ASSET PURCHASE AGREEMENT
between
XXXXXX CELLULAR SYSTEMS, INC.
and
CELLCO PARTNERSHIP
D/B/A VERIZON WIRELESS
DATED AS OF OCTOBER 29, 2001
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "AGREEMENT") is made and entered into
as of October 29, 2001 by and between XXXXXX CELLULAR SYSTEMS, INC., an Oklahoma
corporation ("SELLER") and CELLCO PARTNERSHIP, a Delaware general partnership,
d/b/a Verizon Wireless ("PURCHASER").
RECITALS
WHEREAS, Seller owns and operates the Block A cellular radio telephone
systems in rural service area ("RSA") #371 in the State of Georgia ("GA-1") and
in RSA #586 in the State of Ohio ("OH-2") and the Block B cellular radio
telephone system in RSA #342 in the State of California ("CA-7"; and together
with GA-1 and OH-2, the "CELLULAR AREAS"), and holds the necessary governmental
authorizations to operate said cellular radio telephone systems (individually, a
"CELLULAR SYSTEM" and collectively the "CELLULAR SYSTEMS"); and
WHEREAS, Seller is engaged in the business of marketing, selling and
providing cellular telephone service in the Cellular Areas (such businesses, as
conducted by Seller, are referred to herein collectively as the "SELLER
BUSINESS"); and
WHEREAS, Purchaser desires to purchase from Seller, and Seller desires
to sell to Purchaser, the assets and rights of Seller that relate primarily to
the ownership and operation of the Cellular Systems, including certain licenses
issued by the Federal Communications Commission (the "FCC"), all subject to the
terms and conditions set forth herein; and
WHEREAS, such assets shall not include any assets or rights of Seller
used by Seller relating primarily to the ownership or operation of other
businesses owned or operated by Seller.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements herein set forth and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
PURCHASE AND SALE
Except as otherwise provided and subject to the terms and conditions set
forth in this Agreement, Seller agrees to sell, convey, assign, transfer and
deliver to Purchaser, and Purchaser agrees to purchase from Seller at the
Closing, all of Seller's right, title and interest in and to the Purchased
Assets (as defined in Section 2.01 hereof), free and clear of all security
interests, liens, pledges, charges, encroachments, defects of title, options,
rights of first refusal, easements or any other encumbrance or restriction on
the use or exercise of any attribute of ownership (collectively, "LIENS") other
than Permitted Liens. As used herein, the term "PERMITTED LIENS" means (i) any
lien or other encumbrance for taxes and assessments not yet past due, (ii) any
lien or other encumbrance provided for in, or arising out of, any Assumed
Contract and not related to any indebtedness for borrowed money, (iii) any lien
or other encumbrance that does not materially detract from the value of, or
interfere with the use of, the property subject thereto or
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affected thereby or materially impair the operation of the Seller Business
(including any easements, rights of way, restrictions, installations or public
utilities, title imperfections and restrictions, encroachments, reservations in
land patents, zoning ordinances or other similar liens or other encumbrances),
(iv) as to leaseholds, interests of the lessors thereof and Liens affecting
interests of such lessors and (v) any lien or other encumbrance set forth on
SCHEDULE 1 attached hereto.
ARTICLE II
DESCRIPTION OF PURCHASED ASSETS; EXCLUDED ASSETS
SECTION 2.01. PURCHASED ASSETS. The assets, properties and rights to be
conveyed to Purchaser shall be as set forth in SECTIONS 2.01(a) through 2.01(j)
hereto (the "PURCHASED ASSETS"). The Purchased Assets shall include the
following assets, properties and rights of Seller:
(a) the FCC licenses and authorizations, including (i) FCC
licenses and authorizations, as well as licenses and authorizations of any state
body having jurisdiction over the Seller Business, to construct, own and operate
a cellular radio telephone system in the Cellular Areas (the "CELLULAR
AUTHORIZATIONS") and certain microwave paths used in connection with such
cellular operations (the "MICROWAVE AUTHORIZATIONS") and (ii) construction
permits, if any, that have been issued by the FCC to Seller with respect to
construction of a cellular telecommunications system in the Cellular Areas (the
"FCC CONSTRUCTION PERMITS" and together with the Cellular Authorizations and the
Microwave Authorizations, the "FCC AUTHORIZATIONS"), that are listed on SCHEDULE
2.01(a) attached hereto;
(b) all rights under (i) all Contracts between Seller and
subscribers that are related primarily to the Seller Business, (ii) all
Contracts listed on SCHEDULE 7.06(a) attached hereto, (iii) all Contracts that
are not required to be listed on that Schedule solely because they involve
dollar amounts that are below the thresholds for inclusion on that Schedule,
(iv) all Contracts entered into during the period commencing on the date hereof
and ending on the Closing Date which Purchaser agrees to assume in accordance
with clause (ii) of Article III, and (v) all Contracts constituting Undisclosed
Contracts which Purchaser agrees to assume pursuant to Section 18.01(c) (all
such Contracts that are not Excluded Contracts shall be referred to collectively
as the "ASSUMED CONTRACTS");
(c) Seller's right, title and interest in and to the towers,
tower equipment, antennas, switching and cell site equipment and buildings,
microwave equipment, mobile identification numbers, tools, testing equipment,
motor vehicles, office equipment, furniture and fixtures, supplies and
inventory, electrical power units, transmission lines, installations,
appliances, improvements and other equipment, machinery and tangible personal
property used primarily in the Seller Business, including such as are listed on
SCHEDULE 2.01(c) attached hereto;
(d) all interests of Seller in all those certain lots and
pieces of real property that are owned by or leased to Seller that are used
primarily in the Seller Business including those set forth on SCHEDULE 2.01(d),
together with the buildings, structures, facilities and other
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improvements erected thereon, and together with all easements, rights-of-way and
other appurtenances thereto;
(e) all of Seller's right, title and interest to the
engineering records, files (including customer information and records), data,
drawings, blueprints, books of account, schematics, maps, reports, lists
(including customer and supplier lists) and plans and processes used primarily
in the Seller Business, provided that Seller may retain copies thereof so long
as Purchaser is provided with the originals thereof;
(f) all of Seller's right, title and interest in and to the
accounts receivable (billed or unbilled), prepaid assets, security deposits (the
"DEPOSITS"), copyrights relating to the Purchased Assets (whether registered or
unregistered), all of which are used primarily in the operation of the Seller
Business;
(g) to the extent assignable, all licenses, certificates of
occupancy, permits, franchises, registrations, certificates of public
convenience and necessity, approvals and operating rights, including any
applications therefor, used primarily in the operation of the Seller Business;
(h) all computer software owned or licensed by Seller
(including all related documentation) and used primarily in the Seller Business;
(i) all rights or choses in action relating primarily to the
Seller Business, including all rights under express or implied warranties
relating to the Purchased Assets, except to the extent listed on Schedule
2.02(f); and
(j) subject to Article XII, all rights and claims under
insurance policies with respect to the Purchased Assets.
SECTION 2.02. EXCLUDED ASSETS. All other assets owned by Seller, except
the Purchased Assets, shall be retained by Seller and shall not be sold,
assigned or transferred to Purchaser (the "EXCLUDED ASSETS"). Notwithstanding
the provisions of Section 2.01, the Purchased Assets shall not include any of
the following assets, properties and rights of Seller all of which shall be
deemed Excluded Assets:
(a) all cash on hand (other than the Deposits) and in
financial institutions, cash equivalents, marketable securities and bonds;
(b) all claims for refunds and/or credits for Taxes (as
defined herein);
(c) the minute books and tax returns of Seller;
(d) the Contracts listed or described in SCHEDULE 2.02(d) (the
"EXCLUDED CONTRACTS");
(e) the rights which accrue or will accrue to Seller under
this Agreement;
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(f) the assets, rights and claims listed in SCHEDULE 2.02(f);
(g) subject to Section 2.01(j), all insurance policies and
rights and claims thereunder arising from events, matters, conditions arising
prior to the Closing Date and which have not been assigned to Purchaser pursuant
to Article XII;
(h) Seller's trademarks, trade names, service marks, service
names, logos and similar rights and all other intellectual property (except as
set forth in Section 2.01);
(i) copies of the documents referred to in Section 2.01(e);
and
(j) all System Employee Benefit Plans.
ARTICLE III
ASSUMPTION OF LIABILITIES
At the Closing, Purchaser shall assume and agree to perform and
discharge as of the Closing the following Liabilities of Seller to the extent
not previously performed or discharged, and no others: (i) all Liabilities of
Seller which are to be performed from and after the Closing under the Assumed
Contracts, but only to the extent such Liabilities relate to periods or goods or
services provided to Purchaser on or after the Closing Date, provided that
Purchaser shall not assume any Liabilities arising out of any breach by Seller
of any provision of any Assumed Contract, (ii) all Liabilities of Seller entered
into during the period from the date hereof to the Closing by Seller that were
identified by Seller in writing as Assumed Liabilities and consented to in
writing by Purchaser, (iii) all Liabilities in connection with the Deposits and
(iv) accrued property Taxes relating to the Purchased Assets for the period
prior to the Closing (such items (i) through (iv) are collectively referred to
herein as the "ASSUMED LIABILITIES"). The Assumed Liabilities shall specifically
exclude all other Liabilities of Seller or the Seller Business (the "EXCLUDED
LIABILITIES"), including (x) all Liabilities in connection with, resulting from,
or arising out of, directly or indirectly, the ownership, operation or control
of the Purchased Assets or Seller Business prior to the Closing Date, other than
the Assumed Liabilities, and (y) all Liabilities relating to any System Employee
Benefit Plan. For purposes of clarity, the parties hereby acknowledge that
neither the Assumed Liabilities nor the Excluded Liabilities will include any
Liabilities in connection with, resulting from, or arising out of, directly or
indirectly, Purchaser's ownership, operation, or control of the Purchased Assets
or the Seller Business from and after the Closing Date, and that such
Liabilities will be the responsibility of the Purchaser.
ARTICLE IV
INSTRUMENTS OF TRANSFER AND ASSUMPTION
SECTION 4.01. TRANSFER DOCUMENTS. At the Closing, Seller will deliver to
Purchaser (a) one or more Bills of Sale in substantially the form attached
hereto as EXHIBIT A (a "XXXX OF SALE"), (b) all such other good and sufficient
instruments of sale, transfer and conveyance, including assignments of leases,
deeds in recordable form and certificates of title for motor vehicles, as shall
be effective to vest in Purchaser all of Seller's right and title to, and
interest in, the
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Purchased Assets, and (c) a FIRPTA Certificate as required by Section 1445 of
the Internal Revenue Code of 1986, as amended (the "CODE").
SECTION 4.02. ASSUMPTION DOCUMENTS. At the Closing, Purchaser and Seller
will execute and deliver an Assumption Agreement in substantially the form
attached hereto as EXHIBIT B (the "ASSUMPTION AGREEMENT") in order to effect the
assumption of the Assumed Liabilities by Purchaser.
ARTICLE V
PURCHASE PRICE; ALLOCATION
SECTION 5.01. PURCHASE PRICE. The total purchase price for the Purchased
Assets shall be Two Hundred Sixty-Three Million Dollars ($263,000,000.00) (the
"BASE PRICE"), as adjusted in accordance with the provisions of Section 5.05
hereof (as adjusted, the "PURCHASE PRICE").
SECTION 5.02. INDEMNITY ESCROW. At Closing, Purchaser will deposit by
wire transfer of immediately available funds an amount equal to four percent
(4%) of the Purchase Price (the "ESCROWED AMOUNT") with X.X. Xxxxxx Trust
Company, National Association (the "ESCROW AGENT"), to be held, invested and
disbursed by the Escrow Agent pursuant to the terms of the Escrow Agreement
substantially in the form of EXHIBIT C attached hereto (the "ESCROW AGREEMENT").
SECTION 5.03. PAYMENT OF PURCHASE PRICE. The Purchase Price, less the
Escrowed Amount and less any Taxes Purchaser is required by law to withhold or
remit to any taxing authority on account of the transactions contemplated
hereby, shall be payable by wire transfer of immediately available funds to
Seller at Closing ("SELLER'S CLOSING PAYMENT").
SECTION 5.04. ALLOCATION OF PURCHASE PRICE. SCHEDULE 5.04 sets forth the
allocation of the Purchase Price in accordance with the respective fair market
value of the Purchased Assets and as provided for under Section 1060 of the
Code. Each party hereby agrees to file with its federal income tax return for
the tax year in which the Closing occurs IRS Form 8594 containing the allocation
set forth on Schedule 5.04.
SECTION 5.05. PURCHASE PRICE ADJUSTMENT.
(a) As used in this Section 5.05, the following terms shall
have the meaning set forth below:
"CURRENT ASSETS" means the following Purchased Assets: (i) customer
accounts receivable, including roaming accounts receivable (except any such
accounts receivable owed by Seller or any Affiliate of Seller), excluding an
allowance for uncollectible accounts receivable (not including roaming accounts
receivable), calculated as follows: 2% for subscriber receivables that are less
than or equal to 30 days past due, 5% for subscriber receivables that are
between 31 and 60 days past due, 20% for subscriber receivables that are between
61 and 90 days past due and 100% for subscriber receivables that are more than
90 days past due, (ii) inventory, including cellular telephone handsets and
ancillary equipment held for sale to
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subscribers, valued in accordance with GAAP consistently applied, and (iii)
prepaid items relating to the Purchased Assets, including prepaid rent, property
taxes, utility charges, fees and deposits paid (but excluding prepaid
insurance), all determined as of 12:01 a.m. on the Closing Date in accordance
with GAAP consistently applied. A physical audit of Seller's inventory will be
taken by representatives of Seller and Purchaser during the afternoon or evening
prior to the Closing Date, the results of which shall be final and binding upon
the parties (i.e., the physical inventory count shall not be reviewable by the
Independent Accountant pursuant to Section 5.05(d) below) for purposes of
determining the number and type of inventory items existing as of the Closing,
which information shall be used to derive the value of the inventory of Seller
included as Current Assets and reflected on the Closing Certificate.
"CURRENT LIABILITIES" shall mean all Assumed Liabilities (as defined in
Article III above) that are of a type determined to be "current liabilities" in
accordance with GAAP.
"GAAP" means generally accepted accounting principles consistently
applied.
(b) The Base Price shall be increased (or decreased) by the
amount by which Current Assets exceed (or are less than) Current Liabilities as
of the Closing Date (the "WORKING CAPITAL ADJUSTMENT").
(c) In the event that as of the Closing, Seller shall have
failed to obtain any consent that is necessary to assign to Purchaser any cell
site lease or license that is included in the Purchased Assets, the Base Price
shall be decreased by $200,000 for each cell site lease or license as to which
Seller failed to obtain the consent that is necessary to assign to Purchaser
such cell site lease or license (the "CELL SITE LEASE ADJUSTMENT").
