters of Powertel, is used by Seller or ICL in the
operation of the Cellular Business.
5.17 [Intentionally omitted]
5.18 BOOKS AND RECORDS. All of the books of account and other
financial and corporate records of Seller and ICL relating to the Cellular
Business have been made available to Purchaser and its representatives. Such
books of account and records are current, complete, true and correct in all
material respects and reflect in all material respects all items of income and
expense with respect to the Cellular Business and all assets, liabilities and
accruals with respect to the Cellular Business in accordance with generally
accepted accounting principles, consistently applied. Seller and ICL have filed
all reports relating to the Cellular Business required by any and all Applicable
Laws to be filed, and it has duly paid or accrued on its books of account all
applicable duties and charges due or assessed against it pursuant to such
reports, except where any failure to file reports or to pay or accrue amounts
could not reasonably be expected individually or in the aggregate to have a
Material Adverse Effect.
5.19 CELLULAR EMPLOYEES. Schedule 5.7(a) hereto contains a list of
the names, positions, date of hire, annual salary or hourly wage rates and
severance benefits as of the date hereof, of all Cellular Employees (including
those on extended or other sick leave, furlough or leave of any kind) together
with a statement of their respective annual salary or hourly wage rates for the
current calendar year. Schedule 5.7(a) also sets forth a description of any
written agreement, other than the employee benefit plans described on Schedule
5.9 hereto, with respect to the conditions of
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employment of any of the Cellular Employees. At Closing, Schedule 5.7(a) will be
updated to include all such information as of the Date of Closing. The Cellular
Employees constitute all of the employees of Seller who perform services
primarily for the Cellular Business.
5.20 LICENSES AND PERMITS. Seller and ICL have obtained all
material Licenses of each and every Governmental Authority having jurisdiction
over Seller, ICL or any of their respective properties or assets necessary or
appropriate to own the Assets and to operate and carry on the Cellular Business
as it is now being conducted. All FCC Licenses which are owned or held by any of
Seller or ICL are described on Schedule 1.1(g) hereto. All of the Licenses are
valid and in full force and effect. Except as set forth in Schedule 5.20,
neither Seller nor ICL is a party to or bound by any agreement relating in any
manner to the Licenses. Neither Seller nor ICL has made any untrue statement of
any material fact, or omitted to disclose any material fact, to any Governmental
Authority or taken or failed to take any action, which misstatements or
omissions, actions or failures to act, individually or in the aggregate, would
subject or could reasonably be expected to subject any of the Licenses held by
Seller or ICL for use in the Cellular Business to revocation or failure to
renew. No event has occurred with respect to any of the Licenses which, after
notice, lapse of time or both, would result in revocation or termination thereof
or would result in any other material impairment of the rights of the holder of
any of the Licenses. Neither Seller nor ICL has reason to believe that any of
the Licenses identified in Schedule 1.1(g) is not likely to be renewed in the
ordinary course or that the holder of any such License would not be entitled to
a renewal expectancy as such term is defined in 47 C.F.R. ss. 22.941. Neither
Seller nor ICL knows of any pending law, order or regulation which might result
in any of Seller's Licenses not being renewed in the Ordinary Course of
Business.
5.21 SUFFICIENCY OF ASSETS. Except as listed on Schedule 1.2(b),
the Assets to be transferred to Purchaser on the Date of Closing will include
all assets, tangible or intangible, (including but not limited to assets,
franchises, licenses, permits, contracts, operations and business) that relate
to, arise from, or are used in the operation of the Cellular Business as
presently operated by Seller and ICL. The instruments and documents to be
executed and/or delivered by Seller and ICL pursuant to Section 12.2 hereof at
or following the Closing shall be adequate and sufficient to vest in Purchaser
all of Seller's rights, titles and interests in or to the Assets.
5.22 OTHER MATERIAL CONTRACTS AND OBLIGATIONS. Except for the
Operating Contracts, Customer Contracts, non-assignable insurance policies,
Assigned Leases and the contracts, commitments, leases and agreements disclosed
on Schedule 1.1(f) hereto, neither Seller nor ICL is a party to or bound by any
material written agreement relating to the Cellular Business, including any:
(a) Dealer, distributorship or sales agency agreements,
excluding purchase orders with respect to the purchase or sale
of products or services in the Ordinary Course of Business;
(b) Advertising contracts;
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(c) Contract, commitment or arrangement for capital
expenditures having a remaining balance in excess of $12,000;
(d) Leases with respect to any property, real or
personal, whether as lessor or lessee, except for any lease
having a term of one year or less or aggregate rents payable
over its life of $12,000 or less;
(e) Contract, commitment or arrangement containing
covenants by Seller not to compete in any lines of business or
with any person or entity;
(f) Franchise or license agreements;
(g) Loan or credit agreements, promissory notes or other
evidences of indebtedness, including all agreements or
commitments for future loans, extensions of credit or
financing, excluding inter-company loans and credit extended
by the Cellular Business to its customers;
(h) Guarantees;
(i) Agreement, contract, commitment or purchase order for
the purchase of any services, raw materials, supplies or
equipment involving payments of more than $12,000 per annum,
excluding purchase orders for the purchase of products or
services entered into in the Ordinary Course of Business;
(j) Partnership agreement, joint ventures or shareholder
agreements, or any other agreement relating to securities or
interests in any other organization or entity owned directly
or indirectly by Seller; or
(k) Agreement, contract or commitment for the sale of any
properties, assets or services involving a value estimated at
more than $12,000 excluding purchase orders or agreements,
contracts and commitments for the sale of products or services
in the Ordinary Course of Business.
Seller has furnished Purchaser with a true, complete and
accurate copy of each Operating Contract, and any additional contract, lease,
license, agreement or other commitment listed on Schedule 1.1(f) hereto.
5.23 INSOLVENCY. Neither Seller nor ICL is insolvent nor will
Seller or ICL be rendered insolvent by reason of the consummation of the
transactions contemplated by this Agreement, and Seller and ICL are, and will be
following the consummation of the transactions contemplated hereby, able to meet
its obligations as they become due and payable in the Ordinary Course of
Business.
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5.24 SUBSIDIARIES. Except for the fact that ICL holds the FCC
Licenses, the Cellular Business is conducted entirely by Seller, and no part of
the Cellular Business is conducted through any subsidiary or affiliate of
Seller, or by any other person or entity.
5.25 CUSTOMERS. Except for intercarrier roaming revenues, no single
customer of the Cellular Business accounted for over five percent (5%) of the
revenues of the Cellular Business during the fiscal year of Powertel ended
December 31, 1997. In addition, no significant customer of the Cellular
Business, vendor or communication carrier has indicated to Seller that it
intends to cease doing business with the Cellular Business or materially alter
the amount of business it does with the Cellular Business by reason of the
consummation of the transactions contemplated hereby or otherwise. Except as set
forth on Schedule 5.25 as of October 31, 1998, the Cellular Business had 28,284
subscribers (excluding any subscribers on "free" or complimentary plans, or who
otherwise do not pay for service, and also excluding sponsor phones, barter
phones, and other similar arrangements), and as of said date approximately 73%
of the accounts receivable from said customers were less than 30 days old.
Schedule 5.25 sets forth an accurate and complete summary, as of the date
indicated thereon, of the subscribers of the Cellular Business who are
directors, officers or employees of Seller or any "Restricted Affiliates" (as
defined in Section 7.6), along with Seller's revenue received from such
subscribers through the date indicated on Schedule 5.25. Seller does not offer
prepaid service in connection with the Cellular Business, except as set forth on
Schedule 5.25.
5.26 PRODUCTS LIABILITY CLAIMS. Except as set forth on Schedule
5.26, all products which Seller has sold through the Cellular Business have
been, at the time of sale, covered by standard manufacturer's limited product
warranties, and the terms of such warranties have not been expanded nor have
limitations on such warranties been waived by Seller.
5.27 INSURANCE. Seller has maintained and will continue to maintain
until the Date of Closing the insurance described in Schedule 5.27, which
insurance covers the Assets, in each case, whether owned or leased, against loss
or damage by fire or other casualty, in amounts equal to or in excess of one
hundred percent (100%) of the replacement cost thereof, except for vehicles
which are not covered for full replacement cost. As of the Date of Closing, all
such insurance will be in full force and effect and carried with reputable
insurers. Seller has promptly and adequately notified Seller's insurance
carriers of any and all claims known to Seller with respect to the operations or
products of Seller for which Seller is insured. Seller has not been refused any
insurance coverage by any insurance carrier to which it has applied for
insurance during the past three (3) years with respect to the Assets or the
Cellular Business. Seller has delivered to Purchaser true and complete copies of
all loss runs from such insurance carriers for the past three calendar years.
5.28 BROKERS. Seller did not employ or engage any broker, finder,
agent, banker or third party, nor has it otherwise dealt with anyone purporting
to act in the capacity of a finder or broker in connection with the transactions
contemplated hereby. To the extent that Seller engages such assistance, it shall
pay all related fees and commissions, if any, and shall hold Purchaser harmless
for any such fees and commissions after Closing.
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5.29 CGSA. A true and complete copy of maps depicting the location
of each cell site and each of the licensed Cellular Geographic Service Areas
("CGSA") of the Cellular Business is attached hereto as Schedule 5.29. All
agreements relating to the coverage areas of the Cellular Business, including,
but not limited to border extensions, are listed on Schedule 1.1(f).
5.30 NETWORK. A true and complete diagram and description of all of
the communications transmission facilities, cell sites and other components,
whether owned or leased by Seller, comprising the Cellular Business' cellular
network ("Network") is attached hereto as Schedule 5.30.
5.31 RELATIONSHIP WITH RELATED PERSONS. Schedule 5.31 sets forth
all agreements with Related Persons (as defined below) relating to the Cellular
Business. Except as set forth on Schedule 5.31, true and correct copies of all
such agreements have been provided by Seller to Purchaser or, in cases in which
such agreements are not in writing, the terms of such agreements have been
accurately summarized in writing and provided by Seller to Purchaser and
included as part of Schedule 5.31. As used herein, the term "Related Person"
shall include, without limitation, the "Restricted Affiliates" (as defined in
Section 7.6), and, when used with respect to a specified person which is an
individual, means:
(i) each other member of such individual's
family; and
(ii) any person or entity that is, directly or
indirectly, controlled by one or more members of such
individual's family.
As used herein, the term "Related Person," when used with respect to a
specified person or entity other than an individual, means:
(i) any person or entity that, directly or
indirectly, controls, is controlled by, or is under
common control with such specified person or entity;
and
(ii) each person or entity that serves as a
director, governor, officer, manager, general
partner, executor or trustee of such specified person
or entity (or in a similar capacity).
5.32 EXCLUSIVITY OF REPRESENTATIONS. The representations and
warranties made by Seller and ICL in this Agreement are in lieu of all other
representations and warranties, including without limitation any implied
warranties. Notwithstanding the foregoing, all representations and warranties
set forth in any other agreement, document or certificate executed in connection
with this Agreement shall be fully effective and unaffected by the preceding
sentence.
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ARTICLE 6: REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement for Seller and ICL to enter into this Agreement and
consummate the transactions contemplated hereby, intending that Seller and ICL
rely thereon in entering into and performing this Agreement, each of Purchaser
and a Subsidiary, if any, jointly and severally warrant and represent to Seller
and ICL that each and all of the following are true and correct as of the date
of this Agreement and will be true and correct at and as of the Closing:
6.1 DUE INCORPORATION. Each of Purchaser and a Subsidiary, if any,
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Georgia, and has all requisite power and authority,
corporate and otherwise, to own, operate and lease its properties and assets and
to conduct its business as it is now being conducted.
6.2 DUE AUTHORIZATION. The execution, delivery and performance of
this Agreement, including the documents, instruments and agreements to be
executed and/or delivered by Purchaser and a Subsidiary, if any, pursuant to
this Agreement, and the consummation of the transactions contemplated hereby and
thereby have been duly and validly authorized by all necessary corporate action
on the part of Purchaser and a Subsidiary, if any. This Agreement and the
documents, instruments and agreements to be executed by Purchaser and a
Subsidiary, if any, pursuant to this Agreement have been, or will be on or
before the Date of Closing, duly and validly authorized, executed and delivered
by Purchaser and the obligations of Purchaser and a Subsidiary, if any,
hereunder and thereunder are or will be valid and legally binding, and this
Agreement and the documents, instruments and agreements to be executed and
delivered by Purchaser and a Subsidiary, if any, pursuant to this Agreement are
or will be upon such execution and delivery enforceable against Purchaser and a
Subsidiary, if any, in accordance with their respective terms, except as such
enforcement may be limited by applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws presently or hereafter in effect affecting the
enforcement of creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding at law
or in equity), including, among others, limitations on the availability of
equitable remedies.
6.3 NO BREACH. Each of Purchaser and a Subsidiary, if any, has
full corporate power and authority to purchase the Assets being purchased
hereunder and to otherwise perform its obligations under this Agreement and the
documents, instruments and agreements to be executed by Purchaser and a
Subsidiary, if any, pursuant hereto. The execution and delivery of this
Agreement, including the documents, instruments and agreements to be executed by
Purchaser and a Subsidiary, if any, pursuant to this Agreement, and the
consummation of the transactions contemplated hereby and thereby will not: (i)
violate any provision of the Articles of Incorporation or Bylaws (or comparable
governing documents or instruments) of Purchaser and a Subsidiary, if any; (ii)
violate any Applicable Laws issued, enacted, entered or deemed applicable by any
court or other Governmental Authority having jurisdiction over Purchaser and a
Subsidiary, if any, or any of its properties or assets; (iii) except as set
forth on Schedule 6.3, require any filing with, or permit, consent or approval
of, or the giving of any notice to, any Governmental Authority or any person or
entity, other than the FCC, the FTC (as hereinafter defined) and the DOJ (as
hereinafter defined) in
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connection with the HSR Act (as hereinafter defined), (iv) except as provided in
Schedule 6.3 hereto, result in a violation or breach of or constitute (with or
without due notice or lapse of time or both) a default (or give another party
any rights of termination, cancellation or acceleration) under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
franchise, permit, lease, contract, agreement, or other instrument or obligation
to which Purchaser and a Subsidiary, if any, is a party, or by which either of
them or any of their respective properties or assets may be bound, or (v)
violate the Sprint PCS Management Agreement between affiliates of Sprint, Inc.
and affiliates of Enterprise Communications PCS Partnership, pursuant to which
such affiliates of Enterprise Communications PCS Partnership provide certain
services under the "Sprint" name, or any of the other agreements entered into by
Enterprise Communications PCS Partnership, or its affiliates, in connection with
such Sprint PCS Management Agreement; excluding from the foregoing clauses (ii),
(iii) and (iv) violations, which, and filings, notices, permits, consents and
approvals the absence of which, individually or in the aggregate, could not
reasonably be expected to have a material adverse effect on the properties,
assets, revenues, business, operations, financial condition or prospects of
Purchaser and a Subsidiary, if any, that, if quantifiable, has a negative impact
on Purchaser and a Subsidiary, if any, and would not prevent or delay the
consummation of the transactions contemplated hereby.
6.4 FULL DISCLOSURE. No representation or warranty made by
Purchaser and a Subsidiary, if any, in this Agreement contains or will contain
any untrue statement of a material fact or omits or will omit to state a
material fact necessary to make the statements contained herein and therein not
misleading. All written information materials provided by or on behalf of
Purchaser and a Subsidiary, if any, to Seller or ICL or their respective agents
or employees in connection with the subject matter of this Agreement have in
each case been true and correct in all material respects.
6.5 QUALIFICATIONS OF PURCHASER.
(a) Except as set forth in the last sentence of Section
6.5(b), each of Purchaser and a Subsidiary, if any, is legally
and technically qualified to acquire control of the FCC
Licenses and to operate the Cellular Business as required by
the Communications Act of 1934, as amended (the
"Communications Act"), and by the rules, regulations and
policies of the FCC; and, except as set forth in Section
6.5(b), neither Purchaser nor a Subsidiary, if any, know of
any facts, circumstances or proceedings which could disqualify
it under the Communications Act or the FCC's rules,
regulations or policies from acquiring control of the Licenses
or operating the Cellular Business. Each of Purchaser and a
Subsidiary, if any, has such knowledge and experience in the
communications industry specifically, and in financial and
business matters generally, to enable Purchaser and a
Subsidiary, if any, to evaluate the relative merits and risks
of the transactions contemplated by this Agreement. Purchaser
acknowledges receipt of and the opportunity to review those
documents and items referenced on Schedule 6.5(a) (the "Due
Diligence Documents"), and Purchaser represents that it has
had adequate opportunity to review such Due Diligence
Documents, provided that Purchaser's receipt and review of the
Due
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Diligence Documents shall not limit any of Purchaser's rights
set forth herein, except as specifically set forth in Section
11.1(a).
(b) Purchaser represents and warrants that as of the date
hereof and as of the Date of Closing, its only commercial
mobile radio service ("CMRS") interests in the ICL license
areas are: Public Service Wireless, Inc.'s interests, through
it ownership interest in Enterprise Communications PCS
Partnership (▇▇▇▇▇▇▇▇ and ▇▇▇ Counties, AL and Heard and ▇▇▇▇▇
Counties, GA), and Enterprise Communications PCS Partnership's
attributable interest in Sprint PCS licenses arising out of an
agreement with an affiliate of Sprint, Inc. (▇▇▇▇▇▇▇▇ and ▇▇▇
Counties, AL, and ▇▇▇▇▇▇, Heard and ▇▇▇▇▇ Counties, GA), and
Purchaser's interests (▇▇▇▇▇▇ County, GA) (such interests have
been transferred to Purchaser by Public Service PCS, Inc.,
subject to FCC approval). Excluding the acquisition of the FCC
Licenses, Purchaser holds a maximum attributable ownership
interest (as defined by the FCC) of 25 MHz of CMRS spectrum in
any or all portions of the Territory. The CMRS interests
referred to in this Section 6.5(b) would exceed the 45 MHz
spectrum cap limitations of Section 20.6 of the FCC's rules
upon the acquisition of certain of the ICL licenses.
6.6 BROKERS. Purchaser has engaged ▇▇▇▇▇▇▇ & Associates to
represent it in connection with the transactions contemplated hereby and shall
pay all fees associated with services they may provide to Purchaser and shall
hold Seller harmless for any such fees and commissions. Purchaser has not
engaged or allowed any other investment advisor, broker, finder or similar
consultant to represent it in connection with the transactions contemplated
hereby. To the extent that Purchaser engages any other broker, Purchaser shall
pay all related fees and commissions, if any, and shall hold Seller harmless for
any such fees and commissions.
ARTICLE 7: PERFORMANCE BY SELLER AND ICL PENDING CLOSING
Seller and ICL covenant and agree that from and after the date of this
Agreement and until the earlier of the Date of Closing or the termination of
this Agreement in accordance with Article 14 hereof:
7.1 ACCESS TO INFORMATION. At the request of Purchaser, Seller and
ICL shall at all times give or cause to be given to Purchaser, its officers,
employees, counsel, accountants, and other representatives, upon reasonable
notice to Seller or ICL and for the purpose of coordinating the transition of
the Cellular Business from Seller to Purchaser and related matters, full and
complete access at reasonable times during normal business hours (or outside
normal business hours if approved by Seller or ICL) to the Cellular Business,
the properties and assets and all of the books, minute books, records, files,
contracts, commitments, insurance policies, Licenses, agreements and documents
of every character of Seller and ICL reasonably relating to the Cellular
Business, and Seller and ICL shall furnish or cause to be furnished to
Purchaser, its officers, employees, counsel, accountants and other
representatives all of the information with respect to the Cellular Business
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and/or the Assets as any of them may reasonably request. Purchaser, its
officers, employees, counsel, accountants and other representatives shall have
the authority upon prior notice to Seller and ICL to interview all employees,
customers, vendors, suppliers and other parties having relationships with Seller
with respect to the Cellular Business, and Seller and ICL shall use their
reasonable best efforts to make such introductions as may be requested. Seller
and ICL shall also use their reasonable best efforts to facilitate the
post-Closing continuation of all relationships between various parties and the
Cellular Business, which efforts may include, without limitation, (i)
coordinating and attending meetings with these parties and/or Purchaser to
discuss the post-Closing operation of the Cellular Business and (ii) providing
such reasonable, non-financial assurances to these parties as Purchaser may
reasonably request regarding the post-Closing operation of the Cellular
Business. In addition, Purchaser may, at its sole cost and expense, at any time
prior to the Date of Closing, through its officers, employees, counsel,
accountants and other representatives, conduct such investigations and
examinations of the Assets as it deems necessary or advisable, and Seller and
ICL shall cooperate fully in such investigations.
7.2 CELLULAR BUSINESS AS USUAL. Seller and ICL shall carry on the
Cellular Business in the Ordinary Course of Business. For purposes of this
Agreement, an action taken by a person or entity (a "Person") will be deemed to
have been taken in the "Ordinary Course of Business" only if:
(a) such action is consistent with the past practices of
such Person and is taken in the ordinary course of the normal
day-to-day operations of such Person;
(b) such action is not required to be authorized by the
board of directors of such Person (or by any Person or group
of persons exercising similar authority) and is not required
to be specifically authorized by the parent company (if any)
of such Person; and
(c) such action is similar in nature and magnitude to
actions customarily taken, without any authorization by the
board of directors (or by any person or group of persons
exercising similar authority), in the ordinary course of the
normal day-to-day operations and by other persons that are in
the same line of business as such Person.
Without limiting the foregoing, (unless Seller obtains the prior
written consent of Purchaser (which consent shall not be unreasonably
withheld)), between the date of this Agreement and the Date of Closing, Seller
shall and shall cause its subsidiaries to:
(i) maintain the Assets in a state of repair and
condition which complies with Applicable Laws and is
consistent with the requirements and normal conduct
of the Cellular Business;
(ii) keep in full force and effect, without
amendment, all material rights relating primarily or
exclusively to the Cellular Business;
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(iii) materially comply with all Applicable Laws
and contractual obligations applicable to the
Cellular Business;
(iv) except as otherwise required by Applicable
Laws, not amend, modify or terminate any of the
employee benefits plans applicable to the Cellular
Employees, which plans are listed on Schedule 5.9;
(v) upon the reasonable request of Purchaser,
take other actions which are reasonably necessary or
desirable, in the reasonable judgment of Purchaser,
to consummate the transactions contemplated by this
Agreement;
(vi) maintain all books and records of the
Cellular Business in the usual, regular and ordinary
manner;
(vii) not make any material change to any of the
plans offered to its customers; and
(viii) not agree in writing or otherwise to take
any of the foregoing actions in violation of the
foregoing subsections (i) through (vii).
7.3 LIENS. Seller and ICL shall not, directly or indirectly,
perform or fail to perform any act which might reasonably be expected to result
in the creation or imposition of any Lien (other than Permitted Liens) of any
nature whatsoever on any of the Assets or otherwise adversely affect the
marketability of Seller's or ICL's title to any of the Assets.
7.4 EMPLOYEES AND PAY INCREASES. Seller shall make no material
changes in the management personnel of the Cellular Business. Except increases
described on Schedule 5.9 hereto, Seller shall not, without the prior written
consent of Purchaser, grant any general or uniform increase in the salaries or
rate of pay to any of the Cellular Employees, grant any increase in any benefits
or establish, adopt, enter into, make any new grants or awards under, or amend
any collective bargaining, employment, bonus, stock option, restricted stock,
stock purchase, profit-sharing, deferred compensation, severance, pension,
retirement, disability, medical, dental, health or life insurance, death
benefit, incentive or other compensation or retirement plan, arrangement,
agreement, trust, fund, policy or arrangement for the benefit of such employees.
7.5 RESTRICTIONS ON NEW CONTRACTS. With respect to the Cellular
Business or the transaction contemplated hereunder, Seller shall not enter into
any contract, commitment, lease, license or other agreement, incur any
liability, absolute or contingent, assume, guarantee or otherwise become liable
or responsible for the obligations of any other person or entity, make any
loans, advances or capital contributions to any other person or entity (except
for extensions of credit to its customers in the Ordinary Course of Business),
or waive any right or enter into any other
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transaction, in each case other than in the Ordinary Course of Business and
consistent with Seller's normal business practices.
7.6 PRESERVATION OF CELLULAR BUSINESS AND NON-SOLICITATION OF
EMPLOYEES.
(a) Preservation of Cellular Business. Seller shall use
its reasonable best efforts to preserve Seller's business
organization intact, to keep available to Purchaser the
Cellular Employees, and to preserve for Purchaser and the
Cellular Business the present goodwill and relationships of
the Cellular Business with vendors, suppliers, customers and
others having business relationships with the Cellular
Business.
(b) Non-Solicitation of Employees.
(i) Cooperation. Seller shall reasonably
cooperate with Purchaser in Purchaser's efforts to
cause the "Selected Employees" (as defined in Section
8.5) which Purchaser desires to employ to become
Purchaser's employees on the Date of Closing and to
remain so thereafter;
(ii) Non-Solicitation. Powertel agrees that
neither Powertel nor any entity that Powertel
controls, directly or indirectly, through equity
ownership, nor any of Powertel's affiliates which are
listed on Schedule 7.6, nor any entity that any of
such affiliates control, directly or indirectly,
through equity ownership (all of the foregoing
collectively, the "Restricted Affiliates") shall
offer alternate employment to, or directly or
indirectly solicit for hire or hire any of the
Selected Employees who are offered employment by
Purchaser or a Subsidiary as of the Date of Closing
that is comparable in terms of category of job
description, salary, benefits and geographic location
to that enjoyed by such Selected Employee while in
the employ of Seller. For purposes of this Agreement,
(A) a "comparable" geographic location shall include
assignment of an employee to any office location
within thirty (30) road miles of such employee's home
(as of the date hereof); and (B) "comparable"
benefits shall mean benefits which are materially the
same, in type and amount, taken as a whole, as those
presently offered by Purchaser to all its employees.
The foregoing restriction on Powertel and the
Restricted Affiliates shall remain in effect through
the second anniversary of the Date of Closing with
respect to the four (4) Selected Employees listed on
Schedule 7.17, and shall remain in effect through the
first anniversary of the Date of Closing for all
other Selected Employees.
(iii) Exceptions to Non-Solicitation. The
restrictions set forth in the foregoing subsection
(ii) shall not apply:
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(A) to any Hired Employee with respect
to whom Purchaser or a Subsidiary
modifies such Hired Employee's job
such that it is no longer comparable
in terms of category of job
description, salary, benefits or
geographic location to that enjoyed
by such Hired Employee while in the
employ of Seller,
(B) with respect to any Hired Employee
who is terminated by Purchaser or a
Subsidiary for "cause" (as
determined in Purchaser's reasonable
judgment), upon the earlier to occur
of (x) the expiration of the
obligation with respect to an
employee as set forth in Section
7.6(b)(ii); or (y) ninety (90) days
following such termination; and
(C) to any Selected Employee who
Purchaser agrees in writing that
Powertel or a Restricted Affiliate
may hire.
(iv) Conflict. Notwithstanding any non-compete
agreement between a Hired Employee and Purchaser or a
Subsidiary, if a Hired Employee is eligible to be
hired by Powertel or a Restricted Affiliate pursuant
to an exception set forth in Section 7.6(b)(iii),
such Hired Employee shall not be restricted in his or
her ability to accept such employment or to perform
such services in such manner as Powertel or a
Restricted Affiliate may determine in their
discretion.
(c) Seller agrees to terminate, within thirty-five (35)
days after notice from Purchaser, the sales agency agreement
of any sales agent of Seller who operates anywhere within the
Territory, or of any sales agent of an entity that Seller
controls, directly or indirectly, through equity ownership,
who operates anywhere within the Territory, who hires any of
the Selected Employees at any time beginning on the date
hereof and continuing through the one (1)-year period after
the Date of Closing, and to no longer use such sales agent
thereafter.
7.7 PAYMENT AND PERFORMANCE OF OBLIGATIONS. Seller and ICL will
timely pay and discharge all invoices, bills and other monetary obligations
related to the Cellular Business as they become due and payable and shall not
perform or fail to perform any act which will cause a material breach of any of
the Operating Contracts or Customer Contracts.
7.8 RESTRICTIONS ON SALE OF ASSETS. Seller and ICL shall not sell,
assign, transfer, lease, sublease, pledge or otherwise encumber or dispose of
any of the Assets, except for the sale of inventory in the Ordinary Course of
Business and at customary prices. Without limiting the generality of the
foregoing, Seller and ICL shall not permit any of the material Proprietary
Rights to lapse or dispose of or otherwise lose the right to use any of the
material Proprietary Rights.
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7.9 CONSENTS. As soon as reasonably practicable and in any event
on or before the Date of Closing, unless otherwise indicated on Schedule 5.3
hereto, Seller with Purchaser's reasonable cooperation will use its reasonable
best efforts to obtain or cause to be obtained all of the consents and approvals
of all necessary persons and entities to the assignment and transfer to
Purchaser of all of the Assets and all of the Assigned Leases, including the
Operating Contracts listed on Schedule 1.1(f) and the Licenses, herein provided
to be sold, assigned and transferred to Purchaser, including the consents and
approvals listed on Schedule 5.3 hereto. With respect to Assigned Leases for
towers and tower space, consents to the assignment of such Assigned Leases shall
set forth the descriptions of the leased premises as such premises are described
in the Assigned Leases.
7.10 CAPITAL EXPENDITURES.
(a) Except as set forth on Schedule 7.10(a), Seller shall
not make any significant scheduled or unscheduled capital
expenditure in connection with the Cellular Business unless
requested to do so in writing by Purchaser. To the extent that
Seller makes the expenditures set forth on Schedule 7.10(a) on
or prior to the Date of Closing, Purchaser shall reimburse
Seller for such expenditures on the Date of Closing. In the
event Purchaser requests Seller to make capital expenditures
prior to the Date of Closing, then Purchaser shall reimburse
Seller for such preapproved capital expenditures on the Date
of Closing. Seller shall promptly notify Purchaser of any
capital expenditures it believes are necessary or desirable to
maintain the Cellular Business.
(b) For calendar year 1998, Seller shall have made and/or
committed to make at least $2,288,945 of capital expenditures
in the aggregate as follows: (i) $1,656,186 has already been
spent prior to the date hereof (or will be spent prior to the
Date of Closing) on those items and in those amounts (to the
nearest $100) set forth under the column titled "Paid for or
Received as of 11/30" on Schedule 7.10(b); and (ii) a minimum
of $632,759 (in addition to the $1,656,186) shall be spent
prior to the Closing substantially in accordance with the
column entitled "Committed Purch Order thru Jan '99" on
Schedule 7.10(b) (the "Committed Column"); provided, however,
that amounts spent on all items listed under the column
entitled "Budget Item Reference" on Schedule 7.10(b) shall
also be counted in determining whether such minimum has been
met as long as other funds have been spent substantially as
contemplated by the Committed Column; and provided further,
however, that Seller shall not be required to spend in excess
of $632,759 pursuant to this Section 7.10(b)(ii).
7.11 NO SOLICITATION OF OTHER OFFERS OR NEGOTIATION. None of
Powertel nor any of its affiliates, directors, officers, employees,
representatives or agents shall provide information except as required by law to
any other person or entity or enter into any negotiations
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with or solicit any offer, inquiry or proposal from any other person or entity
with respect to the sale, merger or other acquisition of the Cellular Business.
Powertel agrees to immediately inform Purchaser if Powertel is, or Powertel
learns that any of Powertel's affiliates, directors, officers, employees,
representatives or agents has been contacted by any person, corporation,
partnership or other entity or group (other than Purchaser or Purchaser's
designees) concerning any sale of, or assignment of rights in, any portion of
the Purchased Assets.
7.12 ACCOUNTS RECEIVABLE. Seller shall not accelerate the
collection of any accounts receivable arising out of the operation of the
Cellular Business in a manner which would be inconsistent with past practice.
7.13 INVENTORY. Seller shall maintain the levels of inventory,
materials and supplies used in the Cellular Business consistent with past
practice.
7.14 INSURANCE. Seller will maintain in full force and effect all
insurance coverages for the Assets substantially comparable to coverages
existing on the date hereof.
7.15 FILING REPORTS AND MAKING PAYMENTS. Seller and ICL shall
timely file all required reports and notices with each and every applicable
Governmental Authority and timely make all payments due and owing to each such
Governmental Authority, including, but not by way of limitation, any filings,
notices and/or payments required by reason of the transactions contemplated by
this Agreement.
7.16 MONTHLY REPORTING. Pending the Closing, within forty-five (45)
days after the end of December 1998, and within twenty-five (25) days after the
end of each other month, Seller shall report to Purchaser regarding the status
of the Cellular Business and shall deliver to Purchaser balance sheets and
income statements disclosing the financial position and results of operations of
the Cellular Business for the preceding month and year-to-date which shall be
prepared on a basis consistent with the financial statements identified on
Schedule 5.11 hereof and consistent with the prior months and year-to-date
financial statements.
7.17 EMPLOYEES AND EMPLOYEE BENEFITS. Seller shall take all the
actions with respect to the Hired Employees described on Schedule 7.17 hereto.
7.18 SUPPLEMENTAL DISCLOSURE. Seller and ICL shall confer on a
regular and frequent basis with Purchaser and promptly notify Purchaser of, and
furnish Purchaser with, any information with respect to any event or condition
or the existence of any fact that would cause any of the conditions precedent to
Purchaser's performance of its obligations at Closing not to be satisfied.
Purchaser shall promptly notify Seller of, and furnish Seller with, any
information with respect to any event or condition or the existence of any fact
that would cause any of the conditions precedent to Seller's performance of its
obligations at Closing not to be satisfied.
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ARTICLE 8: MUTUAL COVENANTS AND CONDITIONS PRECEDENT TO OBLIGATIONS
8.1 FCC.
(a) Promptly following the execution of this Agreement,
Purchaser, Seller and ICL shall join in applications to the
FCC for approval of the sale and transfer of the FCC Licenses
to Purchaser. Thereafter, Purchaser, Seller and ICL shall
cooperate with each other and shall take such actions as are
reasonably necessary to obtain the required approvals of the
FCC, including, with respect to Purchaser, assigning this
Agreement to a wholly owned subsidiary and structuring said
subsidiary in such commercially reasonable manner as the FCC
may require. No party shall take any action before the FCC
which is inconsistent with or would delay action on the
approval applications. Furthermore, each of the parties hereto
shall use its commercially reasonable efforts to prevent the
filing of adverse pleadings with the FCC concerning the
approval applications. Purchaser shall bear the fees of the
FCC charged in connection with or incidental to the filing and
processing of such applications.
(b) (i) The FCC transfer applications as initially filed
shall include a reference to Section 20.6(e) of the
FCC's Rules relating to the spectrum cap limitation
of Section 20.6 of the FCC's Rules and indicate that
Purchaser shall divest interests attributable under
Section 20.6 to whatever extent may be necessary, if
any, to comply with such Section. Such reference to
Section 20.6 shall be in a form agreeable to both
Powertel's and Purchaser's FCC counsel in their
reasonable discretion.
(ii) The parties will mutually work to arrange a
meeting with the appropriate FCC staff as soon as
practicable after the FCC transfer applications are
filed, but in all events prior to the close of the
thirty (30) day public notice period. If, at such
meeting or thereafter, the FCC staff informs
Purchaser or its FCC counsel that it is necessary or
advisable to amend the applications to indicate
whether the acquisition of spectrum as contemplated
by this Agreement is consistent or inconsistent with
the current limitations of Section 20.6, then the
parties agree that Purchaser in its reasonable
discretion may amend the application and state, if
applicable, that Purchaser's acquisition of spectrum
hereunder will not violate the spectrum cap
limitation of Section 20.6; provided, however, that
prior to filing any such amendment, Purchaser shall
provide a copy of the proposed amendment to Powertel
and shall consult with Powertel regarding the form
and content of such amendment.
(iii) In the event the FCC indicates to Purchaser, or
to Purchaser and Powertel together, its intent to
deny the application, or delays the processing
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of the application for a period of thirty (30) days
after the close of the public notice period, then the
parties agree that the application will be amended to
the extent required by the FCC in order to obtain
approval of the application under Section 20.6(e);
provided, that such thirty (30) day period shall be
extended by an additional fifteen (15) days if the
FCC has indicated that it is likely that the
application will be granted. The amendment would also
specifically state that Purchaser would accept the
grant of the application subject to the terms of
Section 20.6(e) (but such statement would be made in
a manner which will not prejudice Purchaser's right,
after approval of the application, to continue its
efforts to persuade the FCC that Purchaser is in
compliance with Section 20.6).
(iv) Notwithstanding any other provision of this
Section 8.1(b), the parties agree that any time
frames set forth in this Section 8.1(b) are intended
to provide guidance and may be modified upon mutual
agreement of the parties; provided, however, both
Purchaser and Powertel shall have the right to insist
upon strict adherence to such time frames if such
adherence is required to avoid a material adverse
effect to such party in its reasonable discretion.
8.2 PROCEEDINGS. The obligations of Purchaser to consummate the
Closing under this Agreement are subject to there being no (i) investigations,
claims, demands, actions, suits or other proceedings which have been brought,
asserted, commenced or threatened against Seller or ICL by any court,
Governmental Authority or other person or entity which could reasonably be
expected to have a Material Adverse Effect or prohibit or materially delay the
Closing, other than such proceedings related to the application for transfer of
the FCC Licenses as set forth in Section 8.1, or (ii) Applicable Laws issued,
enacted, entered or deemed applicable by any court or other Governmental
Authority restraining or enjoining or which may reasonably be expected to
nullify or render ineffective this Agreement or the consummation of the
transactions contemplated hereby. The obligations of Seller and ICL to
consummate the Closing under this Agreement are subject to there being no (i)
investigations, claims, demands, actions, suits or other proceedings which have
been brought, asserted, commenced or threatened against Purchaser by any court,
governmental agency or other person or entity which could reasonably be expected
to prohibit or materially delay the Closing or (ii) Applicable Laws issued,
enacted, entered or deemed applicable by any court or governmental authority
restraining or enjoining or which may reasonably be expected to nullify or
render ineffective this Agreement or the consummation of the transactions
contemplated hereby.
8.3 HSR ACT. As soon as practicable after execution of this
Agreement, Purchaser and Powertel shall join in applications to the Federal
Trade Commission (the "FTC") and the United States Department of Justice (the
"DOJ") pursuant to the pre-merger notification procedures of the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of ▇▇▇▇ (▇▇▇ "▇▇▇ ▇▇▇").
Thereafter, Purchaser and Powertel shall cooperate with each other and shall
take such actions as are necessary to obtain the expiration or early termination
of the waiting period prescribed by the HSR Act. Purchaser and
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Powertel shall each pay one-half of any fees of the FTC and DOJ charged in
connection with or incidental to the filing and processing of such applications.
The obligations of Purchaser and Seller to consummate the Closing under this
Agreement are subject to the expiration or early termination of the waiting
period prescribed by the HSR Act without objection of the FTC or DOJ.
8.4 PROMPT NOTICE. Seller and ICL shall promptly notify Purchaser
and Purchaser shall promptly notify Powertel in writing upon becoming aware of
any of the following: (i) any investigation, claim, demand, action, suit or
other proceeding that may be brought, threatened, asserted or commenced against
Seller, ICL or Purchaser, as the case may be, their officers, managers or
directors involving in any way the Cellular Business or the Assets; (ii) any
changes in accuracy of the representations and warranties made by Purchaser, ICL
or Seller in this Agreement; (iii) any order or decree or any complaint praying
for an order or decree restraining or enjoining the consummation of the
transactions contemplated hereby; or (iv) any notice from any Governmental
Authority of its intention to institute an investigation into, or institute a
suit, action or other proceeding to restrain or enjoin the consummation of the
transactions contemplated hereby or to nullify or render ineffective this
Agreement or such transactions if consummated.
8.5 EMPLOYEES.
(a) No later than February 5, 1999, Purchaser shall offer
employment (subject to the Closing occurring and subject to
Purchaser's standard employment policies, as well as those
matters set forth on Schedule 7.17), to each Selected Employee
it desires to employ after the Closing. Purchaser and Powertel
shall each designate a representative to coordinate the making
of such offer, interviews with the Selected Employees and
other related matters, and shall cooperate with each other in
the making of such offers. Seller acknowledges that prior to
discussing any job offer with Purchaser, each Selected
Employee shall sign a customary non-disclosure agreement
concerning any confidential information regarding Purchaser
that may be disclosed to such Selected Employee. Nothing
contained in this Agreement shall constitute or be construed
as a contract of employment between Purchaser and any Selected
Employee, and any such employee(s) hired by Purchaser are
employed at-will, and shall remain subject to discharge and
lay-off by Purchaser at any time. For purposes of this
Agreement, the "Selected Employees" shall be any of the
Cellular Employees that Purchaser designates as "Selected
Employees" in writing on or before February 5, 1999.
(b) Purchaser shall take all the actions with respect to the
Hired Employees described on Schedule 7.17 hereto.
8.6 PURCHASE OF PCS EQUIPMENT. At the Closing, Powertel shall
purchase, at cost, from Purchaser any PCS inventory or equipment that is
reflected on the books of the Cellular Business but which Seller does not use in
the Cellular Business.
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8.7 MUTUAL COVENANTS. Purchaser and Powertel shall each give
notice to the other promptly after it receives information which could cause a
reasonable business transaction party to believe that a party has breached a
representation or warranty herein or that a covenant of a party has been
breached or is impossible of performance.
ARTICLE 9: CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS
Unless waived by Purchaser in writing, each and every
obligation of Purchaser to be performed at the Closing shall be subject to the
satisfaction at or prior thereto of each and all of the following conditions
precedent:
9.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by Seller and ICL in this Agreement,
including the documents, instruments and agreements to be executed and/or
delivered by Seller and ICL pursuant to this Agreement, shall be true and
correct in all material respects at and as of the Closing with the same force
and effect as though such representations and warranties had been made or given
at and as of the Closing. Representations and warranties included in updated
Schedules accepted by Purchaser shall be deemed made in the Agreement, provided,
however, that Purchaser shall have no obligation whatsoever to accept any such
updated Schedules, if in Purchaser's reasonable judgment such updated Schedules
disclose any fact, matter or condition that could reasonably be expected to have
a Material Adverse Effect.
9.2 COMPLIANCE WITH COVENANTS AND AGREEMENTS.
(a) Subject to the provisions of Subsection 9.2(b) below,
Seller and ICL shall have performed and complied with all of
their covenants, agreements and obligations under this
Agreement which are to be performed or complied with by them
at or prior to the Closing, including the execution and/or
delivery of the documents, instruments and agreements
specified in Section 12.2 hereof or in such documents,
instruments and agreements, all of which shall be reasonably
satisfactory in form and substance to counsel for Purchaser
provided, however, that if the Closing occurs and Seller or
ICL has not so performed and complied, then it shall be the
obligation of Seller or ICL to promptly remedy any such
failure after Closing and hold Purchaser harmless from any
adverse effect relating thereto.
(b) Purchaser's performance of its obligations under the
Agreement shall not be excused as a result of any failure(s)
by Seller or ICL to perform its obligations pursuant to
Subsections 9.1 and 9.2(a) above, unless said failure(s) can
reasonably be expected, individually or in the aggregate, to
result in an adverse effect in excess of $100,000; provided,
that as long as the Purchase Price has been reduced as
specified in Section 2.3(b), or Seller has provided Purchaser
with a comparable alternative, as determined by Purchaser in
its reasonable discretion, pursuant to
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Section 2.3(b), then Purchaser may not refuse to consummate
the transaction contemplated hereby solely because of the
inability of Purchaser to occupy on the Date of Closing any of
the retail locations listed on Schedule 2.3(b)(i), any of the
towers listed on Schedule 2.3(b)(ii), or the ▇▇▇▇▇▇▇ switch
site, as contemplated by Section 2.3(b)(iii).
(c) The obligation of Seller and ICL to perform pursuant to
Subsection 9.2(a) shall survive the Closing.
9.3 NO ADVERSE CHANGE. As of the Date of Closing, (i) nothing
shall have occurred which, individually or in the aggregate, could reasonably be
expected to have an adverse effect in excess of $100,000 or materially impair
the ability of Seller to conduct the Cellular Business in the same manner as in
the past, and (ii) the audited financial statements for the Cellular Business
delivered to Purchaser at the Closing pursuant to Section 5.11 shall not be
materially and adversely different than the unaudited statements for the
Cellular Business previously delivered to Purchaser.
9.4 APPROVAL BY COUNSEL. Except as set forth in Schedule 9.4,
counsel for Purchaser shall have been furnished with such certified copies of
actions and proceedings and such other instruments and documents as they shall
have reasonably requested with respect to all actions, proceedings, instruments
and documents required of Seller and ICL to carry out the transactions
contemplated by this Agreement or incidental thereto.
9.5 CONSENTS AND APPROVALS.
(a) Except as set forth in Section 9.2, Purchaser shall have
received evidence, in form and substance reasonably
satisfactory to counsel for Purchaser, that all material
consents, waivers, releases, authorizations, approvals,
licenses, certificates, permits and franchises of all persons
and entities (including each and every Governmental Authority)
as may be necessary to consummate the transactions
contemplated by this Agreement and for Purchaser to carry on
and continue the Cellular Business as it is now conducted by
Seller have been obtained. All consents of the FCC shall be by
Final Order (as hereinafter defined); provided, however, that
if Purchaser waives the condition of FCC consents by Final
Order, the parties shall consider FCC consent without Final
Order sufficient to proceed to Closing according to the other
terms of this Agreement. "Final Order" means an action or
decision of the FCC as to which (i) no request for a stay is
pending, no stay is in effect, and any deadline for filing
such request that may be designated by statute or regulation
has passed, (ii) no petition for rehearing or reconsideration
or application for review is pending and the time for the
filing of such petition or application has passed, (iii) the
FCC does not have the action or decision under reconsideration
on its own motion and the time within which it may effect such
reconsideration has passed and (iv) no judicial appeal is
pending or in effect and any deadline for filing any such
appeal that may be designated by statute or rule has passed.
For all purposes hereunder, FCC consent
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to the proposed transfer, without consent or grant of any
waiver of Section 20.6 of the rules, shall be deemed to fully
satisfy the conditions of this Section 9.5 as they relate to
receipt of all FCC consents required hereunder.
(b) In addition, (i) that certain Software License Agreement
and that certain Processing Services Agreement, each by and
between InterCel, Inc. and Systematics Telecommunication
Services, Inc., and each dated March 1, 1994 shall have each
been modified such that neither may be terminated prior to
October 31, 1999, unless there is a material breach thereunder
or unless Purchaser provides thirty (30) days advance notice
of its desire to terminate such agreements; and (ii) Purchaser
and Alltel, Inc. (or an affiliate) shall have entered into a
consulting agreement in a form reasonably acceptable to
Purchaser obligating Alltel, Inc. (or an affiliate) to provide
certain transition services to Purchaser relating to billing
services necessary for a smooth transition (or Purchaser and
Seller shall have otherwise agreed upon an alternative method
(reasonably acceptable to Purchaser) of transitioning billing
to Purchaser's system); and (iii) the parties must have
obtained the Required Consents listed on Schedule 5.3 hereto.
9.6 FINANCING. Purchaser shall have obtained commitments from a
responsible financial institution to enable it to borrow such funds as are
needed to pay the Purchase Price in cash on the Date of Closing, and such
commitments shall be in effect and all conditions thereto satisfied on the Date
of Closing.
ARTICLE 10: CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER AND ICL
Unless waived by Seller and ICL in writing, each and every
obligation of Seller to be performed at the Closing shall be subject to the
satisfaction at or prior thereto of each and all of the following conditions
precedent:
10.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by Purchaser in this Agreement, including
the documents, instruments and agreements to be executed and/or delivered by
Purchaser pursuant to this Agreement, shall be true and correct in all material
respects at and as of the Closing with the same force and effect as though such
representations and warranties had been made or given at and as of the Closing.
10.2 COMPLIANCE WITH COVENANTS AND AGREEMENTS. Purchaser shall have
performed and complied with all of its covenants, agreements and obligations
under this Agreement which are to be performed or complied with by it at or
prior to the Closing, including (i) the execution and/or delivery of the
documents, instruments and agreements specified in Section 12.3 hereof or in
such documents, instruments and agreements, all of which shall be reasonably
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satisfactory in form and substance to counsel for Seller and ICL; and (ii)
payment of the Purchase Price in the manner provided for in this Agreement.
10.3 APPROVAL BY COUNSEL. Counsel for Seller and ICL shall have
been furnished with such certified copies of actions and proceedings and such
other instruments and documents as they shall have reasonably requested with
respect to all actions, proceedings, instruments and documents required of
Purchaser to carry out the transactions contemplated by this Agreement or
incidental thereto.
10.4 REQUIRED GOVERNMENTAL APPROVALS. All consents and approvals of
each and every Governmental Authority necessary for the consummation of the
transactions contemplated hereby shall have been obtained. All consents of the
FCC shall be by Final Order; provided, however, that if Purchaser waives the
condition of FCC consents by Final Order, the parties shall consider FCC consent
without Final Order sufficient to proceed to Closing according to the other
terms of this Agreement.
10.5 PURCHASER'S FINANCING. By the date of this Agreement,
Purchaser shall obtain from a responsible financial institution and shall
deliver to Seller evidence of a commitment for financing sufficient to pay the
Purchase Price in cash on the Date of Closing, which commitment must be
reasonably satisfactory to Seller. Purchaser shall use its reasonable best
efforts to maintain such financial commitment in full force and effect at all
times prior to the Closing. Such commitment shall remain in full force and
effect at all times during the period beginning when such commitment is obtained
and continuing until the Closing. Within twenty-four (24) hours of the lapse of
any such commitment, Purchaser shall provide Seller with written notice of such
lapse, and Seller may thereafter terminate this Agreement upon seven (7) days'
written notice to Purchaser, unless within such seven (7) day period Purchaser
provides Seller with evidence of a renewed or a replacement commitment
reasonably satisfactory to Seller.
ARTICLE 11: INDEMNIFICATION
11.1 INDEMNIFICATION BY SELLER. Seller (including its respective
successors and assigns) covenants and agrees to pay and perform and indemnify
and hold Purchaser, its officers, directors, employees, affiliates, shareholders
and agents, and each of their respective heirs, personal representatives,
successors and assigns (collectively the "Purchaser Indemnified Parties"),
harmless from, against and in respect of any and all losses, costs, expenses
(including without limitation, reasonable attorneys' fees and disbursements of
counsel), liabilities, damages, fines, penalties, charges, assessments,
judgments, settlements, claims, causes of action and other obligations of any
nature whatsoever (collectively "Losses") that any of Purchaser Indemnified
Parties may at any time, directly or indirectly, suffer, sustain, incur or
become subject to, arising out of, based upon or resulting from or on account of
each and all of the following:
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(a) The breach or falsity of any representation or warranty
made by Seller or ICL in this Agreement, including the
documents, instruments and agreements to be executed and/or
delivered by Seller or ICL pursuant hereto or thereto, except
to the extent that Seller can prove that Purchaser had actual
knowledge of such breach or falsity prior to either the date
hereof or the Date of Closing, and failed to advise Seller and
ICL of such breach or falsity prior to the date hereof or the
Date of Closing, as the case may be.
(b) The breach or nonperformance of any covenant or agreement
made by Seller or ICL in this Agreement, including the
documents, instruments and agreements to be executed and/or
delivered by any of them pursuant hereto or thereto.
(c) Any claims by or liabilities to any of Seller's present or
former employees on account of all sums due to such employees
or otherwise arising from acts or omissions of Seller, ICL,
their agents, employees or representatives allegedly occurring
on or before the Date of Closing, including, but not limited
to, salaries, pension or profit sharing benefits, wages,
vacation and sick pay and other employee benefits accrued as
of the opening of business on the Date of Closing as well as
all severance pay payable by Seller to its respective present
and former employees.
(d) All claims, demands, liabilities, debts and/or Liens,
except Permitted Liens, which may be asserted by any creditors
of Seller or ICL, except to the extent that Purchaser has
assumed such liabilities under the provisions of Section 3.2
of this Agreement.
(e) All claims, demands, liabilities, debts and/or Liens,
except Permitted Liens, that may be asserted against Purchaser
or any of the Assets at any time or from time to time
resulting from or arising out of the ownership, use,
maintenance or operation of the Assets or Cellular Business
with respect to any period of time prior to the Closing
(excluding only any liability assumed by Purchaser under the
provisions of Section 3.2 of this Agreement).
(f) Any claim of the Internal Revenue Service or other
Governmental Authority related to the Seller's practice of not
amortizing the cost of equipment supplied to its customers;
(g) All other liabilities of or claims against Seller or ICL
of any kind, to the extent not specifically assumed by
Purchaser under the provisions of Section 3.2 of this
Agreement resulting from or arising out of the ownership, use,
maintenance or operation of the Assets or Cellular Business
with respect to any period of time prior to the Closing.
(h) Any reduction in the Purchase Price provided for under
Section 2.4 hereof.
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(i) The indemnification provided for in this Section 11.1
shall remain in full force and effect until the date two years
after the Closing. Notwithstanding the foregoing provisions of
this Section 11.1(i) and of Section 15.1 to the contrary,
losses arising out of the breach of falsity of the
representations or warranties contained in Section 5.8 of this
Agreement shall not be subject to any time limitations other
than the applicable statute of limitations.
11.2 INDEMNIFICATION BY PURCHASER. Purchaser (including its
successors and assigns) covenants and agrees to pay and perform and indemnify
and hold Seller, ICL, their officers, directors, employees, affiliates,
shareholders and agents, and each of their respective heirs, personal
representatives, successors and assigns (collectively the "Seller Indemnified
Parties"), harmless from, against and in respect of any and all Losses that any
of the Seller Indemnified Parties may at any time, directly or indirectly,
suffer, sustain, incur or become subject to, arising out of, based upon or
resulting from or on account of or relating to each and all of the following:
(a) The breach or falsity (or in the case of any covenant,
nonperformance) of any representation, warranty, covenant or
agreement made by Purchaser in this Agreement, including the
documents, instruments and agreements to be executed and/or
delivered by Purchaser pursuant hereto and thereto.
(b) The use or ownership of the Assets or the operation of the
Cellular Business by Purchaser after the Closing, including
any claims by or liabilities to any of Purchaser's employees
arising from acts allegedly occurring after the Date of
Closing, except to the extent such claims or liabilities arise
from or relate to acts or omissions of Seller allegedly
occurring on or before the Date of Closing.
(c) The failure of Purchaser to pay or perform the debts,
liabilities and obligations it agreed to assume pursuant to
Section 3.2 hereof.
11.3 PROCEDURE FOR INDEMNIFICATION. In the event a party intends to
seek indemnification pursuant to the provisions of Sections 11.1 or 11.2 hereof
(the "Indemnified Party"), the Indemnified Party shall promptly give notice
hereunder to the other party (the "Indemnifying Party") after obtaining written
notice of any claim or the service of a summons or other initial legal process
in any action instituted against the Indemnified Party as to which recovery may
be sought against the Indemnifying Party because of the indemnification provided
for in Section 11.1 or 11.2 hereof, and, if such indemnity shall arise from the
claim of a third party, the Indemnified Party shall permit the Indemnifying
Party to assume the defense of any such claim and any litigation resulting from
such claim; provided, however, that the Indemnified Party shall not be required
to permit such an assumption of the defense of any claim or litigation which, if
not first paid, discharged or otherwise complied with, would result in an
interruption or disruption of the business of the Indemnified Party or any
material part thereof. Notwithstanding the foregoing, the right to
indemnification hereunder shall not be affected by any failure of the
Indemnified Party to give such
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notice (or by delay by the Indemnified Party in giving such notice) unless, and
then only to the extent that, the rights and remedies of the Indemnifying Party
shall have been prejudiced as a result of the failure to give, or delay in
giving, such notice. Failure by the Indemnifying Party to notify the Indemnified
Party of its election to defend any such claim or action by a third party within
ten (10) days after notice thereof shall have been given to the Indemnifying
Party shall be deemed a waiver by the Indemnifying Party of its right to defend
such claim or action.
If the Indemnifying Party assumes the defense of such claim or
litigation resulting therefrom, the obligations of the Indemnifying Party
hereunder as to such claim or litigation shall include taking all steps
necessary in the defense or settlement of such claim or litigation and holding
the Indemnified Party harmless from and against any and all damages caused by or
arising out of any settlement approved by the Indemnifying Party or any judgment
entered in connection with such claim or litigation. The Indemnifying Party
shall not, in the defense of such claim or any litigation resulting therefrom,
consent to entry of any judgment (other than a judgment of dismissal on the
merits without costs) except with the written consent of the Indemnified Party
or enter into any settlement (except with the written consent of the Indemnified
Party) which does not include as an unconditional term thereof the giving by the
claimant or the plaintiff to the Indemnified Party a release from all liability
in respect to such claim or litigation.
If the Indemnifying Party does not assume the defense of any
such claim by a third party or litigation resulting therefrom after receipt of
notice from the Indemnified Party, the Indemnified Party may defend against such
claim or litigation in such manner as it deems appropriate, and unless the
Indemnifying Party shall deposit with the Indemnified Party a sum equivalent to
the total amount demanded in such claim or litigation plus the Indemnified
Party's estimate of the cost (including attorneys' fees) of defending the same,
the Indemnified Party may settle such claim or litigation on such terms as it
may deem appropriate and the Indemnifying Party shall promptly reimburse the
Indemnified Party for the amount of such settlement and for all costs (including
attorneys' fees), expenses and damages incurred by the Indemnified Party in
connection with the defense against or settlement of such claim or litigation,
or if any such claim or litigation is not so settled, the Indemnifying Party
shall promptly reimburse the Indemnified Party for the amount of any judgment
rendered with respect to any claim by a third party in such litigation and for
all costs (including attorneys' fees), expenses and damage incurred by the
Indemnified Party in connection with the defense against such claim or
litigation, whether or not resulting from, arising out of, or incurred with
respect to, the act of a third party.
11.4 LIMITATIONS.
(a) Notwithstanding any provision of this Article 11 to the
contrary, Seller and its successors and assigns shall not be
required to indemnify the Purchaser Indemnified Parties
pursuant to the provisions of Section 11.1(a) hereof unless
and until the aggregate of all such claims exceeds the sum of
$100,000 (the "Threshold Amount"). Once such cumulative Losses
equal or exceed the Threshold Amount, Seller and its
successors and assigns shall be required to provide
indemnification
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pursuant to Section 11.1(a) for all such Losses.
Notwithstanding the foregoing provisions of this Section
11.4(a) to the contrary, losses arising out of the breach or
falsity of the representations or warranties contained in
Sections 5.2, 5.4, 5.8, 5.21 and 5.28 of this Agreement, as
well as any claim by any present or former customer of Seller
for funds representing prepayments or deposits if such funds
relating to such customer are not transferred to Purchaser or
a Subsidiary at Closing, shall not be subject to the foregoing
provisions of this Section 11.4. Notwithstanding any provision
in this Agreement to the contrary, except with respect to any
claim based on fraud or willful misconduct, (i)
indemnification pursuant to this Section 11 shall be the
exclusive monetary remedy for all Losses that any of the
Purchaser Indemnified Parties may at any time, directly or
indirectly, suffer, sustain, incur or become subject to,
arising out of, based upon or resulting from or on account of
each and all of the items set forth in Section 11.1(a)-(i),
inclusive, and (ii) in no event will the indemnification
obligations of Seller and its respective successors and
assigns under Article 11 hereof exceed in the aggregate the
sum of Six Million Two Hundred Thirty Thousand Dollars
($6,230,000); provided that the limitation set forth in the
foregoing clause (ii) shall be equal to the Purchase Price for
claims for breaches of the representations and warranties set
forth in Sections 5.2, 5.4, 5.8, 5.21 and 5.28.
(b) Notwithstanding any provision of this Article 11 to the
contrary, Purchaser and its successors and assigns shall not
be required to indemnify the Seller Indemnified Parties
pursuant to the provisions of Section 11.2(a) hereof unless
and until the aggregate of all such claims exceeds the
Threshold Amount. Once such cumulative Losses equal or exceed
the Threshold Amount, Purchaser and its successors and assigns
shall be required to provide indemnification pursuant to
Section 11.2(a) for all such Losses. Notwithstanding the
foregoing provisions of this Section 11.4(b) to the contrary,
losses arising out of the breach or falsity of the
representations or warranties contained in Sections 6.2, 6.5
and 6.6 of this Agreement shall not be subject to the
foregoing provisions of this Section 11.4. Notwithstanding any
provision in this Agreement to the contrary, except with
respect to any claim based on fraud or wilful misconduct, (i)
indemnification pursuant to this Section 11 shall be the
exclusive monetary remedy for all Losses that any of the
Seller Indemnified Parties may at any time, directly or
indirectly, suffer, sustain, incur or become subject to,
arising out of, based upon or resulting from or on account of
each and all of the items set forth in Section 11.2(a)-(c),
inclusive, and (ii) in no event will the indemnification
obligations of Purchaser and its respective successors and
assigns under Article 11 hereof exceed in the aggregate the
sum of Six Million Two Hundred Thirty Thousand Dollars
($6,230,000); provided that the limitation set forth in the
foregoing clause (ii) shall be equal to the Purchase Price for
claims for breaches of the representations and warranties set
forth in Sections 6.2 and 6.6.
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11.5 ARBITRATION.
(a) All claims, disputes or other matters in question between
the parties to this Agreement, including for matters arising
under Section 2.4 hereof, arising out of or relating to this
Agreement shall be submitted for, subject to and decided by
arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association currently in
effect as of the date of this Agreement ("AAA Rules"), except
to the extent those rules are inconsistent with this Section
11.5. Any arbitration must be held in Atlanta, Georgia by a
single arbitrator mutually selected by the parties hereto or,
if the parties hereto cannot agree on the appointment of such
arbitrator within ten (10) days following the date notice of
the dispute is given by Purchaser or Seller to the adverse
party, by an arbitrator selected according to the AAA Rules.
The arbitrator's award shall be final, conclusive and binding
upon all parties to this Agreement, and judgment may be
entered upon it in accordance with the Federal Arbitration Act
in any court of general jurisdiction in Atlanta, Georgia, or
in any United States District Court having jurisdiction in
Atlanta, Georgia. The arbitrator shall be required to provide
in writing to the parties the basis for the award or order of
such arbitrator, and a court reporter shall record all
hearings (unless otherwise agreed to by the parties), with
such record constituting the official transcript of such
proceedings. Seller and Purchaser specifically desire this
Arbitration clause to be governed by the United States Federal
Arbitration Act, and not by the Arbitration Code of any state.
(b) Seller and Purchaser agree and consent that any legal
action, suit or proceeding seeking to enforce this Section
11.5 or to confirm or contest any arbitration award shall be
instituted and adjudicated solely and exclusively in any court
of general jurisdiction in Atlanta, Georgia, or in the United
States District Court having jurisdiction in Atlanta, Georgia,
and Seller and Purchaser agree that venue will be proper in
such courts and waive any objection which they may have now or
hereafter to the venue of any such suit, action or proceeding
in such courts, and irrevocably consent and agree to the
jurisdiction of said courts in any such suit, action or
proceeding. Seller and Purchaser further agree to accept and
acknowledge service of any and all process which may be served
in any such suit, action or proceeding in said courts, and
also agree that service of process or notice upon them shall
be deemed in every respect effective service of process or
notice upon them, in any suit, action, proceeding or
arbitration demand, if given or made: (i) according to
applicable law; (ii) according to the AAA Rules; (iii) by a
person over the age of eighteen who personally serves such
notice or service of process on Seller or Purchaser, as the
case may be; or (iv) by certified mail, return receipt
requested, mailed to Seller or Purchaser, as the case may be,
at their respective addresses set forth in this Agreement.
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(c) In the event of arbitration filed or instituted between
the parties pursuant to this Section 11.5, the prevailing
party will be entitled to receive from the adverse party all
costs, damages and expenses, including reasonable attorney's
fees, incurred by the prevailing party in connection with that
action or proceeding whether or not the controversy is reduced
to judgment or award. The prevailing party will be that party
who is determined by the arbitrator to have prevailed on the
major disputed issues.
11.6 LIQUIDATED DAMAGES. If Seller is prepared to close, but the
purchase of the Assets is not consummated within ten (10) days of the
satisfaction of each and all of the conditions set forth in Article 9, then
Seller shall be entitled to payment by Purchaser of an aggregate amount of One
Million Eight Hundred Thousand Dollars ($1,800,000) as liquidated damages in
full settlement of all claims under this Agreement in lieu of the exercise by
Seller of any other legal or equitable remedy against Purchaser. In lieu of
accepting such liquidated damages, Seller may pursue any remedies that it has
available in equity, including the remedy of specific performance, and which
shall specifically include the right to compel Purchaser to consummate the
transactions contemplated hereunder in accordance with the terms of this
Agreement. If Purchaser is prepared to close, but the purchase of the Assets is
not consummated within ten (10) days of the satisfaction of each and all of the
conditions set forth in Article 10, then Purchaser shall be entitled to payment
by Seller of One Million Eight Hundred Thousand Dollars ($1,800,000) as
liquidated damages in full settlement of all claims under this Agreement in lieu
of the exercise by Purchaser of any other legal or equitable remedy against
Seller. In lieu of accepting such liquidated damages, Purchaser may pursue any
remedies that it has available in equity, including the remedy of specific
performance, and which shall specifically include the right to compel Seller to
consummate the transactions contemplated hereunder in accordance with the terms
of this Agreement. The parties acknowledge and agree that it would be difficult
or impossible to calculate the damages that would result from a failure of a
party to close the transactions contemplated hereby despite the fulfilment of
the conditions precedent to such obligations hereunder. Therefore, the foregoing
One Million Eight Hundred Thousand Dollars ($1,800,000) payments represent a
reasonable, good faith estimate by the parties of the amount of such damages,
and do not constitute any type of penalty.
ARTICLE 12: CLOSING
12.1 DATE OF CLOSING. Subject to the satisfaction or waiver of the
conditions precedent contained in Articles 8, 9 and 10 hereof, the closing of
the transactions contemplated by this Agreement (the "Closing") shall be held at
9:00 a.m., on the last day of the month which is at least ten (10) days after
the receipt of all required consents of the FCC and at least fifteen (15) days
after Purchaser's receipt of the audited financial statements required to be
delivered pursuant to Section 5.11, at the offices of Long ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
in Atlanta, Georgia, or at such other day, time and place as may be mutually
agreed upon in writing by Purchaser and Powertel and shall
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be as of the close of business on such day. Such date is referred to in this
Agreement as the "Date of Closing."
12.2 DOCUMENTS TO BE DELIVERED BY POWERTEL, ICEL AND/OR ICL. At the
Closing, Powertel, ICEL and/or ICL shall execute, where necessary or
appropriate, and deliver to Purchaser each and all of the following:
(a) A certificate for each of Powertel, ICEL and ICL in the
form of Exhibit 12.2(a) hereto signed by a duly authorized
officer of Powertel, ICEL or ICL, as the case may be, and
dated as of the Date of Closing, to the effect that the
representations and warranties made by Powertel, ICEL or ICL,
as the case may be, in this Agreement are true and correct in
all material respects at and as of the Closing with the same
force and effect as though such representations and warranties
had been made on or given at and as of the Closing and that
Powertel, ICEL or ICL, as the case may be, has performed and
complied with all of its covenants, agreements and obligations
under this Agreement which are to be performed and complied
with by it at or prior to the Closing;
(b) For each of Powertel, ICEL or ICL, a copy certified by the
Secretary of Powertel, ICEL or ICL, as the case may be, of the
duly adopted resolutions of Powertel, ICEL or ICL's Board of
Directors approving this Agreement and authorizing the
execution and delivery of this Agreement, including the
documents, instruments and agreements to be executed and/or
delivered by Powertel, ICEL or ICL pursuant to this Agreement,
and the consummation of the transactions contemplated hereby
and thereby;
(c) A ▇▇▇▇ of Sale to all of the Assets in the form of Exhibit
12.2(c) hereto duly executed by Powertel, ICEL and ICL;
(d) Duly executed assignments by Seller and ICL to Purchaser
with respect to the Licenses, Proprietary Rights, Software,
Customer Contracts, and Operating Contracts, in a form
reasonably satisfactory to counsel for Purchaser and in
compliance with all Applicable Laws;
(e) Releases, satisfactions, or terminations of all mortgages,
financing statements or other evidences of Liens, other than
Permitted Liens, filed with the Georgia Secretary of State,
the Alabama Secretary of State, any county recorder and/or any
other similar office in the State of Georgia or the State of
Alabama, evidencing a Lien on any of the Assets;
(f) Duly executed assignments of all Assigned Leases
substantially in the form of Exhibit 12.2(f), together with
any necessary consents therefor;
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(g) Only if required to avoid a Material Adverse Effect,
Seller shall furnish Purchaser with estoppel letters dated
within a reasonable number of calendar days of the Date of
Closing with respect to all of the Operating Contracts listed
on Schedule 1.1(f) hereto, and all Assigned Leases, which
shall be signed by each party thereto other than Seller and
which shall state that there are no defaults in and that there
have been no modifications of any such Operating Contract or
such Assigned Leases, and that each is each still in full
force and effect;
(h) All consents, releases, assignments and permissions of any
kind or nature, whether from a Governmental Authority or
otherwise, which reasonably may be required to effectively
sell, assign and transfer the Assets to Purchaser, all in a
form reasonably satisfactory to counsel for Purchaser;
(i) The Agreement Not To Compete within the Territory and the
area served by Purchaser as of the date hereof duly executed
by Powertel, each entity controlled by Powertel, and ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, III, and ▇▇▇▇▇ ▇▇▇▇▇, in the forms attached hereto as
Exhibit 12.2(i-1), Exhibit 12.2(i-2), and Exhibit 12.2(i-3);
(j) Certificates of title and assignments thereof for all
Vehicles;
(k) The duly executed Assumption Agreement;
(l) Such other documents as are reasonably necessary or
appropriate to effect the consummation of the transactions
contemplated hereby and which are customary under local law;
(m) A duly executed written opinion letter by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, L.L.P., counsel for Powertel, ICEL and
ICL, dated as of the Date of Closing, addressed to Purchaser,
reasonably satisfactory in form and substance to counsel for
Purchaser, addressing the matters set forth on Exhibit
12.2(m);
(n) A duly executed written opinion letter of FCC counsel of
Powertel, ICEL and ICL, dated as of the Date of Closing,
addressed to Purchaser, reasonably satisfactory in form and
substance to counsel for Purchaser, addressing the matters set
forth on Exhibit 12.2(n) hereto;
(o) The Post Closing Escrow Agreement duly executed by
Powertel, ICEL and ICL;
(p) A duly executed written opinion letter of Powertel, ICEL
and ICL's state regulatory counsel in Georgia and Alabama,
addressed to Purchaser, reasonably satisfactory in form and
substance to counsel for Purchaser, addressing the matters set
forth on Exhibit 12.2(p) attached hereto;
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(q) The Shared Facilities and Transition Services Agreement
duly executed by Seller, in the form attached hereto as
Exhibit 12.2(q) which agreement will provide for the
provision, on a short-term basis at cost plus reasonable
overhead expense, of services by certain employees of Seller,
the extension of certain agreements relating to billing
services, and the short-term availability of certain equipment
and facilities; and
(r) The Tower Space Leases duly executed by Powertel or its
subsidiary.