(d) Seller shall prepare and submit to Purchaser, not later
than 5 business days prior to the Closing Date, a written good faith estimate of
the amount of the Working Capital Adjustment and the Cell Site Lease Adjustment
(collectively the "ADJUSTMENTS") in accordance with this Section 5.05 and
Seller's estimate of the Purchase Price resulting from the Adjustments
("SELLER'S ESTIMATE"). Seller's Estimate shall be accompanied by supporting
documents, work papers, subscriber records and other data supporting the
Adjustments and Seller's Estimate. Seller's Estimate shall be based upon the
books and records of the Seller Business. Seller's Estimate shall be accompanied
by a certificate signed by an officer of Seller certifying that the Seller's
Estimate was calculated in good faith and in accordance with the provisions of
this Section 5.05. After the delivery of Seller's Estimate and prior to the
Closing, Purchaser and Seller shall attempt to resolve any disputes between
Seller and Purchaser with respect to Seller's proposed Adjustments. In
connection therewith, Purchaser shall have full access to Seller's records
related to Seller's proposed Adjustments. Prior to Closing, Purchaser shall
advise Seller in writing as to any dispute Purchaser has with Seller's Estimate
and provide to Seller Purchaser's calculation of the Adjustments and the
Purchase Price, accompanied by a certificate signed by a senior officer of
Purchaser certifying that Purchaser's calculation was made in good faith and
supporting documents and information, to the extent the same is available to
Purchaser ("PURCHASER'S ESTIMATE"). In the event Purchaser's Estimate of the
Purchase Price is less than $100,000 less than Seller's Estimate, the Closing
shall proceed with the Purchase Price based
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upon Seller's Estimate. In the event the Purchaser's Estimate of the Purchase
Price is more than $100,000 less than Seller's Estimate, then the mid-point
between Seller's Estimate and Purchaser's Estimate shall be used as the Purchase
Price for purposes of Closing.
(d) Within 60 days after the Closing Date, Seller shall
deliver to Purchaser a certificate (the "CLOSING CERTIFICATE") signed by a
senior officer of Seller providing a compilation of the Working Capital
Adjustment to be made pursuant to this Section 5.05 including any changes in the
Working Capital Adjustment, used to determine the Purchase Price at Closing,
together with a copy of any supporting documents, work papers, subscriber
records and other data relating to such Closing Certificate and such other
supporting evidence as Purchaser may reasonably request either prior to or after
delivery thereof. If Purchaser shall conclude that the Closing Certificate does
not accurately reflect the adjustment to be made to the Base Price in accordance
with this Section 5.05, Purchaser shall, within 40 days after their receipt of
the Closing Certificate (such 40 day period being referred to as the "RESPONSE
PERIOD"), deliver to Seller a written statement of any discrepancies believed to
exist. If Purchaser fails to so notify Seller of any discrepancies, then the
calculation of the Purchase Price set forth in the Seller's Closing Certificate
shall be controlling for all purposes hereof and Purchaser or Seller, as the
case may be, shall on or before the fifth day following the expiration of the
Response Period pay to the other the amount which it is obligated to pay in
accordance with the Closing Certificate. On or before the fifth day following
the earlier to occur of the expiration of the Response Period and the date
Seller receives Purchaser's statement of discrepancies, Purchaser or Seller, as
the case may be, shall pay the other the amount, if any, as to which there is no
discrepancy. Purchaser and Seller shall use good faith efforts to jointly
resolve their discrepancies within 15 days of Seller's receipt of Purchaser's
written statement of discrepancies, which resolution, if achieved, shall be
binding upon all parties to this Agreement and not subject to further dispute or
review. If Purchaser and Seller cannot resolve the discrepancies to their mutual
satisfaction within such 15-day period, then the matter shall be submitted to
KPMG, LLP (the "INDEPENDENT ACCOUNTANTS"). In submitting a dispute to the
Independent Accountants, each of the parties shall furnish, at its own expense,
the Independent Accountants and the other party with such documents and
information as the Independent Accountants may reasonable request. Each party
may also furnish to the Independent Accountants such other information and
documents as it deems relevant with the appropriate copies and notification
being given to the other party. The Independent Accountants may conduct a
conference concerning the disagreements between Seller and Purchaser at which
conference each party shall have the right to present additional documents,
materials and other evidence and to have present its or their advisors,
accountants or counsel. The Independent Accountants shall promptly render a
decision on the issues presented, and such decision shall be final and binding
on the parties. Within 5 days of receipt of the Independent Accountants'
decision with respect to such dispute, if Purchaser is determined to owe an
amount to Seller, Purchaser shall pay such amount thereof to Seller, and if
Seller is determined to owe an amount to Purchaser, Seller shall pay such amount
thereof to Purchaser. All amounts owed by Purchaser or Seller to the other in
accordance with this Section 5.05(d) shall be paid by wire transfer of
immediately available funds and shall not bear any interest.
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SECTION 5.06. PRELIMINARY TAX CERTIFICATES. At or before the Closing,
Seller will deliver to Purchaser a tax clearance certificate from each of the
States of California, Georgia and Ohio, for all periods through the last
completed calendar month prior to the Closing Date (provided that if the Closing
Date shall occur during the first twenty days of a calendar month, the
certificate shall be for the period through the next previous completed calendar
month), indicating that all tax returns required to have been filed by Seller
through and including such date have been filed and that all Taxes required to
be paid by Seller, as shown on such returns, have been paid (each, a
"PRELIMINARY TAX CERTIFICATE"). If Seller is unable to deliver any Preliminary
Tax Certificate because Seller has not paid all Taxes which it was required to
pay to the applicable jurisdiction, then Purchaser shall have the option of
paying such Taxes on the Closing Date on behalf of Seller, and reducing the
amount of the Seller's Closing Payment by the amount of such tax payment, which
shall be treated for purposes of this Agreement as a payment on account of the
Purchase Price. Purchaser shall furnish Seller at Closing with appropriate
evidence of any such payment.
ARTICLE VI
CLOSING
Subject to the terms and conditions hereof, the closing of the
transactions contemplated by this Agreement (the "CLOSING") shall take place at
the offices of Xxxxxxx & Xxxxxx, LLP, 0000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxx
Xxxxxx 00000, on the date (the "CLOSING DATE") which is the latest of (a) the
2nd day after the date that the FCC's consent to the assignment of the Cellular
Authorizations from Seller to the Purchaser becomes a Final Order (as defined in
Section 10.04), (b) the fifth (5th) day after the expiration or early
termination of the waiting period under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended (the "XXXX-XXXXX-XXXXXX ACT") (if
applicable to the transactions contemplated by this Agreement) or (c) the date
on which all conditions to Closing set forth in Articles X and XI hereof have
been satisfied or waived; provided if such latest date is not a business day,
the Closing Date shall be the next following business day.
ARTICLE VII
SELLER'S REPRESENTATIONS
Seller hereby represents, warrants, covenants and agrees, as of the date
hereof and also at and as of the Closing Date (except to the extent that a
representation or warranty is given as of a particular date in which case such
representation or warranty shall be made only as of such particular date), which
representations, warranties, covenants and agreements, together with all other
representations, warranties, covenants and agreements of Seller in this
Agreement, shall survive the Closing as provided in Section 13.06, that:
Section 7.01. ORGANIZATION, QUALIFICATION. Seller is a corporation duly
incorporated, validly existing and in good standing under the Laws of the state
of its incorporation and has all necessary corporate power and authority to own
and operate its properties and to carry on its business as it is now being
conducted and to carry out the transactions contemplated by this Agreement and
the other Transaction Documents, as defined below. Seller has the power and
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authority to execute and deliver and, subject to Seller obtaining the Required
Consents and giving the Required Notices, perform its obligations under this
Agreement and the other Transaction Documents, as defined below, and to
undertake the transactions contemplated hereby and thereby. As used herein, the
term "TRANSACTION DOCUMENTS" means this Agreement and all other agreements,
documents and instruments executed in connection herewith or required to be
executed and/or delivered by the parties or any one or more of them in
accordance with the provisions of this Agreement. No shares of any corporation
or any ownership or other investment interest, either of record, beneficially or
equitably, in any Person are included in the Purchased Assets.
SECTION 7.02. AUTHORIZATION, EXECUTION AND DELIVERY OF AGREEMENT AND
TRANSACTION DOCUMENTS. The execution, delivery and performance of this Agreement
and the other Transaction Documents by Seller and the transfer of the Purchased
Assets to Purchaser have been duly and validly authorized and approved by all
necessary corporate action, including approval by Seller's Board of Directors.
This Agreement is, and each of the other Transaction Documents when so executed
and delivered will be, a valid and binding obligation of Seller, enforceable
against it in accordance with its terms subject to bankruptcy, insolvency,
reorganization, moratorium, or similar Laws affecting creditors' rights
generally.
SECTION 7.03. TITLE TO AND CONDITION OF ASSETS.
(a) Seller has good and marketable title or a valid leasehold
interest, as applicable, to all of the properties and assets, real, personal and
mixed, which would be included in the Purchased Assets if the Closing took place
on the date hereof, including all properties and assets reflected in the Balance
Sheets (as defined in Section 7.14) and not sold, retired or otherwise disposed
of since the date thereof in the ordinary course of the Seller Business
consistent with past practices, free and clear of all Liens except for Permitted
Liens and except for the Liens listed on SCHEDULE 7.03(a) which will be
discharged at Closing. Seller has full power, right and authority to sell and
convey to Purchaser good and marketable title to the Purchased Assets, free and
clear of all Liens other than Permitted Liens. Except as set forth on SCHEDULE
7.03(a) and except for the Excluded Assets identified in Section 2.02(a)-(j) or
in SCHEDULE 2.02(d) or SCHEDULE 2.02(f), the Purchased Assets include all
material rights, assets and property necessary or material to operate the Seller
Business as it is currently operated. Except for the Excluded Assets and except
as set forth on SCHEDULE 7.03(a), no Affiliate of Seller owns or has an interest
in any asset used primarily in the Seller Business.
(b) All buildings, structures, facilities, fixtures,
equipment and other items of tangible property and assets (excluding Inventory)
which would be included in the Purchased Assets if the Closing took place on the
date hereof, including all network equipment, are in good working condition and
repair, subject to normal wear and maintenance and are located such that they
are not materially encroaching on the property or rights of any Person.
SECTION 7.04. REAL PROPERTY. SCHEDULE 2.01(d) lists all real property
and interests in real property owned or leased by the Seller and used primarily
in the Seller Business, and specifying
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the address or other description suitable to identify the property, a reasonable
description of the use of each property, and which of the properties are owned
and which are leased.
(a) With respect to each parcel of Seller-owned real property
included in the Purchased Assets, and except for matters set forth on SCHEDULE
7.04(a):
(i) Seller has good and marketable title to the parcel
of real property, free and clear of all Liens, except for Permitted Liens and
except for the Liens listed on SCHEDULE 7.03(a) which will be discharged at
Closing;
(ii) there are no leases, subleases, licenses,
concessions, or other agreements to which Seller is a party or, to Seller's
knowledge, subleases, licenses, concessions or other agreements to which Seller
is not a party, granting to any party or parties the right of use or occupancy
of any portion of the parcel of real property; and
(iii) there are no outstanding options or rights of
first refusal to purchase the parcel of real property, or any portion thereof or
interest therein.
(b) With respect to each parcel of real property listed on
SCHEDULE 2.01(d), and except for matters set forth on SCHEDULE 7.04(b):
(i) To Seller's knowledge, Seller has valid and
enforceable rights of physical and legal ingress and egress to and from such
parcel; and
(ii) Seller has not received any notice of, and Seller
has no knowledge of, any non-compliance with applicable building codes, zoning
regulations, occupational health and safety Laws or any other Laws applicable to
such parcel or Seller's use or occupancy thereof.
SECTION 7.05. [INTENTIONALLY DELETED.]
SECTION 7.06. ASSUMED CONTRACTS AND SUBSCRIBERS
(a) Set forth on SCHEDULE 7.06(a) is a list of all Contracts
to which Seller or any Affiliate of Seller is a party that relate primarily to
the Seller Business and that fall within any one or more of the following
categories, other than Excluded Contracts:
(i) any Contract with any present or former employee
or consultant or for the employment of any person, including any
consultant;
(ii) any Contract with any labor union or other
representative of employees;
(iii) any confidentiality or non-disclosure agreement
pursuant to which Seller has agreed to keep information which is
related to the Purchased Assets obtained from any other person or
entity confidential;
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(iv) any Contract limiting or restraining Seller or any
successor thereto from engaging or competing in any manner or in
any business;
(v) any Contract with any shareholder or Affiliate of
Seller or with any Affiliate of any shareholder of Seller;
(vi) any retail store lease or cell site lease or
license;
(vii) any roaming agreement, interconnection agreement
or contour extension agreement;
(viii) any Contract with a third party to provide
services to customers of Seller;
(ix) any commission, representative, distributorship or
sales agency Contract;
(x) any conditional sale or lease under which Seller
is either purchaser or lessee relating to the Purchased Assets or
any property at which the Purchased Assets are located;
(xi) any note, debenture, bond, trust agreement, letter
of credit agreement, loan agreement or other Contract for the
borrowing or lending of money or for a line of credit or
guarantee, pledge or undertaking of the indebtedness of any other
person or entity;
(xii) any Contract for any charitable or political
contribution;
(xiii) any license, franchise, distributorship or other
agreement which relates in whole or in part to any software,
patent, trademark, trade name, service xxxx or copyright or
technical assistance;
(xiv) any Contract granting power of attorney to any
other person or entity;
(xv) any Contract for the performance of services by a
third party involving annual payments of $25,000 or more;
(xvi) any Contract for the future purchase of, or
payment for, supplies or products, involving in any one case
$25,000 or more;
(xvii) any Contract for any capital expenditure or
leasehold improvement in excess of $25,000;
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(xviii) any equipment lease with annual payments of more
than $12,000;
(xix) any Contract having annual payments greater than
$25,000 or a commitment of $75,000 or more in the aggregate; and
(xx) any other material Contract not made in the
ordinary course of business consistent with past practice.
Seller has heretofore delivered or made available to Purchaser true and correct
copies of the Assumed Contracts entered into as of the date hereof or prior to
the date hereof that are required to be set forth on SCHEDULE 7.06(a), including
all amendments, supplements and modifications thereto or waivers currently in
effect thereunder.
(b) Except as disclosed on SCHEDULE 7.06(b), Seller is not in
Default in any material respect with respect to, nor to Seller's knowledge is
there any Default in any material respect by the other parties to, any Assumed
Contracts. The Assumed Contracts are in full force and effect, enforceable
against Seller in accordance with their terms.
(c) As of July 31, 2001, there were approximately 40,983
subscribers of the Seller Business. SCHEDULE 7.06(c) sets forth the name of each
of the price plans presently in the process of being implemented or presently
covering the active subscribers of the Seller Business, together with the
approximate number of subscribers, as of July 31, 2001, under each such plan,
and the approximate number of such subscribers whose account balances have been
outstanding for more than 60 days.
(d) To the knowledge of Seller, no party to an Assumed
Contract (which party accounts for $50,000 or more annually in business with
Seller) has informed Seller of its intent to cancel or otherwise modify in any
material respect, other than in the ordinary course of its relationship with
Seller or the Seller Business, or to decrease significantly or limit
significantly its purchases, services, supplies or materials under such Assumed
Contract.
(e) Each roaming agreement between Seller and any carrier to
which Seller has paid roaming charges in the past 12 months contains provisions
requiring each party thereto to use a pre-call validation ("PV") system in all
markets covered by such roaming agreement and that any call completed by the
serving carrier under such roaming agreement shall be the sole responsibility of
such serving carrier if either (i) a PV request has determined that the roamer
placing such call is not a valid customer of the home carrier or (ii) the call
has been placed using an unauthorized ESN after entry to the Industry Negative
File has become effective. Notwithstanding the foregoing sentence, in no event
shall Seller be liable for any point to point validations where the carrier
"assumes positive" (as such term is commonly understood in the industry) at the
switch level.