12.3 DOCUMENTS TO BE DELIVERED BY PURCHASER. At the Closing,
Purchaser shall execute, where necessary or appropriate, and deliver to Seller
and ICL, as appropriate, each and all of the following (for the purposes of this
Section 12.3, the term "Purchaser" shall include any Subsidiary as appropriate
and requested by Seller):
(a) A wire transfer of immediately available funds to
Powertel's designated account(s) and to the Post Closing
Escrow Account in the total amount provided for in Section
2.3(a) hereof;
(b) A certificate in the form of Exhibit 12.3(b) hereto signed
by a duly authorized officer of Purchaser, and dated as of the
Date of Closing, to the effect that the representations and
warranties made by Purchaser in this Agreement are true and
correct in all material respects at and as of the Closing with
the same force and effect as though such representations and
warranties had been made on or given at and as of the Closing
and the Purchaser has performed and complied with all of its
covenants, agreements and obligations under this Agreement
which are to be performed and complied with by Purchaser at or
prior to on the Closing;
(c) A copy certified by the Secretary of Purchaser of the duly
adopted resolutions of the Board of Directors of Purchaser
approving this Agreement and authorizing the execution and
delivery of this Agreement, including the documents,
instruments and agreements to be executed and/or delivered by
Purchaser pursuant hereto, and the consummation of the
transactions contemplated hereby and thereby;
(d) The Assumption Agreement hereto duly executed by
Purchaser;
(e) A duly executed written opinion letter by Long ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ LLP, counsel for Purchaser, dated as of the Date of
Closing, addressed to Seller and ICL, reasonably satisfactory
in form and substance to counsel for Seller, addressing the
matters set forth in Exhibit 12.3(e) hereto;
(f) The Post Closing Escrow Agreement duly executed by
Purchaser;
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(g) A duly executed written opinion of FCC counsel of
Purchaser, dated as of Closing, addressed to Seller and ICL,
reasonably satisfactory in form and substance to counsel for
Seller and ICL addressing the matters set forth in Exhibit
12.3(g) hereto;
(h) The Shared Facilities and Transition Services Agreement
duly executed by Purchaser; and
(i) The Tower Space Leases duly executed by Purchaser.
ARTICLE 13: PERFORMANCE FOLLOWING THE DATE OF CLOSING
The following covenants and agreements are to be performed
after the Closing by the parties and shall continue in effect for the periods
respectively indicated or, where no indication is made, until performed:
13.1 COLLECTION OF RECEIVABLES. After the Closing, Purchaser shall
be empowered to collect all Receivables and other items transferred to Purchaser
hereunder and to endorse with the name of Seller any checks or other instrument
received on account of any such Receivables or other items. Purchaser shall use
its reasonable best efforts to collect all Receivables. Seller agrees to
promptly transfer to Purchaser any cash, checks or other property that it may
receive in respect of the Receivables. At the written request of Purchaser,
Seller will cooperate, and will use commercially reasonable efforts to have the
officers, directors, and other employees of Seller cooperate with Purchaser on
and after the Date of Closing in endeavoring to effect the collection of all
Receivables and with respect to other actions, proceedings, arrangements or
disputes involving Seller or Purchaser based upon contracts, arrangements or
acts of Seller which were in effect or occurred on or prior to the Date of
Closing. To the extent that Receivables reflected on Seller's books as of the
close of business on the Date of Closing remain uncollected as of the close of
business on the ninetieth (90th) day after the Date of Closing, Purchaser shall
provide a list to Seller of all Receivables that remain uncollected as of such
date. In the event Purchaser receives payment following such ninetieth (90th)
day after the Date of Closing of any such uncollected Receivables, Purchaser
shall pay an amount equal to such payments (net of any fees incurred in
collecting such uncollected Receivables) to Seller on a reasonable schedule.
Purchaser's obligation to make such payments to Seller shall terminate on the
first anniversary of the Date of Closing. Following the Date of Closing and
prior to the first anniversary of the Date of Closing, Seller shall have the
right, on up to two occasions, to request (by providing written notice to
Purchaser) a status report with respect to the Receivables collected after the
ninetieth day after the Date of Closing. Purchaser shall provide Seller such a
status report within thirty (30) days of receipt of such a request.
13.2 FURTHER ACTS AND ASSURANCES. Purchaser, Seller and ICL each
agree that its officers will, at any time and from time to time, on and after
the Date of Closing, upon the
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reasonable request of the other party, do all such further acts and things and
execute, acknowledge and deliver, or cause to be executed, acknowledged and
delivered to Purchaser any and all papers, documents, instruments, agreements,
deeds, assignments, transfers, assurances and conveyances as may be necessary or
desirable to vest, perfect and confirm of record in Purchaser, its successors
and assigns, the title to any of the Assets or otherwise to carry out and give
effect to the provisions and intent of this Agreement.
13.3 USE OF NAME. Seller will provide Purchaser with such consents
and shall perform such other acts (including changing Seller's names and assumed
names) as may be necessary to give Purchaser the exclusive right to use the name
"InterCel" in the jurisdictions in which Seller heretofore has done business.
From and after the Date of Closing Seller agrees that it will not use such name
for any purpose whatsoever. Immediately after the Closing, Powertel shall, and
shall cause its subsidiaries, affiliates and licensees to, cease using the name
"InterCel" and shall as promptly as possible change its/their names,
advertising, marketing materials, and signage to delete any reference to the
name "InterCel".
13.4 PRESERVATION OF AND ACCESS TO RECORDS. All books and records
of Seller and ICL conveyed to Purchaser hereunder shall be preserved by
Purchaser for a period of six (6) years after the Date of Closing; provided,
however, Purchaser may destroy any part or parts of such records upon obtaining
written consent of Seller for such destruction, which consent shall not be
unreasonably withheld. Such records shall be made available to Seller and ICL
and their representatives at all reasonable times during normal business hours
of Purchaser during such six-year period with the right at their expense to make
abstracts from and copies thereof, but only after execution of a confidentiality
agreement in a form, and concerning matters, reasonably requested by Purchaser
and in any event such records may only be used by Seller and ICL for purposes
which are not harmful to Purchaser or its affiliates. Purchaser may return such
records to Seller and ICL at any time, and Purchaser's obligations to preserve
or make available such records shall then terminate. In addition, from and after
the Date of Closing, Seller and ICL will each afford to Purchaser and its
attorneys, accountants and other representatives access, during normal business
hours, to such personnel, books and records that Seller or ICL retains relating
to the Assets and the Cellular Business, including those assets described in
Section 1.2(c), as may reasonably be required in connection with the preparation
of financial information or the filing of tax returns and will cooperate in all
reasonable respects with the other party in connection with claims and
litigation asserted by or against third parties, relating to the transactions
contemplated hereby. In the event Seller or ICL is unable to provide
documentation, instruments or agreements specified in Section 12.2 hereof prior
to the Date of Closing and the parties nonetheless close the transaction
contemplated by this Agreement, Seller or ICL shall provide such documentation,
instruments or agreements to Purchaser as promptly as is practicable, but in any
event, within two years of the Date of Closing.
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ARTICLE 14: TERMINATION.
14.1 TERMINATION. This Agreement may be terminated and the
transactions contemplated herein may be abandoned after the date of this
Agreement, but not later than the Closing:
(a) By mutual written consent of Powertel and Purchaser;
(b) By Purchaser or by Powertel if (i) any of the conditions
provided for in Article 8 of this Agreement have not been met
and have not been waived in writing by the party seeking to
terminate on or before the Date of Closing or (ii) the FCC has
denied or has not approved the application described in
Section 8.1 within one hundred eighty (180) days after the
filing of the FCC applications required to be filed pursuant
to Section 8.1);
(c) By Purchaser if any of the conditions provided for in
Article 9 of this Agreement have not been met and have not
been waived in writing by Purchaser on or before the Date of
Closing;
(d) By Powertel if any of the conditions provided for in
Article 10 of this Agreement have not been met and have not
been waived in writing by Seller on or before the Date of
Closing;
(e) By Purchaser pursuant to Section 4.1(b) hereof; and
(f) By either Powertel or Purchaser if the Closing has not
occurred for any reason, on or before July 31, 1999.
In the event of termination or abandonment by any party as provided in this
Section 14.1, written notice shall forthwith be given to the other party and
each party shall pay its own expenses incident to preparation for consummation
of this Agreement and the transactions contemplated hereunder, and neither party
shall have any obligation or liability to the other hereunder except such
liability as may arise as a result of a breach hereof.
14.2 CURE BY POWERTEL. Notwithstanding the foregoing, if Purchaser
claims the right to terminate or abandon this Agreement pursuant to clause (b),
(c) or (e) of Section 14.1, then Purchaser must provide Powertel with written
notice of its intention to terminate or abandon the Agreement, which notice
shall identify the condition or event giving rise to Purchaser's right to
terminate or abandon the Agreement and shall include the dollar amount Purchaser
in good faith attributes to the Balance Sheet and prospective Income Statement
impacts of such condition or event. Powertel will have ten (10) business days
from receipt of such notice to deliver to Purchaser a notice that Powertel has
elected to do one of the following: (i) delay the Closing for up to 30 days
during which Powertel attempts to cure such condition or event; or (ii) proceed
to closing and, pursuant to an escrow agreement satisfactory to the parties,
escrow the dollar amount identified in Purchaser's election notice pending the
resolution of such condition or event. In the event that Powertel shall
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fail to deliver to Purchaser an election notice, or if the parties cannot agree
upon a mutually satisfactory escrow agreement, this Agreement shall terminate in
accordance with the provisions of this Section 14.2.
The limitations set forth in Section 11.4 shall not apply to
any matters addressed in an escrow agreement entered into pursuant to the
preceding paragraph. Seller agrees that by proceeding to Closing, Purchaser
shall not be deemed to have waived any rights or remedies available to it under
this Agreement.
The provisions of this Section 14.2 shall not apply to
termination pursuant to Sections 9.6, 14.1(b)(ii) or 14.1(f).
14.3 RETURN OF DOCUMENTS AND NONDISCLOSURE. If this Agreement is
terminated for any reason pursuant to Section 14.2 hereto, each party shall
return all documents and materials which shall have been furnished by or on
behalf of the other party, and each party hereby covenants that it will not
disclose to any person or entity any confidential or proprietary information
about the other party or any information about the transactions contemplated
hereby, except insofar as may be necessary to assert its rights hereunder.
ARTICLE 15: MISCELLANEOUS
15.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
Each of the representations, warranties, covenants, agreements and indemnities
of the parties contained in this Agreement and in any Exhibit, Schedule,
certificate, instrument or document delivered by or on behalf of any of the
parties hereto pursuant to this Agreement and the transactions contemplated
hereby shall survive the Closing of the transactions contemplated hereby and any
investigation made by the parties or their agents either prior to or after the
date hereof for a period ending two years after the Date of Closing, after which
no claim for an incorrect statement or representation, or for the breach of any
warranty, covenant, agreement or indemnity under this Agreement may be brought,
and no litigation with respect thereto may be commenced, and no party shall have
any liability or obligation with respect thereto, unless the indemnified party
gave written notice to the indemnifying party specifying with as much
particularity as practical under the circumstances the incorrect statement or
representation or breach of warranty, covenant, agreement or indemnity claimed
on or before the expiration of such period.
15.2 BROKERS. Purchaser agrees that it shall pay and hold Seller
and its officers, directors, shareholders and affiliates harmless from any and
all fees, commissions and other sums which may be due to any broker, investment
advisor, finder or similar consultant for the services provided for or on behalf
of Purchaser in connection with the transactions contemplated hereby.
15.3 COOPERATION. The parties hereto shall cooperate with each
other in all respects, including using their commercially reasonable efforts to
assist each other in satisfying the conditions
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precedent to their respective obligations under this Agreement, to the end that
the transactions contemplated hereby will be consummated.
15.4 PUBLIC ANNOUNCEMENTS. The timing and content of all public
announcements relating to the execution of this Agreement and the consummation
of the transactions contemplated hereby shall be approved by both Purchaser and
Powertel prior to the release of such public announcements, and each party
agrees to cooperate with the other party as appropriate to comply with all
Applicable Laws. Further, promptly upon the execution of this Agreement by each
of the parties hereto, the press and other releases attached hereto as Schedule
15.4 shall be released by the appropriate parties solely to the intended
recipients as such recipients are indicated on such releases. Subsequent to the
Date of Closing, Purchaser may make such announcements and/or advertisements as
Purchaser, in its sole discretion, deems necessary to all customers and/or
potential customers and suppliers of the Cellular Business.
15.5 SALES, USE AND DEED TAXES. Seller agrees to pay in full any
and all federal, state, local and foreign sales taxes, use taxes, deed taxes,
mortgage registrations, personal property taxes or other similar taxes
(including any interest or penalty thereon) as and when the same may be due,
which may be imposed upon or arise out of the sale of the Assets by Seller or
the consummation of the transactions contemplated hereby.
15.6 NOTICES. All notices, demands and other communications
provided for hereunder shall be in writing and shall be given by personal
delivery, via facsimile transmission (receipt telephonically confirmed), by
nationally recognized overnight courier (prepaid), or by certified or registered
first class mail, postage prepaid, return receipt requested, sent to each party,
at its/his address as set forth below or at such other address or in such other
manner as may be designated by such party in written notice to each of the other
parties. All such notices, demands and communications shall be effective when
personally delivered, one (1) business day after delivery to the overnight
courier, upon telephone confirmation of facsimile transmission or upon receipt
after dispatch by mail to the party to whom the same is so given or made:
If to Powertel, ICEL or ICL: Powertel, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
With a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ IV, Esq.
If to Purchaser: Public Service Cellular, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇
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With a copy to: Long ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
15.7 ENTIRE AGREEMENT. This Agreement, including the documents,
instruments, and agreements to be executed by the parties pursuant hereto,
contains the entire agreement of the parties hereto and supersedes all prior or
contemporaneous agreements and understandings, oral or written, between the
parties hereto with respect to the subject matter hereof; provided, that the
NonDisclosure Agreement, dated April 11, 1997, between Powertel and Purchaser
shall remain in full force and effect in accordance with its terms.
15.8 REMEDIES CUMULATIVE. Remedies herein provided are cumulative
and not exclusive of any other remedies provided by law.
15.9 SPECIFIC PERFORMANCE. Seller and ICL acknowledge and agree
that the Assets are unique and that Purchaser will have no adequate remedy at
law if Seller and ICL shall fail to perform any of their respective obligations
hereunder. In such event, Purchaser shall have the right, in addition to any
other rights it may have, to specific performance of this Agreement.
15.10 AMENDMENTS. No purported amendment, modification or waiver of
any provision of this Agreement or any of the documents, instruments or
agreements to be executed by the parties pursuant hereto shall be effective
unless in a writing specifically referring to this Agreement and signed by both
of the parties.
15.11 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns, but except as hereinafter provided in this Section,
nothing in this Agreement is to be construed as an authorization or right of any
party to assign its rights or delegate its duties under this Agreement without
the prior written consent of the other party hereto. In its sole discretion,
Purchaser may assign its rights in and/or delegate its duties under this
Agreement to a Subsidiary prior to Closing; provided, that Purchaser shall
remain responsible to diligently pursue financing in accordance with Section 9.6
hereof. In addition, Purchaser shall have the right to collaterally assign this
Agreement without the consent of Seller to a financial or lending institution
providing financing to Purchaser. No such assignment and/or delegation shall
relieve Purchaser of any of its duties or obligations hereunder. In the event of
such an assignment of rights and/or delegation of duties, all references to
Purchaser in this Agreement shall also be deemed to be references to the
Subsidiary to which this Agreement is assigned.
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15.12 COSTS. Except as otherwise provided herein, each party hereto
shall pay its own costs and expenses incurred in connection with negotiating and
preparing this Agreement and consummating the transactions contemplated hereby,
including but not limited to fees and disbursements of their attorneys and
accountants. None of Seller's obligations for payment of such costs and expenses
shall be considered as current liabilities for the purpose of Section 2.4 above.
15.13 GOVERNING LAW. This Agreement, including the conveyancing and
transfer documents, instruments and agreements to be executed and/or delivered
by the parties pursuant hereto, shall be construed, governed by and enforced in
accordance with the laws of the State of Georgia, without giving effect to the
principles of conflicts of laws thereof.
15.14 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same Agreement.
15.15 HEADINGS. The headings of the articles, sections and
subsections of this Agreement are intended for the convenience of the parties
only and shall in no way be held to explain, modify, construe, limit, amplify or
aid in the interpretation of the provisions hereof. The terms "this Agreement,"
"hereof," "herein," "hereunder," "hereto" and similar expressions refer to this
Agreement as a whole and not to any particular article, section, subsection or
other portion hereof and include the Schedules and Exhibits hereto and any
document, instrument or agreement executed and/or delivered by the parties
pursuant hereto.
15.16 NUMBER AND GENDER. Unless the context otherwise requires,
words importing the singular number shall include the plural and vice versa and
words importing the use of any gender shall include all genders.
15.17 KNOWLEDGE. Knowledge, as used in this Agreement and the
Schedules and Exhibits attached hereto, means actual knowledge of a fact or
constructive knowledge if a reasonably prudent person in a like position would
have known or should have known, the fact; provided that no party shall have any
greater duty to investigate or acquire knowledge because of the existence of
this Agreement than would apply if this Agreement had never been executed and
delivered, except that when such term is used to qualify the matter set forth on
the Schedules to this Agreement, Seller must make such investigation in
preparing such Schedules as is reasonable under the circumstances, giving due
consideration to the size and nature of the transaction contemplated herein.
Seller shall be deemed to have knowledge of matters known to any of ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. Hope III, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, and ▇▇▇▇ ▇▇▇▇▇.
15.18 SEVERABILITY. In the event that any provision of this
Agreement is declared or held by any court of competent jurisdiction to be
invalid or unenforceable, such provision shall be severable from, and such
invalidity or unenforceability shall not be construed to have any effect on, the
remaining provisions of this Agreement, unless such invalid or unenforceable
provision goes to
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the essence of this Agreement, in which case the entire Agreement may be
declared invalid and not binding upon any of the parties.
15.19 PARTIES IN INTEREST. Nothing expressed or implied in this
Agreement is intended or shall be construed to confer any rights or remedies
under or by reason of this Agreement upon any person or entity other than
Purchaser, Seller, ICL or their respective successors and permitted assigns.
Nothing in this Agreement is intended to relieve or discharge the obligations or
liabilities of any third person or entity to Purchaser, Seller or ICL.
15.20 WAIVER. The terms, conditions, warranties, representations and
indemnities contained in this Agreement, including the documents, instruments
and agreements executed and/or delivered by the parties pursuant hereto, may be
waived only by a written instrument executed by the party waiving compliance.
Any such waiver shall only be effective in the specific instance and for the
specific purpose for which it was given and shall not be deemed a waiver of any
other provision hereof or of the same breach or default upon any recurrence
thereof. No failure on the part of a party hereto to exercise and no delay in
exercising any right hereunder shall operate as a waiver thereof nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right.
15.21 CONSTRUCTION. The parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement. The word "including" shall mean including
without limitation. The parties intend that each representation, warranty and
covenant contained herein shall have independent significance. If any party has
breached any representation, warranty or covenant relating to the same subject
matter (regardless of the relative levels of specificity) which the party has
not breached shall not detract from or mitigate the fact that the party is in
breach of the first representation, warranty or covenant.
15.22 OTHER ACQUISITIONS BY PURCHASER. Purchaser agrees that until
the Closing shall have occurred or this Agreement shall have been terminated,
Purchaser shall not acquire, or permit any of its subsidiaries (or, to the
extent within Purchaser's control, any other person or entity affiliated with
Purchaser) to acquire any attributable interest in any FCC license if such
acquisition, together with the other interests of Purchaser, its subsidiaries
and other affiliates, would make the consummation of this Agreement to be in
violation of the Communications Act or the rules or regulations of the FCC.
15.23 OTHER FCC MATTERS. Notwithstanding any provision to the
contrary, nothing in this Agreement shall be read to transfer to, or vest any
control of ICL in, Purchaser unless and until FCC consent to such transfer has
been obtained and the Closing of the transaction contemplated by this Agreement
has occurred. Pending Closing, Powertel shall retain unfettered control over ICL
and the day-to-day operation of all facilities licensed to ICL by the FCC.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by duly authorized representatives as of the day, month
and year first above written.
PURCHASER:
PUBLIC SERVICE CELLULAR, INC.
By /S/ ▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
▇▇▇ ▇. ▇▇▇▇
Its President
SELLER:
POWERTEL, INC.
By /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its Chief Executive Officer
ICEL, INC.:
By /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its President
ICL:
INTERCEL LICENSES, INC.
By /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its President
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EXHIBIT 1.3(a)
FORM OF TOWER SPACE LEASE
PUBLIC SERVICE CELLULAR, INC. AND POWERTEL, INC.
[OR POWERTEL/ATLANTA, INC.]
TOWER ATTACHMENT LEASE AGREEMENT
THIS TOWER ATTACHMENT LEASE AGREEMENT ("Lease") is executed this
_______ day of ___________, 1999, by and between PUBLIC SERVICE CELLULAR, INC.
("Lessee"), and Powertel, Inc. [OR POWERTEL/ATLANTA, INC.] ("Lessor").
WHEREAS, Lessor desires to lease to Lessee certain tower space upon
the tower ("Tower") located on certain real property [owned or leased] by
Lessor and identified in Exhibit "A" hereto (the "Property") upon which Lessee
intends to operate Lessee's antennas, other equipment and related devices and
to lease ground space for the operation of (cabinets/equipment building) by
Lessee to be used exclusively to house Lessee's equipment.
NOW THEREFORE, for and in consideration of the terms and mutual
promises herein contained and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee
agree as follows:
1. PROPERTY. Lessor hereby grants Lessee the right to install,
maintain, operate and remove radio communications equipment and appurtenances
on Lessor's Tower on the Property (hereinafter referred to as the "Tower
Premises") and to occupy the existing equipment building used in the Cellular
Business as of the Date of Closing to house equipment owned by Lessee on the
Property in the location described in Exhibit "A-1" attached hereto
(hereinafter referred to as the "Ground Space Premises"), together with a
non-exclusive right of access for ingress, egress and utilities during the
Initial Term of this lease and any Renewal Terms, as those terms are
hereinafter defined. For the purposes of this Lease, the "Premises" consist of
Tower Premises, the Ground Space Premises, and the foregoing appurtenant rights
of access for ingress, egress and utilities.
2. USE, EQUIPMENT AND MAJOR CHANGES.
(a) USE OF EQUIPMENT. Subject to compliance with the
terms of this Lease Lessee shall be permitted as its sole use of the Tower
Premises to install, operate, monitor, maintain, repair, upgrade and replace
the equipment, antennas, cabling, and related equipment on the Tower Premises
in the locations specified on Exhibit "A-1." A description of the equipment,
mounting height of the antennas, the frequency range at which such equipment
may be operated (the "Permitted Frequency Range") and other personal property
owned by Lessee which Lessee shall have the right to operate on the Tower
Premises is set forth in Exhibit "B1" ("Tower Equipment"). Subject to
compliance with the terms of this Lease, Lessee shall be permitted the
exclusive use of the Ground Space Premises (subject to reasonable inspection
rights of Lessor for
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cause from time to time upon reasonable advance notice to Lessee; provided that
unless an emergency, interference situation or other circumstances reasonably
require otherwise, Lessor shall give at least 48 hours advance notice) for the
sole purpose of installation, operation, monitoring, maintenance, repair,
upgrade and replacement of the equipment, equipment cabinets and buildings,
emergency power generator and related equipment on the Ground Space Premises in
the locations specified on Exhibit "A-2" and other purposes as may be expressly
authorized in this Lease. A general description of the equipment, equipment
cabinets and buildings, emergency power generator and related equipment, and
any other improvements now or proposed to be initially located on the Ground
Space Premises is set forth in Exhibit "B-2"(the "Ground Space Equipment") (the
"Tower Equipment" and the "Ground Space Equipment" are herein referred to
collectively as the "Equipment"). Lessee shall provide all materials and labor
for the construction, installation, operation, maintenance and repair of the
Equipment. Lessee shall not install or use a diesel generator but shall be
allowed to use a propane generator, except for portable generators used for
cases of emergency only.
(b) CHANGES TO EQUIPMENT, ETC. The addition of any
equipment by Lessee (other than the Tower Equipment) or change by Lessee to the
Tower Equipment which does not result in either (i) a change of radio frequency
beyond the Permitted Frequency Range or (ii) any change in the number of
antennas, size of antennas, or amount of coaxial cable shall be deemed to be a
"Minor Change." Any Minor Change shall require Lessee's compliance with the
applicable terms and conditions of this Lease but shall not require the consent
of Lessor. The addition of any equipment by Lessee (other than the Equipment)
to the Tower or change by Lessee to the Tower Equipment which could reasonably
be expected to result in an increase in wind loading or structural loading
requirements of the Tower or in a change of radio frequency from the Permitted
Frequency Range shall be deemed a "Major Change." Any Major Change shall
require Lessee's compliance with the applicable terms and conditions of this
Lease together with the prior written consent of Lessor which shall not be
unreasonably withheld, conditioned or delayed; provided, however, that Lessor
may require that Lessee pay additional rent, in an amount to be determined as
set forth in Paragraph 5(c) of this Lease, as a condition to granting its
consent to any such Major Change. Without limiting the foregoing, the Lessee
shall comply with the provisions of Paragraph 15 relating to the potential
interference with the Lessor's equipment or the equipment of any Third Party
Lessee then located on the Tower. In the event of any Major Change, the
following conditions shall apply to Lessor's approval:
(i) PLANS. Prior to the commencement of any Major
Change, Lessee shall furnish, for review and approval by Lessor, which
approval shall not be unreasonably withheld, conditioned or delayed,
such plans and specifications which may reasonably be required by
Lessor for such Major Change and the Lessee shall not commence the
Major Change until such time as Lessee has received written approval
of the plans and specifications from Lessor, which approval shall not
be unreasonably withheld, conditioned or delayed.
(ii) STRUCTURAL ANALYSIS. In connection with any Major
Change Lessee shall upon the reasonable written request of Lessor
conduct at Lessee's sole cost and expense a reasonable structural
analyses and wind load analyses of the Tower which includes any
existing loads and the load of Lessee's antennas, cabling and
appurtenances. Lessor shall
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promptly provide Lessee with any structural analyses and wind load
analyses, any foundation designs and structure designs in Lessor's
possession which may have been previously prepared and furnished to
Lessor with respect to the Tower; provided, however, that such
analyses shall be furnished without any warranties whatsoever as to
their accuracy or applicability to the analyses required of Lessee
pursuant to this subparagraph 2(a).
(iii) RF ANALYSIS. Further, upon the written request of
Lessor in connection with any proposed Major Change affecting the
Tower Premises, Lessee shall conduct at Lessee's sole cost and expense
a radio frequency interference analysis (the "RF Analysis") of such
new, upgraded or replacement Tower Equipment with all other equipment
which is then affixed to or located on the Tower.
(iv) ENGINEERS. Lessee shall use the company of Lessor's
reasonable choice for structural analysis, wind load analysis, RF
Analysis and the design and construction of platforms, antenna
systems, cable runs, and any other modification or changes of any type
to the Tower; provided the cost and expense of such analysis shall not
exceed the fair market value for such services.
(v) PERMITS. Lessee shall be responsible for securing
all building permits from any and all applicable governmental
authorities prior to the commencement of any Major Change. Copies of
the construction permits issued to Lessee shall be provided to Lessor.
(c) OTHER PROVISIONS. Any personal property owned by
Lessee whether fixed or attached to the Property or the Tower shall remain the
exclusive property of Lessee. Lessor hereby grants Lessee access to the
Premises on a 7-day per week, 24-hour a day basis for the purpose of
installing, operating, maintaining, repairing, upgrading and maintaining the
Equipment and appurtenances. Utilities are covered under Paragraph 6 below. The
use granted to Lessee shall be nonexclusive and limited in strict accordance
with the terms of this Lease. Subject to the rights of Lessee under this Lease,
Lessor shall have the right to continue to occupy the Property and Tower, to
convey, assign or encumber same, and to enter into lease and license agreements
with others for the Property and the Tower or portions thereof in the sole
discretion of Lessor provided that the use made of the Property and the Tower
shall not interfere materially with Lessee's occupancy and use of the Premises
in accordance with the terms of this Lease. Lessor shall use commercially
reasonable efforts to enforce obligations or covenants of tenants or licensees
contained in other leases or license agreements relating to portions of the
Property and Tower to the extent such obligations and covenants, or
noncompliance of such tenants or licensees therewith, could reasonably be
expected to have a material adverse effect on the operation of the Equipment on
the Premises. The rights of Lessee hereunder do not create an estate or
interest in the Property. Lessee has the right to remove all Equipment at
Lessee's sole expense on or before the expiration or earlier termination of the
Lease; provided, Lessee repairs any damage to the Property or the Tower caused
by such removal. If Lessee does not remove the Equipment on or prior to the
expiration or termination of this Lease, Lessee shall remove such Equipment
within a reasonable period thereafter provided Lessee pays to Lessor 125% of
the rental in effect during such holdover period. Provided Lessee shall have
paid and otherwise
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performed its obligations under this Lease, holdover rent shall not be due in
the event of an early termination of this Lease due to a default under any
underlying ground lease, mortgage or security deed.
(d) COMPLIANCE WITH GOVERNMENTAL RULES. All work shall
be performed by Lessee or Lessee's employees, contractors or agents in a good
and workmanlike manner. Lessor shall be entitled to require reasonably strict
compliance with the plans and specifications approved by Lessor pursuant to
paragraph (a) above, including specifications for the grounding of Lessee's
equipment and antennas. All construction, installations and operations in
connection with this Lease by Lessee shall meet with all applicable Rules and
Regulations of the FCC, FAA and all applicable codes and regulations of the
city, county, and state concerned. Lessor assumes no responsibility for the
licensing, operation and maintenance of the Equipment. Lessee has the
responsibility of carrying out the terms of Lessee's FCC License with respect
to tower light observation and notification to the FAA if those requirements as
imposed on Lessee are in excess of those required of Lessor. Lessee covenants
to exercise reasonably diligent care in the construction, installation,
maintenance and operation of the Equipment on the Tower. In the event Lessee's
use of the Equipment or the construction, installation, maintenance and
operation thereof causes damage to the Tower or other improvements of Lessor,
Powertel/Atlanta, Inc. or any third party lessee (as hereinafter defined) now
or hereafter located on the Property, Lessee shall, upon demand of Lessor,
repair same or, at Lessor's option, reimburse Lessor for the reasonable cost of
such repairs.
(e) GROUND FIELD. Lessee shall have the right to connect
to the ground field in a manner that does not, in the reasonable judgement of
Lessor, adversely affect operation of the Tower or the equipment. Lessee shall
also have the right to periodically inspect such ground field.
3. INITIAL TERM. The Initial Term of this Lease shall be for a
period of five (5) years commencing on the ___ day of _________, 1999
("Commencement Date") and expiring on the ____ day of _________, 200_ ("Initial
Term").
4. RENEWAL TERMS. Lessee shall have the right to extend this
lease for ____ (_) additional period(s) of five (5) years each [and one
additional period of _____ (_) years and _____ (_) months] (individually, a
"Renewal Term" and collectively "Renewal Terms"). Each Renewal Term shall be on
the same terms and conditions as set forth in this Lease except that Rent shall
increase as provided in paragraph 6(b). This Lease shall automatically be
renewed for each successive Renewal Term unless Lessee notifies Lessor of
Lessee's intention not to renew the Lease at least 30 days prior to the
expiration of the Initial Term or the Renewal Term which is then in effect.
5. CONSIDERATION.
(a) INITIAL TERM. Lessee shall pay to Lessor as rental
for the entire Premises leased hereunder the sum of One Thousand Dollars
($1,000) per month, which shall include Lessee's right to use and occupy the
Ground Space Premises. Lease payments shall be paid monthly in advance with the
first such monthly payment due on the Commencement Date
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prorated in the event that the Commencement Date falls on a date other than the
first of the month and thereafter on the first day of each month.
(b) RENEWAL TERM. The rental rate in effect for any
Renewal Term shall equal one hundred and fifteen percent (115%) of the rental
rate in effect immediately prior to the commencement of such Renewal Term.
(c) APPRAISAL PROCEDURE FOR MAJOR CHANGES. In the event
Lessee desires to make a Major Change, as defined in Paragraph 2 of this Lease,
Lessor shall have the right to require an increase in the rental payable for
the Premises to equal the "Market Rental Rate" (as herein determined) for the
Premises, as affected by such Major Change; provided, however, that the
procedures herein set forth shall not result in decreasing the rental payable
under Paragraphs 5(a) and 5(b) of this Lease. The parties shall use good faith
efforts to agree upon the Market Rental Rate for the Premises as affected by
the Major Change. In the event the parties are unable to agree, the parties
shall follow the procedure hereinafter set forth in order to determine the
Market Rental Rate which shall apply in the event Lessee shall desire to make a
Major Change (as defined in Paragraph 2) and Lessor, as a condition to its
consent to such Major Change, shall require an increase in the Rental payable
for the Premises.
(i) The "Market Rental Rate", as used herein, shall be
the "Agreed Market Rental Rate" (as defined below) or, if Lessor and
Lessee are unable to agree upon the Agreed Market Rental Rate, the
"Appraised Market Rental Rate" (as defined below).
(ii) Lessee shall provide Lessor with written notice of
any request for a Major Change and shall furnish, with such written
request, any and all plans, specifications, engineering studies
(including structural load, wind load, and radio frequency analyses)
and other items required by the terms of this Lease to enable Lessor
to evaluate and determine whether to grant its consent to such Major
Change. Within thirty (30) days after receipt of such notice, Lessor
shall give Lessee written notice of the rental rate which, in Lessor's
opinion, is the appropriate Market Rental Rate for the Premises (as
affected by the Major Change) ("Lessor's Market Rate Notice"). Within
thirty (30) days after receipt of the Lessor's Market Rate Notice,
Lessee shall give Lessor notice of its acceptance of the Market Rental
Rate proposed by Lessor or, if Lessee disagrees, Lessee shall give
Lessor notice of Lessee's opinion of the Market Rental Rate for the
Premises (as affected by the Major Change) ("Lessee's Market Rate
Notice"). Lessee's Market Rate Notice and Lessor's Market Rate Notice
shall be provided by Lessee and Lessor, respectively, in good faith
and the respective Market Rate Notices shall indicate the basis upon
which Lessor and Lessee have formed their respective opinions. After
receipt by Lessor of Lessor's Market Rate Notice, Lessor and Lessee
shall attempt in good faith to agree on the Market Rental Rate for the
Premises as affected by the Major Change. If able to agree, then the
Lessee and Lessor shall so stipulate in writing and the agreed Market
Rental Rate for the Premises (the "Agreed Market Rental Rate") shall
be the Market Rental Rate as affected by the Major Change.
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(iii) If unable to agree upon an Agreed Market Rental
Rate, then Lessee shall have the right to cause the determination of
the "Appraised Market Rental Rate" (as hereinafter defined) to be
submitted to the appraisal process as hereinafter set forth.
(iv) As set forth above, if Lessor and Lessee are unable
to agree on an appropriate Market Rental Rate for the Premises (as
affected by the Major Change), the parties shall cause the
responsibility to determine the Market Rental Rate to be submitted to
three (3) disinterested real estate professionals, each having not
less than ten (10) years of experience as such in the southeastern
United States (not less than five (5) years of which shall be in the
sale, leasing or appraisal of telecommunications towers), having
credentials equal to or greater than any one of M.A.I. (American
Institute of Real Estate Appraisers), CRE (American Society of Real
Estate Counselors), or Certified Commercial Investment Member
(Realtor's National Marketing Institute) ("Appointees"). Each party
shall select one (1) Appointee within five (5) days after either party
determines in good faith that the Market Rental Rate for the Premises
cannot be established by agreement, and the third Appointee shall be
selected by the two (2) Appointees previously selected within five (5)
business days thereafter. Each party shall pay the fees and expenses
of the Appointee selected by such party, plus one-half of the
reasonable fees and expenses of the third Appointee.
(v) The Market Rental Rate shall be the average of the
two closest rates determined by such Appointees. The final
determination of the Market Rental Rate shall be completed not later
than twenty (20) days after such matter is submitted to such
Appointees. The determination made as herein provided shall be
conclusive upon the parties. Each Appointee shall give written notice
to the parties stating his determination, as well as the facts and
methods used in reaching same, and shall furnish to each party a
signed copy of such determination and supporting data. The Market
Rental Rate so determined by the foregoing appraisal process shall be
referred to as the "Appraised Market Rental Rate".
(vi) In their determination of the Appraised Market Total
Rate, the Appointees shall determine a Market Rental Rate which is
reflective of what sophisticated telecommunications operators are then
agreeing to pay in comparable leases. The Appointees are hereby
directed to take into account and consider all factors which, in the
professional opinion of each one of them, each deems relevant to the
determination to be made.
6. UTILITIES. Lessor reserves the right to limit and control
access to the existing utility facilities and improvements providing telephone
and electrical service to the Property and the Tower and, in connection
therewith, to determine in its reasonable discretion, access by tenants and
licensees (including Lessee) to such utilities through such facilities and
improvements and how to effect the delivery of such utilities to the Property
and Tower. Notwithstanding the foregoing, Lessor agrees that Lessee shall
establish separate access to electrical service through existing utility
easements or as may be otherwise approved by Lessor in its reasonable
discretion. Lessee shall cause such separately-metered electric service to be
installed and shall discontinue sharing Lessor's electric supply on or before
the 180th day after
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the Commencement Date of this Lease and interim electric supply shall be
provided by Lessor and paid for by Lessee in accordance with the terms and
conditions of the Shared Facilities and Transition Services Agreement by and
between Public Service Cellular, Inc. and Powertel, Inc. dated of even date
herewith.
7. LESSOR'S REPRESENTATION AND WARRANTIES. Lessor represents and
warrants that all operations conducted by Lessor in connection with the Tower
and the Property, insofar as they affect Lessee, shall be in compliance with
all applicable rules and regulations of the Federal Communications Commission
("FCC"), the Federal Aviation Administration ("FAA") and all applicable codes
and regulations of the city, county and state concerned. Lessor shall maintain
its tower, antennas, and equipment affecting Lessee in a proper operating and
safe condition. The cost of repairing Lessor's Tower shall be borne by Lessor
unless the damage to the Tower is caused by Lessee, in which case Lessee shall
bear the costs to repair such damage. The Property, including any easements
appurtenant thereto, has legal rights of access to a publicly dedicated and
maintained road. The Property has access to, and is served by, utilities
adequate for the use to which the Property is currently dedicated.
8. TAXES. Any taxes including, but not limited to, real estate
and property taxes assessed on the Property shall be paid by the Lessor on or
before the date due. Lessee shall pay directly any taxes levied on Lessee's
personal property located or installed on the Premises and shall reimburse
Lessor for any increases in taxes assessed as a result of any additions by
Lessee on the Premises that did not exist as of the date hereof. Lessee's
Equipment shall remain Lessee's personal property even though it may be
attached or affixed to the Property or Tower. In the event that Lessor fails to
pay when due any taxes affecting the Tower, the Property or the Easement,
Lessee shall have the right but not the obligation, after written notice to
Lessor and not less than 30 days opportunity to cure such default in payment of
taxes, to pay such taxes and, if not promptly reimbursed by Lessor following
written demand by Lessee, Lessee shall have the right to deduct the full amount
of the taxes paid by Lessee on Lessor's behalf from future installments of
Rent. The parties hereto shall reasonably coordinate the filing of any tax
returns related to personal property at the Tower to insure that each party
pays tax only on the assets it owns.
9. TERMINATION. Except as otherwise provided herein, this Lease
may be terminated upon written notice as follows:
(a) Except with respect to the rights of the parties
contained in Paragraph 15 hereof and the timely payment of rent due hereunder,
by either party upon a default of any covenant or term hereof by the other
party which default is not cured within 60 days of receipt of written notice of
default (without, however, limiting any other rights available to the parties
pursuant to other provisions hereof); provided, that if the defaulting party
commences efforts likely to cure the default within such period and diligently
pursues such cure the non-defaulting party shall not be entitled to terminate
this Lease unless such cure is not effected within 120 days following written
notice of default.
(b) By Lessor in the event of Lessee's failure to submit
any rental payment when due, which rental default is not cured within ten (10)
days following the effective date of
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notice of default received from Lessor. A waiver of this provision and the
acceptance of any late-paid rent by Lessor shall not act to waive Lessor's
rights in the event of any future late payment.
(c) By Lessor upon the filing of bankruptcy by Lessee,
the appointment of a receiver for Lessee or any other reorganization or
protection from creditors is sought by Lessee.
10. LIABILITY INSURANCE. During the Initial Term and all Renewal
Terms, Lessor and Lessee shall each maintain, at their own respective expense,
insurance covering claims for public liability, personal injury, death and
property damage under a policy of general liability insurance, with limits of
not less than One Million Dollars ($1,000,000.00) per person and One Million
Dollars ($1,000,000.00) per occurrence and property damage insurance of not
less than Five Hundred Thousand Dollars ($500,000.00). Such insurance shall
insure against liabilities arising out of or in connection with Lessor and
Lessee's use of occupancy of the Property subject to the standard exceptions
found in the Commercial General Liability Insurance Policy. Lessor shall also
maintain at Lessors' sole cost and expense an all risk of physical loss
casualty insurance policy insuring the Tower for its full replacement value.
11. SUBROGATION.
(a) IN GENERAL. All insurance policies required under
this Lease shall, if possible, contain a waiver of subrogation provision under
the terms of which the insurance carrier waives all of its rights to proceed
against Lessor or Lessee, as the case may be. If waivers of subrogation are
obtained, the party procuring such insurance shall use its best efforts to
obtain a certificate of insurance which notes the waiver of subrogation and a
copy of the insurance which notes the waiver of subrogation and a copy of the
insurance policy endorsement which evidences the insurance carrier's assent to
the waiver of subrogation.
(b) MUTUAL RELEASE. Lessor and Lessee each release the
other and their respective representatives from any claims by them or any one
claiming through or under them by way of subrogation or otherwise for damage to
any person or to the Property and to the fixtures, personal property,
improvements and alternations in or on the Property that are caused by or
result from risks insured against under any insurance policy carried by them
and required by this Lease, provided that such releases shall be effective only
if and to the extent that the same do not diminish or adversely affect the
coverage under such insurance policies. Lessor shall be named as an additional
insured, on any insurance policy procured by Lessee and Lessee shall be named
as an additional insured on any insurance policy procured by Lessor pursuant to
this Lease.
12. INDEMNIFICATION. Except as may otherwise be provided herein,
Lessor does hereby agree to indemnify and hold Lessee harmless from any and all
losses, damages, fines, penalties or costs of any kind which may arise from
Lessor's improper design, maintenance or operation of the Tower or Tower
lighting system and levied therefor by the FCC or any other Federal, State or
local agency. Lessee does hereby agree to indemnify and hold Lessor harmless
from any and all losses, damages, fines, penalties or costs of any kind which
may arise from its improper maintenance or operation of its facilities or
Equipment on the Property and levied
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therefore by the FCC or any other Federal, State or local agency. Lessee
further agrees to indemnify and hold Lessor harmless for any losses associated
with any Tower reinforcement undertaken by Lessee to enable the Tower to
accommodate Lessee's Equipment from an operational or structural standpoint.
13. ENVIRONMENTAL COMPLIANCE. Lessor warrants and represents
that, to its actual knowledge, the Property, any Lessor owned easements and
improvements thereon are free of contaminants, oils, asbestos, radon, PCBs,
wastes or "Hazardous Substances" as defined by Federal, State or local
environmental laws, regulations or administrative orders or other materials the
removal of which is required or the maintenance of which is prohibited,
regulated or penalized by any Federal, State or local government authority
("Hazardous Materials"). To Lessor's actual knowledge, the Property has never
been used, nor is it being used now by Lessor, as a landfill, dump or other
disposal, storage, transfer, treating or handling area for any Hazardous
Substance, nor as a gasoline service station or a facility for selling,
dispensing, storing, transferring, treating or handling Hazardous Substances.
To the actual knowledge of Lessor, there are not currently and never have been
any underground and/or above ground storage tanks (whether or not currently in
use) on the Property. If any Hazardous Materials are discovered at any time
during the course of this Lease, then notwithstanding the obligation of Lessor
to indemnify Lessee pursuant to Paragraph 14 of this Lease, Lessor shall, upon
demand of Lessee, and at Lessor's sole cost and expense, promptly take all
actions required by applicable law to remediate the Property, except to the
extent that the contamination of the Property by Hazardous Materials is
associated with Lessee's use of the Property, in which case Lessee shall bear
the expense of such remedial action. If Lessor fails to undertake remedial
actions required by applicable law, and if the presence of Hazardous Materials
could reasonably be expected to have a Material Adverse Effect on Lessee's
Cellular Business, then, unless the presence of Hazardous Materials on the
Property is a result of Lessee's use or operations thereon, Lessee shall have
the right, in addition to any other rights and remedies available to Lessee, to
terminate this Lease upon thirty (30) days written notice to Lessor, and any
rental payments made in advance to Lessor shall be prorated and Lessor shall
return any unearned portions of such rental payments as of the date of Lessee's
actual removal of its Equipment from the site. Lessee acknowledges that Lessor
has not undertaken to obtain a Phase I environmental assessment in connection
with the warranties and representations of Lessee under this Paragraph 13.
14. ENVIRONMENTAL INDEMNITIES.
(a) Lessor, its heirs, grantees, successors, and assigns
shall indemnify, defend, reimburse and hold harmless Lessee from and against
any and all damages arising from the presence of Hazardous Materials upon,
about or beneath the Property or migrating to or from the Property or arising
in any manner whatsoever out of the violation of any environmental requirements
pertaining to the Property and any activities thereon, which conditions exist
or existed prior to or at the time of the execution of this Lease.
(b) Lessee, its heirs, grantees, successors, and assigns
shall indemnify, defend, reimburse and hold harmless Lessor from and against
any and all damages arising from the presence of Hazardous Materials upon,
about or beneath the Property or migrating to or from the
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Property arising in any manner whatsoever from Lessee's vehicles or Lessee's
use of the Property and any activities thereon.
15. INTERFERENCE. OPTION 1 (POWERTEL PRIORITY):
(a) LESSEE AGREES TO OPERATE THE TOWER EQUIPMENT AT THE
PERMITTED FREQUENCY RANGE AND IN A MANNER THAT WILL NOT CAUSE INTERFERENCE TO
COMMUNICATIONS OPERATIONS BEING CONDUCTED FROM THE PROPERTY OR THE TOWER BY
POWERTEL/ATLANTA, INC, OR ANY SUCCESSORS OR ASSIGNS THEREOF. LESSEE ALSO
COVENANTS THAT THE TOWER EQUIPMENT SHALL BE OPERATED IN COMPLIANCE WITH ALL
APPLICABLE LAWS, REGULATIONS AND ORDINANCES INCLUDING BUT NOT LIMITED TO THOSE
REGULATIONS PROMULGATED BY THE FCC. IN THE EVENT THE TOWER EQUIPMENT CAUSES
SUCH INTERFERENCE, LESSEE WILL TAKE ALL STEPS NECESSARY TO CORRECT AND
ELIMINATE THE INTERFERENCE. IF SUCH INTERFERENCE CANNOT BE ELIMINATED WITHIN
FORTY-EIGHT (48) HOURS AFTER RECEIPT BY LESSEE OF WRITTEN NOTICE FROM LESSOR
DESCRIBING THE EXISTENCE OF THE INTERFERENCE, LESSEE SHALL TEMPORARILY
DISCONNECT THE ELECTRIC POWER AND SHUT DOWN THE TOWER EQUIPMENT (EXCEPT FOR
INTERMITTENT OPERATION FOR THE PURPOSE OF TESTING, AFTER PERFORMING
MAINTENANCE, REPAIR, MODIFICATION, REPLACEMENT OR OTHER ACTION TAKEN FOR
PURPOSE OF CORRECTING SUCH INTERFERENCE) UNTIL SUCH INTERFERENCE IS CORRECTED.
IF SUCH INTERFERENCE IS NOT CORRECTED WITHIN THIRTY (30) DAYS AFTER RECEIPT BY
LESSEE OF SUCH PRIOR WRITTEN NOTICE FROM LESSOR OF THE EXISTENCE OF
INTERFERENCE, LESSOR SHALL HAVE THE RIGHT, IN ADDITION TO ANY AND ALL OTHER
RIGHTS OR REMEDIES AVAILABLE AT LAW OR IN EQUITY OR HEREUNDER, TO TERMINATE
THIS LEASE WITHOUT FURTHER OBLIGATION TO LESSEE AND LESSEE SHALL THEN PROMPTLY
REMOVE ALL EQUIPMENT FROM THE PREMISES.
(b) IN THE EVENT THAT LESSOR ENTERS INTO SUBLEASES OR
LICENSE AGREEMENTS IN THE FUTURE, THEN LESSOR AGREES TO REQUIRE EACH SUBLESSEE
OR LICENSEE TO INSTALL EQUIPMENT OF TYPES AND RADIO FREQUENCIES THAT WILL NOT
CAUSE INTERFERENCE TO LESSEE'S COMMUNICATIONS OPERATIONS BEING CONDUCTED FROM
THE PREMISES AT THE PERMITTED FREQUENCY RANGE. LESSOR AGREES THAT IN THE EVENT
SUCH SUBLESSEE OR LICENSEE CAUSES INTERFERENCE WITH THE TOWER EQUIPMENT, LESSOR
WILL REQUIRE SUCH SUBLESSEE OR LICENSEE TO TAKE ALL STEPS NECESSARY TO CORRECT
AND ELIMINATE THE INTERFERENCE. IF SUCH INTERFERENCE CANNOT BE ELIMINATED
WITHIN FORTY-EIGHT (48) HOURS AFTER RECEIPT BY SUCH SUBLESSEE OR LICENSEE OF
NOTICE FROM LESSOR DESCRIBING THE EXISTENCE OF THE INTERFERENCE, LESSOR SHALL
CAUSE SUCH SUBLESSEE OR LICENSEE TO DISCONNECT THE ELECTRIC POWER AND SHUT DOWN
SUCH SUBLESSEE'S OR LICENSEE'S EQUIPMENT (EXCEPT FOR INTERMITTENT OPERATION FOR
THE PURPOSE OF TESTING, AFTER PERFORMING MAINTENANCE, REPAIR, MODIFICATION,
REPLACEMENT OR OTHER ACTION TAKEN FOR PURPOSE OF CORRECTING SUCH INTERFERENCE)
UNTIL SUCH INTERFERENCE IS CORRECTED. IF SUCH INTERFERENCE IS NOT COMPLETELY
RECTIFIED TO THE SATISFACTION OF LESSEE WITHIN THIRTY (30) DAYS AFTER RECEIPT
BY SUCH SUBLESSEE OR LICENSEE OF SUCH PRIOR NOTICE FROM LESSOR OF THE EXISTENCE
OF INTERFERENCE, LESSOR SHALL CAUSE SUCH SUBLESSEE OR LICENSEE TO REMOVE SUCH
SUBLESSEE'S OR LICENSEE'S ANTENNAS AND EQUIPMENT FROM THE PROPERTY AND THE
TOWER.
OPTION 2 (INTERCEL PRIORITY):
(A) LESSEE AGREES TO OPERATE THE TOWER
EQUIPMENT AT THE PERMITTED FREQUENCY RANGE IN A MANNER THAT WILL NOT CAUSE
INTERFERENCE TO COMMUNICATIONS
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OPERATIONS BEING CONDUCTED FROM THE PROPERTY OR THE TOWER BY OTHER TENANTS
THEREOF. LESSEE ALSO COVENANTS THAT THE TOWER EQUIPMENT SHALL BE OPERATED IN
COMPLIANCE WITH ALL APPLICABLE LAWS, REGULATIONS AND ORDINANCES INCLUDING BUT
NOT LIMITED TO THOSE REGULATIONS PROMULGATED BY THE FCC. IN THE EVENT SUCH
INTERFERENCE OCCURS AND LESSEE IS OPERATING WITHIN THE PERMITTED FREQUENCY
RANGE AND OTHERWISE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LEASE,
LESSOR SHALL EITHER (I) CORRECT SUCH INTERFERENCE IN ACCORDANCE WITH THIS
SUBPARAGRAPH (A) OR (II) NOTIFY ALL OTHER SUBLESSEES OR LICENSEES OF THE TOWER
OF SUCH INTERFERENCE AND TAKE APPROPRIATE ACTION IN ACCORDANCE WITH
SUBPARAGRAPH (B). IF LESSOR ELECTS TO CORRECT SUCH INTERFERENCE, THEN LESSOR
SHALL TAKE ALL STEPS NECESSARY TO CORRECT AND ELIMINATE THE INTERFERENCE. IF
SUCH INTERFERENCE CANNOT BE ELIMINATED WITHIN FORTY-EIGHT (48) HOURS AFTER
RECEIPT OF WRITTEN NOTICE FROM LESSEE DESCRIBING THE EXISTENCE OF THE
INTERFERENCE, LESSOR SHALL TEMPORARILY DISCONNECT THE ELECTRIC POWER AND SHUT
DOWN THE INTERFERING EQUIPMENT (EXCEPT FOR INTERMITTENT OPERATION FOR THE
PURPOSE OF TESTING, AFTER PERFORMING MAINTENANCE, REPAIR, MODIFICATION,
REPLACEMENT OR OTHER ACTION TAKEN FOR PURPOSE OF CORRECTING SUCH INTERFERENCE)
UNTIL SUCH INTERFERENCE IS CORRECTED. IF SUCH INTERFERENCE IS NOT CORRECTED
WITHIN THIRTY (30) DAYS AFTER RECEIPT BY LESSOR OF SUCH PRIOR WRITTEN NOTICE
FROM LESSEE OF THE EXISTENCE OF INTERFERENCE, LESSEE SHALL HAVE THE RIGHT, IN
ADDITION TO ANY AND ALL OTHER RIGHTS OR REMEDIES AVAILABLE AT LAW OR IN EQUITY
OR HEREUNDER, TO TERMINATE THIS LEASE WITHOUT FURTHER OBLIGATION TO LESSOR.
(B) IF A SUBLESSEE OR LICENSEE IS DETERMINED TO
HAVE CAUSED SUCH INTERFERENCE, LESSOR WILL REQUIRE SUCH SUBLESSEE OR LICENSEE
TO TAKE ALL STEPS NECESSARY TO CORRECT AND ELIMINATE THE INTERFERENCE. IF SUCH
INTERFERENCE CANNOT BE ELIMINATED WITHIN FORTY-EIGHT (48) HOURS AFTER RECEIPT
BY SUCH SUBLESSEE OR LICENSEE OF NOTICE FROM LESSOR DESCRIBING THE EXISTENCE OF
THE INTERFERENCE, LESSOR SHALL CAUSE SUCH SUBLESSEE OR LICENSEE TO DISCONNECT
THE ELECTRIC POWER AND SHUT DOWN SUCH SUBLESSEE'S OR LICENSEE'S EQUIPMENT
(EXCEPT FOR INTERMITTENT OPERATION FOR THE PURPOSE OF TESTING, AFTER PERFORMING
MAINTENANCE, REPAIR, MODIFICATION, REPLACEMENT OR OTHER ACTION TAKEN FOR
PURPOSE OF CORRECTING SUCH INTERFERENCE) UNTIL SUCH INTERFERENCE IS CORRECTED.
IF SUCH INTERFERENCE IS NOT COMPLETELY RECTIFIED TO THE SATISFACTION OF LESSEE
WITHIN THIRTY (30) DAYS AFTER RECEIPT BY SUCH SUBLESSEE OR LICENSEE OF SUCH
PRIOR NOTICE FROM LESSOR OF THE EXISTENCE OF INTERFERENCE, LESSOR SHALL CAUSE
SUCH SUBLESSEE OR LICENSEE TO REMOVE SUCH SUBLESSEE'S OR LICENSEE'S ANTENNAS
AND EQUIPMENT FROM THE PROPERTY AND THE TOWER.
(c) Lessor hereby represents that to its actual
knowledge no interference exists as of the Commencement Date (i) as between the
PCS equipment operated by Lessor on the Tower and the Equipment to be operated
by Lessee on the Tower as of the Commencement Date or (ii) as between such
Equipment and any other tenant's equipment.
16. NOTICES. All notices or demands by or from Lessor to Lessee,
or Lessee to Lessor, shall be in writing. Such notices or demands shall be
mailed to the other party at the following address:
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To Lessee: ▇▇▇ ▇. ▇▇▇▇, President
Public Service Cellular, Inc.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To Lessor: Powertel, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Dept.
17. DESTRUCTION OF PREMISES. If the Property or the Tower are
destroyed or damaged so as to substantially hinder the effective use of the
Tower, and Lessee actually ceases its use of the Tower, Lessee may elect to
terminate this Lease as of the date of the damage or destruction by so
notifying the Lessor. In such event, all rights and obligations of Lessee to
Lessor shall cease as of the date of the damage or destruction and Lessee shall
be entitled to the reimbursement of any Rent prepaid by Lessee. Notice of such
election shall be in writing within ten days of damage.
Lessor may elect, if the Property or Tower is substantially damaged to
replace the Tower and continue this Lease assuming it has not been notified of
cancellation of Lease by Lessee as outlined above. If the election is not to
repair, this must be made in writing to Lessee within ten days of the loss.
18. CONDEMNATION. If a condemning authority takes all of the
Property, or a portion sufficient to render the Property unsuitable for the use
which Lessee was then making of the Property, this Lease shall terminate as of
the date the title vests in the condemning authority. Lessor and Lessee shall
have separate claims to condemnation proceeds based upon their respective
losses; provided, however, that Lessee shall have no claim for any interest in
the Premises or this Lease, but nothing herein shall limit Lessee's claim, if
any, for moving and relocation expenses and business losses attributable to
such taking. A sale of all or part of the Property to a purchaser with the
power of eminent domain in lieu of the exercise of eminent domain power shall
be treated as a taking by condemnation for the purposes of this paragraph.
19. TITLE AND QUIET ENJOYMENT. Lessor warrants that it [owns or
leases] the Property and [owns the] Tower, and has the unencumbered right to
grant to Lessee the rights and interest described herein. Lessor further
warrants that it has the full corporate right, power, and authority to execute
and deliver this Lease . Lessor further warrants that so long as Lessee pays
and performs its obligations under this Lease, Lessee shall have the quiet
enjoyment of the Premises during the term of this Lease and any renewals
hereof, and without hindrance or interference from Lessor or any other person
or entity. Lessor shall indemnify Lessee from and against any loss, cost or
damage including attorneys' fees, associated with a breach of the foregoing
covenant of quiet enjoyment, including, without limitation, any such breach
arising from a foreclosure or ground lease termination (in the event the
Property or Tower now or in the future is leased or encumbered by Lessor)..
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20. ASSIGNMENT AND SUBLEASING.
(a) Except as provided herein, any assignment of this
lease that is entered into by Lessee must be approved in writing by Lessor.
Permission will not be unreasonably withheld, conditioned or delayed. Lessee
may not, however, sublease space to third parties except as provided in
subparagraph 20(c) below.
(b) Any Assignment of this Lease that is entered into by
Lessor or Lessee shall be subject to the provisions of this Lease.
Additionally, Lessee may, upon notice to Lessor, mortgage or grant a security
interest in this Lease and the Equipment, and may assign this Lease and
Equipment to any such Secured Parties or holders of security interests
including their successors and assigns (hereinafter collectively referred to as
"Secured Parties"). In such event, Lessor shall execute such consent to
leasehold financing as may reasonably be required by Secured Parties. Lessor
agrees to notify Lessee and Lessee's Secured Parties simultaneously of any
default by Lessee and to give Secured Parties the same right to cure any
default as Lessee except that the cure period for any Secured Party shall not
be less than 10 days after the receipt of the default notice. If a termination,
disaffirmance or rejection of the Lease pursuant to any laws (including any
bankruptcy or insolvency laws) by Lessee shall occur, or if Lessor shall
terminate this Lease for any reason, Lessor will give to the Secured Parties
prompt notice thereof and Lessor will give the Secured Parties the right to
enter upon the Property during a 30-day period commencing upon the Secured
Party's receipt of such notice for the purpose of removing any Equipment.
Lessor acknowledges that the Secured Parties shall be third-party beneficiaries
of this Lease for this limited purpose.
(c) Lessee may assign this Lease without the consent of
Lessor to an affiliate of Lessee for use in the operation of the Cellular
Business or to any other entity which acquires Lessee's communications license
from the FCC for use in the operation of the Cellular Business. In addition,
Lessee may sublease equipment rack space or other interior portions of its
Ground Space Premises to other providers of telecommunication services;
provided, however, that Lessee shall provide Lessor with prior written notice
of such sublease, and the specific use to be made of such subleased portion of
the Ground Space Premises (which use shall not violate the terms of this Lease
or adversely affect Lessor or any third party lessee or licensee having rights
to the Property). In addition, Lessee may continue any sublease arrangements in
effect as of the Commencement Date with parties which are subleasing or are
co-located in the Ground Space Premises as of the Commencement Date.
(d) Consent by Lessor to any assignment or subletting
shall not constitute a waiver of the requirement that Lessee obtain consent for
future assignments or sublettings. Assignment or subletting shall not relieve
Lessee of its direct and primary obligations to Lessor under this Lease.
21. SUCCESSORS AND ASSIGNS. This Lease shall run with the
Property described on Exhibit "A" and shall be binding upon and inure to the
benefit of the parties their respective heirs, successors, personal
representatives and assigns. The term "Lessor" shall apply in all respects to
any party to whom this Lease is assigned by Lessor. This Lease shall not be
filed or recorded in the property records of the County in which the Property
is located.
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22. LESSOR QUIET ENJOYMENT. Lessee shall not interfere in any way
with Lessor's normal use of the Property and Tower.
23. DISPUTE RESOLUTION. All disputes and claims under this Lease
(other than determinations of Market Rental Rate, which shall be made as set
forth in Paragraph 5(b) hereof), shall be resolved by binding arbitration in
accordance with the Commercial Rules of the American Arbitration Association
("AAA") then in effect. The arbitration will be conducted by a panel of three
neutral arbitrators selected in accordance with the AAA procedures in effect at
the time and shall take place in Atlanta, Georgia unless otherwise agreed to by
the Parties. The award of the arbitration panel shall be final, conclusive and
binding on the Parties hereto. The arbitrators may award any legal or equitable
remedy, but shall not award punitive damages. The arbitration panel may award
reasonable attorneys fees, in the amount of such fees, to the prevailing Party.
Judgment upon any arbitration award may be entered and enforced in any court of
competent jurisdiction.
24. MISCELLANEOUS.
(a) This Lease constitutes the entire agreement and
understanding of Lessor and Lessee with respect to the subject matter hereof,
and supersedes all offers, negotiations and other agreements. There are no
representations or understandings of any kind not set forth herein. Any
amendments to said Lease must be in writing and executed by Lessor and Lessee.
(b) If either Lessor or Lessee is represented by a real
estate broker in this transaction, that party shall be fully responsible for
any fees due such broker and shall hold the other party harmless from any
claims for commission by such broker.
(c) Lessor and Lessee agree to cooperate with each other
in executing any documents reasonably deemed necessary to protect either
Party's rights under this Lease and to take any further action which either
Party may reasonably require as to effect the intent of this Lease.
(d) This Lease shall be construed in accordance with the
laws of the State of [GEORGIA/ALABAMA].
(e) If any term of this Lease if found to be void or
invalid, such invalidity shall not affect the remaining terms of this Lease,
which shall continue in full force and effect.
(f) Lessor shall cooperate with Lessee's efforts to
evaluate the Tower and to comply with governmental regulations affecting
Lessee's use of the Premises by providing reasonable information about the
Tower, the Tower's location and prior filings made by Lessor with governmental
agencies.
(g) Lessor hereby waives any and all lien rights it may
have, statutory or otherwise, in and to the Equipment or any portion thereof,
regardless of whether or not same is deemed real or personal property under
applicable laws.
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(h) Lessee hereby acknowledges that Lessor is free to
enter leases with any additional lessees, whether or not such third party
lessee is in direct competition with Lessee. Similarly, nothing in this lease
shall be read to preclude Lessor from placing additional facilities of its own
or of any of its subsidiaries on the Tower.
(i) This Lease may be executed in two counterparts, both
of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the
parties, it being understood that all parties need not sign the same
counterpart.
(j) The Additional Provisions, if any, set forth on
Exhibit C attached hereto and incorporated herein by this reference, shall
constitute and be deemed a part of this Lease, as if fully set forth herein.
[remainder of page left blank intentionally]
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IN WITNESS WHEREOF, Lessor and Lessee have executed this Tower
Attachment Lease Agreement as of the date and year first above written.
Signed, sealed and delivered this PUBLIC SERVICE CELLULAR, INC.
_____ day of __________, 1999, in
the presence of: By:
------------------------------------
Name:
---------------------------------- ----------------------------------
Unofficial Witness
Title:
---------------------------------
Attested By:
---------------------------
Name:
----------------------------------
Title:
---------------------------------
[CORPORATE SEAL]
Signed, sealed and delivered this POWERTEL, INC. [or POWERTEL/
_____ day of _________, 1999, in ATLANTA, INC.]
the presence of:
By:
---------------------------------- ------------------------------------
Unofficial Witness
Name:
----------------------------------
Title:
---------------------------------
Attested By:
---------------------------
Name:
----------------------------------
Title:
---------------------------------
[CORPORATE SEAL]
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EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
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EXHIBIT A-1
LOCATION OF TOWER PREMISES
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EXHIBIT A-2
LOCATION OF GROUND SPACE PREMISES
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EXHIBIT "B-1"
LIST OF LESSEE'S TOWER EQUIPMENT
(WITH LOCATION DIAGRAMS)
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EXHIBIT "B-2"
LIST OF LESSEE'S GROUND SPACE EQUIPMENT
(WITH LOCATION DIAGRAMS)
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EXHIBIT "C"
ADDITIONAL PROVISIONS
(IF NONE, SO STATE.)
[Paragraphs 1, 2,3 and 4 below would be added here or in the body of the Lease
in the event Lessor only has a leasehold interest in the Property]
1. Exceptions to Lessor's Title. Lessee acknowledges that Lessor only has
a leasehold interest in the Property. Lessee agrees that since Lessor only has
a leasehold interest in the Property, Lessee's rights hereunder shall at all
times be subject and subordinate to the rights granted to Lessor under that
certain lease between Lessor and Lessor's Landlord ("Underlying Lease") a true,
correct and complete copy of which (together with all modifications, amendments
or supplements thereto, if any) has been provided by Lessor to Lessee, and to
all liens, encumbrances, easements, covenants, restrictions and other matters
which affect the title of Lessor's lessor. In the event of an expiration or
termination of the Underlying Lease, Lessor agrees to provide Lessee with
written notice of said expiration or termination (including, the effective date
of the expiration or termination) within ten (10) days of the Lessor's receipt
of, or providing of, said expiration or termination notice.
2. Compliance with Underlying Lease. Lessor shall not do or permit
anything to be done which would constitute a default under the Underlying Lease
or cause the Underlying Lease to be terminated.
3. Representations of Lessor. Lessor hereby warrants and represents as to
the Underlying Lease, as follows: (a) the Underlying Lease is in full force and
effect and has not been modified, amended or supplemented, except as disclosed
in writing to Lessee as of the Commencement Date; and (b) there are no defaults
on the part of Lessor under the Underlying Lease.
4. Covenant of Lessor. Lessor shall provide Lessee with copies of any
notices of default received by Lessor under the Underlying Lease. Lessor hereby
grants to Lessee (as between Lessor and Lessee) the right to cure any such
default, subject to Lessor's right to cure or dispute same.
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EXHIBIT 2.3(A)
FORM OF POST CLOSING ESCROW AGREEMENT
THIS POST CLOSING ESCROW AGREEMENT (this "Agreement") is made and
entered into as of the ____ day of _____________, 1999, by and among Public
Service Cellular, Inc., a Georgia corporation ("Purchaser"), InterCel Licenses,
Inc., a Delaware corporation ("ICL"), ICEL, Inc., a Delaware corporation
("ICEL"), Powertel, Inc., a Delaware corporation ("Powertel"), and Synovus
Trust Company ("Escrow Agent").
WHEREAS, Purchaser, ICL, ICEL and Powertel have entered into an Asset
Purchase Agreement dated January 4, 1999 (the "Purchase Agreement") pursuant to
which Powertel, ICEL and ICL have sold and Purchaser has purchased
substantially all of Powertel and ICEL's assets used in connection with the
operation of Powertel's business of providing cellular telephone and related
services; and
WHEREAS, the Purchase Agreement provides for the escrow of certain
funds to protect the Purchaser with respect to the matters Powertel has agreed
to indemnify the Purchaser against pursuant to the Purchase Agreement and with
respect to certain adjustments in the Purchase Price provided for in the
Purchase Agreement; and
WHEREAS, Purchaser, Powertel, ICEL, ICL, and Escrow Agent desire to
enter into this Agreement to set forth the terms and conditions of such escrow.
NOW, THEREFORE, in consideration of the purchase and sale of certain
assets pursuant to the Purchase Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. DEPOSIT OF FUNDS. The Purchaser warrants that pursuant to the
Purchase Agreement it has deposited with the Escrow Agent, on the date hereof,
the sum of Six Million Two Hundred Thirty Thousand Dollars ($6,230,000) (the
"Principal") in immediately available funds.
2. PURPOSE OF ESCROW. The Principal and any accrued interest
thereon (collectively the "Deposit") shall be held by the Escrow Agent to
protect the Purchaser with respect to (i) the matters as to which Powertel is
required to indemnify Purchaser against pursuant to the provisions of the
Purchase Agreement ("Indemnification Claims"), and (ii) any adjustment in the
Purchase Price, as the case may be, pursuant to the provisions of the Purchase
Agreement ("Purchase Price Reduction Claims").
3. INVESTMENT OF FUNDS. So long as the Principal, or any portion
thereof, shall continue to be held by the Escrow Agent, the Escrow Agent shall
hold the Principal in an account, invested, at the written discretion of
Powertel, in: (a) direct obligations of the United States of
91
America or any agency thereof or obligations fully and unconditionally
guaranteed by the United States of America or any agency thereof, in each case
maturing not more than 30 days after the date of acquisition; (b) time deposit
accounts, certificates of deposit or money market deposits maturing within 30
days of the date of acquisition thereof issued by a bank or trust company
(including the Escrow Agent) which is organized under the laws of the United
States of America or any state thereof and which bank or trust company has
capital surplus and undivided profits aggregating in excess of $50 million and
has outstanding debt which is rated "A" (or similar equivalent rating) or
higher by at least one nationally recognized statistical rating organization
(as defined in Rule 436 under the Securities Act of 1933) or any money-market
fund sponsored by a registered broker dealer or mutual fund distributor
(including the Escrow Agent); (c) commercial paper, maturing not more than 90
days after the date of acquisition, issued by a corporation (other than an
affiliate of Powertel) organized and in existence under the laws of the United
States of America or any state thereof with a rating at the time as of which
any investment therein is made of "P-1" or higher according to ▇▇▇▇▇'▇
Investors Service, Inc. or "A-1" or higher according to Standard & Poor's
Ratings Group; or (d) other investments consented to by the Powertel and
Purchaser in writing; provided, in each case that no such investment shall have
a maturity after __________ , 1999. The interest earned on the Principal shall
be held by the Escrow Agent for the benefit of the party hereto who receives
the portion of the Principal related to any such interest and shall be paid to
such party in conjunction with the distribution of such portion of the
Principal. The Escrow Agent shall have the power to sell or liquidate any of
the foregoing investments and withdraw funds from the Deposit in each case only
in order to make such disbursements as authorized herein. The Escrow Agent
shall not invest the proceeds except as provided in this Section 3. The Escrow
Agent shall not have any liability for any loss suffered as a result of any
investment made as provided above, any liquidation of any such investment prior
to its maturity, or the failure of Powertel to give the Escrow Agent any
written instruction to invest or reinvest the Principal or any interest or
income thereon.