(f) SCHEDULE 7.06(f) sets forth all products and services that
Seller offers or provides to its subscribers of the Cellular Systems in addition
to voice cellular service.
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SECTION 7.07. GOVERNMENTAL LICENSES.
(a) Seller holds all FCC Authorizations and those licenses,
permits, certificates of public convenience and necessity of any other
governmental body having jurisdiction over the Seller Business or any Purchased
Assets, which are required in connection with the ownership and operation of the
Purchased Assets and the Seller Business as it is presently being conducted
(collectively referred to as the "AUTHORIZATIONS") except for such licenses,
consents, permits, approvals and authorizations for which the failure to so hold
would not be material. All FCC Authorizations are in full force and effect.
Seller has complied in all material respects with the terms of the FCC
Authorizations. True and correct copies of the FCC Authorizations, and all
amendments thereto to the date hereof, that are Purchased Assets have been
delivered or made available by Seller to Purchaser.
(b) To Seller's knowledge, there are no existing applications,
petitions to deny or complaints or proceedings (other than proceedings affecting
the wireless industry generally) pending before the FCC or any state public
utility commission ("STATE PUC") having jurisdiction over the Seller Business or
any Purchased Assets relating to the FCC or State PUC Authorizations or the
Seller Business. Seller has not received any notice of any claim of material
Default with respect to any of the FCC and State PUC Authorizations. None of the
FCC Authorizations will be, or could be reasonably expected to be, adversely
affected by consummation of any action of Seller taken in connection with the
transactions contemplated hereby or by any other Transaction Document. Seller is
the sole holder of the Authorizations.
(c) The maps provided by Seller and attached hereto as
SCHEDULE 7.07(c) are true and accurate depictions of the current Cellular
Geographic Service Areas and boundaries for each of the Cellular Systems in all
material respects, as such term is defined in Section 22.911 of the FCC's rules,
47 C.F.R. Section 22.911.
SECTION 7.08. COMPLIANCE WITH LAWS. Except as set forth on SCHEDULE
7.08, Seller is in material compliance with and there is no material Default
under any statute, law, ordinance, regulation, judgment, decree, injunction,
ruling, order or rule of any federal, state, local, foreign or other
governmental or quasi-governmental agency or body ("LAWS") applicable to the
Seller Business.
SECTION 7.09. NO CONFLICTS; CONSENTS. Except for compliance with any
applicable requirements of the Xxxx-Xxxxx-Xxxxxx Act, consent by the FCC to the
assignment of the FCC Authorizations from Seller to Purchaser and the consents,
authorizations and approvals identified on SCHEDULE 7.09 (collectively, the
"REQUIRED CONSENTS") and the registrations, filings and notices identified on
SCHEDULE 7.09 ("REQUIRED NOTICES"), neither the execution and delivery of this
Agreement nor any of the other Transaction Documents by Seller nor the
performance by it of the transactions contemplated hereby or thereby will result
in a Default under any term, condition or provision of, or require the consent,
authorization or approval of, or any registrations or filings with or notices
to, any Person or governmental or regulatory official, body or authority under,
(i) any Law to which Seller or any of the Purchased Assets or the Seller
Business is subject, (ii) any Assumed Contract listed on Schedule 7.06(a), or
any Authorization
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to which Seller is a party or subject and by which any of the Purchased Assets
or the Seller Business is bound or affected, or (iii) the certificate of
incorporation or bylaws of Seller, except with respect to clause (i) above where
such Default or failure to gain a consent or file a notice would not be
material.
SECTION 7.10. LITIGATION AND LEGAL PROCEEDINGS. Except as set forth on
SCHEDULE 7.10, there is no outstanding judgment, order, writ, injunction, decree
or award of any court, arbitrator or governmental or regulatory official, body
or authority (including the FCC or any state body having jurisdiction over the
Seller Business or any Purchased Asset) against Seller affecting the Seller
Business or the Purchased Assets or which questions the validity of any action
taken or to be taken pursuant to this Agreement or in which it is sought to
restrain or prohibit or to obtain damages or other relief in connection with
this Agreement. Except as set forth on SCHEDULE 7.10, there is no litigation,
arbitration, investigation or other proceeding of or before any court,
arbitrator or governmental or regulatory official, body or authority (including
the FCC or any state body having jurisdiction over the Seller Business or any
Purchased Asset) pending, or, to Seller's knowledge, threatened, against Seller
the result of which, alone or in the aggregate, could reasonably be expected to
adversely affect the Seller Business, the Purchased Assets or the transactions
contemplated by this Agreement, and Seller has no knowledge of any reasonably
likely basis therefor.
SECTION 7.11. SYSTEM EMPLOYEES. SCHEDULE 7.11 sets forth a true and
complete list of the names and base salaries of all employees of the Seller
primarily involved in the operation of the Seller Business (the "SYSTEM
EMPLOYEES"). Except as set forth on SCHEDULE 7.11, Seller and its Affiliates:
(i) have in all material respects withheld and reported all amounts required by
law or by agreement to be withheld and reported with respect to wages, salaries
and other payments to System Employees; (ii) are not liable for any material
arrears of wages or any material taxes or any material penalty for failure to
comply with any of the foregoing; and (iii) are not liable for any material
payment to any trust or other fund governed by or maintained by or on behalf of
any court, arbitrator or governmental or regulatory official, body or authority
(including the FCC or any state body having jurisdiction over the Seller
Business or any Purchased Asset), with respect to unemployment compensation
benefits, social security or other benefits or obligations for System Employees
(other than routine payments to be made in the normal course of business and
consistent with past practice). There are no material pending or to Seller's
knowledge threatened claims or actions against Seller under any worker's
compensation policy or long-term disability policy involving any System
Employee. Except as set forth in SCHEDULE 7.11, there are no actions, suits,
claims or grievances pending, or, to the knowledge of Seller, threatened
relating to any labor, safety or discrimination matters involving any System
Employee, including, charges of unfair labor practices or discrimination
complaints. Neither Seller nor any of its Affiliates has engaged in any unfair
labor practices within the meaning of the National Labor Relations Act with
respect to any System Employee or the Seller Business. Except as set forth in
SCHEDULE 7.11, neither Seller nor any of its Affiliates is presently, nor has it
been in the past, a party to, or bound by, any collective bargaining agreement
or other labor union contract applicable to the Seller Business and no such
collective bargaining agreement is being negotiated by Seller or any Affiliate.
No consent of any union (or similar group or organization) is required in
connection with the consummation of the transactions contemplated hereby. There
are no pending, or, to
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Seller's knowledge, threatened (a) union representation petitions respecting the
System Employees, (b) efforts being made to organize any of the System
Employees, or (c) strikes, slow downs, work stoppages, or lockouts or threats
affecting the System Employees. Seller has not made any representation, warranty
or agreement with any of its System Employees or any other employees of Seller
concerning employment with Purchaser after the Closing.
SECTION 7.12. SYSTEM EMPLOYEE BENEFITS. Except as set forth on SCHEDULE
7.12 attached hereto, Seller does not maintain or sponsor any System Employee
Benefit Plans. For purposes of this Agreement, the term "SYSTEM EMPLOYEE BENEFIT
PLANS" means any material plan, program, policy, practice, contract, agreement
or other arrangement providing for compensation, severance, termination pay,
deferred compensation, performance awards, stock or stock-related awards, fringe
benefits or other employee benefits or remuneration of any kind, whether written
or unwritten or otherwise, funded or unfunded, including, each "employee benefit
plan," within the meaning of Section 3(3) of ERISA which is or has been
maintained, contributed to, or required to be contributed to, by Seller or any
ERISA Affiliate (which means any Affiliate or any entity which is required to be
aggregated with Seller under Section 414 of the Code) for the benefit of any
System Employee. Each System Employee Benefit Plan has been established and
administered in material compliance with its terms and the applicable provisions
of ERISA, the Code and other applicable Laws. None of the System Employee
Benefit Plans is subject to Title IV of ERISA (including any multiemployer plan
within the meaning of ERISA Section 3(37) or 4001(a)(3)). No System Employee
Benefit Plan provides, reflects or represents any liability to provide retiree
health to any person for any reason, except as may be required by COBRA or other
applicable statute, and neither Seller nor any ERISA Affiliate has represented,
promised or contracted (whether in oral or written form) to any System Employee
(either individually or to System Employees as a group) or any other person that
such Employee(s) or other person would be provided with retiree health, except
to the extent required by statute. Except as set forth on SCHEDULE 7.12, the
execution of this Agreement and the consummation of the transactions
contemplated hereby will not (either alone or upon the occurrence of any
additional or subsequent events) constitute an event under any System Employee
Benefit Plan or employment agreement or under any related trust or loan
agreement that will or may result in any payment (whether of severance pay or
otherwise), acceleration, forgiveness of indebtedness, vesting, distribution,
increase in benefits or obligation to fund benefits with respect to any current
or former System Employee.
SECTION 7.13. TAX MATTERS. Except as set forth on SCHEDULE 7.13 attached
hereto, as relates to the Purchased Assets and the Seller Business, Seller has
timely filed all Tax returns and statements which it was required to file, and
Seller has paid all Taxes due prior to the date hereof and will pay when due (or
contest in good faith by appropriate proceedings) all Taxes which may become due
on or before the Closing Date. Except as set forth on SCHEDULE 7.13, Seller has
not waived any statute of limitations in respect of Taxes or agreed to an
extension of time with respect to a Tax assessment or deficiency related to the
Purchased Assets or the Seller Business. To Seller's knowledge, there are no
unresolved claims raised by any Tax authority concerning the Tax liability of
Seller related to the Purchased Assets or the Seller Business. All Taxes related
to the Purchased Assets and the Seller Business which Seller is required by law
to withhold or to collect for payment have been duly withheld and collected, and
have been paid.
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SECTION 7.14. FINANCIAL STATEMENTS; CHANGES.
(a) For each of the Cellular Areas, the Purchaser has
heretofore been furnished with the following information with respect to the
Seller Business conducted in that Cellular Area:
(i) true and complete copies of unaudited statements
of income for the years ended December 31, 1999 (other than for GA-1) and
December 31, 2000 (such statements for all Cellular Areas collectively, the
"HISTORICAL FINANCIAL STATEMENTS"), such income statements being included in
SCHEDULE 7.14(a)(i); and
(ii) true and complete copies of the unaudited balance
sheet at July 31, 2001 (such balance sheet for all Cellular Areas collectively,
the "Balance Sheets") and the related unaudited statement of income for the
seven-month period then ended (such statement for all Cellular Areas
collectively, together with the Balance Sheets, the "CURRENT FINANCIAL
STATEMENTS"), such balance sheet and income statement being included in SCHEDULE
7.14(a)(ii).
(b) Each of the Historical and Current Financial Statements
delivered under Section 7.14(a) above was prepared in accordance with GAAP
applied on a basis consistent with prior periods and past practices except as
otherwise stated therein and with respect to the Current Financial Statements,
subject to normal recurring year-end adjustments and except in each case for the
omission of certain footnotes and other presentation items required by GAAP with
respect to audited financial statements; the balance sheets included in such
Current Financial Statements fairly present the financial condition of the
Seller with respect to the Cellular Areas covered thereby, as of the close of
business on the date thereof and, except for the Excluded Assets, do not include
any assets that are not intended to constitute part of the Purchased Assets
after giving effect to the transactions contemplated hereby; and each of the
statements of income included in such Historical and Current Financial
Statements fairly presents the results of operations of Seller with respect to
the Cellular Areas covered thereby, as applicable, for the fiscal period then
ended.
(c) Except as set forth on SCHEDULE 7.14(c) attached hereto,
with respect to the Purchased Assets, since July 31, 2001, Seller has not:
(i) sold, assigned, or transferred any of the
material, assets, properties or rights included in the Purchased Assets (except
for the Excluded Assets and except pursuant to existing Contracts disclosed on
any Schedule to this Agreement or inventory in the ordinary course of business
consistent with past practice);
(ii) entered into any other material transaction
relating to the Seller Business other than in the ordinary course of business
consistent with past practices;
(iii) suffered any material damage, destruction or
casualty loss with respect to the Purchased Assets not covered by insurance;
- 16 -
(iv) suffered any events which, individually or in the
aggregate, have, or could be reasonably expected to, materially adversely affect
the Purchased Assets, the Seller Business or the transactions contemplated by
this Agreement; or
(v) entered into any agreement or understanding to do
any of the foregoing.
SECTION 7.15. INSURANCE. Seller has maintained all policies of title,
liability, fire, worker's compensation and other forms of insurance (including
bonds) that relate to the Purchased Assets and which insure against risks and
liabilities to an extent and in a manner customary in the cellular industry. All
such insurance policies and binders are in full force and effect. Seller has not
received any notice of cancellation or non-renewal of any such policy or binder.
No insurance carrier has canceled or reduced any insurance coverage for Seller
or has given any notice or other indication of its intention to cancel or reduce
any such coverage. Seller has complied in all material respects with each of
such insurance policies and binders, and has not failed to give any notice or
present any claim thereunder in a due and timely manner.
SECTION 7.16. BROKERS. Except for Xxxxxxx & Associates, L.P., Seller has
not engaged any agent, broker or other person acting pursuant to the express or
implied authority of Seller which is or may be entitled to a commission or
broker or finder's fee in connection with the transactions contemplated by this
Agreement or otherwise with respect to the sale of the Purchased Assets.
SECTION 7.17. ENVIRONMENTAL COMPLIANCE.
(a) Except as set forth on SCHEDULE 7.17 hereto, (i) Seller
has not generated, used, transported, treated, stored, released or disposed of,
or knowingly permitted anyone else to generate, use, transport, treat, store,
release or dispose of any Hazardous Substance (as hereinafter defined) at, on or
in connection with the ownership or occupancy of the Purchased Assets in
violation of any applicable Environmental Laws (as hereinafter defined),
PROVIDED, HOWEVER, that, (x) with respect to the properties and assets relating
primarily to the operation of the OH-2 Cellular System that were acquired from
Purchaser or any of its Affiliates, Seller's representation in this subsection
7.17(a)(i) is limited solely to Seller's actions and the actions of anyone else
knowingly permitted by Seller, in each case occurring during the period of
Seller's ownership of such properties and assets and (y) Seller makes no
representation under this clause(i) with respect to properties in which
Purchaser or one of its Affiliates are the lessors other than with respect to
Seller's own actions; (ii) there has not been any generation, use,
transportation, treatment, storage, release or disposal of any Hazardous
Substance in connection with Seller's ownership, occupancy or use of the
Purchased Assets or on, in or under any property or facility owned or leased by
Seller and included in the Purchased Assets which has created or might
reasonably be expected to create any Liability under any applicable
Environmental Laws, PROVIDED, HOWEVER, that, (x) with respect to the properties
and assets relating primarily to the operation of the OH-2 Cellular System that
were acquired from Purchaser or any of its Affiliates, Seller's representation
in this subsection 7.17(a)(ii) is limited solely to actions occurring during the
period of Seller's ownership of such properties and assets
- 17 -
and (y) Seller makes no representation under this clause (ii) with respect to
properties in which Purchaser or one of its Affiliates are the lessors other
than with respect to Seller's own actions; (iii) any Hazardous Substance handled
or dealt with by Seller at, on or in connection with the ownership or occupancy
of the Purchased Assets has been and is being handled or dealt with in material
compliance with all Environmental Laws; (iv) to Seller's knowledge, Seller's
operation of the Seller Business is in compliance with all Environmental Laws;
(v) to Seller's knowledge, there are no claims against Seller by third parties,
including governmental agencies, pending or threatened under Environmental Laws
arising out of Seller's ownership or use of the Purchased Assets or the
condition of the Purchased Assets; and (vi) to Seller's knowledge, there are no
penalties that may be assessed against Seller for the voluntary self-disclosures
under Environmental Laws that are referenced in SCHEDULE 7.17.
(b) For purposes of this Agreement, the term "HAZARDOUS
SUBSTANCE" shall mean any hazardous or toxic substance, pollutant, contaminant
or other material which, as of the date of this Agreement, is defined as
hazardous or toxic under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended ("CERCLA"), and its implementing
regulations; defined as a hazardous waste or regulated substance under the
Resource Conservation and Recovery Act of 1976, as amended ("RCRA") and its
implementing regulations; or is regulated under any applicable Environmental
Laws, including any substance which has been determined by regulation, ruling or
otherwise by any governmental agency or court to be a hazardous or toxic
substance regulated under federal or state law, and shall include petroleum and
petroleum products.
(c) For purposes of this Agreement, the term "ENVIRONMENTAL
LAWS" shall mean common law, CERCLA, RCRA, and any applicable statutes,
regulations, rules, ordinances, codes, licenses, permits, orders, approvals,
plans, directives, authorizations, concessions, franchises and similar items of
all federal, state, interstate or local governmental authorities and all
applicable judicial, administrative and regulatory decrees, judgments and
orders, any of which relate to (i) the protection of human health or the
environment from the effects of Hazardous Substances, including those pertaining
to reporting, licensing, permitting, investigating and remediating discharges,
releases or threatened releases of Hazardous Substances into the air, surface
water, sediments, groundwater or land; (ii) the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Substances; or (iii) the ownership, occupancy or operation of the
Purchased Assets.
SECTION 7.18. ACCOUNTS RECEIVABLE. All accounts receivable of Seller
relating to the Seller Business as set forth on the Balance Sheets and all
subsequent balance sheets and schedules required to be delivered pursuant to
this Agreement, including the Closing Certificate, are or will be valid and
genuine, have arisen or will arise solely out of bona fide sales and deliveries
of goods, performance of services and other business transactions in the
ordinary course of the Seller Business consistent with past practices, and the
allowance for collection losses on such balance sheets have been or will be
determined in accordance with GAAP and based upon Seller's historical experience
in collecting its accounts receivable. As of the date of this Agreement, to
Seller's knowledge, there are no facts or circumstances that will or could
- 18 -
reasonably be expected to result in the allowances for collection losses on the
Balance Sheets being inadequate to cover expected collection losses.
ARTICLE VIII
PURCHASER'S REPRESENTATIONS
Purchaser hereby represents, warrants, covenants and agrees, as of the
date hereof and also at and as of the Closing Date, which representations,
warranties, covenants and agreements, together with all other representations,
warranties, covenants and agreements of Purchaser in this Agreement, shall
survive the Closing as provided in Section 13.06, that:
SECTION 8.01. ORGANIZATION; QUALIFICATION. Purchaser is a general
partnership duly formed and validly existing under the laws of the state of its
organization. Purchaser has all necessary power and authority to (a) own and
operate its properties, (b) carry on its business as it is now being conducted,
and (c) carry out the transactions contemplated by this Agreement and to own and
operate the Purchased Assets and the Seller Business.
SECTION 8.02. CONSENTS; AUTHORIZATION; EXECUTION AND DELIVERY OF
AGREEMENT. Except for compliance with any applicable requirements of the
Xxxx-Xxxxx-Xxxxxx Act and consent by the FCC to the assignment of the FCC
Authorizations from Seller to Purchaser all necessary consents and approvals
have been obtained by Purchaser for the execution and delivery of this
Agreement. The execution, delivery and performance of this Agreement by
Purchaser has been duly and validly authorized and approved by all necessary
partnership action. This Agreement is a valid and binding obligation of
Purchaser, enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium or similar laws now or
hereafter in effect affecting creditors' rights generally.
SECTION 8.03. LITIGATION AND LEGAL PROCEEDINGS. There is no outstanding
judgment, order, writ, injunction, decree or award of any court, arbitrator, or
governmental or regulatory official, body or authority (including the FCC or any
state body having jurisdiction over the Purchaser) against Purchaser, and there
is no litigation, arbitration, investigation or other proceeding of or before
any court, arbitrator or governmental or regulatory official, body or authority
(including the FCC or any state body having jurisdiction over the Purchaser)
pending, or, to Purchaser's knowledge, threatened, against Purchaser or its
assets which individually or in the aggregate, if adversely determined, could
reasonably be expected to result in a Purchaser Material Adverse Effect or which
questions the validity of any action taken or to be taken pursuant to or in
connection with the provisions of this Agreement or the consummation of the
transactions contemplated hereby by the Purchaser.
SECTION 8.04. BROKERS. Purchaser has not engaged any agent, broker or
other person acting pursuant to the express or implied authority of Purchaser
which is or may be entitled to a commission or broker or finder's fee in
connection with the transactions contemplated by this Agreement or otherwise
with respect to the sale of the Purchased Assets.
SECTION 8.05. COMPLIANCE WITH LAWS. Purchaser is in material compliance
with, and is not in material Default under, any Law, applicable to its assets or
its business that could
- 19 -
reasonably be expected to adversely affect its ability to hold title to the
Purchased Assets at Closing or to fulfill its obligations under this Agreement
and the Transaction Documents from and after Closing.
SECTION 8.06. FCC MATTERS. Purchaser is fully qualified under the
Communications Act of 1934, as amended (the "COMMUNICATIONS ACT"), to be an FCC
licensee, and to be approved as the assignee of the FCC Authorizations.
Purchaser knows of no reason why the FCC will not grant its consent to the
assignment of the FCC Authorizations from Seller to Purchaser.
SECTION 8.07. FINANCIAL ABILITY TO CLOSE. Purchaser specifically
represents and warrants to Seller that Purchaser at Closing will have the
financial ability to perform its obligations under this Agreement. Furthermore,
Purchaser specifically agrees with Seller that the obligation of Purchaser to
consummate the transactions contemplated hereby is not subject to any financing
contingency.
SECTION 8.08. ENVIRONMENTAL SITE ASSESSMENTS. Purchaser has delivered to
Seller true and complete copies of all transaction screens (to the extent any
transaction screens were performed) and Phase I environmental site assessment
reports (as such terms are commonly understood in the industry) that were
ordered by Purchaser with respect to the Purchased Assets. Seller acknowledges
that it is not entitled to rely on such reports (since the consultants did not
prepare them for the benefit of Seller).
ARTICLE IX
SELLER'S AND PURCHASER'S COVENANTS
SECTION 9.01. FINANCIAL STATEMENTS AND CELLULAR SYSTEM INFORMATION.
Seller covenants and agrees that from the date of execution of this Agreement
until the Closing, Seller shall provide Purchaser, as soon as they become
available and in any event within 45 days of the end of each calendar month, the
unaudited balance sheet, statement of income (including detailed revenue
classifications), as well as key operating statistics, including gross
subscriber additions, disconnects and end-of-period number of subscribers for
such month, as they relate to the Seller Business conducted in each of the
Cellular Areas ("INTERIM FINANCIAL STATEMENTS").
SECTION 9.02. GOVERNMENTAL APPROVALS.
(a) Purchaser and Seller covenant and agree that they will
fully cooperate with each other, and do all things reasonably necessary to
assist each other to obtain all consents and approvals and to file all notices
necessary for assignment to Purchaser of the Authorizations and applications
therefor that are Purchased Assets as soon as practicable after the date hereof.
Purchaser covenants and agrees that it will fully cooperate with Seller, and do
all things reasonably necessary to assist Seller to obtain all consents and
approvals and to file all notices necessary for assignment to Purchaser of the
Authorizations and applications therefor that are Purchased Assets, including
the furnishing of financial and other information specifically with respect to
Purchaser reasonably required by the Person whose consent or approval is being
sought. Seller covenants and agrees that it will fully cooperate with Purchaser,
and do all things reasonably necessary to assist Purchaser to file all notices
necessary for Purchaser's assumption
- 20 -
of the Authorizations that are Purchased Assets. Each party (the "NOTIFYING
PARTY") shall use all commercially reasonable efforts to provide adequate prior
written notice to the other of any meeting with governmental authorities the
purpose of which is to seek a consent or approval to the transactions
contemplated hereby or resulting from any notice being filed, and upon the
Notifying Party's request the other shall use all commercially reasonable
efforts to furnish a representative to attend meetings with appropriate
government authorities for the purpose of obtaining such consents or approvals
and responding to issues resulting from the filing of a notice. Each of
Purchaser and Seller hereby agrees to file the necessary applications and other
filings with the FCC seeking consent to the assignment of the FCC Authorizations
that are Purchased Assets to Purchaser and to diligently pursue the processing
of any such applications and filings and to file for all other necessary
regulatory approvals for the consummation of the transactions contemplated by
this Agreement within fifteen business days of the date of execution of this
Agreement to the extent any such filings have not been made prior to the date of
execution of this Agreement. Neither party shall take any action or fail to take
any action where such act or omission is likely to cause the FCC not to grant
its consent to the assignment of the FCC Authorizations. Purchaser shall bear
the expense of all filing fees in connection with any filings pursuant to this
Section 9.02(a).
(b) Seller and Purchaser shall each cooperate and use their
commercially reasonable efforts to prepare and file with the Federal Trade
Commission ("FTC") and the United States Department of Justice ("DOJ") and other
regulatory authorities as promptly as possible, but in any event within fifteen
business days of the date of execution of this Agreement all requisite
applications and amendments thereto together with related information, data and
exhibits necessary to satisfy the requirements of the Xxxx-Xxxxx-Xxxxxx Act (if
applicable to the transactions contemplated by this Agreement). Purchaser shall
bear all the expense of all filing fees in connection with any filings pursuant
to this Section 9.02(b).
SECTION 9.03. THIRD PARTY CONSENTS; CLOSING CONDITIONS.
(a) Seller will use commercially reasonable efforts to obtain
all Required Consents and give all Required Notices as promptly as practicable.
Purchaser and Seller covenant and agree that each of them will reasonably
cooperate with each other, and Purchaser will do all things reasonably necessary
to assist Seller, to obtain all Required Consents and give all Required Notices,
including the furnishing of financial and other information specifically with
respect to Purchaser, its Affiliates, or Seller, as the case may be, reasonably
required by the Person whose consent or approval is being sought.
Notwithstanding the foregoing, to the extent that any Assumed Contract to be
sold, assigned, transferred or conveyed to Purchaser, or any claim, right or
benefit arising thereunder or resulting therefrom (individually, an "INTEREST"
and collectively, the "INTERESTS"), is not capable of being sold, assigned,
transferred or conveyed without the approval, consent or waiver of the issuer
thereof, the other party thereto, or any third Person (including a government or
governmental unit), and such approval, consent or waiver has not been obtained,
or if such sale, assignment, transfer or conveyance, or attempted assignment,
transfer or conveyance, of such Assumed Contract would constitute a breach
thereof, and such approval, consent or waiver has not been obtained, this
Agreement shall not constitute an agreement to sell, assign, transfer or convey
such Assumed Contract; provided Seller shall
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comply with Section 18.01(b). Purchaser and Seller shall use all commercially
reasonable efforts to consummate the transactions contemplated hereby.
(b) Purchaser and Seller hereby covenant and agree to use all
commercially reasonable efforts to satisfy, or assist the other party in
satisfying, the closing conditions applicable to the Purchaser in Article X
hereof and the Seller in Article XI hereof prior to the Closing Date.
SECTION 9.04. CONDUCT OF BUSINESS. (a) From and after the date hereof
until the Closing Date, Seller shall not engage in any practice, take any action
or enter into any transaction outside the ordinary course of business without
the prior approval of Purchaser, which approval shall not be unreasonably
withheld or delayed, and shall continue to operate the Seller Business in the
ordinary course consistent with past practices. In furtherance and not in
limitation of the foregoing, from and after the date hereof, Seller shall:
(i) operate the Seller Business in accordance with the
Authorizations, and comply in all material respects with all Laws applicable to
it, including the regulations of the FCC and any state body having jurisdiction
over the Seller Business or any Purchased Asset;
(ii) except as disclosed on SCHEDULE 9.04(a)(ii), and
except for inventory sold, or retirements of assets, in each case in the
ordinary course of business, refrain from making any sale, lease, transfer or
other disposition of any of the Purchased Assets other than in connection with
replacements with assets of like use and value, or with the prior written
approval of Purchaser, which approval will not be unreasonably withheld or
delayed;
(iii) refrain from amending in any material respect, or
terminating any of the Assumed Contracts, without Purchaser's prior written
approval, which approval will not be unreasonably withheld or delayed;
(iv) maintain insurance on the Purchased Assets
comparable to that maintained prior to the date hereof;
(v) maintain its books and records in accordance with
prior practice;
(vi) take all actions necessary to maintain all of its
rights and interest in, and the validity of, the FCC Authorizations and not
permit any of the FCC Authorizations that are Purchased Assets to expire or to
be surrendered or voluntarily modified in a manner materially adverse to the
operation of the Cellular Systems, or take any action which would reasonably be
expected to cause the FCC or any other governmental authority to institute
proceedings for the suspension, revocation or limitation of rights under any of
the FCC Authorizations that are Purchased Assets; or fail to prosecute with
commercially reasonable due diligence any pending applications to any
governmental authority; and provide to Purchaser copies of all applications,
correspondence, pleadings and other documents furnished to or received from the
FCC relating to the Cellular Systems;
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(vii) notify Purchaser in writing promptly after
learning of the institution of any material action against Seller relating to
the Cellular Systems in any court, or any action against Seller relating to the
Cellular Systems before the FCC or any other governmental agency, and notify
Purchaser in writing promptly upon receipt of any administrative or court order
relating to the Purchased Assets or the Cellular Systems;
(viii) maintain the Seller Business's equipment, systems
and other fixed assets as necessary to maintain the Seller Business's
reliability standards, footprint coverage and network capacity in accordance
with Seller's prior practice;
(ix) continue in accordance with past practice all
marketing and promotions relating to the maintenance and growth of subscribers
of the Seller Business;
(x) maintain the relations with the suppliers,
customers and distributors of the Seller Business and any others having business
relations with the Seller Business; and
(xi) not cause or permit to occur any of the events or
occurrences described in Section 7.14(c) hereof.
(b) The Purchaser hereby acknowledges and agrees that from and
after the date hereof, the Seller may take any actions determined by Seller to
be appropriate with respect to the Excluded Assets, including selling the
Excluded Assets.
(c) Seller shall use all commercially reasonable efforts to
keep available the services of the System Employees and of all agents of the
Seller Business.
SECTION 9.05. ACCESS. Upon reasonable prior notice from Purchaser and
provided that significant disruption does not result, Seller shall (a) give
Purchaser and its authorized representatives reasonable access during all
reasonable times to Seller's books and records, facilities and assets comprising
or relating to Seller or the Seller Business, (b) provide such financial and
operating data and other information with respect to Seller or the Seller
Business as Purchaser may reasonably request, and (c) make its officers, agents
and Affiliates available to Purchaser.