4. RELEASE OF FUNDS. The Principal (x) less the total amount of
all Indemnification Claims validly made by Purchaser and determined payable
pursuant to the Purchase Agreement; (y) less the amount of any Purchase Price
Reduction Claims validly made pursuant to the provisions of the Purchase
Agreement; and (z) less any net collected income on the total of the amounts
specified in (x) and (y); shall be paid to Powertel together with any interest
or income thereon on the business day immediately following the expiration of
the period of six (6) months after the date of closing of the Purchase
Agreement (the "Hold Back Period," which period may be extended until the first
anniversary of the date of closing of the Purchase Agreement by joint written
notice from Purchaser and Powertel to the Escrow Agent). If, prior to the
expiration of the Hold Back Period, the Purchaser has given notice of any
Indemnification Claims and/or Purchase Price Reduction Claims, the Escrow Agent
shall retain Principal in an amount equal to the aggregate of all such
Indemnification Claims and Purchase Price Reduction Claims together with any
interest or income thereon (collectively the "Retained Portion"). The Escrow
Agent shall retain the Retained Portion together with any interest or income
thereon, in escrow, and the Hold Back Period shall be extended with respect
thereto, until the earlier of: (i) twelve months from the date hereof; (ii)
five (5) business days following the delivery to the Escrow Agent of written
instructions signed by Purchaser and Powertel directing the Escrow Agent as to
whom all or any part of the Retained Portion and any interest or income thereon
2
92
is to be distributed; or (iii) ten (10) business days after a copy of an
arbitrator's final decision with respect to any Indemnification Claims and or
Purchase Price Reduction Claims has been delivered to the Escrow Agent to the
extent said arbitrator's final decision contains instructions as to whom to
disburse all or part of the Retained Portion together with interest or income
thereon, provided, however, the Escrow Agent shall have notified the parties
hereto and provided them with copies of said arbitrator's final decision at
least four (4) business days before the Escrow Agent proposes to release all or
part of the Retained Portion pursuant to said arbitrator's final decision. In
no event shall Escrow Agent be obligated hereunder to pay any amounts to any
party in excess of the Principal and any accrued interest thereon.
5. NOTICES. All notices, instructions and other communications
provided for herein shall be in writing and shall be deemed validly given, made
or served, on the date of delivery in the case of personal delivery, or
forty-eight (48) hours after deposit with the U.S. Postal Service if sent by
certified mail, return receipt requested, addressed as follows:
if to Purchaser: Public Service Cellular, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Long ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to Powertel, ICEL or ICL: Powertel, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
First Union Plaza, Suite 1400
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ IV, Esq.
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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if to Escrow Agent: Synovus Trust Company
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other addresses as the parties may designate.
6. COMPENSATION. All compensation payable to the Escrow Agent
for holding the Deposit in escrow, investing the Principal, disbursing the
Deposit and acting as Escrow Agent hereunder shall be paid by Powertel on
demand in accordance with the Compensation Schedule attached hereto as Schedule
A. Escrow Agent shall send all requests for payment to the attention of ▇▇▇▇ ▇.
▇▇▇▇▇▇ at the address for Powertel set forth in Section 5 hereof.
7. DUTIES OF ESCROW AGENT. The Escrow Agent's duties and
responsibilities shall be limited to those expressly set forth in this
Agreement and the Escrow Agent shall not be subject to, nor obliged to
recognize, any other agreement between, or direction or instruction of, any or
all of the parties hereto even though reference thereto may be made herein;
provided, however, with the Escrow Agent's written consent, this Agreement may
be amended at any time or times by an instrument in writing signed by all of
the then parties in interest. The duties and obligations of the Escrow Agent
hereunder shall be determined solely by the express provisions of this
Agreement and no implied duties or obligations shall be read into this
Agreement against the Escrow Agent. The Escrow Agent shall be under no
obligation to refer to the Purchase Agreement or any other documents between or
among the parties related in any way to this Agreement.
8. LIMITATION ON LIABILITY. The Escrow Agent shall not be liable
to anyone by reason of any error of judgment, or for any act done or step taken
or omitted by it in good faith, or for any mistake of fact or law, or for
anything which it may do or refrain from doing in connection herewith, unless
caused by or arising out of its own gross negligence, bad faith or wilful
misconduct. The Escrow Agent hereby executes this Agreement in and only in its
capacity as Escrow Agent and not in any other capacity whatsoever.
9. INDEMNIFICATION OF ESCROW AGENT. The Powertel and the
Purchaser, each severally, hereby agree to indemnify and hold harmless Escrow
Agent against any and all losses, claims, damages, liabilities, and expenses,
including without limitation, reasonable costs of investigation and counsel
fees and disbursements which may be imposed by Escrow Agent or incurred by it
in connection with any litigation arising from this Agreement; except, that if
Escrow Agent shall be found guilty of gross negligence, bad faith or willful
misconduct under this Agreement then, in that event, Escrow Agent shall bear
all such losses, claims, damages, and expenses.
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10. RELIANCE. The Escrow Agent shall be entitled to rely and
shall be protected in acting in reliance upon any writing furnished to it by
any party hereto in accordance with the terms hereof, and shall be entitled to
treat as genuine, and as the document it purports to be, any letter, paper or
other document furnished to it by any party and believed by the Escrow Agent in
good faith to be genuine and to have been signed by the proper party. The
Escrow Agent may consult with its counsel with respect to any question relating
to its duties or responsibilities hereunder and shall not be liable for any
action taken or omitted in good faith on advice of such counsel.
11. CONFLICTING CLAIMS. In the event of any disagreement between
the parties hereto resulting in conflicting claims and demands being made in
connection with or against the Deposit, the Escrow Agent shall be entitled, at
its option, to refuse to comply with the claims or demands of any party until
such disagreement is finally resolved in the manner provided in paragraph 4
hereof, but shall continue to comply with the other terms and conditions of
this Agreement, and in so doing the Escrow Agent shall not be or become liable
to any party.
12. ATTACHMENT, GARNISHMENT, ETC. If all or any part of the
Deposit is at any time attached, garnished or levied upon, or in case the
payment, assignment, transfer, conveyance or delivery of all or any part of the
Deposit shall be stayed or enjoined by any court order, or in case any order,
judgment or decree shall be made or entered by any court affecting all or any
part of the Deposit, then in any of such events, the Escrow Agent is
authorized, in its sole discretion, to rely upon and comply with any such
order, writ, judgment or decree, which it believes in good faith is binding
upon it, and if it complies with any such order, writ, judgment or decree, it
shall not be liable to any of the parties hereto or to any other person, firm
or corporation by reason of such compliance, even though such order, writ,
judgment or decree may be subsequently reversed, modified, annulled, set aside
or vacated.
13. REMOVAL OF ESCROW AGENT. The Powertel and the Purchaser shall
have the right at any time by mutual agreement to remove Escrow Agent and
appoint a successor. Upon acceptance of the duties of Escrow Agent hereunder, a
successor escrow agent shall be entitled to all of the rights, powers, and
indemnities as if originally named herein.
14. RESIGNATION OF ESCROW AGENT. Escrow Agent may resign at any
time by delivering written notice of such resignation to the Powertel and the
Purchaser, in which event the Powertel and the Purchaser shall designate a
successor Escrow Agent within thirty (30) days following the receipt by the
Powertel and the Purchaser of such notice. Upon appointment of a successor
Escrow Agent by the parties, and delivery of any cash, securities and letters
of credit held by Escrow Agent to such successor, Escrow Agent shall be
discharged from all further duties and liabilities under this Agreement. If no
successor escrow agent shall have been appointed within such thirty-day period,
the Escrow Agent shall have the right upon the effective date of its
resignation, to tender into the registry or custody of the court having proper
jurisdiction any part or all of the Deposit.
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15. DATES. If any dates set forth in this Agreement shall occur
on a weekend and/or a holiday, the applicable date shall be the first business
day immediately following such weekend and/or holiday.
16. GOVERNING LAW. This Agreement shall be construed, governed,
enforced and administered in accordance with the laws of the State of Georgia,
without giving effect to the conflicts of law principles thereof.
17. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day, month and year first above written.
(Signatures on following pages)
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PURCHASER:
PUBLIC SERVICE CELLULAR, INC.
By:
---------------------------------------
▇▇▇ ▇. ▇▇▇▇
Its President
POWERTEL:
POWERTEL, INC.
By:
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its Chief Executive Officer
ICEL:
ICEL, INC.
By:
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its President
ICL:
INTERCEL LICENSES, INC.
By:
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its Chief Executive Officer
ESCROW AGENT:
SYNOVUS TRUST COMPANY:
By:
---------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its Vice President & Trust Officer
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SCHEDULE A
COMPENSATION SCHEDULE
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EXHIBIT 2.3(B)
LICENSE AGREEMENT
THIS LICENSE AGREEMENT ("License") is executed this ____ day of
__________, 1999, by and between [INTERSTATE TELEPHONE CO., a ___________
corporation], ("Licensor"), and PUBLIC SERVICE CELLULAR, INC.
("Licensee").
WITNESSETH
WHEREAS, Licensor desires to license unto Licensee certain office
space in a building owned or leased by Licensor in which Licensee intends to
operate certain equipment, including a telecommunications switch together with
related and ancillary equipment; and
WHEREAS, Licensee desires to license from Licensor certain office
space in a building owned or leased by Licensor upon which Licensee intends to
operate certain equipment, including a telecommunications switch, together with
related and ancillary equipment.
NOW THEREFORE, for and in consideration of the terms and mutual
promises herein contained and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, Licensor and Licensee
agree as follows:
1. PREMISES. Licensor hereby grants to Licensee a license to
maintain, operate, replace and remove Licensee's cellular wireless
communications equipment, including Licensee's telecommunications switch and
related and ancillary equipment (hereinafter referred to as the "Equipment"),
in that certain building containing 672 square feet owned or leased by
Licensor, having an address of ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (the
"Building), and being situate on real property owned by Licensor and more
particularly described on Exhibit A attached hereto and incorporated herein by
this reference (the "Property"); (the space occupied by Licensee in the
Building hereinafter shall be referred to as the "Premises"). A complete
description of the Equipment is set forth on Exhibit B attached hereto and
incorporated herein by this reference. Licensor also grants Licensee rights of
ingress, egress and utilities to the Premises twenty-four (24) hours per day,
seven (7) days per week during the Initial Term and any Renewal Term (as
hereinafter defined-in paragraphs 3 and 4) of this License. Licensee
acknowledges that the Premises is not (and shall not be) separately demised and
that the rights of Licensee under this License are non-exclusive. Among other
things, Licensor and others shall continue to have the right to enter into and
use the Building, including, without limitation, areas in which Licensee's
Equipment is located, and to maintain and operate the "Generator" (as
hereinafter defined); provided, however, that such access to and use by
Licensor and others of the Premises, and such maintenance and operation of the
Generator by Licensor or others, shall not materially impair the rights granted
to Licensee under this
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License. Without limiting the foregoing, Licensor shall have no right to
relocate or access cabinets or racks on which Licensee's Equipment is located.
2. USE. Licensee may use the Premises solely for the maintenance
and operation of the Equipment and other directly related purposes. The use
granted Licensee by this License shall be non-exclusive and limited in strict
accordance with the terms of this License. Licensor shall have the right to
continue to occupy the Property and to enter into lease and license agreements
with others for the Property and the Building in the sole discretion of
Licensor provided that the use made of the Property and the Building by any
other person or entity shall not materially impair the Licensee's proposed use
of the Premises. Similarly, Licensee shall not occupy or use the Premises so as
to materially impair the use and occupancy by Licensor or others of the
Building and Property. Licensee shall have no property rights or interest in
the Premises by virtue of this License.
3. INITIAL TERM. The Initial Term of this License shall be for a
period of six (6) months commencing on the ____ day of ____________, 1999
("Commencement Date") and expiring on the _____ day of ________, 1999 ("Initial
Term"). This License may be terminated by Licensee at any time on thirty (30)
days advance written notice to Licensor for any reason or no reason.
4. RENEWAL TERMS. Licensee shall have the right to extend this
License for one (1) additional six (6) month term (the "Renewal Term"). This
License shall be extended automatically for such Renewal Term unless Licensee
notifies Licensor in writing of Licensee's intention not to renew at least
thirty (30) days prior to the commencement of the Renewal Term. The Renewal
Term shall be on the same terms and conditions as set forth in this License.
5. CONSIDERATION.
(a) Initial Term. During the Initial Term, Licensee
shall pay monthly to Licensor as consideration for this License the sum of One
Thousand Forty Seven and No/100 Dollars ($1,047.00) ("Fee"). The Fee shall be
paid each month in advance. The first monthly payment shall be due on the
Commencement Date. In the event that the Commencement Date is other than the
first day of a calendar month, then the Fee due for the first month of the
Initial Term shall be pro-rated over the number of days remaining in such
month, and the Fee shall thereafter be paid by Licensee on the first day of
each successive calendar month. The Fee paid by Licensee to Licensor shall be
due without setoff, notice or demand from Licensor to Licensee.
(b) Renewal Term. In the event Licensee exercises the
option(s) to renew this License as provided for in paragraph 4, the Fee
applicable to such Renewal Term shall be the sum of One Thousand Forty Seven
and No/100 Dollars ($1,047.00) per month paid monthly in advance beginning on
the first day of the Renewal Term.
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6. CONDITIONS PRECEDENT. Licensee's obligation to perform under
this License shall be subject to and conditioned upon Licensee securing
appropriate approvals for Licensee's intended use of the Premises from the
Federal Communications Commission ("FCC"), the Federal Aviation Administration
("FAA") and any other federal, state or local regulatory authority having
jurisdiction over Licensee's proposed use of the Premises. Licensee's inability
to successfully satisfy these conditions or the occurrence of any other event
which effectively prohibits Licensee's intended use of the Premises shall
relieve Licensee from any obligation to perform under this License. Licensee
shall act with due diligence to obtain all governmental approvals necessary for
Licensee to perform under this License.
7. WARRANTY OF TITLE AND QUIET ENJOYMENT. Licensor warrants that
(i) Licensor owns or leases the Property and operates the Building; (ii)
Licensor has full right to make and perform this License; and (iii) Licensor
covenants and agrees with Licensee that upon Licensee paying the Fee and
observing and performing all the terms, covenants and conditions on Licensee's
part to be observed and performed, Licensee may peacefully and quietly enjoy
the Premises.
8. IMPROVEMENTS BY LICENSEE. Licensee shall not have the right
to make alterations, additions or improvements in or on the Premises except
with the prior written consent of Licensor, which shall not be unreasonably
withheld, conditioned, or delayed in the event such alterations, additions or
improvements are reasonably necessary (i) for the operation of Licensee's
existing cellular business, or (ii) in connection with Licensee's removal of
the Equipment from the Premises, but which may otherwise be withheld or denied
in Licensor's sole discretion. Upon expiration or earlier termination of this
License, Licensee shall cause the Equipment to be removed from the Premises
without damage or injury to the Building or Property. If damage or injury
results from such removal, Licensee shall promptly effect all necessary repairs
at its sole cost and expense. In addition, any damage to the Building or the
equipment or improvements of Licensor or others located on the Property or in
the Building which results from the acts or omissions of Licensee shall be
repaired by Licensee at Licensee's cost and expense, or at the option of
Licensor, Licensee shall reimburse Licensor for the actual costs incurred as
evidenced by adequate documentation by Licensor in repairing such damage or
replacing such equipment or improvements. Licensor agrees to reasonably
cooperate (at no expense to Licensor) with Licensee in connection with
Licensee's removal of the Equipment from the Premises, which Licensee may do at
any time, subject to the provisions set forth herein requiring that Licensee
repair any damage to the Property or Building caused by such removal.
9. UTILITIES. All utility services installed by Licensee on the
Premises for the use or benefit of Licensee shall be made at the sole cost and
expense of Licensee and shall be separately metered from Licensor's utilities;
provided, however, that Licensor shall furnish to Licensee its reasonable
requirements of electricity based upon the continued operation by Licensee of
its existing Equipment in the Premises in the manner previously operated by
Licensee's predecessor. Licensee shall be solely responsible for the payment of
utility charges including connection charges and security deposits incurred by
Licensee in connection with any
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utility services installed by Licensee. Further, in the event Licensee shall
elect to arrange for separate electrical service to its Equipment, Licensor
shall have the right to review and approve the plans and specifications for
such service, which approval shall not be unreasonably denied, withheld or
delayed. In such event, furthermore, Licensee shall bear the entire cost and
expense of any modifications, alterations, or additions to the Building or to
any equipment owned or operated by Licensor or others, including, without
limitation, in respect of the Generator and any ancillary or related equipment.
Licensee shall have no liability and Licensee's obligations under this
Agreement shall not be affected by any temporary interruption or reduction of
electricity furnished to the Premises, unless such interruption results from
Licensor's gross negligence or willful misconduct.
10. TAXES. Licensor shall pay all real property taxes
attributable to the Property. Licensee shall reimburse Licensor for any
increases in real property taxes which are assessed as a direct result of any
improvements to the Premises by Licensee. As a condition of Licensee's
obligation to pay such tax increases, Licensor shall provide to Licensee the
documentation from the taxing authority, reasonably acceptable to Licensee,
indicating the increase is due to Licensee's improvements.
11. INTERFERENCE.
(a) Licensee agrees to operate, maintain and replace the
Equipment so as not to cause interference (radio frequency or otherwise) with
other communications operations (if any) being conducted from the Property or
the Building by Licensor or other occupants of the Property or the Building.
Licensee also covenants that the Equipment installed by Licensee shall be
operated in compliance with all applicable laws, regulations and ordinances
including but not limited to those regulations promulgated by the FCC. Licensee
also covenants that the equipment installed by Licensee shall comply with all
applicable laws, ordinances and regulations including but not limited to those
regulations promulgated by the FCC. In the event the Equipment causes such
interference, Licensee will take all steps necessary to correct and eliminate
the interference. If such interference cannot be eliminated within forty-eight
(48) hours after receipt by Licensee of written notice from Licensor describing
the existence of the interference, Licensor shall have the right to temporarily
disconnect the electric power and shut down the Equipment (except for
intermittent operation for the purpose of testing, after performing
maintenance, repair, modification, replacement, or other action taken for the
purpose of correcting such interference) until such interference is corrected,
all without liability of Licensor or any effect on the obligations of Licensee
under this Agreement. If such interference is not corrected within thirty (30)
days after receipt by Licensee of such prior written notice from Licensor of
the existence of interference, this License shall then terminate at Licensor's
option without further obligation on the part of either the party except as may
be specifically enumerated herein and Licensee agrees to then remove the
Equipment from the Premises.
(b) Licensor shall be responsible for eliminating any
harmful electrical interference to or from any facilities in operation from the
Property or the Building, resulting
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from the operation of Licensor's or any Third Party Licensee's (as defined
below) equipment. In the event that Licensee reasonably believes that the
operation of Licensor's or any Third Party Licensee's equipment is responsible
for such harmful electrical interference, Licensee shall so notify Licensor.
Within forty-eight (48) hours of such notification, Licensor shall either (a)
resolve such harmful electrical interference, (b) demonstrate to Licensee's
reasonable satisfaction that the operation of Licensee's or any Third Party
Licensee's facilities are not the cause of such interference, or (c) cease
operation of Licensor's equipment, or cause the cessation of the Third Party
Licensee's equipment, until such time as it can demonstrate to Licensee's
reasonable satisfaction that such interference has been resolved. For the
purposes of this Section 11, "Third Party Licensee" shall mean any licensee
that is currently party to, or subsequent to the date hereof, shall enter into,
a sublease or license with Licensor for the Property or the Building.
12. REPAIRS. Licensee acknowledges that the Premises, Building
and Property are suitable for Licensee's intended use. Licensor hereby agrees
that Licensor shall pay for and make all reasonably necessary repairs and
replacements to the Premises, the Building and the Property. Licensor's
maintenance obligations shall include, without limitation, reasonably necessary
repair and/or replacement of the roof, foundation, exterior and interior walls,
all structural components, and all systems, including without limitation,
mechanical, electrical, HVAC and plumbing. Such repairs and/or replacements
shall be made within ten (10) days after receiving written notice from Licensee
of the need therefor. If such repair or replacement cannot be completed within
said ten (10) day period, then Licensor shall have a reasonable time to
complete such repair or replacement, provided that such repair or replacement
is commenced within said ten (10) day period. Licensor agrees to indemnify
Licensee for any and all losses and damages suffered by Licensee as a result of
Licensor's failure to fulfill its repair and replacement obligations under this
paragraph, except to the extent the need for such repair or replacement is
caused by the negligence or willful misconduct of Licensee. Licensee reserves
the right to undertake any such reasonable repair or replacement necessary to
the Premises, the Building or the Property in the event that Licensor fails to
complete or commence such repair or replacement within the ten (10) day time
period required by this paragraph. Furthermore, Licensee may make any necessary
repairs and/or replacements to the Premises, the Building or the Property,
without first providing Licensor with an opportunity to make any necessary
repair or replacement, in the event that immediate material damage to
Licensee's Equipment would occur if such necessary repair or replacement was
not made by Licensee. For purposes herein, "reasonable and necessary repairs
and replacements" shall be limited to those repairs and replacements necessary
to allow Licensee to continue to operate its Equipment in the Premises as
operated on the commencement date of this Lease.
13. MECHANICS' LIENS. Licensee shall not permit any mechanic's,
materialmen's, contractors' or subcontractors' liens arising from any
construction work, repair, restoration or removal or any other claims or
demands to be enforced against the Premises or any part thereof Licensor shall
have the right at any time to post and maintain upon the Premises such notices
as may be necessary to protect Licensor against liability for all such liens
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and encumbrances. Licensee shall give Licensor written notice prior to the
commencement of any work or the delivery of any materials connected with such
work or construction, repair, restoration, or removal of materials on the
Premises. Licensor shall assume no liability for the payment of materials or
labor which accrue in the installation of Licensee's improvements upon the
Premises and no mechanics' or materialmen's liens for Licensee's improvements
shall attach to the interest of Licensor in the Premises.
14. INDEMNIFICATION.
(a) Licensee shall exonerate, hold harmless, indemnify,
and defend Licensor from any and all claims, obligations, liabilities, costs,
demands, damages, expenses, suits or causes of action, including costs and
reasonable attorneys' fees, which may arise out of (i) any injury to or the
death of any person; or (ii) any damage to property, if such injury, death or
damage arises out of or is attributable to or results from the negligent or
intentional acts or omissions of Licensee or Licensee's principals, employees,
agents or independent contractors directly relating to Licensee's use and
operation of the Premises.
(b) Licensor shall exonerate, hold harmless, indemnify
and defend Licensee from any and all claims, obligations, liabilities, costs,
demands, damages, expenses, suits or causes of action, including costs and
reasonable attorneys' fees, which may arise out of (i) any injury to or the
death of any person; or (ii) any damage to property, if such injury, death or
damage arises out of or is attributable to or results from the negligent or
intentional acts or omissions of Licensor or Licensor's principals, employees,
agents or independent contractors directly relating to Licensor's use and
operation of the Property and the Building.
15. WAIVER OF LICENSOR'S LIEN. Licensor hereby waives any and all
lien rights Licensor may have, statutory or otherwise, in and to the Equipment
or any portion thereof, regardless of whether or not same is deemed real or
personal property under applicable laws.
16. FINANCING AGREEMENTS. Licensee may, upon written notice to
Licensor, mortgage or grant a security interest in this License and the
Equipment, and may assign this License and the Equipment to any such mortgagees
or holders of security interests including their successors and assigns
(hereinafter collectively referred to as "Secured Parties"). In such event,
Licensor shall execute such consent to leasehold financing as may reasonably be
required by Secured Parties. Licensor agrees to notify Licensee and Licensee's
Secured Parties simultaneously of any default by Licensee and to give Secured
Parties the same right to cure any default as Licensee except that the cure
period for any Secured Party shall not be less than ten (10) days after the
receipt of the default notice. If a termination, disaffirmance or rejection of
the License pursuant to any laws (including any bankruptcy or insolvency laws)
by Licensee shall occur, or if Licensor shall terminate this License for any
reason, Licensor will give to the Secured Parties prompt notice thereof and
Licensor will give the Secured Parties the right to enter upon the Property
during a 30-day period commencing upon the Secured Party's receipt of such
notice for the purpose of removing any Equipment. Licensor acknowledges that
Secured Parties shall be third-party beneficiaries of this License.
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17. DISCLAIMER OF WARRANTIES, INCIDENTAL AND CONSEQUENTIAL
DAMAGES. LICENSOR HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE ASSOCIATED WITH THE PREMISES. LICENSEE
ACCEPTS THE PREMISES "AS IS". LICENSOR SHALL NOT BE RESPONSIBLE FOR ANY
INCIDENTAL OR CONSEQUENTIAL DAMAGES INCURRED RESULTING FROM (1) LICENSEE'S USE
OR LICENSEE'S INABILITY TO USE THE PREMISES; OR FROM (2) DAMAGE TO LICENSEE'S
EQUIPMENT WHICH IS CAUSED BY THE NEGLIGENCE OF LICENSOR. LICENSEE SHALL NOT BE
RESPONSIBLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES INCURRED RESULTING FROM
(3) LICENSOR'S USE OR LICENSOR'S INABILITY TO USE THE PROPERTY; OR FROM (4)
DAMAGE TO LICENSOR'S EQUIPMENT WHICH IS CAUSED BY THE NEGLIGENCE OF LICENSEE.
18. ENVIRONMENTAL INDEMNIFICATION.
(a) Licensee, its heirs, grantees, successors, and
assigns shall indemnify, defend, reimburse and hold harmless Licensor from and
against any and all damages, caused by activities conducted on the Premises by
Licensee, and (i) arising from the presence of any substance, chemical or waste
identified as hazardous, toxic or dangerous in any applicable federal, state or
local law or regulation including petroleum or hydrocarbon based fuels such as
diesel, propane or natural gas (collectively, "Hazardous Materials") upon,
about or beneath the Premises or migrating to or from the Premises, or (ii)
arising in any manner whatsoever out of the violation of any environmental
requirements pertaining to the Premises and any activities thereon. Licensee
covenants that it shall not nor shall Licensee allow its employees, agents or
independent contractors to treat, store or dispose of any Hazardous Materials
on the Premises, the Building or the Property.
(b) Licensor, its heirs, grantees, successors, and
assigns shall indemnify, defend, reimburse and hold harmless Licensee from and
against any and all damages arising from (i) the presence of Hazardous
Materials upon, about or beneath the Premises or migrating to or from the
Premises, or (ii) arising in any manner whatsoever out of the violation of any
environmental requirements pertaining to the Premises and any activities
thereon, either of which conditions came into existence prior to the execution
of this License and are attributable to activities conducted on the Property by
Licensor.
19. LIABILITY INSURANCE.
(a) Licensor and Licensee shall each carry during the
term of this License, at each party's own cost and expense, respectively, the
following insurance: (i) "All Risk" property insurance which insures the
insured party's property for such property's full replacement cost; and (ii)
Comprehensive general liability insurance with a commercial general liability
endorsement having a minimum limit of liability of $1,000,000, with a combined
limit for bodily injury and/or property damage for any one occurrence, and
(iii) excess/umbrella coverage of $2,000,000.
-7-
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(b) Licensor and Licensee shall each name the other as
an additional insured under each party's own liability policy, respectively,
and require each party's own insurance company, respectively, to endeavor to
give at least thirty (30) days' written notice of termination or cancellation
of the policy to the additional insured. A certificate of such insurance,
together with such endorsement as to prior written notice of termination or
cancellation, shall be delivered to the additional insured within thirty (30)
days from the execution of this License and before the expiration of any term
of such insurance from an insurance company authorized to do business in the
state in which the Property is located.
20. SUBROGATION.
(a) In General. All property insurance policies required
under this License shall contain a waiver of subrogation provision under the
terms of which the insurance carrier waives all of such carrier's fights to
proceed against Licensor and Licensee.
(b) Mutual Release. Licensor and Licensee each release
the other and their respective representatives from any claims by them or any
one claiming through or under them by way of subrogation or otherwise for
damage to any person or to the Premises and to the fixtures, personal property,
improvements and alterations in or on the Premises that are caused by or result
from risks insured against under any insurance policy carried by them and
required by this License; provided that such releases shall be effective only
if and to the extent that the same do not diminish or adversely affect the
coverage under such insurance policies. Licensor shall be named as an
additional insured on any insurance policy procured by Licensee pursuant to
this License and Licensee shall be named as an additional insured on any
insurance policy procured by Licensor pursuant to this License.
21. DESTRUCTION OR CONDEMNATION. If the whole or any substantial
part of the Premises shall be taken by any public authority under the power of
eminent domain so as to interfere with Licensee's use and occupancy thereof,
then this License shall cease on the part so taken on the date of possession by
such authority of that part, and any unearned Fee paid in advance of such date
shall be refunded by Licensor to Licensee within thirty (30) days of such
possession, and Licensee shall have the right to terminate this License upon
written notice to Licensor, which notice shall be delivered by Licensee within
thirty (30) days following the date notice is received by Licensee of such
taking or possession. If Licensee chooses not to terminate this License, the
Fee shall be reduced or abated in proportion to the actual reduction or
abatement of Licensee's use of the Premises.
22. DEFAULT.
(a) By Licensee. The occurrence of any of the following
instances shall be considered to be a default or a breach of this License by
Licensee:
-8-
106
(i) any failure of Licensee to pay the Fee or
any other charge for which Licensee has the responsibility of payment under
this License within fifteen (15) days of the date when due, which failure is
not cured by Licensee within ten (10) days of receipt by Licensee of written
notice from Licensor of the existence of such a default;
(ii) any failure of Licensee to perform or
observe any term, covenant, provision or conditions of this License which
failure is not corrected or cured by Licensee within thirty (30) days of
receipt by Licensee of written notice from Licensor of the existence of such a
default; except such thirty (30) day cure period shall be extended as
reasonably necessary to permit Licensee to complete a cure so long as Licensee
commences the cure within such thirty (30) day cure period and thereafter
continuously and diligently pursues and completes such cure:
(iii) Licensee shall become bankrupt, insolvent
or file a voluntary petition in bankruptcy, have an involuntary petition in
bankruptcy filed against Licensee which cannot be dismissed by Licensee within
sixty (60) days of the date of the filing of the involuntary petition, file for
reorganization or arrange for the appointment of a receiver or trustee in
bankruptcy or reorganization of all or a substantial portion of Licensee's
assets, or Licensee makes an assignment for such purposes for the benefit of
creditors;
(iv) this License or Licensee's interest herein
or Licensee's interest in the Premises are executed upon or attached; or
(v) the imposition of any lien on the Equipment
except as may be expressly authorized by this License, or an attempt by
Licensee or anyone claiming through Licensee to encumber Licensor's interest in
the Building or the Property.
(b) By Licensor. The occurrence of any of the following
instances shall be considered to be a default or a breach of this License by
Licensor:
(i) any failure of Licensor to perform or
observe any term, covenant, provision or conditions of this License which
failure is not corrected or cured by Licensor within thirty (30) days of
receipt by Licensor of written notice from Licensee of the existence of such a
default; except such thirty (30) day cure period shall be extended as
reasonably necessary to permit Licensor to complete a cure so long as Licensor
commences the cure within such thirty (30) day cure period and thereafter
continuously and diligently pursues and completes such cure:
(ii) Licensor shall become bankrupt, insolvent
or file a voluntary petition in bankruptcy, have an involuntary petition in
bankruptcy filed against Licensor which cannot be dismissed by Licensor within
sixty (60) days of the date of the filing of the involuntary petition, file for
reorganization or arrange for the appointment of a receiver or trustee in
bankruptcy or reorganization of all or a substantial portion of Licensor's
assets, or Licensor makes an assignment for such purposes for the benefit of
creditors;
-9-
107
(iii) the Property or Licensor's interest therein
or Licensor's interest in the Premises are executed upon or attached; or
(iv) the imposition of any lien on Licensor's
equipment except as may be equally limited of Licensee equipment as referenced
in paragraph 23(a)(v) above or expressly authorized by this License, or an
attempt by Licensor to encumber Licensee's interest in the Premises.
23. REMEDIES. In the event of a default by Licensor or Licensee
under the terms of paragraph 22 of this License and after the defaulting
party's failure to cure such default within the time allowed the defaulting
party to cure such default, then the non-defaulting party may in addition to
all other rights or remedies the non-defaulting party may have hereunder at law
or in equity, terminate this License by giving written notice to the defaulting
party stating the date upon which such termination shall be effective.
24. NOTICES. All notices or demands by or from Licensor to
Licensee, or Licensee to Licensor, shall be in writing. Such notices or demands
shall be mailed to the other party at the following address:
Licensor: Interstate Telephone Co.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇, President
Licensee: Public Service Cellular, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇
25. ENTIRE AGREEMENT. This License contains the entire agreement
between the parties hereto and supersedes all previous negotiations leading
thereto. This License may be modified only by an agreement in writing executed
by Licensor and Licensee.
26. SUCCESSORS AND ASSIGNS. This License shall be binding upon
and inure to the benefit of the legal representatives, heirs, successors, and
assigns of Licensor and Licensee.
27. SPECIAL STIPULATIONS.
27.1 Diesel Generator: Licensee acknowledges that the Generator
and certain related equipment, including a 48 volt battery with rectifiers,
currently provides emergency power support for Licensee's Equipment and for
other equipment owned and operated by Licensor or others. Licensor agrees, for
so long as this License remains in effect, to operate and maintain the
Generator in good working condition at Licensor's sole expense, and to make any
necessary and reasonable repairs thereto as may from time to time be requested
by written notice from Licensee.
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IN WITNESS WHEREOF, the Licensor and Licensee have executed this
License Agreement as of the date and year first above written.
LICENSOR:
INTERSTATE TELEPHONE CO.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
(CORPORATE SEAL)
State of
------------------
County of
------------------
I, ______________________, a Notary Public, in and for said county in
said state, hereby certify that _________________, whose name as
______________________ of ____________________, is signed to the foregoing
License Agreement and who acknowledged before me on this day that being
informed of the contents of said License Agreement, he, as such officer, and
with full authority, executed the same voluntarily for and as the act of said
corporation, acting in his capacity as such officer as aforesaid.
Given under my hand this _______ day of ___________, 19____.
------------------------------------------
Notary Public
My Commission Expires:
-----------------------------
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109
LICENSEE:
PUBLIC SERVICE CELLULAR, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
(CORPORATE SEAL)
State of
------------------
County of
------------------
I, ______________________, a Notary Public, in and for said county in
said state, hereby certify that _________________, whose name as
______________________ of ____________________, is signed to the foregoing
License Agreement and who acknowledged before me on this day that being
informed of the contents of said License Agreement, he, as such officer, and
with full authority, executed the same voluntarily for and as the act of said
corporation, acting in his capacity as such officer as aforesaid.
Given under my hand this _______ day of ___________, 19____.
------------------------------------------
Notary Public
My Commission Expires:
-----------------------------
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110
EXHIBIT 3.2
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is made and entered into as of
the ____ day of ____________, 1999, by and among Public Service Cellular, Inc.,
a Georgia corporation ("Purchaser"), InterCel Licenses, Inc., a Delaware
corporation ("ICL"), ICEL, Inc., a Delaware corporation ("ICEL"), and Powertel,
Inc., a Delaware corporation ("Powertel") (Powertel and ICEL are collectively
referred to herein as "Seller").