SECTION 9.06. SYSTEM EMPLOYEES. Upon reasonable notice, Seller shall
provide Purchaser with reasonable access to the Seller's System Employees during
normal business hours. Such access shall be in accordance with applicable law
and for the purpose of performing drug tests, administering employment
applications, interviewing employees, and informing employees about Purchaser
benefit plans. Requests for the necessary information to perform background
checks can be included in the employment applications. All System Employee
contact by Purchaser will be done on Seller's premises and Purchaser's
representative(s) will be accompanied by Seller's Human Resource
representative(s). Purchaser shall have access to System Employees two weeks
before the Closing for the purpose of transition training, provided that such
training does not unreasonably interfere with Seller's operation of the Seller
Business. At least 45 days prior to the Closing Date, Purchaser shall provide
written notice to Seller
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identifying any System Employees to whom Purchaser does not intend to extend
offers of employment. Any medical plans offered by Purchaser to System Employees
hired by Purchaser shall contain no restrictions or limitations with respect to
pre-existing conditions, except to the extent any such restrictions or
limitations actually applied to the System Employees prior to the Closing Date.
Seller shall, at its option, effective immediately prior to Closing, terminate
or retain the employment of any System Employees not to be hired by Purchaser
and, as soon as practicable after Closing, shall provide to those terminated
System Employees who have not been employed by Purchaser severance benefits, if
any, in accordance with the current severance arrangements covering the System
Employees. Seller shall also pay off all accrued vacation and sick time for all
terminated System Employees and all System Employees hired by Purchaser. As of
the Closing Date, all System Employees hired by Purchaser shall cease to
participate as active employees in or accrue benefits under System Employee
Benefit Plans or any other employee benefit plans that are sponsored by Seller.
From and after the Closing Date, Purchaser shall cause each employee benefit
plan, program, agreement and arrangement maintained by Purchaser (including any
401(k) plans) in which any System Employee hired by Purchaser participates to
treat all service accrued or deemed accrued prior to the Closing Date with
Seller and its Affiliates and their respective predecessors, successors and
assigns as service rendered to Purchaser and its Affiliates for all purposes
under each such plan, program, agreement and arrangement of Purchaser, other
than for benefit accrual purposes under any defined benefit plan maintained or
sponsored by Purchaser. Purchaser shall take all appropriate action to permit
System Employees hired by Purchaser who were participants in Seller's 401(k)
plan and who received distributions of their account balances from Seller's
401(k) plan in connection with the consummation of the transactions contemplated
hereby to make a direct rollover pursuant to Section 401(a)(31) of the Code to
Purchaser's 401(k) plan. Nothing contained in this Agreement shall confer upon
any System Employee any right with respect to continued employment by Seller or
Purchaser following the Closing Date.
SECTION 9.07. NON-SOLICITATION; NO SHOP.
(a) From the date of this Agreement until one year from the
Closing Date, Purchaser agrees that it will not, except as expressly provided in
the next sentence, directly or indirectly through any Affiliate or
representative or otherwise, recruit or solicit any management employee of
Seller or any Affiliate of Seller to become an employee, independent contractor
or consultant of Purchaser or of any of its Affiliates. However, Purchaser and
its Affiliates shall not be prohibited from recruiting, soliciting, offering to
employ or employing any such management employee who (i) contacts Purchaser or
its subsidiaries on his or her own initiative without solicitation directly or
indirectly by Purchaser or its Affiliates or on Purchaser's or its Affiliates
behalf, or (ii) is solicited directly by Purchaser or its Affiliates, provided
that there was no direct or indirect communication regarding Seller or the
solicited management employee between the person making such solicitation and
any of Purchaser's representatives who were given access to Information (as
defined in the NDA) of Seller in connection with the negotiation of this
Agreement, or (iii) is identified as a result of a search by Purchaser or its
Affiliates for employees through the use of one or more general advertisements
in the media (including trade media) or through the engagement of one or more
firms to conduct searches that are not targeted or focused on Seller and its
subsidiaries.
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(b) Prior to the Closing, neither Seller nor any Affiliate
shall, directly or indirectly, sell, agree to sell, solicit inquiries or
proposals or furnish any information with respect to, or initiate or participate
in any negotiations or discussions whatsoever concerning any acquisition or
purchase of, any or all of the Purchased Assets outside of the ordinary course
of the Seller Business. Seller shall instruct its officers, trustees,
beneficiaries, agents and Affiliates to refrain from doing any of the above.
SECTION 9.08. RESTRICTIONS ON CERTAIN ACTIONS. From the date hereof
until the earlier to occur of the Closing Date or the termination of this
Agreement, Purchaser and its Affiliates will not, in any manner, directly or
indirectly, solicit, initiate, encourage or participate in applications, bids,
purchases or negotiations with respect to the acquisition of any interest in an
FCC license, permit, approval or authorization that, if consummated, would have
the effect under the Communications Act of preventing or delaying Purchaser from
consummating the acquisition of the Purchased Assets as contemplated by this
Agreement.
SECTION 9.09. SUPPLEMENTAL DISCLOSURE. Seller shall have the right from
time to time prior to the Closing Date to supplement in writing the Schedules
hereto with respect to any event, matter, condition or circumstance first
arising after the date of this Agreement that, if existing or known as of the
date of this Agreement, would have been required to be set forth or described in
the Schedules hereto and that does not arise out of a breach by Seller of a
covenant in Article IX (other than a breach of a covenant in Article IX that was
outside of Seller's control) (collectively, the "UPDATES"). In conjunction with
the Updates, Seller shall also specify the amount of Losses (as such term is
defined in Section 13.01) reasonably expected by Seller to result from the
Updates (the "EXPECTED LOSS AMOUNT"). In the event that the aggregate Expected
Loss Amount resulting from such Updates is less than $5,260,000.00, Purchaser
shall be deemed to have waived its right to terminate this Agreement pursuant to
Section 15.02(c) as a result of such Updates and it shall be required to
consummate the transactions contemplated herein (subject to the satisfaction of
the conditions set forth in Article X), provided, however, that Purchaser shall
be entitled to seek indemnification for any Losses, including any Losses
suffered by Purchaser as a result of the Updates, pursuant to Article XIII. If,
however, the aggregate Expected Loss Amount equals or exceeds $5,260,000.00,
Purchaser shall be entitled to either (i) consummate the transactions
contemplated herein but upon doing so Purchaser shall have automatically and
irrevocably been deemed to have released Seller and its Affiliates for all
Losses suffered by Purchaser as a result of such Updates in excess of
$5,260,000.00, provided, however, that Purchaser shall be entitled to seek
indemnification pursuant to Article XIII for all Losses suffered by Purchaser as
a result of such Updates up to $5,260,000.00 and for all other Losses not
related to the Updates, or (ii) terminate this Agreement pursuant to Section
15.02(c).
SECTION 9.10. DISCLAIMER OF OTHER REPRESENTATIONS AND WARRANTIES.
Purchaser acknowledges and agrees that Seller does not make, and has not made,
any representations or warranties relating to Seller, the Seller Business or the
Purchased Assets other than the representations and warranties of Seller
expressly set forth in this Agreement. In addition, Purchaser acknowledges and
agrees that Seller has not made any implied warranties of merchantability or
fitness for a specific purpose with regard to either the Purchased Assets or the
Seller Business. Without limiting the generality of the disclaimer set forth in
the two preceding
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sentences, Seller does not make, and Seller, its officers, employees,
representatives and agents have not made, and shall not be deemed to have made
any representations or warranties in the Confidential Information Memorandums
dated as of June, 2001 relating to the sale of the Purchased Assets, and any
supplements or addenda thereto (collectively, the "OFFERING MEMORANDUMS"), any
presentation relating to Seller, the Seller Business or the Purchased Assets
given in connection with the transactions contemplated by this Agreement, in any
filing made by or on behalf of Seller with any governmental agency or in any
other information provided to or made available to Purchaser, and no statement
contained in the Offering Memorandums, made in any such presentation, made in
any such filing or contained in any such other information shall be deemed to be
a representation or warranty of Seller hereunder or otherwise. No Person has
been authorized by Seller to make any representation or warranty in respect of
Seller, the Seller Business or the Purchased Assets in connection with the
transactions contemplated by this Agreement that is inconsistent with or in
addition to the representations and warranties of Seller expressly set forth in
this Agreement.
SECTION 9.11. TRANSITIONAL ARRANGEMENTS. Seller shall cooperate with
Purchaser in establishing network conversion and switching conversion
arrangements and implementing other transitional arrangements as reasonably
requested by Purchaser provided that such cooperation shall not unreasonably
disrupt Seller's operation of the Seller Business and Seller shall not be
required to incur any out-of-pocket costs in connection therewith.
SECTION 9.12. FINAL TAX CLEARANCE CERTIFICATES. Seller shall deliver to
Purchaser no later than 60 days after the Closing Date a tax clearance
certificate from each of the states of California, Georgia and Ohio, for all
periods through the Closing Date, indicating that all tax returns required to
have been filed by Seller through and including such date have been filed and
that all Taxes required to be paid by Seller, as shown on such returns, have
been paid.
SECTION 9.13. EL CENTRO CELL SITE. Seller acknowledges that due to
construction, access to the El Centro cell site referenced in SCHEDULE 2.01(d)
by means of the existing easement is currently not available. Prior to Closing,
Seller shall have obtained, at its expense, a temporary easement to provide a
different means of access to the El Centro cell site, so as to be in compliance
with Section 7.04(b)(i) with respect to such cell site, which temporary access
easement shall remain in effect until the permanent access easement may be used.
SECTION 9.14. CELLULAR ONE CONTRACTS. Seller shall use commercially
reasonable efforts to have the term of the Cellular One license agreement for
the GA-1 Cellular System extended through the term of the Transition Services
Agreement of even date herewith by and between Seller and Purchaser (the
"TRANSITION SERVICES AGREEMENT"). Seller will in good faith request the approval
of Cellular One to the sublicense to Purchaser of each of the Cellular One
license agreements for the GA-1 and OH-2 Cellular Systems (the "CELLULAR ONE
AGREEMENTS") or otherwise arrange, in form and substance acceptable to Seller,
Purchaser and Cellular One, for Purchaser to receive all of Seller's rights
under each of the Cellular One Agreements, for the period beginning on the
Closing Date and continuing thereafter until such time as Seller is no longer
providing "Services" in connection with such Cellular System under the
Transition Services Agreement or such earlier time at which Purchaser may elect
to terminate such
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sublicense or other arrangement. Purchaser and Seller covenant and agree that
each of them will reasonably cooperate with each other, and Purchaser will do
all things reasonably necessary to assist Seller, in connection with Seller's
undertakings in this Section 9.14. The terms of the sublicense or such other
arrangement, including license fees and other fees, shall be substantially the
same as the terms of the license and Purchaser shall be obligated to pay any
transfer fees and the fees, including license fees, promotion costs and other
costs under the Cellular One Agreements for the period in which Purchaser holds
the sublicense or other arrangement.
SECTION 9.15. PERSONAL COMPUTERS. Within ten business days after the
Closing Date, Seller shall have the right to uninstall and/or remove from the
personal computers that are Purchased Assets any proprietary software owned by
Seller and other files not constituting Purchased Assets; provided that such
uninstallation or removal shall take place at mutually convenient times for
Purchaser and Seller within such ten-business day period and in the presence of
both Seller's and Purchaser's IT personnel. Purchaser will assume Seller's
obligations for any Microsoft Operating System software and the Microsoft Office
suite of products in the personal computers (which shall not be uninstalled or
removed).
SECTION 9.16 CONTRACTS HELD BY AFFILIATES. All of the Contracts set
forth in SCHEDULE 7.03(a) that relate primarily to the Seller Business and that
are held by an Affiliate of Seller shall be assigned to Seller prior to the
Closing, and Seller shall obtain all consents and give all notices necessary to
do so and shall furnish copies of such consents and notices to Purchaser.
SECTION 9.17. ONSTAR AGREEMENT. Purchaser and Seller shall amend prior
to the Closing (i) that certain Carrier Wholesale Agreement for OnStar dated
April 10, 2001 (the "ONSTAR AGREEMENT") between Purchaser and Seller to delete
from Schedule 1 to the OnStar Agreement references to the GA-1 and CA-7 Cellular
Systems, and (ii) that certain Agreement for Wireless Visiting Service dated May
25, 2001 (the "CALL AGREEMENT") between Purchaser and Seller to delete from
Exhibit A to the Call Agreement references to the CA-7 Cellular System, which
amendments shall be effective as of the Closing Date.
ARTICLE X
CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATION TO CLOSE
The obligation of Purchaser under this Agreement with respect to the
purchase and sale of the Purchased Assets shall be subject to the fulfillment on
or prior to the Closing of each of the following conditions, any of which may be
waived in writing by Purchaser (provided that if any condition shall not have
been satisfied due to the actions or inaction of Purchaser or any of its
Affiliates that constitutes a breach of this Agreement, such condition shall be
deemed to have been satisfied or waived by Purchaser):
SECTION 10.01. ACCURACY OF REPRESENTATIONS AND WARRANTIES; PERFORMANCE
OF THIS AGREEMENT. Each of the representations and warranties made by Seller in
(i) the first sentence of Section 7.02, (ii) the last sentence of Section
7.06(a), (iii) Sections 7.07(a) and (b) (but only as they relate to FCC
Authorizations) and (iv) Sections 7.14(a) and (b) shall be true and correct in
all material respects on and as of the date hereof (unless such representation
or warranty is given as of a particular date in which case such representation
or warranty will be considered only as of
- 27 -
such particular date), provided, however, that for purposes of determining the
accuracy of such representations and warranties, such representations and
warranties that are qualified by Seller Material Adverse Effect or other
materiality qualifications shall be true and correct in all respects at and as
of the date hereof. Each of the representations and warranties made by Seller in
this Agreement shall be true and correct in all material respects on and as of
the Closing Date (unless any representation or warranty is given as of a
particular date in which case such representation or warranty will be considered
only as of such particular date), provided, however, that for purposes of
determining the accuracy of such representations and warranties, all
representations and warranties made by Seller in this Agreement that are
qualified by Seller Material Adverse Effect or other materiality qualifications
shall be true and correct in all respects at and as of the Closing Date. Seller
shall have complied with and performed all of the agreements and covenants
required by this Agreement and each other Transaction Document to be performed
or complied with by it on or prior to the Closing. Purchaser shall have been
furnished with a certificate of an officer of Seller, dated as of the Closing
Date, certifying to the fulfillment of the foregoing conditions. As used in this
Agreement, the term "SELLER MATERIAL ADVERSE EFFECT" means a material adverse
effect on the business, assets, Liabilities, properties, condition (financial or
otherwise), or results of operations of the Seller Business or the Purchased
Assets taken as a whole; PROVIDED, HOWEVER, that neither (a) the effects of any
events, circumstances or conditions resulting from changes, developments or
circumstances in worldwide or national conditions (political, economic, or
regulatory) that adversely affect generally the markets where the Cellular
Systems are operated or affect generally industries engaged in the
telecommunications business (including proposed legislation or regulation by any
governmental or regulatory body or the introduction of any technological changes
in the telecommunications industry), nor (b) any effects of competition
resulting from the offering of personal communication services or other wireless
telecommunications services, will constitute a Seller Material Adverse Effect.
SECTION 10.02. AUTHORIZING RESOLUTIONS. Seller shall deliver to
Purchaser copies of the resolutions or consents of the board of directors of
Seller authorizing the execution, delivery and performance of this Agreement by
Seller and all instruments and documents to be delivered in connection herewith
and the transactions contemplated hereby, duly certified by an officer of
Seller.
SECTION 10.03. INCUMBENCY CERTIFICATE. Purchaser shall have received a
certificate or certificates of an officer of Seller, certifying as to the
genuineness of the signatures of officers of Seller authorized to take certain
actions or execute any certificate, document, instrument or agreement to be
delivered pursuant to this Agreement, which incumbency certificate shall include
the true signatures of such officers.
SECTION 10.04. THIRD PARTY CONSENTS; FCC; XXXX-XXXXX-XXXXXX ACT. Seller
shall have received all Required Consents with respect to all mobile telephone
switching office leases and shall have delivered to Purchaser copies thereof.
Seller shall have received all Required Consents with respect to retail store
leases and shall have delivered to Purchaser copies thereof; provided that if in
all Cellular Areas in the aggregate only one Required Consent with respect to a
retail store lease has not been obtained and no mobile telephone switching
office is located in
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the store with respect to which a Required Consent has not been obtained, then
the requirements of this sentence shall be satisfied even though such Required
Consent was not obtained. Seller shall have received all Required Consents with
respect to cell site leases and shall have delivered to Purchaser copies
thereof; provided that if in any one or more Cellular Areas only one Required
Consent with respect to a cell site in that Cellular Area has not been obtained
and no mobile telephone switching office or microwave hop is located on the cell
site with respect to which a Required Consent has not been obtained, then the
requirements of this sentence shall be satisfied even though such Required
Consents were not obtained. Seller shall have given all Required Notices and
shall have delivered to Purchaser copies thereof. The sublicense of the Cellular
One Agreements or such other arrangements described in Section 9.14 shall be in
effect and Cellular One shall have consented to such sublicense or other
arrangement described in Section 9.14. The term of the Cellular One Agreement
relating to GA-1 shall have been extended as described in Section 9.14. The FCC
action granting the FCC's consent to the assignment of the Cellular
Authorizations to Purchaser shall have become a Final Order, free of any
conditions adverse to the Seller Business, except for such conditions that are
generally applicable to cellular licenses. In addition, all applicable waiting
periods under the Xxxx-Xxxxx-Xxxxxx Act (if applicable to the transactions
contemplated by this Agreement) shall have expired or been terminated and no
objection shall have been made by the FTC or the DOJ. For the purposes of this
Agreement, the term "Final Order" shall mean action by the FCC or its staff
acting under delegated authority as to which (a) no request for stay by the FCC,
as applicable, of the action is pending, no such stay is in effect, and, if any
deadline for filing any such request is designated by statute or regulation,
such deadline has passed; (b) no timely petition for review, rehearing or
reconsideration of the action is pending before the FCC, and the time for filing
any such petition has passed; (c) the FCC does not have the action under
reconsideration on its own motion and the time for such reconsideration has
passed; and (iv) no appeal to a court, or request for stay by a court, of the
FCC's action, as applicable, is pending or in effect, and, if any deadline for
filing any such appeal or request is designated by statute or rule, it has
passed.
SECTION 10.05. XXXX OF SALE; ASSUMPTION AGREEMENT. Seller shall have
delivered to Purchaser an executed Xxxx of Sale and Assumption Agreement
pursuant to Sections 4.01 and 4.02 hereof.
SECTION 10.06. REGULATORY AND CORPORATE OPINIONS OF COUNSEL FOR SELLER.
Seller shall have caused its counsel to deliver to Purchaser written legal
opinions substantially in the form set forth on EXHIBIT D hereto, which opinions
shall be dated the Closing Date.
SECTION 10.07. NO THREATENED OR PENDING LITIGATION. On the Closing Date,
no suit, action or other proceeding, or injunction or final judgment relating
thereto, shall be threatened or be pending before any court, arbitrator or
governmental or regulatory official, body or authority having jurisdiction over
the Seller Business or the Purchased Assets in which it is sought to restrain or
prohibit the consummation of the transactions contemplated hereby or to obtain
damages or other relief in connection with this Agreement or any other
Transaction Documents, or the consummation of the transactions contemplated
hereby or thereby, or which could reasonably be expected to have a Seller
Material Adverse Effect.
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SECTION 10.08. RELEASE OF LIENS. Before or at the Closing, Seller shall
have furnished to Purchaser documentation reasonably satisfactory to Purchaser
releasing all Liens set forth on SCHEDULE 7.03(a).
SECTION 10.09. SIMULTANEOUS CLOSING OF OTHER TRANSACTIONS.
Simultaneously with the closing of the transactions contemplated by this
Agreement, (i) ACC of Tennessee LLC ("ACC-TN"), ACC Tennessee License LLC
("ACC-LICENSE"; and together with ACC-TN, "ACC") and Purchaser shall consummate
the sale by ACC to Purchaser of certain assets and liabilities primarily related
to the operation by ACC of a cellular radio telephone system in Tennessee RSA #4
(the "TN-4 TRANSACTION") and (ii) Seller and Purchaser shall consummate the sale
to Purchaser of Seller's partnership interest in Gila River Cellular General
Partnership (the "AZ-5 TRANSACTION"); PROVIDED, HOWEVER, that if Gila River
Telecommunications, Inc. (f/k/a Gila River Telecommunications Subsidiary, Inc.)
exercises its right of first refusal in connection with the sale of Seller's
partnership interest in Gila River Cellular General Partnership, then only the
TN-4 Transaction shall be required to close simultaneously with the closing of
the transactions contemplated by this Agreement.
SECTION 10.10. TRANSITION SERVICES AGREEMENT. The Transition Services
Agreement shall not have been terminated by Seller and, if any force majeure
event has occurred thereunder, such event shall have ceased and Seller shall
have resumed its performance thereunder.
SECTION 10.11. SWITCHING SERVICES AGREEMENT. Seller and Purchaser shall
have entered into a Switching Services Agreement with respect to the CA-7
Cellular System, the terms and provisions of which shall be mutually
satisfactory to Seller and Purchaser.
ARTICLE XI
CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE
The obligations of Seller under this Agreement with respect to the
purchase and sale of the Purchased Assets shall be subject to the fulfillment on
or prior to the Closing of each of the following conditions, any of which may be
waived in writing by Seller (provided that if any condition shall not have been
satisfied due to the actions or inaction of Seller or its Affiliates that
constitutes a breach of this Agreement, such condition shall be deemed to have
been satisfied or waived by Seller):
SECTION 11.01. ACCURACY OF REPRESENTATIONS AND WARRANTIES; PERFORMANCE
OF THIS AGREEMENT. Each of the representations and warranties made by Purchaser
in this Agreement shall be true and correct in all material respects at and as
of the Closing Date provided, however, that, for purposes of determining the
accuracy of such representations and warranties, all representations and
warranties made by Purchaser in this Agreement that are qualified by Purchaser
Material Adverse Effect or other materiality qualifications shall be true and
correct in all respects at and as of the Closing Date. Purchaser shall have
complied with and performed all of the agreements and covenants required by this
Agreement to be performed or complied with by it on or prior to the Closing.
Seller shall have been furnished with a certificate of an officer of Purchaser,
dated as of the Closing, certifying to the fulfillment of the foregoing
conditions. As used in this Agreement, the term "PURCHASER MATERIAL ADVERSE
EFFECT" means a material
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adverse effect on the ability of the Purchaser to complete the transactions
contemplated by this Agreement or to pay the Purchase Price at the Closing.
SECTION 11.02. AUTHORIZING RESOLUTIONS. Purchaser shall have delivered
to Seller copies of the authorizing resolutions of its Board of Representatives
authorizing the execution, delivery and performance of this Agreement and all
instruments and documents to be delivered in connection herewith and the
transactions contemplated hereby, duly certified by an authorized officer of
Purchaser.
SECTION 11.03. NO THREATENED OR PENDING LITIGATION. On the Closing Date,
no suit, action or other proceeding, or injunction or final judgment relating
thereto, shall be threatened or be pending before any court, arbitrator or
governmental or regulatory official, body or authority in which it is sought to
restrain or prohibit the consummation of the transactions contemplated hereby or
to obtain damages or other relief in connection with this Agreement or any other
Transaction Documents, or the consummation of the transactions contemplated
hereby or thereby, or which could reasonably be expected to have a Purchaser
Material Adverse Effect, and no investigation that might result in any such
suit, action or proceeding shall be pending or threatened.
SECTION 11.04. INCUMBENCY CERTIFICATE. Purchaser shall have delivered to
Seller a certificate of its secretary, certifying as to the genuineness of the
signatures of its representatives authorized to take certain actions or execute
any certificate, document, instrument or agreement to be delivered pursuant to
this Agreement, which incumbency certificate shall include the true signatures
of such representatives.
SECTION 11.05. FCC; XXXX-XXXXX-XXXXXX ACT. The FCC action granting the
FCC's consent to the assignment of the Cellular Authorizations to Purchaser
shall have become a Final Order. In addition, all applicable waiting periods
under the Xxxx-Xxxxx-Xxxxxx Act (if applicable to the transactions contemplated
by this Agreement) shall have expired or been terminated and no objection shall
have been made by the FTC or DOJ.
SECTION 11.06. SIMULTANEOUS CLOSING OF OTHER TRANSACTIONS.
Simultaneously with the closing of the transactions contemplated by this
Agreement, (i) ACC and Purchaser shall consummate the TN-4 Transaction and (ii)
Seller and Purchaser shall consummate the AZ-5 Transaction; PROVIDED, HOWEVER,
that if Gila River Telecommunications, Inc. (f/k/a Gila River Telecommunications
Subsidiary, Inc.) exercises its right of first refusal in connection with the
sale of Seller's partnership interest in Gila River Cellular General
Partnership, then only the TN-4 Transaction shall be required to close
simultaneously with the closing of the transactions contemplated by this
Agreement.
SECTION 11.07. PURCHASE PRICE. Purchaser shall have paid to Seller the
Seller's Closing Payment pursuant to Section 5.03 hereof and shall have
delivered to Seller an executed Assumption Agreement pursuant to Section 4.02
hereof.
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SECTION 11.08. OPINIONS OF COUNSEL OF PURCHASER. Purchaser shall have
caused its counsel to deliver to Seller written legal opinions substantially in
the form set forth on EXHIBIT E hereto, which opinions shall be dated the
Closing Date.
ARTICLE XII
CASUALTY LOSSES
In the event that there shall have been suffered between the date hereof
and the Closing any casualty loss relating to the Purchased Assets, Seller will
promptly notify Purchaser of such event. Seller shall, at its option, (a)
repair, rebuild or replace the portion of the Purchased Assets damaged,
destroyed or lost prior to the Closing Date, or (b) assign to Purchaser at
Closing all claims to insurance proceeds or other rights of Seller against third
parties arising from such casualty loss (the "CLAIMS"), provided, however, that
the foregoing shall not be deemed to affect Purchaser's right not to proceed
with the Closing because the casualty event has resulted in one or more of the
conditions set forth in Article X not being satisfied, notwithstanding the
aforesaid options of Seller. To the extent any Claim is not assignable, such
claim may be pursued by Purchaser, for its own account and benefit, in the name
of Seller.
ARTICLE XIII
INDEMNIFICATION
SECTION 13.01. INDEMNIFICATION BY SELLER . Notwithstanding the Closing,
subject to the terms of this Article XIII, Seller agrees to indemnify and to
hold Purchaser and its partners, officers, directors, and employees (the
"INDEMNIFIED PURCHASER PARTIES") harmless from and against and in respect of any
Liability (including consequential damages), action, suit, demand, judgment,
cost of investigation and reasonable attorney fees (but excluding the Assumed
Liabilities and any exemplary or punitive damages, other than exemplary or
punitive damages payable to third parties) (collectively, "LOSSES"), sustained,
incurred or paid by any Indemnified Purchaser Party in connection with,
resulting from or arising out of, directly or indirectly: (a) any breach of a
representation or warranty on the part of Seller under this Agreement, (b) any
breach or nonfulfillment of any covenant on the part of Seller under this
Agreement, (c) any Excluded Liability, (d) any Excluded Asset, (e) Seller's
ownership, operation or control of the Purchased Assets or the Seller Business
for the period prior to the Closing, or (f) any and all Taxes (i) that are
obligations of Seller or any of its Affiliates or (ii) which are Pre-closing
Taxes (as defined below) that arise out of the Seller Business or Purchased
Assets (including any such Taxes which become legal liabilities of Purchaser as
a transferee of the Seller Business or the Purchased Assets). For purposes of
this Agreement, the term "Pre-closing Taxes" shall mean (i) any Tax that is due
on or before the Closing Date, (ii) any Tax which is payable for a Tax period
that ends on or before the Closing Date and which is not due until after the
Closing Date, and (iii) with respect to a Tax which is payable for a Tax period
that includes (but does not end on) the Closing Date, the portion of such Tax
that is related to the portion of such Tax period ending on and including the
Closing Date, which portion of such Tax shall (A) in the case of any Taxes other
than gross receipts, sales or use Taxes and Taxes based upon or related to
income, be deemed to be the amount of such Tax for the entire Tax period (which
period, with respect to personal property, ad valorem and real property Taxes,
shall be the calendar year in which the assessment
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date for such Tax falls) multiplied by a fraction the numerator of which is the
number of days in the Tax period ending on and including the Closing Date and
the denominator of which is the number of days in the entire Tax period, and (B)
in the case of any Taxes based upon or related to income and any gross receipts,
sales or use Taxes, be deemed equal to the amount which would be payable if the
relevant Tax period ended on and including the Closing Date.
SECTION 13.02. INDEMNIFICATION BY PURCHASER. Notwithstanding the
Closing, subject to the terms of this Article XIII, Purchaser agrees to
indemnify and to hold Seller, and its shareholders, directors, officers,
employees, representatives and agents (the "INDEMNIFIED SELLER PARTIES")
harmless from and against and in respect of any Losses suffered, sustained,
incurred or paid by any Indemnified Seller Party in connection with, resulting
from or arising out of, directly or indirectly: (a) any breach of a
representation or warranty on the part of Purchaser under this Agreement, (b)
any breach or nonfulfillment of any covenant on the part of Purchaser under this
Agreement, (c) Purchaser's ownership, operation or control of the Purchased
Assets or the Seller Business after the Closing, or (d) the Assumed Liabilities.
SECTION 13.03 NOTICE OF CLAIMS; DEFENSE OF THIRD PARTY.
(a) A party claiming indemnification under this Article XIII
(the "ASSERTING PARTY") must promptly notify (in writing and in reasonable
detail) the party from which indemnification is sought (the "DEFENDING PARTY")
of the nature and basis of such claim for indemnification not later than the end
of the applicable survival period set forth in Section 13.06. If such claim
relates to a claim, suit, litigation or other action by a third party against
the Asserting Party or any Liability to a third party (a "THIRD PARTY CLAIM"),
the Defending Party may elect to assume such Liability and control the defense
of the Third Party Claim at its own expense with counsel selected by the
Defending Party. Assumption of such Liability, as against the Asserting Party,
shall not be deemed an admission of liability as against any such third party.