WHEREAS, Purchaser, ICL and Seller have entered into an Asset Purchase
Agreement dated ___________, 1999 (the "Purchase Agreement"). Unless otherwise
defined herein, capitalized terms which are not proper nouns shall have the
meanings ascribed to them in the Purchase Agreement;
WHEREAS, Purchaser has taken over the operation of the Cellular
Business as of the open of business on the date hereof; and
WHEREAS, Purchaser, ICL and Seller desire to enter into this Agreement
to set forth the terms and conditions on which Purchaser will assume certain of
the debts, liabilities and obligations of Seller and ICL related to the Cellular
Business.
NOW, THEREFORE, in consideration of the purchase and sale of the
Assets, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. ASSIGNMENT AND ASSUMPTION OF CERTAIN LIABILITIES. Seller and
ICL hereby sell, assign, transfer, convey and deliver to Purchaser all of their
respective right, title and interest in and to the Operating Contracts, Customer
Contracts and Licenses. Purchaser does hereby assume and agree to pay, perform
and discharge, the following debts, liabilities, obligations and commitments of
Seller and ICL:
(a) All of Seller's trade accounts payable (being
maintained by Seller consistent with its past
practices) arising out of the operation of the
Cellular Business in the Ordinary Course of Business
which (i) are reflected on Seller's books and records
as of the Date of Closing and (ii) remain unpaid as
of the opening of business on the Date of Closing;
(b) All debts, liabilities and obligations of Seller
arising under the Operating Contracts (i) which are
listed on Schedule 1.1(f) to the Purchase Agreement
or (ii) which require aggregate annual payments of
less than $12,000 and
111
which have a duration of less than one year after the
date of the Purchase Agreement (provided that the
maximum aggregate liability assumed by Purchaser
pursuant to this subparagraph (b)(ii), determined as
if Purchaser on the date of Closing provided notice
of termination to the other parties to all such
agreements, shall not exceed $50,000), except that
Purchaser does not assume any liabilities for
products sold or services rendered in connection with
the operation of the Cellular Business under such
Operating Contracts prior to the Date of Closing and
provided that liabilities assumed hereunder are only
assumed to the extent they accrue after the Date of
Closing and are not attributable to any default of
Seller thereunder except for trade payables assumed
pursuant to subsection (a) above;
(c) All amounts accrued as of the close of business on
the Date of Closing for wages, salaries and vacation
and sick leave, payable to those employees who are
employed by Purchaser on the Date of Closing and who
are listed on Schedule 3.2(c) to the Purchase
Agreement;
(d) Seller's obligation to provide cellular telephone and
related services to its customers in accordance with
the Customer Contracts in effect on and after the
Date of Closing;
(e) All liabilities and obligations of Seller for the
Assigned Leases as accrued on and after the Date of
Closing; and
(f) all obligations under the FCC Licenses.
Notwithstanding any provision of this Agreement to the contrary, this Agreement
shall not constitute an assignment or an agreement to assign any of the
Operating Contracts, or any benefit arising thereunder or resulting therefrom,
if such an assignment or agreement to assign without a consent required or
necessary for such assignment would constitute a breach thereof or in any way
adversely affect the rights of Seller or Purchaser thereunder. If such consent
is not obtained, or if an attempted assignment would be ineffective or would
adversely affect the rights of Seller thereunder so that Purchaser would not in
fact receive all such rights, Seller and ICL shall use their commercially
reasonable best efforts, and shall cooperate in any arrangement which Purchaser
may reasonably request in writing, to provide to Purchaser the benefits under
any such Operating Contract, including (a) entering into subcontracts,
subleases, sale and lease backs, use and occupancy agreements or other
contractual arrangements which will provide such benefits to Purchaser; (b)
agreeing with the person whose consent is required to be obtained that Seller
will remain liable under any such Operating Contract to the same extent as if
such assignment had not occurred; and (c) enforcing, at the cost of Seller and
ICL, and for the benefit of Purchaser, all rights of Seller against any other
party thereto arising out of the breach thereof by such party. Any transfer or
assignment to Purchaser of any of the Operating Contracts which shall require
the consent or approval of any other party shall
2
112
be made subject to such consent or approval being obtained; provided, however,
that nothing contained in this Section 1 shall affect the rights of Purchaser,
pursuant to the Purchase Agreement or otherwise, arising out of Seller or ICL's
failure to have disclosed the need for such consent or approval or for failing
to have it obtained.
2. LIABILITIES NOT ASSUMED. Except as specifically set forth
herein, Purchaser shall not, by virtue of its purchase of the Assets or
otherwise, assume or become responsible for any debts, liabilities or
obligations of Seller or ICL, whether fixed, contingent, known, unknown or
otherwise.
3. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement.
4. ASSIGNEES. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns.
5. SCOPE. This Agreement is executed and delivered in connection
with the Purchase Agreement. Notwithstanding anything herein to the contrary,
nothing herein shall in any way vary the promises, agreements, representations,
warranties and covenants of any of the parties to and set forth in the Purchase
Agreement, all of which survive the closing and shall not be merged therein.
(Signatures on following pages)
3
113
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day, month and year first above written.
SELLER:
POWERTEL, INC.
By:
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its Chief Executive Officer
ICEL, INC.:
By:
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its President
ICL:
INTERCEL LICENSES, INC.
By:
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its Chief Executive Officer
PURCHASER:
PUBLIC SERVICE CELLULAR, INC.
By:
-----------------------------------------
▇▇▇ ▇. ▇▇▇▇
Its President
4
114
EXHIBIT 12.2(a)
FORM OF CLOSING CERTIFICATE OF ICEL, INC.
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇, do hereby certify, on behalf of ICEL, INC.
("Seller"), pursuant to Sections 9.1 and 9.2 of that certain Asset Purchase
Agreement, dated as of ______________, 1999, by and among Powertel, Inc.,
InterCel Licenses, Inc., Public Service Cellular, Inc., and Seller (the
"Purchase Agreement"), as follows:
1. That I am the President of Seller, and in that capacity I am
authorized to execute and deliver this Closing Certificate on
behalf of the Seller.
2. That each of the representations and warranties made by the
Seller in the Purchase Agreement is true and correct in all
material respects as of the date hereof with the same force
and effect as though such representations and warranties were
made on and as of the date hereof.
3. That the Seller has performed or complied in all material
respects with the covenants and agreements set forth in the
Purchase Agreement required to be performed or complied with
by Seller on or prior to the date hereof.
IN WITNESS WHEREOF, I have executed this Closing Certificate as of the
________ day of ___________, 1999.
SELLER:
POWERTEL, INC.
By:
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President
115
EXHIBIT 12.2(A)
FORM OF CLOSING CERTIFICATE OF POWERTEL, INC.
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇, do hereby certify, on behalf of POWERTEL, INC.
("Seller"), pursuant to Sections 9.1 and 9.2 of that certain Asset Purchase
Agreement, dated as of __________, 1999, by and among InterCel Licenses, Inc.,
ICEL, Inc., Public Service Cellular, Inc., and Seller (the "Purchase
Agreement"), as follows:
1. That I am the Chief Officer of Seller, and in that capacity I am
authorized to execute and deliver this Closing Certificate on behalf
of the Seller.
2. That each of the representations and warranties made by the Seller in
the Purchase Agreement is true and correct in all material respects as
of the date hereof with the same force and effect as though such
representations and warranties were made on and as of the date hereof.
3. That the Seller has performed or complied in all material respects
with the covenants and agreements set forth in the Purchase Agreement
required to be performed or complied with by Seller on or prior to
the date hereof.
IN WITNESS WHEREOF, I have executed this Closing Certificates as of the
___ day of __________, 1999.
SELLER:
POWERTEL, INC.
By: __________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Executive Officer
116
EXHIBIT 12.2(A)
FORM OF CLOSING CERTIFICATE OF INTERCEL LICENSES, INC.
I, ▇▇▇▇▇ ▇. ▇▇▇▇▇, do hereby certify, on behalf of INTERCEL LICENSES, INC.
("ICL"), pursuant to Sections 9.1 and 9.2 of that certain Asset Purchase
Agreement, dated as of __________, 1999 by and among Powertel, Inc., ICEL,
Inc., Public Service Cellular, Inc. and ICL (the "Purchase Agreement"), as
follows:
1. That I am the Chief Executive Officer of ICL, and in that capacity I
am authorized to execute and deliver this Closing Certificate on
behalf of ICL.
2. That each of the representations and warranties made by ICL in the
Purchase Agreement is true and correct in all material respects as of
the date hereof with the same force and effect as though such
representations and warranties were made on and as of the date hereof.
3. That ICL has performed or complied in all material respects with the
covenants and agreements set forth in the Purchase Agreement required
to be performed or complied with by ICL on or prior to the date
hereof.
IN WITNESS WHEREOF, I have executed this Closing Certificate as of the
________day of ___________, 1999.
ICL.
INTERCEL LICENSES, INC.
By:___________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Executive Officer
117
EXHIBIT 12.2(C)
FORM OF ▇▇▇▇ OF SALE
KNOW ALL MEN BY THESE PRESENTS:
That for value received, Powertel, Inc., a Delaware
corporation ("Powertel"), ICEL, Inc., a Delaware corporation ("ICEL," and
together with Powertel, the "Seller"), and InterCel Licenses, Inc., a Delaware
corporation ("ICL"), do hereby sell, assign, grant, bargain, convey, transfer,
set over, deliver and confirm unto Public Service Cellular, Inc., a Georgia
corporation ("Purchaser"), its successors and assigns, forever, all of their
right, title and interest in and to the Assets, as described and defined in that
certain Asset Purchase Agreement dated as of _____________, 1999, by and among
Seller, ICL and Purchaser (the "Purchase Agreement") free and clear of all
liens, encumbrances and charges of every nature. This ▇▇▇▇ of Sale transfers no
interest in the Excluded Assets specifically identified in Section 1.2 of the
Purchase Agreement.
This ▇▇▇▇ of Sale is executed and delivered in connection with
the Purchase Agreement. Notwithstanding anything herein to the contrary, nothing
herein shall in any way vary the promises, agreements, representations,
warranties and covenants of the parties to and set forth in the Purchase
Agreement, all of which shall survive the Closing and not be merged herein.
Seller and ICL hereby bind themselves, their successors and
assigns, to warrant and defend the title to all the herein described Assets unto
Purchaser, its successors and assigns to the extent they are obligated to do so
under the terms of the Purchase Agreement.
Seller and ICL hereby name and irrevocably constitute and
appoint Purchaser, its successors and assigns, their true and lawful attorney,
with full power of substitution, in the name of Purchaser, or in the name of
Seller or ICL but on behalf and for the benefit of Purchaser, its successors and
assigns, to demand and receive from time to time any and all Assets hereby sold,
assigned, transferred, conveyed and delivered to Purchaser and to give receipts,
releases and acquaintances for and in respect of the same or any part thereof;
from time to time to institute and prosecute in the name of Seller or ICL or
otherwise, but for the benefit of Purchaser, its successors and assigns, any and
all proceedings at law, in equity or otherwise which Purchaser, its successors
or assigns, may deem proper in order to collect, assert or enforce any claim,
right, title or interest of any kind in or to the assets hereby sold, assigned,
transferred, conveyed and delivered, or intended so to be, to defend or
compromise any and all actions, suits or proceedings, in respect of any of said
Assets and to do all such acts and things in relation thereto as Purchaser, its
successors or assigns, shall deem desirable.
118
Seller and ICL hereby declare that the foregoing powers are
coupled with an interest and are and shall be irrevocable by them.
This instrument shall be effective at the opening of business,
Eastern Standard Time, on the date hereof, and shall be binding upon Seller, ICL
and their successors and assigns and shall inure to the benefit of the Purchaser
and its successors and assigns.
IN WITNESS WHEREOF, as of the _____ day of ____________, 1999,
Seller and ICL have caused this ▇▇▇▇ of Sale to be executed and delivered by
their duly authorized representatives.
SELLER:
POWERTEL, INC.
By:
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its Chief Executive Officer
ICEL, INC.
By:
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its President
ICL:
INTERCEL LICENSES, INC.
By:
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its Chief Executive Officer
2
119
EXHIBIT 12.2(f)
FORM OF LEASE ASSIGNMENTS
ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is made and entered into as of
the ____ day of ____________, 1999, by and among Public Service Cellular, Inc.,
a Georgia corporation ("Purchaser"), and Powertel, Inc., a Delaware corporation
("Seller").
W I T N E S S E T H:
WHEREAS, Purchaser and Seller have entered into an Asset Purchase
Agreement dated ___________, 1999 (the "Purchase Agreement"). Unless otherwise
defined herein, capitalized terms which are not proper nouns shall have the
meanings ascribed to them in the Purchase Agreement.
WHEREAS, Seller is presently the lessee under that certain Lease, dated
_______________, 19__ between _________________________________ as lessor, and
Seller (the "Lease Agreement"), which Lease Agreement encumbers the real
property and improvements described therein in ___________, __________; and
WHEREAS, Seller desires to assign its interest in the Lease Agreement
to Purchaser pursuant to the terms hereof;
NOW, THEREFORE, for good and valuable consideration, the adequacy and
receipt of which are hereby acknowledged, the parties hereto do hereby agree as
follows:
1. ASSIGNMENT OF LEASE AGREEMENT. Seller does hereby assign,
transfer, sell and convey unto Purchaser all of Seller's right, title and
interest in and to the Lease Agreement, together with any and all amendments
thereto, and all interests of Seller in the premises demised thereunder, to have
and to hold the same unto Purchaser, its successors and assigns, for the
unexpired balance of the term of the Lease Agreement, including all extensions
thereof and purchase options. Seller hereby covenants with Purchaser that Seller
is the owner absolutely of the lessee's interest created under the Lease
Agreement; that it has good right to sell and assign the same as herein set
forth; that the same is free and clear of all encumbrances; that there are no
defaults on the part of Seller or Lessor under the Lease Agreement; and that it
will warrant and defend the same unto Purchaser against the lawful claims and
demands of all persons whomsoever.
2. ASSUMPTION OF LEASE AGREEMENT. By execution hereof, Purchaser
does hereby assume and agree to perform all duties, obligations and
responsibilities of lessee under the Lease Agreement
120
arising or accruing from and after the date hereof.
3. INDEMNIFICATION AGREEMENTS. Seller does hereby agree to
indemnify and reimburse the Purchaser for any and all claims, losses,
liabilities, damages, costs (including court costs) and expenses (including
reasonable attorneys' and accountants' fees actually incurred) suffered or
incurred by Purchaser or its successors or assigns as a result of, or with
respect to, any and all liabilities and obligations with respect to the Lease
Agreement incurred prior to the date hereof. Purchaser does hereby agree to
indemnify and reimburse the Seller for any and all claims, losses, liabilities,
damages, costs (including court costs) and expenses (including reasonable
attorneys' and accountants' fees actually incurred) suffered or incurred by
Seller or its successors or assigns as a result of, or with respect to, any and
all liabilities and obligations with respect to the Lease Agreement incurred
after the date hereof.
4. GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with the laws of the State of ________________.
5. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and the signature of any party to any counterpart may be appended
to any other counterpart, all of which counterparts when taken together shall
constitute one Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
and Assumption of Lease under seal as of the date first above written.
[remainder of the page intentionally left blank]
121
SELLER:
POWERTEL, INC.
--------------------------------------------
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Chief Executive Officer
PURCHASER:
PUBLIC SERVICE CELLULAR, INC.
--------------------------------------------
By: ▇▇▇ ▇. ▇▇▇▇
President
122
LANDLORD'S CONSENT
The undersigned,_______________________ ("Landlord"), consents as of
this ___ day of ______, 1999 to the assignment by _______________________
("Assignor") and the assumption by PUBLIC SERVICE CELLULAR, INC. ("Assignee") of
that certain lease agreement between Assignor and Landlord dated
___________________ [, AS PREVIOUSLY MODIFIED AND AMENDED THROUGH AMENDMENTS
DATED ___________________], for the property located at ______________________
(the "Lease Agreement") (collectively, the "Assignment"). From and after the
effective date of the Assignment, for all intents and purposes, Assignee shall
be the lessee under the Lease Agreement, and for purposes of the Lease
Agreement, the address of lessee shall be as follows:
Public Service Cellular, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇
The undersigned hereby certifies to Assignee that, to the best of its
actual knowledge, and without undertaking any investigation thereof, the Lease
Agreement is valid, and existing, and has not been modified or amended except as
described above; that there are no defaults on the part of Assignor under the
Lease Agreement; and Assignor is the owner of the lessee's interest created by
virtue of the Lease Agreement.
LANDLORD:
Signed, sealed and delivered
in the presence of: -----------------------------------------
By:
--------------------------------------
Title:
-----------------------------------
-----------------------------
Unofficial Witness
-----------------------------
Notary Public
My commission expires:
[SEAL]
123
EXHIBIT 12.2(i-1)
FORM OF AGREEMENT NOT TO COMPETE
OF THE SELLER AND ICL
THIS AGREEMENT NOT TO COMPETE is made and entered into this ____ day of
_____________, 1999, by and among Public Service Cellular, Inc., a Georgia
corporation ("Company"), Powertel, Inc., a Delaware corporation ("Powertel"),
ICEL, Inc., a Delaware corporation ("ICEL," and together with Powertel, the
"Seller"), and InterCel Licenses, Inc., a Delaware corporation ("ICL"). Seller
and ICL, along with the other signatories hereto, but excluding parties which
are not employed by Seller, ICL or any such entity and are affiliated with
Seller, ICL or any such entity solely by reason of being a director or
shareholder of Seller, ICL or any such entity, are referred to collectively
herein as the "Covenantors").
RECITALS:
A. Seller has heretofore been engaged in the operation of the
Cellular Business;
B. Pursuant to the terms of an Asset Purchase Agreement dated
___________, 1999, by and among Seller, ICL and Company (the
"Purchase Agreement"), the Company has purchased, and Seller
and ICL have sold, the Assets. Unless otherwise defined
herein, capitalized terms which are not proper nouns shall
have the meanings ascribed to them in the Purchase Agreement;
C. Seller and ICL acknowledge that the Company would not have
entered into the Purchase Agreement in the absence of
Covenantors' agreement herein not to compete with the Company.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. NON-COMPETITION AGREEMENT. During the period of two (2) years
from and after the date hereof, Covenantors jointly and severally covenant and
agree that, without the Company's prior written consent, they will not, directly
or indirectly, individually or collectively, lend their credit, advice or
assistance, including but not limited to, as an owner, partner, joint venturer,
shareholder, manager, employer, licensor, licensee, principal, agent, investor
or otherwise, for the purpose of establishing, operating or managing any
business or entity that is engaged in "Competitive Activities" (as defined
below) with the Cellular Business in the Territory and in the area in which the
Company is licensed to provide cellular telephone services as of the date of the
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Purchase Agreement (collectively, such areas as are set forth on Schedule A
hereto, the "Noncompete Territory"); provided that the foregoing shall in no
event prevent Covenantors from acquiring and holding an amount not to exceed two
percent (2%) of the outstanding shares of any corporation engaged in Competitive
Activities if such shares are available to the general public on a national
securities market or exchange. For the purposes of this Agreement, "Competitive
Activities" shall mean the provision of cellular service pursuant to a license
granted by the Federal Communications Commission under 47 C.F.R. Part 22,
Subpart H (Cellular Radiotelephone Service).
2. NONSOLICITATION AGREEMENT. During the period of two (2) years
from and after the date hereof Covenantors, jointly and severally, agree that
they will not, whether for their own account or for the account of any other
person or entity, directly or indirectly, or individually or collectively: (i)
use "Customer Information" (as defined in Section 3 hereof) to interfere with
Company's relationship as a service provider or prospective service provider to,
or endeavor to divert or entice away from the Company as a user of Company's
services, any person or entity which at any time during the one (1) year period
prior to the date hereof is or was a customer of the Cellular Business (a
"Cellular Business Customer"); (ii) engage in any advertising or promotional
activities in the Noncompete Territory (including, without limitation, radio,
television, print, billboard, telemarketing and direct mail advertising) that
are targeted specifically at a group of Cellular Business Customers or that make
reference to the prior relationship between Covenantors and Cellular Business
Customers; or (iii) use the words "Public Service Cellular", "PSC" or
"InterCel," or any substantially similar words or expressions, or in any way
make reference to Company or to "InterCel" in any advertising or promotional
activities in the Noncompete Territory (including, without limitation, radio,
television, print, billboard, telemarketing and direct mail advertising);
provided, however, that the Company acknowledges and agrees that Covenantors are
engaged, and will continue to be engaged, in marketing, selling and providing
wireless services (other than wireless services that constitute Competitive
Activities) in the Noncompete Territory, and that such activities shall not
constitute a violation of Section 2(ii) if they are accomplished by means of
advertising, promotional activities or promotional materials that Cellular
Business Customers have access to or receive, so long as such advertising,
promotional activities or promotional materials are not targeted specifically at
a group of Cellular Business Customers or make reference to the prior
relationship between Covenantors and Cellular Business Customers.
During the period of two (2) years from and after the date hereof
Company agrees that it will not, and any person or entity that "controls," is
"controlled by" or is under common "control with" (as hereinafter defined) the
Company will not, whether for its own account or for the account of any other
person or entity, directly or indirectly, or individually or collectively, use
the name "Powertel," or any substantially similar words or expressions, or in
any way make reference to Seller in any advertising or promotional activities in
the Noncompete Territory (including, without limitation, radio, television,
print, billboard, telemarketing and direct mail advertising). For all purposes
of the preceding sentence, the term "control" means to have a fifty percent
(50%) or greater ownership interest.
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3. CONFIDENTIAL INFORMATION. Covenantors understand and agree
that the Assets and the Cellular Business acquired by the Company pursuant to
the Purchase Agreement are unique and specialized and that, in connection with
their respective ownership or affiliations with the Cellular Business, they
received or had access to Confidential Information (as hereinafter defined).
Covenantors jointly and severally agree that for a period of two (2) years from
and after the date hereof, they shall keep secret all such Confidential
Information and will not, except as required by law, directly or indirectly, or
individually or collectively, "Use" (as hereinafter defined) or "Disclose" (as
hereinafter defined) the same to any person or entity without first obtaining
the written consent of the Company. At any time the Company may so request,
Covenantors shall turn over to the Company all books, notes, memoranda, manuals,
notebooks, tables, drawings, calculations, records and other documents made,
compiled by or delivered to them containing or concerning any Confidential
Information, including copies thereof except such copies as are reasonably
necessary for historical purposes for Seller, in their possession, it being
agreed that the same and all information contained therein are at all times the
exclusive property of the Company; provided that notwithstanding anything to the
contrary herein, Seller or ICL shall not be obligated to turn over to the
Company the corporate minute books, stock books and other corporate records of
Seller or ICL having exclusively to do with the corporate organization,
capitalization of Seller or ICL or the PCS business of Seller, as well as the
Seller and ICEL's tax records and nontransferrable insurance contracts
(collectively, the "Retained Records"); provided, further, that from and after
the Closing Date, Seller and ICL will each afford the Company and its attorneys,
accountants and representatives access to the Retained Records, as required by
the Purchase Agreement.
As used in this Agreement, the term "Non-customer Information" means
any information or compilation of information not generally known to the public
or the industry, which was as of the date of the Purchase Agreement or is as of
the date hereof proprietary to Seller and/or ICL, relating to: (i) procedures,
techniques, methods, concepts, ideas, affairs, products, processes and services
related solely to the Cellular Business, including, but not limited to,
information relating to marketing, merchandising, selling, research,
development, purchasing, costs, customers, plans, pricing, billing, needs of
customers and services used by customers of the Cellular Business; (ii) any
specifications, formulas, plans, drawings, accounts or sales records, sales
brochures, books, code books, records, manuals, trade secrets, knowledge,
know-how, pricing strategies, operating costs, sales margins, methods of
operation in the Territory and the like related solely to the Cellular Business.
As used in this Agreement, the term "Customer Information" means,
solely with respect to the Cellular Business, all lists of Cellular Business
Customers, addresses of Cellular Business Customers, information regarding
prospective customers of the Cellular Business, Cellular Business Customer
billing history and records, Cellular Business Customer service history, other
Cellular Business Customer records which are not generally known to the public
or the industry and which were as of the date of the Purchase Agreement or the
date hereof proprietary to the Seller and/or ICL.
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126
As used in this Agreement, the term "Confidential Information" means
the Non-customer Information and the Customer Information, collectively. All
information disclosed to Covenantors during the term of their prior relationship
to the Cellular Business which they have a reasonable basis to believe to be
Confidential Information, which was previously treated by Seller and/or ICL as
Confidential Information, shall be presumed to be Confidential Information.
As used in this Agreement, the term "Disclose", with respect to all
Confidential Information, means to reveal, deliver, divulge, disclose, publish,
copy, communicate, show or otherwise make known or available to any other person
or entity other than the Covenantors any of the Confidential Information.
As used in this Agreement, the term "Use," with respect to all
Non-customer Information, means to appropriate or use any of the Non-customer
Information for the benefit of any person or entity other than the Company or
the Covenantors. With respect to Customer Information, the term "Use" means to
appropriate or use any of the Customer Information for the benefit of any person
or entity other than the Company.
4. COMPENSATION. In exchange for these commitments, Company will
pay to Covenantors $________________ [allocation of purchase price in accordance
with Purchase Agreement].
5. REASONABLENESS OF COVENANTS. Covenantors acknowledge and agree
that the geographic scope and period of duration of the restrictive covenants
contained in this Agreement are both fair and reasonable and that the interests
sought to be protected by the Company are legitimate business interests entitled
to be protected. Covenantors further acknowledge and agree that the Company
would not have agreed to enter into the Purchase Agreement unless they entered
into this Agreement.
6. INJUNCTIVE RELIEF. The parties agree that the remedy of
damages at law for the breach by Covenantors of any of the covenants contained
in this Agreement is an inadequate remedy. In recognition of the irreparable
harm that a violation by Covenantors of any of the covenants, agreements or
obligations arising under this Agreement would cause the Company, Covenantors
agree that, in addition to any other remedies or relief afforded by law, an
injunction against an actual or threatened violation or violations may be issued
against them, it being the understanding of the parties that both damages and an
injunction shall be proper modes of relief and are not to be considered
alternative remedies. In the event of any such actual or threatened violation,
the prevailing party in any legal proceeding shall be reimbursed by the other
party for all costs, expenses and reasonable attorneys' fees incurred in
pursuing or defending in such legal proceedings any of its rights with respect
to such actual or threatened violation.
7. BLUE PENCIL DOCTRINE. In the event that any of the restrictive
covenants contained in this Agreement shall be found by a court of competent
jurisdiction to be unreasonable
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127
by reason of its extending for too great a period of time or over too great a
geographic area or by reason of its being too extensive in any other respect,
then such restrictive covenant shall be deemed modified to the minimum extent
necessary to make it reasonable and enforceable under the circumstances.
8. NOTICE. All notices, demands and other communications provided
for in this Agreement shall be in writing and shall be given by personal
delivery or by certified or registered first class mail, postage prepaid, return
receipt requested, sent to the Covenantors at the addresses designated on
Schedule B or to the Company at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
attention ▇▇▇ ▇. ▇▇▇▇, President, or at such other address as may be designated
by a party in written notice delivered to the other parties in accordance with
this paragraph. All such notices, demands and communications shall be effective
when delivered.
9. ENTIRE AGREEMENT. This Agreement, together with the Purchase
Agreement, contains the entire agreement of the parties hereto and supersedes
all prior or contemporaneous agreements and understandings, oral or written,
between the parties hereto and thereto with respect to the subject matter hereof
and thereof.
10. AMENDMENT. No amendment or waiver of any provision of this
Agreement shall be effective unless the same shall be in writing and signed by
all of the parties and then such waiver shall only be effective in the specific
instance and for the specific purpose for which it was given.
11. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
personal representative(s), successors and permitted assigns, but nothing in
this Agreement is to be construed as an authorization or right of any party to
assign its/his rights or delegate its/his duties under this Agreement without
the prior written consent of the other party hereto.
12. GOVERNING LAW. This Agreement shall be construed, governed by
and enforced in accordance with the laws of the State of Georgia, without giving
effect to the principles of conflicts of laws thereof.
13. HEADINGS. The headings to the paragraphs of this Agreement are
intended for the convenience of the parties only and shall in no way be held to
explain, modify, amplify or aid in the interpretation of the provisions hereof.
14. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and if any portion hereof shall be held invalid, illegal or
unenforceable for any reason, the remainder shall not thereby be invalidated but
shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day, month and year first above written.
COMPANY: PUBLIC SERVICE CELLULAR, INC.
By:
-----------------------------------------
▇▇▇ ▇. ▇▇▇▇
Its President
COVENANTORS: POWERTEL, INC.
By:
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its Chief Executive Officer
ICEL, INC.
By:
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its President
INTERCEL LICENSES, INC.
By:
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
Its Chief Executive Officer
POWERTEL PCS, INC.
POWERTEL/JACKSONVILLE, INC.
POWERTEL/MEMPHIS, INC.
POWERTEL/BIRMINGHAM, INC.
POWERTEL/ATLANTA, INC.
POWERTEL/KENTUCKY, INC.
POWERTEL JACKSONVILLE LICENSES, INC.
POWERTEL MEMPHIS LICENSES, INC.
POWERTEL BIRMINGHAM LICENSES, INC.
POWERTEL ATLANTA LICENSES, INC.
POWERTEL KENTUCKY LICENSES, INC.
POWERTEL KNOXVILLE LICENSES, INC.
POWERTEL NASHVILLE LICENSES, INC.
By:
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
President of each of the foregoing
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SCHEDULE A
Noncompete Territory
[Powertel's and PSC's cellular territories]
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SCHEDULE B
Names and Addresses of Covenantors
POWERTEL, INC.
ICEL, INC.
INTERCEL LICENSES, INC.
POWERTEL PCS, INC.
POWERTEL/JACKSONVILLE, INC.
POWERTEL/MEMPHIS, INC.
POWERTEL/BIRMINGHAM, INC.
POWERTEL/ATLANTA, INC.
POWERTEL/KENTUCKY, INC.
POWERTEL JACKSONVILLE LICENSES, INC.
POWERTEL MEMPHIS LICENSES, INC.
POWERTEL BIRMINGHAM LICENSES, INC.
POWERTEL ATLANTA LICENSES, INC.
POWERTEL KENTUCKY LICENSES, INC.
POWERTEL KNOXVILLE LICENSES, INC.
POWERTEL NASHVILLE LICENSES, INC.
For each of the following, address and contact for Notices:
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇ and
▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
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EXHIBIT 12.2 (I-2)
FORM OF AGREEMENT NOT TO COMPETE
OF PRINCIPALS
THIS AGREEMENT NOT TO COMPETE (the "Agreement") is made and entered
into this ____ day of _____________, 1999, by and among Public Service Cellular,
Inc., a Georgia corporation ("Company"), and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III, an
individual ("▇▇▇▇▇▇").
RECITALS:
A. Powertel, Inc. and ICEL, Inc. (collectively, the "Seller") has
heretofore been engaged in the operation of the Cellular
Business;
B. The Company has purchased certain assets and licenses
comprising the Cellular Business from Seller and its
affiliates, pursuant to an Asset Purchase Agreement dated
_________ ___, 1999 ("Purchase Agreement"). Unless otherwise
defined herein, capitalized terms which are not proper nouns
shall have the meanings ascribed to them in the Purchase
Agreement;
▇. ▇▇▇▇▇▇ is a director of Powertel;
▇. ▇▇▇▇▇▇ acknowledges that, as he is the Chairman of the Board
of a significant shareholder of Powertel, he benefits
personally from the Company's performance under the Purchase
Agreement, and he enters this agreement in order to induce
such performance; and
▇. ▇▇▇▇▇▇ further acknowledges that the Company would not have
entered into the Purchase Agreement in the absence of ▇▇▇▇▇▇'▇
agreement herein not to compete with the Company.
NOW, THEREFORE, as an inducement for the Company to enter into and
perform under the Purchase Agreement, and in consideration of the foregoing
premises and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. NON-COMPETITION AGREEMENT. During the period of two (2) years
from and after the date hereof, ▇▇▇▇▇▇ covenants and agrees that, without the
Company's prior written consent, he will not, directly or indirectly lend his
credit, advice or assistance, including but not limited to, as an individual,
owner, partner, joint venturer, shareholder, officer, director, manager,
employer, licensor, licensee, principal, agent, investor or otherwise, for the
purpose of establishing, operating
132
or managing any business or entity that is engaged in "Competitive Activities"
(as defined herein) with the Cellular Business in the Territory and in the area
in which the Company is licensed to provide cellular telephone services as of
the date of the Purchase Agreement (collectively, such areas as are set forth on
Schedule A hereto, the "Noncompete Territory"); provided, however, that the
foregoing shall in no event prevent ▇▇▇▇▇▇ from acquiring and holding an amount
not to exceed five percent (5%) of the outstanding shares of any corporation
engaged in Competitive Activities; provided, further, however, that this
Agreement shall not prohibit ▇▇▇▇▇▇ from owning as a shareholder or passive
investor interests in entities that are engaged in Competitive Activities if (x)
such entities were not employed in Competitive Activities at the time Lanier
became a shareholder or passive investor; and (y) at the time of such investment
▇▇▇▇▇▇ did not know that such entities intended to engage in Competitive
Activities and (z) upon such entities becoming involved in Competitive
Activities, Lanier abstains from voting any shares or ownership interests he
owns in such entities; provided, further, however, that this Agreement shall not
prohibit investment partnerships or funds in which ▇▇▇▇▇▇ owns an interest from
acquiring an interest in entities engaged in Competitive Activities so long as
▇▇▇▇▇▇ does not control the investment decision of such funds. For the purposes
of this Agreement, "Competitive Activities" shall mean the provision of cellular
service pursuant to a license granted by the Federal Communications Commission
under 47 C.F.R. Part 22, Subpart H (Cellular Radiotelephone Service) ("Cellular
Service").
2. NONSOLICITATION AGREEMENT. During the period of two (2) years
from and after the date hereof, ▇▇▇▇▇▇ agrees that he will not, whether for his
own account or for the account of any other person or entity, directly or
indirectly interfere with the Company's relationship as a provider of Cellular
Service or prospective provider of Cellular Service to, or endeavor to divert or
entice away from the Purchaser as a user of the Company's Cellular Service, any
person or entity, which at any time during the one (1) year period prior to the
date hereof is or was a customer of the Cellular Business (a "Cellular Business
Customer"); provided, however, that the Company acknowledges and agrees that
Lanier may hold interests and positions in entities that are engaged in, and
will continue to be engaged in, marketing, selling and providing services in the
Noncompete Territory, and that such actions shall not constitute a violation of
this Section if they are accomplished by means of advertising, promotional
activities or promotional materials that Cellular Business Customers have access
to or receive so long as such advertising, promotional activities or promotional
materials are not targeted specifically at a group of Cellular Business
Customers.
3. CONFIDENTIAL INFORMATION. ▇▇▇▇▇▇ understands and agrees that
the assets and the Cellular Business acquired by the Company pursuant to the
Purchase Agreement are unique and specialized and that, in connection with his
relationship with Seller, he received or had access to Confidential Information
(as hereinafter defined). ▇▇▇▇▇▇ agrees that for a period of two (2) years from
and after the date hereof, he shall keep secret all such Confidential
Information and will not, except as required by law, directly or indirectly, or
individually or collectively, "Use" (as hereinafter defined) or "Disclose" (as
hereinafter defined) the same to any person or entity without first obtaining
the written consent of the Company. At any time the Company may so request,
▇▇▇▇▇▇ shall turn over to the Company all books, notes, memoranda, manuals,
notebooks, tables, drawings, calculations, records and other documents made,
compiled by or delivered to him containing or
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133
concerning any Confidential Information, including copies thereof, in his
possession, it being agreed that the same and all information contained therein
are at all times the exclusive property of the Company.
As used in this Agreement, the term "Non-customer Information" means
any information or compilation of information not generally known to the public
or the industry, which was as of the date of the Purchase Agreement or is as of
the date hereof proprietary to Seller, relating to: (i) procedures, techniques,
methods, concepts, ideas, affairs, products, processes and services related
solely to the Cellular Business, including, but not limited to, information
relating to marketing, merchandising, selling, research, development,
purchasing, costs, customers, plans, pricing, billing, needs of customers and
services used by customers of the Cellular Business; and (ii) any
specifications, formulas, plans, drawings, accounts or sales records, sales
brochures, books, code books, records, manuals, trade secrets, knowledge,
know-how, pricing strategies, operating costs, sales margins, methods of
operation in the Territory and the like related solely to the Cellular Business.
As used in this Agreement, the term "Customer Information" means,
solely with respect to the Cellular Business, all lists of Cellular Business
Customers, addresses of Cellular Business Customers, information regarding
prospective customers of the Cellular Business, Cellular Business Customer
billing history and records, Cellular Business Customer service history, and
other Cellular Business Customer records, in each case which are not generally
known to the public or the industry and which were as of the date of the
Purchase Agreement or as of the date hereof proprietary to Seller.
As used in this Agreement, the term "Confidential Information" means
the Non-customer Information and the Customer Information, collectively. All
information disclosed to ▇▇▇▇▇▇ during the term of his relationship with Seller
in the Cellular Business which he has a reasonable basis to believe to be
Confidential Information, which was previously treated by Seller as Confidential
Information, shall be presumed to be Confidential Information.
As used in this Agreement, the term "Disclose," with respect to all
Confidential Information means to reveal, deliver, divulge, disclose, publish,
copy, communicate, show or otherwise make known or available to any other person
or entity other than Seller and its subsidiaries, any of the Confidential
Information.
As used in this Agreement, the term "Use," with respect to all
Non-customer Information means to appropriate or use any of the Non-customer
Information for the benefit of any person or entity other than the Company or
Seller and its subsidiaries. With respect to Customer Information, the term
"Use" means to appropriate or use any of the Customer Information for the
benefit of any person or entity other than the Company.
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134
4. REASONABLENESS OF COVENANTS. ▇▇▇▇▇▇ acknowledges and agrees
that the geographic scope and period of duration of the restrictive covenants
contained in this Agreement are both fair and reasonable and that the interests
sought to be protected by the Company are legitimate business interests entitled
to be protected. ▇▇▇▇▇▇ further acknowledges and agrees that the Company would
not have agreed to enter into the Purchase Agreement unless he entered into this
Agreement.
5. INJUNCTIVE RELIEF. The parties agree that the remedy of
damages at law for the breach by Lanier of any of the covenants contained in
this Agreement is an inadequate remedy. In recognition of the irreparable harm
that a violation by ▇▇▇▇▇▇ of any of the covenants, agreements or obligations
arising under this Agreement would cause the Company, ▇▇▇▇▇▇ agrees that, in
addition to any other remedies or relief afforded by law, an injunction against
an actual or threatened violation or violations may be issued against him, it
being the understanding of the parties that both damages and an injunction shall
be proper modes of relief and are not to be considered alternative remedies. In
the event of any such actual or threatened violation, the prevailing party in
any legal proceeding shall be reimbursed by the other party for all costs,
expenses and reasonable attorneys' fees incurred in pursuing or defending in
such legal proceedings any of its rights with respect to such actual or
threatened violation.
6. BLUE PENCIL DOCTRINE. In the event that any of the restrictive
covenants contained in this Agreement shall be found by a court of competent
jurisdiction to be unreasonable by reason of its extending for too great a
period of time or over too great a geographic area or by reason of its being too
extensive in any other respect, then such restrictive covenant shall be deemed
modified to the minimum extent necessary to make it reasonable and enforceable
under the circumstances.
7. NOTICE. All notices, demands and other communications provided
for in this Agreement shall be in writing and shall be given by personal
delivery or by certified or registered first class mail, postage prepaid, return
receipt requested, sent to ▇▇▇▇▇▇ at c/o ITC Holding Company, Inc., ▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy (which shall not
constitute notice) to: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or to the Company at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
attention ▇▇▇ ▇. ▇▇▇▇, President, or at such other address as may be designated
by a party in written notice delivered to the other parties in accordance with
this paragraph. All such notices, demands and communications shall be effective
when delivered.
8. ENTIRE AGREEMENT. This Agreement contains the entire agreement
of the parties hereto with respect to the subject matter hereof and supersedes
all prior or contemporaneous agreements and understandings, oral or written,
between the parties hereto and with respect to the subject matter hereof.
9. AMENDMENT. No amendment or waiver of any provision of this
Agreement shall be effective unless the same shall be in writing and signed by
all of the parties and then such waiver shall only be effective in the specific
instance and for the specific purpose for which it was given.
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135
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
personal representative(s), successors and permitted assigns, but nothing in
this Agreement is to be construed as an authorization or right of any party to
assign its/his rights or delegate its/his duties under this Agreement without
the prior written consent of the other party hereto.
11. GOVERNING LAW. This Agreement shall be construed, governed by
and enforced in accordance with the laws of the State of Georgia, without giving
effect to the principles of conflicts of laws thereof.
12. HEADINGS. The headings to the paragraphs of this Agreement are
intended for the convenience of the parties only and shall in no way be held to
explain, modify, amplify or aid in the interpretation of the provisions hereof.
13. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and if any portion hereof shall be held invalid, illegal or
unenforceable for any reason, the remainder shall not thereby be invalidated but
shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day, month and year first above written.
COMPANY:
PUBLIC SERVICE CELLULAR, INC.
By:
-----------------------------------------
▇▇▇ ▇. ▇▇▇▇
Its President
▇▇▇▇▇▇:
--------------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
5
136
Schedule A
Territory
[DESCRIPTION OF POWERTEL'S AND PSC'S CELLULAR TERRITORIES]
6
137
EXHIBIT 12.2 (I-3)
FORM OF AGREEMENT NOT TO COMPETE
OF PRINCIPALS
THIS AGREEMENT NOT TO COMPETE (the "Agreement") is made and entered
into this ____ day of _____________, 1999, by and among Public Service Cellular,
Inc., a Georgia corporation ("Company"), and ▇▇▇▇▇ ▇▇▇▇▇, an individual
("▇▇▇▇▇").
RECITALS:
A. Powertel, Inc. and ICEL, Inc. (collectively, the "Seller") has
heretofore been engaged in the operation of the Cellular
Business;
B. The Company has purchased certain assets and licenses
comprising the Cellular Business from Seller and its
affiliates, pursuant to an Asset Purchase Agreement dated
_________ ___, 1999 ("Purchase Agreement"). Unless otherwise
defined herein, capitalized terms which are not proper nouns
shall have the meanings ascribed to them in the Purchase
Agreement;
▇. ▇▇▇▇▇ is an employee and director of each of Powertel and
ICEL;
▇. ▇▇▇▇▇ acknowledges that, as an employee, director and
shareholder of Powertel, he benefits personally from the
Company's performance under the Purchase Agreement, and he
enters this agreement in order to induce such performance; and
▇. ▇▇▇▇▇ further acknowledges that the Company would not have
entered into the Purchase Agreement in the absence of ▇▇▇▇▇'▇
agreement herein not to compete with the Company.
NOW, THEREFORE, as an inducement for the Company to enter into and
perform under the Purchase Agreement, and in consideration of the foregoing
premises and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. NON-COMPETITION AGREEMENT. During the period of two (2) years from
and after the date hereof, ▇▇▇▇▇ covenants and agrees that, without the
Company's prior written consent, he will not, directly or indirectly lend his
credit, advice or assistance, including but not limited to, as an individual,
owner, partner, joint venturer, shareholder, officer, director, manager,
employer, licensor, licensee, principal, agent, investor or otherwise, for the
purpose of establishing, operating
138
or managing any business or entity that is engaged in "Competitive Activities"
(as defined herein) with the Cellular Business in the Territory and in the area
in which the Company is licensed to provide cellular telephone services as of
the date of the Purchase Agreement (collectively, such areas as are set forth on
Schedule A hereto, the "Noncompete Territory"); provided, however, that the
foregoing shall in no event prevent ▇▇▇▇▇ from acquiring and holding an amount
not to exceed five percent (5%) of the outstanding shares of any corporation
engaged in Competitive Activities; provided, further, however, that this
Agreement shall not prohibit ▇▇▇▇▇ from owning as a shareholder or passive
investor interests in entities that are engaged in Competitive Activities if (x)
such entities were not employed in Competitive Activities at the time ▇▇▇▇▇
became a shareholder or passive investor; and (y) at the time of such investment
▇▇▇▇▇ did not know that such entities intended to engage in Competitive
Activities and (z) upon such entities becoming involved in Competitive
Activities, ▇▇▇▇▇ abstains from voting any shares or ownership interests he owns
in such entities; provided, further, however, that this Agreement shall not
prohibit investment partnerships or funds in which ▇▇▇▇▇ owns an interest from
acquiring an interest in entities engaged in Competitive Activities so long as
▇▇▇▇▇ does not control the investment decision of such funds. For the purposes
of this Agreement, "Competitive Activities" shall mean the provision of cellular
service pursuant to a license granted by the Federal Communications Commission
under 47 C.F.R. Part 22, Subpart H (Cellular Radiotelephone Service) ("Cellular
Service").
2. NONSOLICITATION AGREEMENT. During the period of two (2) years
from and after the date hereof, ▇▇▇▇▇ agrees that he will not, whether for his
own account or for the account of any other person or entity, directly or
indirectly interfere with the Company's relationship as a provider of Cellular
Service or prospective provider of Cellular Services to, or endeavor to divert
or entice away from the Purchaser as a user of the Company's services, any
person or entity, which at any time during the one (1) year period prior to the
date hereof is or was a customer of the Cellular Business (a "Cellular Business
Customer"); provided, however, that the Company acknowledges and agrees that
▇▇▇▇▇ may hold interests and positions in entities that are engaged in, and will
continue to be engaged in, marketing, selling and providing services in the
Noncompete Territory, and that such actions shall not constitute a violation of
this Section if they are accomplished by means of advertising, promotional
activities or promotional materials that Cellular Business Customers have access
to or receive so long as such advertising, promotional activities or promotional
materials are not targeted specifically at a group of Cellular Business
Customers.
3. CONFIDENTIAL INFORMATION. ▇▇▇▇▇ understands and agrees that
the assets and the Cellular Business acquired by the Company pursuant to the
Purchase Agreement are unique and specialized and that, in connection with his
employment with Seller, he received or had access to Confidential Information
(as hereinafter defined). ▇▇▇▇▇ agrees that for a period of two (2) years from
and after the date hereof, he shall keep secret all such Confidential
Information and will not, except as required by law, directly or indirectly , or
individually or collectively, "Use" (as hereinafter defined) or "Disclose" (as
hereinafter defined) the same to any person or entity without first obtaining
the written consent of the Company. At any time the Company may so request,
▇▇▇▇▇ shall turn over to the Company all books, notes, memoranda, manuals,
notebooks, tables, drawings, calculations, records and other documents made,
compiled by or delivered to him containing or
2
139
concerning any Confidential Information, including copies thereof, in his
possession, it being agreed that the same and all information contained therein
are at all times the exclusive property of the Company.
As used in this Agreement, the term "Non-customer Information" means
any information or compilation of information not generally known to the public
or the industry, which was as of the date of the Purchase Agreement or is as of
the date hereof proprietary to Seller, relating to: (i) procedures, techniques,
methods, concepts, ideas, affairs, products, processes and services related
solely to the Cellular Business, including, but not limited to, information
relating to marketing, merchandising, selling, research, development,
purchasing, costs, customers, plans, pricing, billing, needs of customers and
services used by customers of the Cellular Business; and (ii) any
specifications, formulas, plans, drawings, accounts or sales records, sales
brochures, books, code books, records, manuals, trade secrets, knowledge,
know-how, pricing strategies, operating costs, sales margins, methods of
operation in the Territory and the like related solely to the Cellular Business.
As used in this Agreement, the term "Customer Information" means,
solely with respect to the Cellular Business, all lists of Cellular Business
Customers, addresses of Cellular Business Customers, information regarding
prospective customers of the Cellular Business, Cellular Business Customer
billing history and records, Cellular Business Customer service history, and
other Cellular Business Customer records, in each case which are not generally
known to the public or the industry and which were as of the date of the
Purchase Agreement or as of the date hereof proprietary to Seller.
As used in this Agreement, the term "Confidential Information" means
the Non-customer Information and the Customer Information, collectively. All
information disclosed to ▇▇▇▇▇ during the term of his relationship with Seller
in the Cellular Business which he has a reasonable basis to believe to be
Confidential Information, which was previously treated by Seller as Confidential
Information, shall be presumed to be Confidential Information.
As used in this Agreement, the term "Disclose," with respect to all
Confidential Information means to reveal, deliver, divulge, disclose, publish,
copy, communicate, show or otherwise make known or available to any other person
or entity other than Seller and its subsidiaries, any of the Confidential
Information.
As used in this Agreement, the term "Use," with respect to all
Non-customer Information means to appropriate or use any of the Non-customer
Information for the benefit of any person or entity other than the Company or
Seller and its subsidiaries. With respect to Customer Information, the term
"Use" means to appropriate or use any of the Customer Information for the
benefit of any person or entity other than the Company.
4. REASONABLENESS OF COVENANTS. ▇▇▇▇▇ acknowledges and agrees
that the geographic scope and period of duration of the restrictive covenants
contained in this Agreement are
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140
both fair and reasonable and that the interests sought to be protected by the
Company are legitimate business interests entitled to be protected. ▇▇▇▇▇
further acknowledges and agrees that the Company would not have agreed to enter
into the Purchase Agreement unless he entered into this Agreement.
5. INJUNCTIVE RELIEF. The parties agree that the remedy of
damages at law for the breach by ▇▇▇▇▇ of any of the covenants contained in this
Agreement is an inadequate remedy. In recognition of the irreparable harm that a
violation by ▇▇▇▇▇ of any of the covenants, agreements or obligations arising
under this Agreement would cause the Company, ▇▇▇▇▇ agrees that, in addition to
any other remedies or relief afforded by law, an injunction against an actual or
threatened violation or violations may be issued against him, it being the
understanding of the parties that both damages and an injunction shall be proper
modes of relief and are not to be considered alternative remedies. In the event
of any such actual or threatened violation, the prevailing party in any legal
proceeding shall be reimbursed by the other party for all costs, expenses and
reasonable attorneys' fees incurred in pursuing or defending in such legal
proceedings any of its rights with respect to such actual or threatened
violation.
6. BLUE PENCIL DOCTRINE. In the event that any of the restrictive
covenants contained in this Agreement shall be found by a court of competent
jurisdiction to be unreasonable by reason of its extending for too great a
period of time or over too great a geographic area or by reason of its being too
extensive in any other respect, then such restrictive covenant shall be deemed
modified to the minimum extent necessary to make it reasonable and enforceable
under the circumstances.
7. NOTICE. All notices, demands and other communications provided
for in this Agreement shall be in writing and shall be given by personal
delivery or by certified or registered first class mail, postage prepaid, return
receipt requested, sent to ▇▇▇▇▇ at ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ or to the Company at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
attention ▇▇▇ ▇. ▇▇▇▇, President, or at such other address as may be designated
by a party in written notice delivered to the other parties in accordance with
this paragraph. All such notices, demands and communications shall be effective
when delivered.
8. ENTIRE AGREEMENT. This Agreement contains the entire agreement
of the parties hereto with respect to the subject matter hereof and supersedes
all prior or contemporaneous agreements and understandings, oral or written,
between the parties hereto and with respect to the subject matter hereof.
9. AMENDMENT. No amendment or waiver of any provision of this
Agreement shall be effective unless the same shall be in writing and signed by
all of the parties and then such waiver shall only be effective in the specific
instance and for the specific purpose for which it was given.
10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
personal representative(s), successors and permitted assigns, but nothing in
this Agreement is to be construed as an authorization or right
4
141
of any party to assign its/his rights or delegate its/his duties under this
Agreement without the prior written consent of the other party hereto.
11. GOVERNING LAW. This Agreement shall be construed, governed by
and enforced in accordance with the laws of the State of Georgia, without giving
effect to the principles of conflicts of laws thereof.
12. HEADINGS. The headings to the paragraphs of this Agreement are
intended for the convenience of the parties only and shall in no way be held to
explain, modify, amplify or aid in the interpretation of the provisions hereof.
13. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and if any portion hereof shall be held invalid, illegal or
unenforceable for any reason, the remainder shall not thereby be invalidated but
shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day, month and year first above written.
COMPANY:
PUBLIC SERVICE CELLULAR, INC.
By:
-----------------------------------------
▇▇▇ ▇. ▇▇▇▇
Its President
▇▇▇▇▇:
--------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
5
142
Schedule A
Non-Compete Territory
[DESCRIPTION OF POWERTEL'S AND PSC'S CELLULAR TERRITORIES]
6
143
[▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & SCARBOROUGH, L.L.P. LETTERHEAD]
EXHIBIT 12.2(M)
FORM OF OPINION OF
COUNSEL TO SELLER
___________, 1999
Public Service Cellular, Inc.
[Add subsidiary, if any]
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
CoBank, ACB ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel to each of Powertel, Inc., a Delaware
corporation ("Powertel"), ICEL, Inc. ("ICEL," and together with Powertel the
"Seller") and InterCel Licenses, Inc., a Delaware corporation ("ICL"), in
connection with the preparation of the Asset Purchase Agreement by and between
Public Service Cellular, Inc., a Georgia corporation ("Purchaser"), Powertel,
ICEL and ICL dated ______________, 1999 (the "Agreement") and were present at
the closing of the transaction whereby Purchaser agreed to purchase from Seller
and ICL the Assets of Seller and ICL related to Seller's and ICL's cellular
telephone business in western Georgia and eastern Alabama (the "Transaction").
We have also acted as counsel to Powertel/Atlanta, Inc., a Delaware corporation
("Powertel/Atlanta"), with regard to any Tower Space Leases that
Powertel/Atlanta entered into with respect to the Transaction. This opinion
letter is rendered pursuant to Section 12.2(m) of the Agreement. As used in this
opinion letter and unless otherwise indicated, the term "Closing Documents"
means the ▇▇▇▇ of Sale, the Assignment and Assumption Agreement, the Post
Closing Escrow Agreement, the Agreement Not to Compete of Seller and ICL, the
Tower Space Leases and the Shared Facilities and Transition Services Agreement.
This opinion letter is limited by, and is in accordance with, the
January 1, 1992 edition of the Interpretive Standards applicable to Legal
Opinions to Third Parties in Corporate
144
Public Service Cellular, Inc.
[Add subsidiary, if any]
CoBank, ACB
___________, 1999
Page 2
Transactions adopted by the Legal Opinion Committee of the Corporate and Banking
Law Section of the State Bar of Georgia, which Interpretative Standards are
attached hereto as Schedule I and are incorporated in this opinion letter by
this reference. Capitalized terms used in this opinion letter and the
attachments hereto and not otherwise defined herein shall have the meanings
assigned to such terms in the Interpretive Standards and/or the Agreement. In
the event of a conflict in the definitions of such capitalized terms appearing
in both the Interpretive Standards and the Agreement, the definitions appearing
in the Agreement shall be applicable to this opinion letter.
In the capacity described above, we have considered such matters of law
and of fact, including the examination of originals or copies, certified or
otherwise identified to our satisfaction, of such records and documents of
Seller and ICL, certificates of officers and representatives of Seller and ICL,
certificates of public officials and such other documents as we have deemed
appropriate as a basis for the opinions hereinafter set forth.
The opinions set forth herein are limited to the laws of the State of
Georgia, the State of Delaware and applicable federal laws.
Based upon the foregoing, it is our opinion that:
1. Powertel, ICEL, ICL and Powertel/Atlanta were each duly
organized as a corporation, and are each existing and in good standing, under
the laws of the State of Delaware. Powertel, ICEL, ICL and Powertel/Atlanta are
each qualified to transact business as a foreign corporation in the states of
Georgia and Alabama.
2. Powertel, ICEL and ICL each have the corporate power to
execute and deliver the Agreement and such of the Closing Documents as to which
it is a signatory, to perform each of their obligations thereunder, to own and
use each of their assets and to conduct each of their businesses.
Powertel/Atlanta has the corporate power to execute and deliver such of the
Tower Space Leases as to which it is a signatory, to perform its obligations
thereunder, to own and use its assets and to conduct its business.
3. Powertel, ICEL and ICL have each duly authorized the execution
and delivery of the Agreement and such of the Closing Documents as to which it
is a signatory and all performances by Powertel, ICEL and ICL thereunder and
have each duly executed and delivered the Agreement and such of the Closing
Documents as to which it is a signatory. Powertel/Atlanta has duly authorized
the execution and delivery of the Tower Space Leases as to which it is a
signatory and all performances by it thereunder and has duly executed and
delivered the Tower Space Leases as to which it is a signatory.
145
Public Service Cellular, Inc.
[Add subsidiary, if any]
CoBank, ACB
___________, 1999
Page 3
4. The execution and delivery by each of Powertel, ICEL and ICL
of the Agreement does not, and of such of the Closing Documents as to which it
is a signatory do not, and if each of Powertel, ICEL and ICL was now to perform
its obligations under the Agreement and such of the Closing Documents as to
which it is a signatory such performance would not, result in any:
(a) violation of either of Powertel's, ICEL's or ICL's
certificates of incorporation or bylaws;
(b) violation of any existing federal or state
constitution, statute, regulation, rule, order, or
law to which either Powertel, ICEL or ICL or the
Assets are subject;
(c) breach of or default under any Material Written
Agreements;
(d) creation or imposition of a contractual lien or
security interest in, on or against the Assets under
any Material Written Agreements; or
(e) violation of any judicial or administrative decree,
writ, judgment or order to which, to our knowledge,
either Powertel, ICEL, ICL or the Assets are subject;
excluding from the foregoing clauses (b), (c), (d) and (e) those matters set
forth on Schedule II hereof and violations, breaches defaults and Liens which,
and filings, notices, permits, covenants and approvals the absence of which,
individually, or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect. With your permission we have assumed that the term
"Material Written Agreements" used in clauses (c) and (d) above and in paragraph
5 below includes only those agreements listed and indicated by an "*" to be
material contracts on Schedule 1.1(f) to the Agreement.
5. Except as set forth on Schedule 5.3 of the Agreement or as
excluded by Schedule II to this Opinion Letter, no consent, approval,
authorization or other action by, or filing with, any governmental authority of
the United States or the State of Georgia is required for either Powertel's,
ICEL's or ICL's execution and delivery of the Agreement and such of the Closing
Documents as to which it is a signatory and consummation of the Transaction.
6. The Agreement is enforceable against each of Powertel, ICEL
and ICL. Each Closing Document (except that no opinion is given with respect to
the enforceability of the Agreement Not to Compete of Powertel, ICEL and ICL or
the Tower Space Leases) to which Powertel, ICEL or ICL is a signatory is
enforceable against such signatory.
146
Public Service Cellular, Inc.
[Add subsidiary, if any]
CoBank, ACB
___________, 1999
Page 4
7. Except as set forth on Schedule II to this opinion letter, the
Agreement, together with the other documents and agreements executed and
delivered on the Date of Closing in connection with the Transaction, are
sufficient to and have conveyed the Assets to the Purchaser, or are sufficient
to cause Powertel, ICEL and ICL, as the case may be, pursuant to Section 13.2 of
the Agreement to effect conveyance of the Assets following the Date of Closing.
Based upon the limitations and qualifications set forth above, we
confirm to you that to our knowledge, except as set forth on Schedule 5.6 to the
Agreement, no litigation or other proceeding against Powertel, ICEL, ICL, the
Cellular Business or any of the Assets is pending or overtly threatened by a
written communication to Powertel, ICEL or ICL.
This opinion letter is provided to you for your exclusive use solely in
connection with the Transaction, and may not be relied upon by any other person
or for any other purpose without our prior written consent.
Very truly yours,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ &
SCARBOROUGH, L.L.P.
147
SCHEDULE II to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, L.L.P.
Opinion Letter dated _____________, 1999
In addition to the limitations and qualifications set forth in the
attached letter and the Interpretive Standards:
1. No opinion is given regarding the transfer of any licenses, rights or
authorizations granted to the Seller or ICL by the Federal
Communications Commission.
2. No opinion is given regarding any matters concerning the laws and
regulations administered by the Federal Aviation Administration or the
public utility or service commissions of the States of Alabama or
Georgia.
3. Except for the material contracts denoted on Schedule 1.1(f) which are
denoted with an asterisk, no opinion is given with regard to any
contracts of Company.
148
EXHIBIT 12.2(N)
FORM OF OPINION OF FCC COUNSEL TO SELLER
Public Service Cellular, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
CoBank, ACB
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as special communications regulatory counsel to Powertel,
Inc., a Delaware corporation, and its wholly-owned subsidiaries ICEL, Inc., a
Delaware corporation and InterCel Licenses, Inc., a Delaware corporation
(collectively "the Seller"), in connection with regulatory matters arising under
the Communications Act of 1934, as amended, and the rules and regulations of the
Federal Communications Commission ("FCC") promulgated thereunder (the
Communications Act of 1934, as amended, together with the rules and regulations
of the FCC promulgated thereunder are referred to herein collectively as "the
Act"). We have not been engaged for any other purpose. In this connection, we
have reviewed the Asset Purchase Agreement, dated as of ______________, 1998
("the Agreement") between the Seller and Public Service Cellular, Inc. ("the
Purchaser"). This opinion is being furnished to you pursuant to Section _______
of the Agreement. Except as otherwise specified, capitalized terms used in this
opinion letter which are defined in the Agreement are used herein with the same
meaning.
As special communications counsel for the Seller, we address only
matters within the jurisdiction of the FCC. We express no opinion with respect
to the Agreement itself or to any matters relating to any federal or state laws
including, without limitation, any securities laws, the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act, or any other laws, statutes, ordinances, rules or
regulations such as any state securities or "blue sky" laws, state laws
regulating communications activities, federal or state antitrust or unfair
competition laws or regulations, or fraudulent transfer or fraudulent conveyance
laws.
In rendering the opinions expressed herein, we have assumed with your
permission and without independent investigation (a) that the signatures on all
documents examined by us are genuine and that where any such signature purports
to have been made in a corporate, governmental, fiduciary, or other capacity,
the person who affixed such signature to such documents had authority to do so,
(b) the authenticity of documents submitted to us as originals, and the
conformity to authentic original document of all documents submitted to us as
certified, conformed or photostatic copies and (c) the correctness of public
files, records and
149
certificates of, or furnished by, the FCC. We have assumed the due execution and
delivery, pursuant to due authorization of Agreement by the parties thereto.
We have relied upon examination of our own files and records,
appropriate examination of public records, files and certificates on file with
the FCC as of the date of this opinion. The following opinions are based upon
and expressly limited to the Act, the rules, regulations and public policies of
the FCC. Subject to the limitations set forth herein, we have reviewed such
materials and such matters of Federal communications law as we have deemed
necessary for purposes of this opinion.
This opinion is based upon facts presently known to us and current law,
and is not a guarantee or assurance of any future fact, event, occurrence,
omission, or condition or that any law, statute, rule, regulation, policy,
order, case or interpretation of the same will not change in the future.
Based upon the foregoing and subject to the qualifications, assumptions
and limitations set forth herein, we are of the opinion that:
1. Schedule I hereto accurately and completely lists all FCC
licenses issued to the Seller being transferred to the Purchaser pursuant to the
terms of the Agreement. All of the FCC licenses listed on Schedule I are duly
and validly held by the Seller, and all such licenses are in full force and
effect without conditions, other than such conditions that are generally
applicable to such FCC licenses, and have the renewal dates shown on Schedule I
hereto.
To the best of our knowledge as of the date hereof, and based upon
inquiry to and response from an officer of Seller and review of records in our
possession and the publicly available files and records of the FCC, the FCC
Licenses listed in Schedule I are the only FCC authorizations necessary for
Seller to conduct the Cellular Business.
2. The FCC has approved the transfer of the FCC licenses from
Seller to the Purchaser under FCC File Nos. _________ (granted _________ ) and
(granted _________ ).
3. To the best of our knowledge, as of the date hereof, no
petition to deny), or other challenges have been filed against any pending
application of the Seller at the FCC.
4. The execution and delivery, and performance and compliance
with the terms and provisions, by the Seller of the Agreement (i) do not and
will not result in a violation of the Act, (ii) will not cause any cancellation,
termination, revocation, forfeiture or material impairment of any FCC license
listed on Schedule I hereto and (iii) do not and will not require notice to the
FCC except that the Purchaser will be required to timely notify the FCC that the
transfers of all licenses set forth in Schedule I, have been consummated.
Failure by the Purchaser to timely file such notice of consummated will result
in the expiration of the FCC consent to the transfer of the subject licenses. In
addition, consummation of the subject transaction would result in the Purchaser
exceeding the FCC's spectrum cap rules. This firm
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150
expresses no opinion as to what, if any, impact exceeding such spectrum cap
limit will have on Purchaser's ultimate ability to hold or continue to hold any
or all of the licenses set forth in Schedule I.
5. To best of our knowledge, based upon inquiry to and response
from an officer of the Seller and review of records in our possession and the
publicly available files and records of the FCC, the Seller's ownership and the
operation by the Seller of the Business and the FCC licenses are in compliance
in all material respects with the Act. However, as of January 1, 1999, the FCC
no longer forbears from enforcement of Section 20.18 of its Rules as they relate
to the ability of a TTY device to access 911 over a digital cellular system. In
announcing the termination of its forbearance, the FCC invited all carriers
offering digital service which cannot comply with the requirements of its rules,
to seek a waiver of that requirement on or before December 4, 1998. To the best
of our knowledge, no digital service being offered by any cellular service
provider in the United States is currently capable of complying with those rule
requirements. Seller operates TDMA digital facilities which are presently unable
to comply with those rule requirements. We have been advised by Seller that
Seller filed a request for waiver of those requirements with the FCC on December
4, 1998. Seller did not utilize this firm in the preparation or filing of that
waiver request and we express no opinion as its sufficiency or the ultimate
outcome of that request. However, until such time as the FCC denies that waiver
request, or revokes any waiver previously granted, Seller's inability to comply
with that requirement would have no adverse impact on the status of its
licenses. The FCC has announced that as a part of the ongoing wavier process,
licensees are required to periodically update their waiver requests. It is our
understanding that the inability to currently comply with these requirements are
technological and/or equipment limitations beyond the ability of Seller to
control. Therefore, if the FCC were to deny the waiver request or revoke or fail
to extend any waiver previously granted, Seller's system would be unable to be
operated in compliance with that rule section. Upon consummation of the
transfer, Purchaser will have the ongoing obligation to keep this waiver in
effect until such time, if any, that the technology exists to enable full
compliance with the Act.
6. To the best of our knowledge based upon inquiry to the Seller
and review of records in our possession and the publicly available files and
records of the FCC, that except as expressly identified herein, there is (a) no
outstanding decree or order that has been issued against the Seller and no
pending or threatened litigation, proceedings, notice of violation, order to
show cause, compliant, inquiry or investigation before the FCC relating to the
Seller or relating to any of the FCC licenses or business operations of the
Seller which might result in cancellation, termination. revocation, forfeiture
or any material impairment of any of the FCC licenses listed on Schedule I
hereto, or have any material adverse effect upon, or cause material disruption
to, the Seller or the ownership or operation of the Business, (b) no event that
has occurred (including any notice or order issued by the FCC), or agreement
that has been entered into by the Seller which might now, or after notice or
lapse of time or both, result in a cancellation, termination, revocation,
forfeiture or any material impairment of any of the FCC Licenses listed on
Schedule I hereto, or have any material adverse effect upon, or material
disruption to, the Seller or the ownership or operation of the Business.
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151
Whenever our opinion herein with respect to the existence or absence of
facts is indicated to be based on the best of our knowledge, it is intended to
signify that in the course of our representation of the Seller in connection
with the Agreement, no contrary information came to our attention.
Our opinions are limited to the specific issues addressed and are
limited in all respects to the laws and facts existing as of the date of this
letter. We disclaim any obligation to update this opinion letter for events or
changes in the law occurring, or coming to our attention, after the date hereof.
At the request of our clients, this opinion letter is provided to you
by us in our capacity as special FCC counsel to the Seller and may not be relied
upon by any other person, without, in each instance, our prior written consent.
Very truly yours,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
Kurtis & Associates, P.C.
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (facsimile)
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152
Exhibit 12.2(p)
_______________, 1999
Public Service Cellular, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
CoBank, ACB
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: Sale by Powertel, Inc. and its subsidiary, ICEL, Inc.
(collectively, the "Company") of their Assets and Cellular
Business (including therewith the transfer of cellular
licenses held in the name of Powertel's subsidiary, InterCel
Licenses, Inc. ("Intercel")) to Public Service Cellular, Inc.
in the States of Georgia and Alabama (the "Transaction").
Ladies and Gentlemen:
We have acted as special telecommunications regulatory counsel in the
State of Alabama to the Company in connection with the Transaction. The Company
and InterCel are collectively referred to herein as the "Sellers" and each
individually as a "Seller". Public Service Cellular, Inc. is referred to as the
"Purchaser."
This opinion is being furnished to you pursuant to Section 12.2(p) of
the Asset Purchase Agreement by and between the Purchaser and the Sellers dated
___________, 1999 (the "Agreement"). Capitalized terms used in this opinion
without definition have the meanings assigned to them in the Agreement.
The opinion which follows is limited to Title 37, Ala. Code (1975)
("Title 37") and the rules and regulations of the Alabama Public Service
Commission ("APSC") promulgated thereunder, which govern the regulation by the
APSC or telecommunications services provided by the Company. In connection with
this opinion. we have examined unexecuted copies of the following documents
provided to us by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Scarborough, L.L.P.
(a) the ;
_______________________________
(b) the ; and
_______________________________
153
(c) the .
_______________________________
The documents described in subsection (a) through (____) above are
referred to herein collectively as the "Transaction Documents".
We have not, except as specifically identified herein, made any
independent review or investigation of the organization, existence, good
standing, assets, business or affairs of the Sellers, their facilities or
operations, or any other matters. We have not independently verified the manner
in which the facilities or operations are now being operated and could not do so
without physically inspecting the same. Moreover, we are not qualified to render
any opinion concerning electrical engineering or the technical aspects of
telecommunications facilities operation. We have not, except as specifically
identified herein, been retained or engaged to perform, nor have we performed,
any independent review or investigation as to (i) licenses, authorizations or
permits that are required in connection with the present operation of the
facilities and operations, or (ii) the existence of any action, suit or
proceeding at law or in equity by or before any administrative or court body
relating to the Transaction Documents or against the Sellers. This opinion
letter is given, and all statements herein "to our knowledge" or to similar
effect are made, in the context of the foregoing. Unless otherwise expressly
stated herein, statements "to our knowledge" or to similar effect are based
solely upon the actual knowledge (i.e., the conscious awareness of facts or
other information) of lawyers in this firm who have given substantive legal
attention to representing the Sellers in connection with the Transaction. This
opinion is based as to matters of law solely on Title 37 and written rules and
regulations of the APSC, and we express no opinion as to any other laws,
statutes, regulations or ordinances, including such city and county laws,
ordinances, franchises and regulations that may be applicable to the Sellers in
Alabama.
In rendering this opinion. we have assumed that all parties to the
Transaction Documents have duly authorized, executed and delivered such
Transaction Documents. We have also assumed the genuineness of signatures on
documents and the conformity to the original of all copies examined by or
submitted to us of photocopies or conformed copies. As to various questions of
fact in connection with this opinion, we have relied upon an examination of our
own files and records, and pertinent statements and representations of officers,
employees, agents and representatives of the Sellers. We have further assumed
that certificates of public officials have been properly given and are accurate.
Our opinions are thus limited in this respect.
Our opinion is further limited by the following disclosure of action by
the APSC purporting to assert jurisdiction over wireless carriers, such as the
Company. On April 8, 1998, the APSC issued an order in APSC Docket 26414,
purporting to reassert regulatory jurisdiction over "CMRS providers" in matters
unrelated to rate and entry. A copy of this order is attached to this opinion.