If the Defending Party assumes liability for the Third Party Claim as against
the Asserting Party and assumes the defense and control of the Third Party Claim
pursuant to this Section 13.03, the Asserting Party may participate in the
defense of such Third Party Claim through counsel of its choosing, but the
Defending Party shall not be liable for any fees and expenses of counsel for the
Asserting Party incurred thereafter in connection with the Third Party Claim,
provided, however, that no Defending Party shall, without the prior written
consent of the Asserting Party, consent to the entry of any judgment against the
Defending Party or enter into any settlement or compromise which (i) does not
include, as an unconditional term thereof, the giving by the claimant or
plaintiff to the Asserting Party of a release, in form and substance reasonably
satisfactory to the Asserting Party from all liability in respect of such claim
or litigation, provided that this requirement shall be deemed waived to the
extent that the Asserting Party does not undertake to provide and promptly
execute and, concurrently with the delivery of any such release, deliver a
corresponding release of the third party claimant with respect to such Third
Party Claim, or (ii) includes terms and conditions that adversely affect the
Asserting Party; provided further, however, that in the case of clause (ii), the
Asserting Party may not unreasonably withhold such consent.
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(b) If the Defending Party does not assume liability for, and
the defense of, the Third Party Claim pursuant to this Section 13.03, the
Asserting Party shall have the right (a) to control the defense thereof, and (b)
if the Asserting Party shall have notified the Defending Party of the Asserting
Party's intention to negotiate a settlement of the Third Party Claim (at the
Defending Party's expense to the extent the matter is determined to be subject
to indemnification hereunder), which notice shall include the material terms of
any proposed settlement in reasonable detail, the Asserting Party may settle the
Third Party Claim (at the Defending Party's expense to the extent the matter is
determined to be subject to indemnification hereunder) on terms not materially
inconsistent with those set forth in such notice, unless the Defending Party
shall have notified the Asserting Party in writing of the Defending Party's
election to assume Liability for and the defense of the Third Party Claim
pursuant to this Section 13.03 within ten days after receipt of such notice, and
the Defending Party promptly thereafter shall have taken appropriate action to
implement such defense. The Asserting Party shall not be entitled to settle any
such Third Party Claim pursuant to the preceding sentence unless such settlement
includes an unconditional release of the Defending Party by the Third party
claimant on account thereof, PROVIDED that such requirement shall be deemed
waived to the extent that the Defending Party does not undertake to provide and
promptly execute and, concurrently with delivery of any such release, deliver a
corresponding release of the third party claimant with respect to such Third
Party Claim. The Asserting Party and the Defending Party shall use all
commercially reasonable efforts to cooperate fully with respect to the defense
and settlement of any Third Party Claim covered by this Article XIII.
(c) The failure of any indemnified party to give an
indemnifying party a notice of claim shall not relieve the indemnifying party
from any liability in respect of such claim, demand or action which it may have
to such indemnified party on account of the indemnity agreement of such
indemnifying party contained in this Article XIII, except to the extent such
indemnifying party can establish actual prejudice and direct damages as a result
thereof.
SECTION 13.04. NON-RECOURSE TO SELLER'S AFFILIATES. The obligations of
Seller to Purchaser under this Agreement and any related agreements,
instruments, documents or certificates are non-recourse to Seller's Affiliates
and if Seller is in default hereof or under such other agreements, instruments,
documents or certificates, Purchaser shall not have any recourse to the assets
of any Affiliate of Seller. Purchaser's recourse shall be limited following
Closing as provided in Section 13.05 below.
SECTION 13.05. LIMITATIONS. The Defending Party's obligations to
indemnify the Asserting Party pursuant to this Article XIII shall be subject to
the following limitations:
(a) No indemnification under Sections 13.01(a) or 13.02(a) for
any Losses shall be required to be made by the Defending Party until the
aggregate amount of the Asserting Party's Losses exceeds two percent (2%) of the
Purchase Price (the "BASKET"), and then indemnification shall only be required
to be made by the Defending Party to the extent of such Losses that exceed 50%
of the Basket, provided that the foregoing limitation shall not apply to any
intentional breach of a representation or warranty.
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(b) The aggregate liability of the Defending Party under
Section 13.01(a) or 13.02(a), as applicable, shall not exceed (i) thirty percent
(30%) of the Purchase Price for the first twelve months after the Closing Date,
and (ii) twenty percent (20%) of the Purchase Price thereafter, provided that
the foregoing limitation shall not apply to any intentional breach of a
representation or warranty.
(c) The indemnification obligation of a Defending Party shall
be reduced to the extent of any available insurance proceeds payable to the
Asserting Party, net of any increased insurance premiums becoming payable by the
Asserting Party to the extent such increase is a direct result of such insurance
proceeds becoming available. The Defending Party shall pay its indemnification
obligations as and when required by this Article XIII and the Asserting Party
shall refund to the Defending Party any such amounts determined to be in excess
of the Defending Party's obligations due to reductions pursuant to this Section
13.05(c). Additionally, the Asserting Party shall refund promptly to the
Defending Party any amount of the Asserting Party's Losses that are subsequently
recovered by the Asserting Party pursuant to a settlement or otherwise.
(d) Notwithstanding anything to the contrary set forth in this
Agreement, Section 13.05(a) through (c) shall not apply to Purchaser's
obligation to pay to Seller the Purchase Price in accordance with Article V.
(e) From and after the Closing Date, the indemnification
rights contained in this Article XIII shall constitute the sole and exclusive
remedies of the parties hereunder and shall supersede and displace all other
rights that either party may have under Law.
SECTION 13.06. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made by the parties in this Agreement or in any
certificate, schedule, statement, document or instrument furnished hereunder or
in connection with the execution and performance of this Agreement shall survive
for a period lasting eighteen months after Closing, except that (a) any
intentional breach or misrepresentation or fraud shall survive Closing
indefinitely, (b) Section 7.17 shall survive for a period lasting three years
after Closing, and (c) Section 7.13, (i) with respect to federal and state
Taxes, shall survive for a period lasting two years after Closing, and (ii) with
respect to local, municipal and county Taxes, shall survive until the expiration
of the 15-day period commencing on the expiration date of the relevant statute
of limitations period (including any applicable extensions thereof), if longer
than the two-year period previously specified, unless in each case survival is
governed by the preceding clause (a). Any claim by a party based upon breach of
any such representation or warranty made pursuant to Article XIII or otherwise
must be submitted to the other party prior to or at the expiration of the
applicable survival period. In the case of any claim submitted within such time
period, the right of the party submitting the claim to recover from the other
party with respect to such claim shall not be dependent on the claim being
resolved or the losses being incurred within such time period. Subject to the
provisions of Section 9.09, the right to indemnification hereunder shall not be
affected by any investigation or audit conducted before or after the Closing
Date or the actual or constructive knowledge of any party and each party shall
be entitled to rely upon the representations and warranties set forth herein
regardless of any such investigation or knowledge.
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The waiver of any condition regarding the accuracy of any representation or
warranty, or regarding the performance of or compliance with any covenant or
obligation, will not affect the right of indemnification or any other remedy of
the waiving party after Closing based on the inaccuracy of such representation
or warranty or the nonperformance of or noncompliance with such covenant or
obligation.
SECTION 13.07. PAYMENT.
(a) Upon a determination of Liability under this Article XIII,
the appropriate party shall pay the indemnified party the amount so determined
within 10 business days after the date of such determination. If there should be
a dispute as to the amount or manner of determination of any indemnity
obligation owed under this Agreement the party from which indemnification is due
shall nevertheless pay when due such portion, if any, of the obligation as shall
not be subject to dispute. The difference, if any, between the amount of the
obligation ultimately determined as properly payable under this Agreement and
the portion, if any, theretofore paid shall bear interest as provided below in
Section 13.07(c).
(b) Any items as to which any Indemnified Purchaser Party is
entitled to payment under this Agreement shall first be paid to the Indemnified
Purchaser Party pursuant to the terms of the Escrow Agreement, to the extent
that the then outstanding amount of escrowed funds is sufficient to pay such
items. If the then outstanding amount of the escrowed funds is insufficient to
pay any such item in full, the payment of such item as to which the Indemnified
Purchaser Party is entitled to payment under this Agreement and which is not
able to be paid from the escrowed funds shall be the obligation of Seller and
Seller shall make full payment of any and all such items to the Indemnified
Purchaser Party within 30 calendar days after the date of determination of
Liability.
(c) If all or part of any indemnification obligation under
this Agreement is not paid when due, then the indemnifying party shall pay the
indemnified party interest on the unpaid amount of the obligation for each day
from the date the amount became due until payment in full, payable on demand, at
the fluctuating rate per annum which at all times shall be two percentage points
in excess of the "Prime Rate" published from time to time in the "Money Rates"
table of the Eastern Edition of The Wall Street Journal.
ARTICLE XIV
CONFIDENTIALITY AND PRESS RELEASES
SECTION 14.01. CONFIDENTIALITY. The Non-Disclosure Agreement dated
August 31, 2000 between Seller and Purchaser (the "NDA") shall remain in effect
in accordance with its terms, except that it may only be terminated upon
termination of this Agreement, and except that the provisions of Section 7
thereof shall be subject to the provisions of Section 9.07 of this Agreement.
The obligations of Purchaser under the NDA and under this Article XIV shall
terminate as of the Closing, except with respect to Information (as defined in
the NDA) of Seller that does not relate to the Seller Business that Purchaser is
required by the NDA to keep confidential.
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SECTION 14.02. PRESS RELEASES. No press release or public disclosure or
disclosure to any third party, either written or oral, of the existence or terms
of this Agreement shall be made by either Purchaser or Seller without the
consent of the other subject to the provisions of Section 14.03, and Purchaser
and Seller shall each furnish to the other advance copies of any release which
it proposes to make public concerning this Agreement or the transactions
contemplated hereby and the date upon which Purchaser or Seller, as the case may
be, proposes to make such press release.
SECTION 14.03. DISCLOSURES REQUIRED BY LAW. This Article XIV shall not,
however, be construed to prohibit any party from making any disclosures to any
governmental authority that it is required to make by Law or from filing this
Agreement with, or disclosing the terms of this Agreement to, any institutional
lender to such party, or prohibit Seller, Purchaser or any of their Affiliates
from disclosing to its investors, partners, accountants, auditors, attorneys,
parent company and broker/dealers such terms of this transaction as are
customarily disclosed to them in connection with the sale or acquisition of a
cellular telephone system; PROVIDED, HOWEVER, that any such party shall be
informed of the confidential nature of such information and shall agree to keep
such information confidential in accordance with the terms of Section 14.01
hereof; and PROVIDED, HOWEVER, that each party shall provide to the other
reasonable advance copies of any public release except where the provision of
such advance notice is not permissible.
ARTICLE XV
TERMINATION
SECTION 15.01. BREACHES AND DEFAULTS; OPPORTUNITY TO CURE. Prior to the
exercise by a party of any termination rights afforded under this Agreement, if
either party (the "NON-BREACHING PARTY") believes the other (the "BREACHING
PARTY") to be in breach hereunder, the Non-Breaching Party shall provide the
Breaching Party with written notice specifying in reasonable detail the nature
of such breach, whereupon if such breach is curable the Breaching Party shall
have sixty (60) days from the receipt of such notice to cure such breach to the
reasonable satisfaction of the Non-Breaching Party; PROVIDED, HOWEVER, that if
such breach is curable but is not capable of being cured within such period and
if the Breaching Party shall have commenced action to cure such breach within
such period and is diligently attempting to cure such breach, then the Breaching
Party shall be afforded an additional sixty (60) days to cure such breach;
PROVIDED, HOWEVER, Purchaser shall have no opportunity to cure the breach of its
obligations to deliver any required portion of the Purchase Price to be
delivered at Closing; and PROVIDED, FURTHER, HOWEVER, that the cure period for a
breach shall in no event extend beyond the Outside Date (as defined in Section
15.02(e)). If the breach is not cured within such time period, then the
Breaching Party shall be in default hereunder and the Non-Breaching Party shall
be entitled to terminate this Agreement (as provided in Section 15.02). This
right of termination shall be in addition to, and not in lieu of, any rights of
the Non-Breaching Party under Article XIII of this Agreement. Notwithstanding
anything to the contrary set forth in this Section 15.01, the provisions of this
Section 15.01 shall not apply in the event Purchaser fails to deliver the
Purchase Price even though all of the closing conditions set forth in Article X
have been satisfied.
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SECTION 15.02. TERMINATION. This Agreement may be terminated and the
transactions contemplated herein may be abandoned, by written notice given to
the other party hereto, at any time prior to the Closing:
(a) by mutual written consent of Seller and Purchaser;
(b) by either Purchaser or Seller, if any court of competent
jurisdiction in the United States or other United States governmental body shall
have issued an order, decree or ruling or taken any other action permanently
restraining, enjoining or otherwise permanently prohibiting the sale of the
Purchased Assets to Purchaser (which Seller and Purchaser shall have used all
commercially reasonable efforts to have lifted or reversed) and such order,
decree, ruling or other action shall have become final and nonappealable;
(c) subject to Section 15.01, by Purchaser, if, as of any
date, Seller shall have breached any of its representations, warranties or
covenants such that the condition set forth in Section 10.01 shall not be
satisfied as of such date;
(d) subject to Section 15.01, by Seller, if, as of any date,
Purchaser shall have materially breached any of its representations, warranties
or covenants such that the condition set forth in Section 11.01 shall not be
satisfied as of such date; or
(e) by either Seller or Purchaser if the Closing shall not
have occurred on or before the date that is nine months after the date of this
Agreement (the "OUTSIDE DATE"), unless the failure to have the Closing shall be
due to the failure of the party seeking to terminate this Agreement to perform
in any material respect its obligations under this Agreement required to be
performed by it at or prior to the Closing.
ARTICLE XVI
BROKERS' FEES
Each party represents and warrants to the other that it shall be solely
responsible for the payment of any fee or commission due to any broker or finder
it has engaged with respect to this transaction and the other party hereto shall
be indemnified for any liability with respect thereto pursuant to Article XIII
hereof.
ARTICLE XVII
ARBITRATION
Any controversy, dispute or claim (collectively, a "DISPUTE") between
the parties arising out of or relating to this Agreement, or the breach,
termination or validity thereof, shall be finally settled by arbitration in
accordance with the commercial arbitration rules of the American Arbitration
Association ("AAA") then pertaining. However, in all events, these arbitration
provisions shall govern over any conflicting rules that may now or hereafter be
contained in the AAA rules. The arbitration shall be held in the State of New
York unless the parties mutually agree to have the arbitration held elsewhere,
and judgment upon the award made therein may be entered by any court having
jurisdiction in the State of New York; provided however, that
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nothing contained in this Article XVII shall be construed to limit or preclude a
party from bringing any action in any court of competent jurisdiction for
injunctive or other provisional relief to compel another party to comply with
its obligations under this Agreement during the pendency of the arbitration
proceedings. Any judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction over the subject matter hereof. The
arbitrator shall have the authority to grant any equitable and legal remedies
that would be available in any judicial proceeding instituted to resolve any
claim hereunder.