The applicability of this order to the Sellers is doubtful, for the reasons
described below.
154
State regulation of telecommunication providers and facilities in
Alabama is governed by the provisions of Title 37 and the rules and regulations
of the APSC promulgated thereunder. Within Title 37, Section 37-2-1, et seq.,
Code of Alabama, 1975, (the "Transportation Act"), provides for jurisdiction
over "transportation companies," while Section 37-4-100, et seq., Code of
Alabama, 1975 (the "Radio Utility Act"), provides an additional basis for
jurisdiction over paging companies.
Under the Transportation Act, a "transportation company" is defined as
any company which may "own, operate, lease, manage or control, as common
carriers or for hire . . . any telegraph line, any telephone line . . ." 37-2-1,
Code of Alabama, 1975. There are no recorded court decisions interpreting the
term "telephone line," and prior to 1990 the APSC did not take a consistent
position regarding the applicability of this section to the provision of
wireless services.
The Radio Utility Act provides for comprehensive state regulation of
any "radio system" which is defined as an entity offering "radio service on a
for-hire basis to the members of the public" under such circumstances as would
require a license by the FCC as a "miscellaneous common carrier in the domestic
land mobile radio services". Section 37-4-101 (4) Code of Alabama, 1975. This is
the classification under which paging companies were licensed by the FCC. The
statute includes provisions for certification of new carriers, the approval of
the transfer or encumbrance of a certificate and authority for the Commission to
adopt "reasonable" regulations and orders with respect to rates, service
quality, safety, financial responsibility and discrimination between customers.
In 1990, the Cellular Radio Telecommunications Service Tax Act, Ala.
Code ▇▇.▇▇. ▇▇-▇▇-▇▇▇, et seq. (1975) (the "Cellular Act") was enacted. The
Cellular Act removed cellular service from the provisions of Title 37 of the
Alabama Code, which governs the regulation of other telecommunications
providers. The Cellular Act defines a cellular carrier as a company "providing
services authorized as set forth in Title 47, Section 22.900, et seq. Code of
Federal Regulations." For purposes of this opinion, we have assumed that the
assets subject to this transaction are used, and will be used, in conjunction
with services that meet this definition.
The ability of the APSC to regulate cellular carriers is also
restricted by the March 7, 1994, FCC Order implementing the Omnibus Budget
Reconciliation Act of 1993 ("OBRA"), 47 USC 332(e)(3), as implemented by the FCC
by order dated ▇▇▇▇▇ ▇, ▇▇▇▇, ▇ ▇▇▇ ▇▇ ▇▇▇▇.
The April 8, 1998 Order fails to explain the use of the phrase "CMRS
providers" in light of the narrow definition of a "Radio Utility" under the
Radio Utility Act, which is cited in the order as a basis for APSC jurisdiction.
Because of the state and federal statues discussed above, we believe the
legality of this order is doubtful as to all CMRS providers, and is contrary to
the clear language of the Cellular Act in regard to cellular carriers.
155
Based on the above, we believe that it is highly probable that a Court
would find the April 8, 1998 Order is contrary to the Cellular Act, insofar as
it attempts to assert regulatory jurisdiction over cellular carriers as defined
therein. However, we are aware of no court decision addressing this issue, and
it is impossible to predict with certainty how a court might rule.
While the Cellular Act purports to remove cellular carriers from APSC
jurisdiction, the APSC retains jurisdiction over interconnection and other
agreements between regulated carriers and CMRS providers. Consequently, the
purchaser will have to ensure that any such agreements are appropriately filed
and, if necessary, approved by the regulated carrier with the APSC.
Based on the foregoing and subject to the assumptions and
qualifications set forth herein, we are of the opinion that:
1. The Company is not required to obtain from the APSC any
licenses, certificates, or other authorizations in order to conduct cellular
operations pursuant to licenses granted by the FCC under Title 47, Section
22.900, et seq. Code of Federal Regulations, with the exception that approvals
may be required for interconnection agreements and other arrangements executed
with local exchange carriers and other regulated entities.
2. The sale and transfer of the Assets and the Cellular Business
does not require any notice to, approval of or consent from, the APSC.
The foregoing opinions are rendered only to you and your successors and
assigns, are expressed solely for your benefit in connection with the
transaction described above, and may not be relied upon by any other person or
entity (other than any of your successors or assigns) for any purpose whatsoever
without our prior written consent.
Very truly yours,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, P.C.
156
▇▇▇▇▇, FRIEND & SAPRONOV, LLP
ATTORNEYS AT LAW
SUITE ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
-----------------
(▇▇▇) ▇▇▇-▇▇▇▇
FACSIMILE (770) 395-000
EMAIL ▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
____________, 1999
Re: Sale by Powertel, Inc. and ICEL, Inc. (collectively, the "Company") of
Their Assets and Cellular Business (Including therewith the Transfer of
Cellular Licenses Held In the Name of Powertel's Subsidiary, InterCel
Licenses, Inc. ("InterCel") to [Identify Buyer] In the State of Georgia
(the "Transaction")
Ladies and Gentlemen:
We have acted as telecommunications regulatory counsel in the State of
Georgia to the Company in connection with the Transaction. The Company and
InterCel are collectively referred to herein as the "Sellers" and each
individually as a "Seller".
This opinion is being furnished to you pursuant to ____________.
Capitalized terms used in this opinion without definition have the meanings
assigned to them in the ____________.
In connection with this opinion, we have examined unexecuted copies of
the following documents provided to us by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇,
L.L.P.:
(a) the ;
______________________________
(b) the ; and
______________________________
(...) the .
______________________________
The documents described in subsections (a) through (...) above as referred to
herein collectively as the "Transaction Documents".
We have also examined and relied upon certain documents certificates,
public files and records of the Georgia Public Service Commission (the
"Commission"), such other records, agreements, documents, instruments,
certificates or comparable documents of public officials, such documentation
provided to us by [identify by whom], and such matters of law as we have
157
Opinion Letter
, 1999
Page 2
deemed necessary or appropriate for purposes of this opinion. In rendering this
opinion, we also have relied upon customary policies and practices of the
Commission and its staff.
In such examination, we have assumed, without independent verification,
the genuineness of all signatures (whether original or photostatic), the
authenticity of all documents submitted to us as originals, the conformity to
authentic original documents of all documents submitted to as certified copies,
photostatic copies, or drafts, and the legal capacity of all natural persons
executing any such document. As to all questions of fact which we have deemed
material to our opinion, we have relied upon the respective representations and
warranties made by the Sellers in the Transaction Documents. We have also
assumed the due authorization, execution and delivery of the Transaction
Documents by all parties thereto, as well as the legal right and power of said
Sellers, under all applicable laws and regulations, to enter into, execute,
deliver and perform their respective obligations under the Transaction
Documents. In addition, we have assumed the legality, validity, binding effect
and enforceability of the Transaction Documents. Moreover, we have assumed that
none of the documents, instruments or agreements referenced herein (i) is
subject to rescission or reformation for fraud, duress, mistake or any similar
reason, or (ii) has been modified or amended by any other agreement or
otherwise.
In rendering the opinion hereinafter expressed, we have relied only
upon our examination of the foregoing documents and certificates, and have made
no independent verification of the factual matters set forth in such documents
or certificates; nor have we made any other factual investigation or inquiry
regarding the Parties or any of their respective facilities. Our opinion,
therefore, does not encompass any matter that would be apparent only as a result
of such an investigation or inquiry.
The opinion expressed below are based on and rely upon the current
state of applicable law and in all respects are subject to and may be limited by
future legislation, by the Commission's future disposition of matters before it,
and by developing case law. We assume no obligation to supplement the opinion
set forth herein if any laws, rules, regulations, or Commission decisions
applicable to the Sellers, to the parties to the Transaction, or to this opinion
take effect or change after the date hereof, or if we become aware of any facts
that might change any opinion or conclusion expressed herein after the date
hereof.
Whenever used in any statement set forth in this opinion letter, the
phrases "to the best of our knowledge","known to us" or other phrases of similar
meaning, qualify and limit such statement to the current awareness of this
Firm's attorneys responsible for the regulatory matters of the Borrower before
the Commission as to factual matters that such attorneys recognize as relevant
to said qualified and limited statement; these phrases further indicate, except
as otherwise specified in such statement, that we have made no independent
investigation regarding the factual content of such statement.
158
Opinion Letter
, 1999
Page 3
We are not admitted to practice in any jurisdiction other than the
State of Georgia, and our opinion set forth below is based exclusively upon the
laws thereof and upon no other jurisdiction. This opinion is further expressly
limited to matters arising under Title 46 of the Official Code of Georgia
Annotated (the "Georgia Utility Code") and under the Commission's orders, rules,
regulations and published policies.
Additionally, the opinion expressed below is based upon, qualified by,
and subject to two (2) opinions of the Georgia Attorney General(1) (the "AG
Opinions) (attached hereto at Exhibit "A"), which effectively conclude that (i)
cellular communications service is not telephone service within the meaning of
the Georgia Utility Code and, (ii) as such, is not subject to regulation by the
Commission. Neither the Commission nor the Georgia Courts have adjudicated or,
to our knowledge, addressed the issues raised and the conclusions reached in the
AG Opinions. Nonetheless, while neither the Commission nor the Georgia courts
are bound by the AG Opinions, we have assumed that, if presented with the issues
raised therein, the Commission and the Georgia courts, as applicable, would rely
upon and affirm the conclusions reached in the AG Opinions.
Based on the foregoing, and subject to the assumptions and
qualifications set forth herein, we are of the opinion that:
1. the Company is not required to obtain from the Commission any
licenses, certificates, or other authorizations in order to
conduct its Cellular Business in the State of Georgia; and
2. the Company's sale and transfer of the Assets and the Cellular
Business do not require any notice to, or approval or consent
from, the Commission.
The foregoing opinions are rendered only to you and your successors and
assigns, are expressed solely for your benefit in connection with the
transaction described above, and may not be relied upon by any other person or
entity (other than any of your successors and assigns) for any purpose
whatsoever without our prior written consent.
Very truly yours,
▇▇▇▇▇, FRIEND & SAPRONOV, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇
WS/pt
---------------------------
(1) Op. Atty. Gen. 94-7, 1994 Ga. AG LEXIS 11 (February 22, 1994); Op.
Atty. ▇▇▇. ▇▇-▇▇, ▇▇▇▇ ▇▇. AG LEXIS 35.
159
EXHIBIT "A"
160
EXHIBIT 12.2(Q)
SHARED FACILITIES AND TRANSITION SERVICES AGREEMENT
THIS SHARED FACILITIES AND TRANSITION SERVICES AGREEMENT (this
"Agreement") is made and entered into as of the ____ day of __________, 1999, by
and between Public Service Cellular, Inc., a Georgia corporation ("Purchaser"),
and Powertel, Inc., a Delaware corporation ("Seller").
WITNESSETH:
WHEREAS, Seller and Purchaser have entered into an Asset Purchase
Agreement, dated as of January ___, 1999 (the "Purchase Agreement"), pursuant to
which Purchaser has acquired from Seller certain assets and contract rights
relating to Seller's Cellular Business; and
WHEREAS, Seller and Purchaser desire to enter into this Agreement in
order to set forth the terms pursuant to which Seller shall provide certain
services to Purchaser, and Seller and Purchaser shall share certain facilities
and cooperate in good faith with each other in connection with the transition of
the Cellular Business from Seller to Purchaser.
NOW, THEREFORE, for and in consideration of the mutual promises and
conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Capitalized terms used but not otherwise defined herein shall have the
meaning ascribed to such terms in the Purchase Agreement.
ARTICLE I
ORDERLY TRANSITION
1.1. The parties hereto covenant and agree to use their reasonable
best efforts to effect an orderly transition of the Cellular Business in
accordance with the terms of this Agreement. Further, each party hereto agrees
that it shall provide the other party hereto with reasonable access to its
facilities and personnel to the extent necessary to ensure a smooth transition
of the Cellular Business from Seller to Purchaser and to the extent provided for
herein.
161
ARTICLE II
TRANSITION SERVICES
2.1. From and after the Date of Closing and until the date that is
ninety (90) days after the Date of Closing (the "Transition Services Period"),
Seller shall, at the reasonable request of Purchaser, perform on behalf of
Purchaser, and in accordance with Purchaser's reasonable instructions, the
"Services" (as hereinafter defined). The "Services" shall be any services which
Seller performed in connection with the Cellular Business, as the Cellular
Business was operated on the date of the Purchase Agreement and prior to the
Date of Closing. Without limiting the generality of the foregoing, during the
Transition Services Period Seller shall make itself available to perform on
behalf of Purchaser any of those certain services that are described in Exhibit
"2.1" attached hereto. Seller shall perform the Services substantially in the
same manner and with no less than the same degree of care as performed in
connection with the Cellular Business prior to the date of the Purchase
Agreement.
2.2. In the event that Purchaser shall determine that it requires
the continued performance by Seller on Purchaser's behalf of a limited portion
of the Services after the expiration of the Transition Services Period, upon the
reasonable request of Purchaser, and the reasonable approval of Seller, the
Transition Services Period with respect to such Services, and only such
Services, shall be extended for thirty (30) day periods, up to a maximum total
extension of ninety (90) days.
2.3. Seller, with respect to each month during the Transition
Services Period, shall furnish to Purchaser a certificate of an authorized
officer of Seller certifying the total costs and expenses (the "Costs") incurred
by Seller in performing Services during such month and showing the calculation
thereof in reasonable detail (a "Services Expense Report"). Within [15] days of
receipt by Purchaser of a Services Expense Report, Purchaser shall pay to Seller
an amount equal to Seller's Costs for such month as set forth in the Services
Expense Report.
2.4. Purchaser shall use, and Seller shall perform, the Services
only in accordance with all applicable federal, state and local laws and
regulations, and tariffs, and in accordance with the conditions, rules,
regulations and specifications which may be set forth in any manuals, materials,
documents or instructions of Purchaser or Seller, respectively.
2.5. Seller agrees that, with respect to any and all customers of
the Cellular Business that contact Seller, by telephone, mail or otherwise,
concerning the provision of services to such customers or otherwise in
connection with the Cellular Business, Seller shall use commercially reasonable
efforts promptly (i) to refer such customers to Purchaser, (ii) to provide such
customers with contact information for Purchaser, including the appropriate
phone number, as such contact information shall be provided to Seller by
Purchaser from time to time, and (iii) to offer to transfer such customers, and
if the customers accept such offer, to directly transfer such customers, to the
appropriate phone number of Seller. Further, Seller agrees that it shall inform
its employees to not provide any further information to such customers during,
or in response to, any such contacts.
2
162
2.6. The provision of Services shall be available to Purchaser upon
request on the Date of Closing and shall cease to be available upon the
expiration of the Transition Services Period unless sooner terminated in
accordance with any other express provision of this Agreement, including Article
6 hereof, or by written agreement of the parties hereto; provided, however, that
Purchaser may, upon written notice to Seller, terminate all or any of the
Services provided by Seller hereunder at all or any location(s) where they are
provided upon ten (10) business days' notice. The termination by the Purchaser
of any or all of the Services shall relieve Purchaser from any obligation with
respect to the costs of such Services ten (10) business days after receipt by
Seller of notice of termination. The termination by Purchaser of any of the
Services at any location, or the termination by Purchaser of any specific type
of Service, shall not reduce or otherwise affect Seller's commitment to continue
to provide the remaining Services requested by Purchaser hereunder.
2.7. Seller is and shall remain at all times an independent
contractor of Purchaser in the performance of all Services, and all persons
employed by Seller to perform such services shall be and remain employees solely
of Seller. Nothing contained herein shall be deemed or construed as creating any
partnership or joint venture between the parties hereto.
ARTICLE III
SHARED FACILITIES
3.1. The parties covenant and agree that during the "Shared
Facilities Period," as such period is defined in Section 3.3 below, the parties
shall jointly occupy, and share the costs of, certain equipment and facilities
(the "Facilities") that are located at certain towers (the "Towers"), as such
Facilities and such Towers are identified on "Exhibit 3.1" attached hereto. The
parties hereto agree that, with respect to each Tower, they shall cooperate in
good faith to cause the physical separation of their respective facilities,
networks and power arrangements, all as set forth in detail in Exhibit 3.1.
3.2. Seller agrees that during the Shared Facilities Period it
shall continue to perform all network and telco related services relating to the
Cellular Business in the same manner and for the same costs as such services
were performed by Seller prior to the Date of Closing to the extent such
services can legally be performed by Seller; provided, that if Seller may not
legally perform any such network and telco related services on behalf of
Purchaser, Seller shall use its commercially reasonable efforts to ensure that
such services continue without any interruption to the network, including
facilitating any efforts by Purchaser to enter into new agreements with third
parties.
3.3. For the purposes of this Article III, the "Shared Facilities
Period" shall mean the period commencing on the Date of Closing and expiring
ninety (90) days following the Date of Closing; provided, however, that in the
event either of the parties hereto determines that the parties shall be unable
to cause the physical separation of their respective facilities, networks and
power arrangements at each Tower as set forth on Exhibit 3.1 by the date which
is ninety (90) days
3
163
following the Date of Closing, such party may extend the expiration date of the
Shared Facilities Period for an additional period of ninety (90) days upon
written notice to the other party. Notwithstanding the foregoing, the parties
agree that they shall attempt in good faith to complete the physical separation
of their respective facilities, networks and power arrangements as set forth on
Exhibit 3.1 within (90) ninety days following the Date of Closing.
3.4. Notwithstanding the foregoing Section 3.2, Seller agrees to
continue to provide long-distance services related to the Cellular Business
during the term of this Agreement and thereafter, if requested by Purchaser, at
a rate of $.055 per minute. In the event Purchaser chooses to continue this
Service after termination hereof, Seller and Purchaser shall enter into a
separate agreement for provision of same upon mutually agreed terms and
conditions.
ARTICLE IV
TRANSITION MANAGERS
4.1. Each party hereto will appoint and identify to the other one
or more of its key management personnel who shall be available to convey any and
all decisions and, with respect to Seller, to establish any and all policies and
practices relating to the provision of the Services by Seller hereunder. Such
persons shall work and cooperate with each other and assume overall
responsibility for managing the transition of the Cellular Business. The initial
appointments of Seller and Purchaser of such key management personnel are set
forth on Exhibit "4.1" attached hereto. All notices required under Section 2.5
shall be delivered to such named transition manager.
ARTICLE V
INFORMATION AND ASSISTANCE
5.1. During the term of this Agreement, in the event that Purchaser
shall desire Seller to perform Services hereunder which requires the delivery of
confidential or proprietary information of the Purchaser, then the parties shall
cooperate in good faith to obtain an appropriate non- disclosure commitment from
any such person requiring receipt of such information in the course of
performing such Services. Notwithstanding the foregoing, Purchaser shall use
commercially reasonable efforts to avoid disclosure of any confidential or
proprietary information to Seller or any employees of Seller performing Services
under this Agreement.
4
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ARTICLE VI
FORCE MAJEURE
6.1. Each of the parties hereto shall not have any obligation to
perform under this Agreement if its failure to do so is caused by or results
from any act of God, war, riot, fire, explosion, accident, flood, sabotage; lack
of (despite reasonable efforts of such party to obtain) adequate fuel, power,
containers or transportation facilities; compliance with governmental requests,
laws, regulations, orders or actions; national defense requirements, or any
other cause or circumstances beyond the reasonable control of such party. Each
of the parties hereto, if rendered unable to perform its obligations as a result
of the foregoing shall notify the other party within three (3) business days to
discuss the circumstances and potential solutions to such force majeure event,
including reasonable efforts as to mitigation of such force majeure event and
the provision of substitute services by a third party at the sole cost of such
party and the parties shall reasonably cooperate in respect thereto.
ARTICLE VII
GENERAL
7.1. Notices. All notices, demands and other communications
provided for hereunder shall be in writing and shall be given by personal
delivery, via facsimile transmission (receipt telephonically confirmed), by
nationally recognized overnight courier (prepaid), or by certified or registered
first class mail, postage prepaid, return receipt requested, sent to each party,
at its address as set forth below or at such other address or in such other
manner as may be designated by such party in written notice to each of the other
parties. All such notices, demands and communications shall be effective when
personally delivered, one (1) business day after delivery to the overnight
courier, upon telephone confirmation of facsimile transmission or upon receipt
after dispatch by mail to the party to whom the same is so given or made:
If to Seller: Powertel, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to Purchaser: Public Service Cellular, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇. ▇▇▇▇
5
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With a copy to: Long ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
7.2. Parties in Interest. Nothing expressed or implied in this
Agreement is intended or shall be construed to confer any rights or remedies
under or by reason of this Agreement upon any person or entity other than
Purchaser and Seller or their respective successors and permitted assigns.
Nothing in this Agreement is intended to relieve or discharge the obligations or
liabilities of any third person or entity to Purchaser or Seller.
7.3. Entire Agreement; Assignment. This Agreement (a) constitutes
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, among the parties or any of them with respect to the subject
matter hereof, (b) is intended to encompass all services provided by Seller to
Purchaser, after the Date of Closing, and (c) shall not be transferred or
assigned by operation of law or otherwise by either party hereto; provided, that
in the event the Purchase Agreement is assigned by Purchaser to any entity in
accordance with the terms of the Purchase Agreement, Purchaser may assign this
Agreement to such entity without the consent of Seller.
7.4. Validity. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
7.5. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same Agreement.
7.6. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia, regardless of the
laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
7.7. Amendment and Modification. This Agreement may be modified or
amended only by a writing signed by both parties hereto.
(Signatures on following page)
6
166
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives as of the day and
year first above written.
"SELLER:" "PURCHASER:"
POWERTEL, INC. PUBLIC SERVICE CELLULAR, INC.
By: By:
------------------------------- -----------------------------------
Name: Name:
----------------------------- ---------------------------------
Title: Title:
---------------------------- --------------------------------
7
167
EXHIBIT 12.3(b)
FORM OF CLOSING CERTIFICATE OF
PUBLIC SERVICE CELLULAR, INC.
I, ▇▇▇ ▇. ▇▇▇▇, do hereby certify, on behalf of PUBLIC SERVICE
CELLULAR, INC. ("Purchaser"), pursuant to Sections 10.1 and 10.2 of that certain
Asset Purchase Agreement, dated as of ______________, 1999, by and among
Powertel, Inc., ICEL, Inc., InterCel Licenses, Inc., and Purchaser (the
"Purchase Agreement"), as follows:
1. That I am the President of Purchaser, and in that capacity I am
authorized to execute and deliver this Closing Certificate on behalf of
the Purchaser.
2. That each of the representations and warranties made by the Purchaser
in the Purchase Agreement is true and correct in all material respects
as of the date hereof with the same force and effect as though such
representations and warranties were made on and as of the date hereof.
3. That the Purchaser has performed or complied in all material respects
with the covenants and agreements set forth in the Purchase Agreement
required to be performed or complied with by Purchaser on or prior to
the date hereof.
IN WITNESS WHEREOF, I have executed this Closing Certificate as of the
________ day of ___________, 1999.
PURCHASER:
PUBLIC SERVICE CELLULAR, INC.
By:
-----------------------------------------
▇▇▇ ▇. ▇▇▇▇
President
168
EXHIBIT 12.3(E)
FORM OF OPINION OF
PURCHASER'S COUNSEL
_____________, 1999
Powertel, Inc.
ICEL, Inc.
InterCel Licenses, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We have acted as counsel to Public Service Cellular, Inc., a Georgia
corporation (the "Purchaser"), in connection with the preparation of the Asset
Purchase Agreement by and among Purchaser, Powertel, Inc., a Delaware
corporation ("Powertel"), ICEL, Inc., a Delaware corporation ("ICEL," and
together with Powertel, the "Seller"), and InterCel Licenses, Inc., a Delaware
corporation ("ICL"), dated __________, 1999 (the "Agreement"), and the Tower
Space Leases, the ▇▇▇▇ of Sale, the Assignment and Assumption Agreement, the
Agreement Not To Compete of Seller and ICL, the Shared Facilities and Transition
Services Agreement and the Post-Closing Escrow Agreement entered into by
Purchaser, Seller, and ICL, as appropriate, in connection with the Agreement
(collectively, "the Agreements"), and have participated in the closing of the
transaction whereby Purchaser will purchase from Seller and ICL substantially
all of the assets and rights of Seller related to Seller's cellular telephone
business in western Georgia and eastern Alabama (the "Transaction"). This
opinion letter is rendered pursuant to Section 12.3(e) of the Agreement.
This opinion letter is limited by, and is in accordance with, the
January 1, 1992 edition of the Interpretive Standards applicable to Legal
Opinions to Third Parties in Corporate Transactions adopted by the Legal Opinion
Committee of the Corporate and Banking Law Section of the State Bar of Georgia,
which Interpretative Standards are incorporated in this opinion letter by this
reference. Capitalized terms used in this opinion letter and the attachments
hereto and not otherwise defined herein shall have the meanings assigned to such
terms in the Interpretive Standards and/or the Agreement. In the event of a
conflict in the definitions of such capitalized terms appearing in both the
Interpretive Standards and the Agreement, the definitions appearing in the
Agreement shall be applicable to this opinion letter.
In the capacity described above, we have considered such matters of law
and of fact, including the examination of originals or copies, certified or
otherwise identified to our satisfaction, of such records and documents of the
Purchaser, certificates of officers and representatives of the
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Powertel, Inc.
ICEL, Inc.
InterCel Licenses, Inc.
[Date]
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Purchaser, certificates of public officials and such other documents as we have
deemed appropriate as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of all signatures,
the authenticity and completeness of all documents submitted to us as originals,
the conformity to the original documents of all documents submitted to us as
facsimile, notarial, certified or photostatic copies and the authenticity of the
originals of such latter documents. We have also assumed that each natural
person executing documents, instruments or agreements on behalf of Purchaser has
sufficient legal competency and capacity to do so and the consideration
contemplated by any such documents, instruments and agreements has been given.
As to all questions of fact material to the Opinions expressed herein, we have
assumed without independent investigation the accuracy of the factual matters
addressed by, and accordingly have relied upon, certificates or comparable
documents of various public officials and officers and representatives of
Purchaser contained in the Agreements, notwithstanding any knowledge or
materiality qualification contained therein, and upon the compliance of
Purchaser with the covenants contained in the Agreements. We have also assumed
that the officer's certificates and the representations and warranties of
Purchaser made in the Agreements remain true, correct and complete through the
date of this opinion letter.
The Opinions set forth herein are limited to the laws of the State of
Georgia and applicable federal laws of the United States of America, in force
and effect on the date hereof.
Based upon the foregoing, it is our opinion that:
1. Purchaser was duly organized as a corporation, and is existing
and in good standing, under the laws of the State of Georgia.
2. Purchaser has the corporate power to execute and deliver the
Agreements, to perform its obligations thereunder, to own and use its assets and
to conduct its business.
3. Purchaser has duly authorized the execution and delivery of
the Agreements and all performances by Purchaser thereunder and has duly
executed and delivered the Agreements.
4. The execution and delivery by Purchaser of the Agreements does
not, and if Purchaser was now to perform its obligations under the Agreements
such performance would not, result in any:
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Powertel, Inc.
ICEL, Inc.
InterCel Licenses, Inc.
[Date]
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--------------------------------
(a) violation of Purchaser's articles of incorporation or bylaws;
or
(b) violation of any existing federal or State of Georgia
constitution, statute, regulation, rule, order, or law to which Purchaser is
subject.
5. Other than set forth in the Agreements, no consent, approval,
authorization or other action by, or filing with, any governmental authority of
the United States or the State of Georgia is required for Purchaser's execution
and delivery of the Agreements and consummation of the Transaction other than
those consents, approvals, authorizations already received and those filings
already made.
6. The Agreements, other than the Agreement Not to Compete of
Seller and ICL and the Tower Space Leases, are enforceable against Purchaser.
171
Powertel, Inc.
ICEL, Inc.
InterCel Licenses, Inc.
[Date]
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--------------------------------
This opinion letter is provided to you for your exclusive use solely in
connection with the Transaction, and may not be relied upon by any other person
or for any other purpose without our prior written consent.
Very truly yours,
LONG ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
By:
-----------------------------------------
172
EXHIBIT 12.3(G)
[Date]
Powertel, Inc.
InterCel Licenses, Inc.
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
We have acted as special Federal Communications Commission ("FCC")
counsel for Public Service Cellular, Inc. ("PSC" or "Purchaser") in connection
with the Asset Purchase Agreement dated as of ______________, 1998 between
Powertel, Inc., InterCel Licenses, Inc. and Purchaser ("Agreement"). This
opinion is being furnished to you pursuant to Section ____ of the Agreement to
address the matters set forth therein. Except as otherwise specified,
capitalized terms used in this opinion which are defined in the Agreement are
used herein with the same meaning.
This opinion is limited strictly to the Communications Act of 1934, as
amended, and the FCC's rules, regulations and published policies promulgated
pursuant thereto (collectively "Communications Laws"), all as applicable to
Purchaser. We express no opinion with respect to any other law, statute, rule,
regulation, ordinance, decision, judgement, decree, legal requirement, or legal
authority, whatsoever. This opinion should not be construed to render an opinion
on any matter of state law with respect to Purchaser.
In rendering this opinion we have examined the Agreement. We have made
such other examination of the Communications Law, and of publicly available
certificates, records, documents, and opinions of the FCC as we have deemed
necessary. In making our examinations, we have assumed (i) the genuineness of
all signatures on relevant documents; (ii) the legal capacity of all persons
executing such documents; (iii) the authenticity and completeness of documents
submitted to us for our examination, whether or not they have been submitted to
us as originals; (iv) the conformity to authentic original documents of all
documents submitted to us as certified, conformed, facsimile, or photostatic
copies; (v) the accuracy and completeness of all records made available to us by
PSC and by the FCC, except as otherwise stated hereinafter; (vi) the due
authorization of the execution, delivery, and performance of such documents,
including the Agreement; and (vii) the validity and binding effect of the
Agreement upon the parties thereto. As to various questions of fact in
connection with this opinion, we have relied upon actual examination of
available files of the FCC, and pertinent statements and representations of
officers or responsible representatives of Purchaser,
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including the representations and warranties of the Agreement or of the FCC.
Collectively, our examination and inquiry shall be referred to as "Our Inquiry."
In making Our Inquiry, we have assumed, without independent inquiry, that there
are no relevant agreements or understandings between or among Purchaser and
other parties, other than those disclosed in the Agreement, that would expand,
modify, or otherwise affect the terms of the Agreement, or the rights or
obligations thereunder of the parties thereto, and that the Agreement accurately
and completely sets forth the agreements of all parties thereto.
When used in this opinion, the term "our knowledge" refers to the
actual current knowledge of the attorneys currently employed by the firm who
have been actively involved in Purchaser's representation. Whenever our opinion
with respect to the existence or nonexistence of facts is qualified by the
phrase "to the best of our knowledge," or some similar phrase, it is intended to
indicate that no information has come to the attention of those attorneys in the
course of Our Inquiry and our representation of Purchaser that would give them
actual knowledge that our opinion with respect to the existence or nonexistence
of such facts is inaccurate. As to various matters of fact in connection with
this opinion, we have relied solely upon Our Inquiry as described herein. We
have not previously represented Purchaser. Accordingly, no inference as to our
knowledge of the existence or nonexistence of facts, other than facts of which
we have obtained actual knowledge as a result of our representation in
connection with the instant transaction should be drawn from the fact of our
representation of Purchaser as special FCC counsel.
Whenever our opinion is qualified by the phrase "after Our Inquiry" it
is intended to indicate that we undertook Our Inquiry as described herein, but
did not undertake any independent investigation or evaluation to confirm the
accuracy or completeness of the factual responses of Purchaser or the FCC to Our
Inquiry, nor did we undertake any on-site field inspection of Purchaser or its
facilities. Moreover, a field inspection of Purchaser's facilities is not within
the scope of our professional responsibility or expertise as attorneys and we do
not make such inspections. The phrase "to our knowledge" or like wording
includes the limitation expressed in this paragraph with respect to the fact
that we have conducted no field inspection of Purchaser's facilities. We have
relied fully on Purchaser's factual representations in the Agreement concerning
wireless telecommunications interests attributable to Purchaser according to
Communications Laws.
Notwithstanding any other statement herein, this opinion should not be
interpreted to render an opinion on the validity of the issuance of any
securities, or on the lawful procedures for perfection of security interests.
This opinion, unless otherwise noted, is addressed only to the Agreement.
This opinion is governed by, and shall be interpreted in accordance
with, the Legal Opinion Accord of the ABA Section of Business Law (1991). As a
consequence, it is subject to a number of other qualifications, exceptions,
definitions, limitations on coverage and other limitations, all as more
particularly described in the Accord, and this opinion should be read in
conjunction therewith.
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Subject to the foregoing limitations and qualifications we are of the
opinion that:
1. To our knowledge, after Our Inquiry, except with respect to the FCC's
spectrum cap rules, we have been advised of no facts which would lead
us to conclude, nor have we devoted substantial attention to any claim
that PSC lacks the requisite legal qualifications to hold directly, or
control the licensee of, the cellular and microwave licenses
("Licenses") which are the subject of the Agreement, including the
Georgia RSA 5B(2), Georgia RSA 6B(l), Georgia RSA 6B2, Alabama RSA
5B(3), and Alabama RSA 8B(2) cellular licenses.
2. Consummation of the transaction will require prior FCC approval for the
assignment of the subject licenses to PSC.
3. To our knowledge, after Our Inquiry, PSC could not hold the Licenses
without obtaining a waiver of FCC Rule Section 20.6 ("Waiver Request"),
or meeting an exception to the rule such as the divestiture provision
of FCC Rule Section 20.6(e). However, we are aware of no FCC precedent
nor current policy or practice whereby, if (1) an applicant such as PSC
were denied a waiver of FCC Rule Section 20.6, (2) FCC consent to the
assignment of the Licenses were conditioned on PSC subsequently
divesting itself of other attributable interest(s) in spectrum holdings
to comply with the FCC's spectrum cap rules, (3) the parties proceeded
to closing once FCC consent to the assignment of Licenses to PSC became
final, and (4) for any reason PSC failed to subsequently comply with
such spectrum cap rules, the previously consummated transaction between
PSC and InterCel Licenses, Inc. would thereby automatically be undone
or required to be undone by the FCC, although we believe there might be
serious repercussions with respect to PSC's ability to continue to hold
the subject Licenses.
This will confirm that the FCC application for consent to assignment of
the Licenses may be filed containing a Waiver Request or, alternatively pursuant
to FCC Rule Section 20.6(e), containing a commitment by PSC to subsequently
divest itself to the extent required, within ninety (90) days of final grant of
FCC approval for the assignment of the Licenses to PSC, of any attributable
interest in spectrum in excess of the FCC's spectrum cap rules for PSC to hold
the Licenses.
This will also confirm our understanding that pursuant to Section of
the Agreement, PSC has represented it will proceed to closing either (1) upon
FCC grant of the Waiver Request, or (2) upon FCC approval of the proposed
transaction, conditional or otherwise, becoming final.
This opinion is being provided solely for the use and benefit of
Powertel, Inc. and InterCel Licenses, Inc. in connection with the Agreement.
This opinion is given for the benefit of and is intended to be relied upon by
you in connection with the transaction referred to above. It may not be quoted
to, copied, delivered to, or relied upon by anyone other than you in connection
with the Agreement and for no other purpose without the express prior written
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consent of the undersigned firm. This opinion is effective only as of the date
hereof and we undertake no professional responsibility to advise you as to any
subsequent event either in the nature of a change of fact or law, as to which we
may become aware.
This opinion is based on statutory laws and judicial decisions that are
effective on the date hereof, and we do not opine with respect to any law,
regulation, rule or governmental policy which may be enacted, adopted, or become
effective after the date hereof. This opinion should not be assumed to state
general principles of law applicable to transactions of this kind.
-------------------------------