Any such arbitration will be conducted before a single arbitrator who
shall be chosen by agreement of the parties, or, if the parties cannot agree, in
accordance with the rules of the AAA. The arbitrator shall permit such discovery
as he shall determine is appropriate in the circumstances, taking into account
the needs of the parties and the desirability of making discovery expeditious
and cost-effective. Any such discovery shall be limited to information directly
related to the controversy or claim in arbitration and shall be concluded within
sixty (60) days after appointment of the third arbitrator.
The substantially prevailing party in any arbitration hereunder, as
determined by the arbitrator, shall be entitled to an award of a percentage of
its reasonable costs incurred in connection therewith, including attorneys'
fees, determined by dividing the amount actually awarded to the prevailing party
by the amount claimed by the prevailing party.
For any Dispute submitted to arbitration, the burden of proof will be as
it would be if the claim were litigated in a judicial proceeding.
Upon the conclusion of any arbitration proceedings hereunder, the
arbitrator will render findings of fact and conclusions of law and a written
opinion setting forth the basis and reasons for any decision reached and will
deliver such documents to each party to this Agreement along with a signed copy
of the award.
The arbitrator chosen in accordance with these provisions will not have
the power to alter, amend or otherwise affect the terms of these arbitration
provisions or the provisions of this Agreement and shall make his decision based
on and in accordance with the provisions of this Agreement.
ARTICLE XVIII
MISCELLANEOUS
SECTION 18.01. ADDITIONAL INSTRUMENTS OF TRANSFER.
(a) From time to time after the Closing, each party shall, if
requested by another party, make, execute and deliver such additional
assignments, bills of sale, deeds and other instruments, as may be reasonably
necessary or proper to carry out the specific provisions of this Agreement,
including transfer to Purchaser of all of Seller's right, title and interest in
and to the Purchased Assets and any right, title or interest that any Affiliate
of Seller may have in any asset used primarily in the Seller Business, other
than an Excluded Asset. Such efforts and assistance shall be at the cost of the
requesting party.
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(b) Anything in this Agreement to the contrary
notwithstanding, Seller is not obligated to sell, assign, transfer or convey to
Purchaser any of its rights and obligations in and to any Interest without first
obtaining all necessary approvals, consents or waivers. To the extent any
Required Consents have not been obtained by Seller as of the Closing and
Purchaser elects to proceed with the Closing, Seller shall, for a period equal
to the shorter of twelve months after the Closing, or the remaining term of such
Interest, (i) except with regard to cell site leases or licenses, use all
commercially reasonable efforts to obtain the consent of any such third party;
(ii) cooperate with Purchaser in any reasonable and lawful arrangements designed
to provide the benefits (including the payment to Purchaser of any monies
received by Seller in connection therewith and including cooperation with
Purchaser's efforts to obtain the consent of the third party to any such cell
site lease or license regarding the assignment of such cell site lease or
license to Purchaser) of such Interest to Purchaser so long as Purchaser
performs all obligations with respect to the Interest (and the payment of all
expenses in connection therewith); and (iii) enforce, at the request of
Purchaser and at the expense and for the account of Purchaser, any rights of
Seller arising from such Interest against such issuer thereof or the other party
or parties thereto (including the right to elect to terminate any such Interest
in accordance with the terms thereof upon the request of Purchaser); provided,
however, that none of Purchaser or Seller shall be obligated to pay any
consideration or other sums therefor (except for filing fees and other ordinary
administrative charges and except as set forth above) to the third party from
whom such approval, consent or waiver is requested.
(c) In the event that at any time between the date hereof and
the first anniversary of the Closing Date Purchaser becomes aware of the
existence of any Contract that was not identified on SCHEDULE 7.06(a) in breach
of the provisions of Section 7.06(a) (an "UNDISCLOSED CONTRACT"), Purchaser may
elect to have such Undisclosed Contract included as an "Assumed Contract" for
all purposes of this Agreement by giving written notice of such election (an
"INCLUSION NOTICE") to Seller within 90 days after Purchaser has actual
knowledge of the existence of such Undisclosed Contract; provided, however, that
if at least seven (7) days prior to Closing Seller gives Purchaser written
notice of any Undisclosed Contract of which Seller has become aware after the
date hereof and delivers a copy of such Undisclosed Contract to Purchaser, then
by the earlier of (x) fifteen (15) days after Purchaser's receipt of such notice
(and the copy of such Undisclosed Contract) or (y) two (2) days before Closing,
Purchaser shall deliver to Seller an Inclusion Notice or written confirmation
that it has elected not to have such Undisclosed Contract included as an Assumed
Contract.
If an Inclusion Notice is given before the Closing, then
SCHEDULE 7.06(a) shall be deemed to be updated to include the Undisclosed
Contract identified in the Inclusion Notice. In addition, SCHEDULE 7.09 shall be
deemed to be updated if necessary to include as a Required Notice or a Required
Consent hereunder any notice or consent required in connection with the
assignment of such Undisclosed Contract. Such updates shall be deemed not to
modify Seller's representations and warranties hereunder for purposes of Article
XIII hereof.
If an Inclusion Notice is given after the Closing, then
Seller (or, if appropriate, its Affiliate) and Purchaser shall make, execute and
deliver an instrument of transfer, in form and substance reasonably satisfactory
to both parties, pursuant to which Seller (or its
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Affiliate) shall assign its rights under such Undisclosed Contract to Purchaser
and Purchaser shall assume certain liabilities thereunder to the same extent as
such rights and liabilities would have been assigned and assumed if such
Undisclosed Contract had been an Assumed Contract on the Closing Date. Prior to
the execution of such instrument of transfer, Seller shall give any advance
notice required to assign such Undisclosed Contract. Notwithstanding the
foregoing, if a consent is required in connection with such assignment, then
until such time (if any) as such consent is obtained and such instrument of
transfer can be executed, the provisions of Section 18.01(b) shall be
applicable; provided, however, that "twelve months after the Closing" shall be
replaced by "twelve months after the date of the Inclusion Notice."
SECTION 18.02. NOTICES. All notices and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given if delivered, sent by telecopier, recognized overnight delivery
service or registered or certified mail, return receipt requested, postage
prepaid, to the following addresses:
IF TO PURCHASER:
Cellco Partnership
000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxx
Facsimile: 000-000-0000
with a required copy to:
Cellco Partnership
000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile: 000-000-0000
IF TO SELLER:
Xxxxxx Cellular Systems, Inc.
00000 Xxxxxxxx Xxx
Xxxxxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Senior Corporate Counsel
Facsimile No.: (000) 000-0000
with a required copy to:
Xxxxxxx & Xxxxxx, LLP
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
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Notices delivered personally shall be effective upon delivery against
receipt. Notices transmitted by telecopy shall be effective when received,
provided that the burden of proving notice when notice is transmitted by
telecopy shall be the responsibility of the party providing such notice. Notices
delivered by overnight mail shall be effective when received. Notices delivered
by registered or certified mail shall be effective on the date set forth on the
receipt of registered or certified mail, or 72 hours after mailing, whichever is
earlier.
SECTION 18.03. EXPENSES. Each party shall bear its own expenses and
costs, including the fees of any corporate or FCC attorney retained by it,
incurred in connection with the preparation of this Agreement and the
consummation of the transactions contemplated hereby; provided that Purchaser
shall bear the expense of all FCC, Xxxx-Xxxxx-Xxxxxx Act (if applicable) and
other governmental filing fees.
SECTION 18.04. TRANSFER TAXES. Purchaser and Seller shall bear equally
the expense of all use, sales, transfer and other similar transaction taxes, if
any, which are imposed solely and directly by reason of the sale and delivery of
the Purchased Assets from Seller to Purchaser under this Agreement.
Notwithstanding anything else to the contrary set forth in this Section 18.04,
Purchaser shall in no event be responsible in any manner for the payment of any
taxes on any gross or net income, gross or net receipts or gain which Seller may
realize as a result of the sale of the Purchased Assets or otherwise related to
the transactions contemplated by this Agreement.
SECTION 18.05. COLLECTION PROCEDURES. From and after the Closing,
Purchaser shall have the right and authority, at its expense, to collect for its
account all items to which it is entitled as provided in this Agreement and to
endorse with the name of the Seller any checks or drafts received on account of
any such items.
SECTION 18.06. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York (without
application of principles of conflicts of law). In connection with any
controversy arising out of or related to this Agreement, Seller and Purchaser
hereby irrevocably consent to the jurisdiction of the United States District
Court for the District of New York, if a basis for federal court jurisdiction is
present, and, otherwise, in the state courts of the State of New York. Seller
and Purchaser each irrevocably consents to service of process out of the
aforementioned courts and waives any objection which it may now or hereafter
have to the laying of venue of any action or proceeding arising out of or in
connection with this Agreement brought in the aforementioned courts.
SECTION 18.07. ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties, which consent
will not be unreasonably withheld or delayed; PROVIDED, HOWEVER, that Purchaser
may assign to an Affiliate of Purchaser its rights under this Agreement to
purchase and assume the Purchased Assets and Assumed Liabilities relating
primarily to the OH-2 Cellular System; PROVIDED, FURTHER, HOWEVER, that no such
assignment shall relieve Purchaser of any of its obligations under this
Agreement, including, without limitation, with respect to the purchase and
assumption of the Purchased Assets and Assumed Liabilities relating primarily to
the OH-2 Cellular System.
- 42 -
SECTION 18.08. SUCCESSORS AND ASSIGNS. All agreements made and entered
into in connection with this transaction shall be binding upon and inure to the
benefit of the parties hereto, their successors and permitted assigns.
SECTION 18.09. AMENDMENTS; WAIVERS. No alteration, modification or
change of this Agreement shall be valid except by an agreement in writing
executed by the parties hereto. Except as otherwise expressly set forth herein,
no failure or delay by any party hereto in exercising any right, power or
privilege hereunder (and no course of dealing between or among any of the
parties) shall operate as a waiver of any such right, power or privilege. No
waiver of any default on any one occasion shall constitute a waiver of any
subsequent or other default. No single or partial exercise of any such right,
power or privilege shall preclude the further or full exercise thereof.
SECTION 18.10. ENTIRE AGREEMENT. Except for the NDA, this Agreement
merges all previous negotiations and agreements between the parties hereto,
either verbal or written, and constitutes the entire agreement and understanding
between the parties with respect to the subject matter of this Agreement.
SECTION 18.11. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which when so executed shall be an original, but all
of which together shall constitute one agreement. Facsimile signatures shall be
deemed original signatures.
SECTION 18.12. SEVERABILITY. If any provision of this Agreement or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provision to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law, but only
as long as the continued validity, legality and enforceability of such provision
or application does not materially (a) alter the terms of this Agreement, (b)
diminish the benefits of this Agreement or (c) increase the burdens of this
Agreement, for any person.
SECTION 18.13. SECTION HEADINGS. The section headings contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not in any way affect the meaning or interpretation of
this Agreement.
SECTION 18.14. INTERPRETATION. As both parties have participated in the
drafting of this Agreement, any ambiguity shall not be construed against either
party as the drafter. Unless the context of this Agreement clearly requires
otherwise, (a) "or" has the inclusive meaning frequently identified with the
phrase "and/or," (b) "including" has the inclusive meaning frequently identified
with the phrase "including, but not limited to" and (c) references to "hereof,"
"hereunder" or "herein" or words of similar import relate to this Agreement.
SECTION 18.15. FURTHER ASSURANCES. For a period of six (6) months after
Closing, Seller agrees to provide to Purchaser from time to time any information
that Seller possesses with respect to the operation of the Purchased Assets
prior to the Closing which the Purchaser reasonably requests in the future in
connection with the Purchaser's financing efforts now or in the future or in
connection with any FCC or other regulatory filing.
- 43 -
SECTION 18.16. THIRD PARTIES. Nothing herein, expressed or implied, is
intended to or shall confer on any person other than the parties hereto any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
SECTION 18.17. REMEDIES. The parties acknowledge and agree that the
material Purchased Assets, including the FCC Authorizations, are unique and that
remedies at law, including monetary damages, will be inadequate in the event of
a breach by Seller in the performance of its obligations under this Agreement.
Accordingly, the parties agree that in the event of any such breach by Seller
prior to the Closing, Purchaser shall be entitled, among other remedies, to a
decree of specific performance.
SECTION 18.18. CERTAIN DEFINED TERMS. For purposes of this Agreement
(including the Schedules hereto) the terms defined in this Agreement shall have
the respective meanings specified herein, and, in addition, the following terms
shall have the following meanings:
"Affiliate" means, as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. The term "CONTROL" (including, with correlative meanings, the terms
"CONTROLLED BY" and "UNDER COMMON CONTROL WITH"), as applied to any Person,
means the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities or other ownership interest, by Contract or
otherwise.
"Contract" means any written or oral contract, agreement, lease,
license, instrument, or other document or commitment, arrangement, undertaking,
practice or authorization that is binding on any Person or its property under
any applicable Law.
"Default" means (a) a breach, default or violation, (b) the occurrence
of an event that with or without the passage of time or the giving of notice, or
both, would constitute a breach, default or violation or cause a Lien to arise,
or (c) with respect to any Contract, the occurrence of an event that with or
without the passage of time or the giving of notice, or both, would give rise to
a right of termination, cancellation, amendment, renegotiation, acceleration or
a right to receive damages or a payment of penalties.
"Liability" means any liability, indebtedness, obligation, expense,
claim, loss, cost, damage, obligation, responsibility, guaranty or endorsement
of or by any Person, absolute or contingent, accrued or unaccrued, known or
unknown, due or to become due, liquidated or unliquidated, whether or not
secured.
"Person" means any corporation, partnership, limited liability company,
joint venture, business association, other entity or individual.
"Seller's Knowledge" or "to the knowledge of Seller" or any similar
phrase means the actual knowledge of (i) Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxxxxx,
Xxxxxx Xxxxx, Xxxxxx Xxxxxx, Xxx Xxxxxx or Xxx Xxxxx after reasonable inquiry of
the network operations manager for each Cellular System or (ii) Xxxxx Xxxxx (but
only with respect to matters related to the GA-1 Cellular
- 44 -
System), Xxxxxxx Xxxxxxx (but only with respect to matters related to the OH-2
Cellular System) or Xxxxxx Xxxxxxx (but only with respect to matters related to
the CA-7 Cellular System).
"Taxes" means any taxes, duties, assessments, fees, levies, or similar
governmental charges, together with any interest, penalties, and additions to
tax, imposed by any taxing authority, wherever located (I.E., whether federal,
state, local, municipal, or foreign), including all net income, gross income,
gross receipts, net receipts, sales, use, transfer, franchise, privilege,
profits, social security, disability, withholding, payroll, unemployment,
employment, excise, severance, property, windfall profits, value added, ad
valorem, occupation, or any other similar governmental charge or imposition.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
- 45 -
IN WITNESS WHEREOF, each of the parties hereto has caused this Asset
Purchase Agreement to be executed by its duly authorized representative as of
the day and year first above written.
SELLER:
XXXXXX CELLULAR SYSTEMS, INC.
By: /s/ Xx Xxxxx
----------------------------
Name: Xx Xxxxx
--------------------------
Title: President
-------------------------
PURCHASER:
CELLCO PARTNERSHIP
D/B/A VERIZON WIRELESS
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
--------------------------
Title: President & CEO
-------------------------
[Signature page of Asset Purchase Agreement, dated as of October 29, 2001, by
and between Xxxxxx Cellular Systems, Inc. and Cellco Partnership D/B/A Verizon
Wireless.]
