EXHIBIT 10.4
EXECUTION COPY
AGREEMENT
by and among
TRITON PCS, INC.,
AT&T WIRELESS SERVICES, INC.,
AT&T WIRELESS PCS LLC
and
CINGULAR WIRELESS LLC
Dated July 7, 2004
TABLE OF CONTENTS
ARTICLE 1 - DEFINITIONS.............................................................................. 1
ARTICLE 2 - CLOSING TRANSACTIONS..................................................................... 5
2.1 Closing Transactions..................................................................... 5
2.2 Acceleration of Effectiveness of Cingular Amendment Terms Under Certain Circumstances.... 6
2.3 Amendment of AWS Roamer Agreements....................................................... 6
2.4 Mutual Release........................................................................... 6
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES OF THE PARTIES............................................ 7
3.1 Organization............................................................................. 7
3.2 Authorization; Enforceability............................................................ 7
3.3 No Violation or Conflict................................................................. 7
3.4 Claims and Litigation.................................................................... 7
3.5 Certain Fees............................................................................. 7
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF TRITON................................................. 8
4.1 Legal Opinion............................................................................ 8
4.2 Required Consents........................................................................ 8
4.3 Intent................................................................................... 8
4.4 Solvency................................................................................. 8
4.5 Bankruptcy............................................................................... 8
ARTICLE 5 - COVENANTS AND OTHER AGREEMENTS........................................................... 8
5.1 Access to Information.................................................................... 8
5.2 Covenant Not to Xxx; No Objection to the Merger.......................................... 9
ARTICLE 6 - CONFIDENTIALITY.......................................................................... 9
6.1 Confidentiality.......................................................................... 9
ARTICLE 7 - JOINT COVENANTS.......................................................................... 9
7.1 Cooperation.............................................................................. 9
7.2 Consents................................................................................. 10
7.3 Public Announcements..................................................................... 10
ARTICLE 8 - CONDITIONS PRECEDENT TO OBLIGATION TO CLOSE.............................................. 10
8.1 Conditions Applicable to all of the Parties.............................................. 10
8.2 Waiver of Conditions, Etc................................................................ 11
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE 9 - CLOSING AND CLOSING DELIVERIES........................................................... 11
9.1 Closing.................................................................................. 12
9.2 Documents To Be Delivered by Each Party to This Agreement at the Closing................. 12
9.3 Deliveries by Triton at the Closing...................................................... 12
ARTICLE 10 -TERMINATION.............................................................................. 12
10.1 Termination.............................................................................. 12
ARTICLE 11 -SURVIVAL OF REPRESENTATIONS AND WARRANTIES............................................... 13
11.1 Survival................................................................................. 13
ARTICLE 12 -MISCELLANEOUS............................................................................ 13
12.1 Fees and Expenses........................................................................ 13
12.2 Notices.................................................................................. 13
12.3 Assignment; Benefit and Binding Effect................................................... 15
12.4 GOVERNING LAW............................................................................ 15
12.5 Entire Agreement......................................................................... 16
12.6 Counterparts............................................................................. 16
12.7 Severability............................................................................. 16
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Pursuant to Item 601(b)(2) of Regulation S-K the Schedules hereto have been
omitted but will be provided to the Securities and Exchange Commission
supplementally upon its request.
SCHEDULES
Schedule 2.1(a) Amendment of Cingular Roamer Agreements
Schedule 2.3 Amendment of AWS Roamer Agreements
Schedule 3.3 No Violation or Conflict
Schedule 4.2 Required Consents
EXHIBITS
Exhibit 1.21 License Exchange Agreement
Exhibit 2.4 Release
Exhibit 4.1 Opinion of Dow, Xxxxxx & Xxxxxxxxx, PLLC
Exhibit 9.2(c) Release
AGREEMENT
THIS AGREEMENT (this "Agreement"), dated the 7th day of July, 2004, is by
and among TRITON PCS, INC., a Delaware corporation ("Triton"), AT&T WIRELESS
SERVICES, INC., a Delaware corporation ("AWS"), AT&T WIRELESS PCS LLC, a
Delaware limited liability company ("AWS PCS"), and CINGULAR WIRELESS LLC, a
Delaware limited liability company ("Cingular").
RECITALS
WHEREAS, Cingular has entered into the Merger Agreement (as defined below)
whereby Cingular Wireless Corporation (which is Cingular's sole manager) will
acquire AWS and AWS PCS; and
WHEREAS, AWS, AWS PCS, Cingular and Triton desire to address certain
aspects of their existing and future relationships as set forth in this
Agreement;
NOW, THEREFORE, in consideration of the recitals and of the mutual
covenants, conditions and agreements set forth herein and for other good and
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS
Unless otherwise stated in this Agreement, the following terms when used
herein shall have the meanings assigned to them below (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
1.1 "Affiliate" shall mean, with respect to any Person, any other Person
that, directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such first-named 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. For
purposes of this Agreement, neither AWS nor AWS PCS shall be deemed to be an
"Affiliate" of Triton.
1.2 "Agreement" shall have the meaning set forth in the preamble.
1.3 "AWS Amendment Terms" shall have the meaning set forth in Section
2.3.
1.4 "AWS Roamer Agreements" shall mean each of (i) the Intercarrier
Roamer Service Agreement dated as of February 4, 1998 by and between AWS and
Triton PCS Operating Company L.L.C. ("Triton Operating"), as amended by
Amendment No. 1 to Intercarrier Roamer Service Agreement dated as of December
31, 1998 by and between AWS
and Triton Operating, Amendment No. 2 to Intercarrier Roamer Service Agreement
dated as of June 8, 1999 by and between AWS and Triton Operating, Amendment No.
3 to Intercarrier Roamer Service Agreement dated as of April 4, 2002 by and
between AWS and Triton Operating, and as it may be further amended from time to
time in accordance with its terms, and (ii) the Roaming Agreement for GSM and/or
3GSM, dated as of October 4, 2002, between AT&T Wireless Services, Inc. and
Triton Operating, including The General Terms and Conditions for GSM and /or
3GSM Roaming and the mutually agreed portion of the Annexes, as it may be
amended from time to time in accordance with its terms.
1.5 "Bankruptcy" of a Person shall mean that such Person (i) shall have
suffered the filing of an involuntary petition for relief, under bankruptcy laws
or any other similar applicable law, or (ii) shall have suffered the entry of a
decree or order of a court of competent jurisdiction for the appointment of a
receiver, liquidator, trustee, assignee or custodian in bankruptcy or insolvency
for the winding up or liquidation of its affairs, or (iii) shall voluntarily
file a petition for relief or institute proceedings to be adjudicated a
voluntary bankrupt or shall consent to the filing of a bankruptcy proceeding
against it, or shall file a petition or answer or consent seeking
reorganization, readjustment, arrangement, composition or similar relief under
bankruptcy laws, or any other similar or applicable law, or shall consent to the
filing of any such petition, or (iv) shall consent to the appointment of a
receiver, liquidator, trustee, assignee or custodian in bankruptcy or
insolvency, or (v) shall make an assignment for the benefit of creditors, or
(vi) shall admit in writing its inability generally to pay its debts as they
become due. For the purposes of Section 2.2, the term "Bankruptcy" shall also
include, with respect to Triton, (i) the failure of Triton to make any required
payment of principal or interest under any of the Indentures or the Credit
Agreement within any applicable grace period or (ii) the occurrence of any other
Event of Default (as defined in the Indentures or the Credit Agreement) that, in
the case of either (i) or (ii), has resulted in the acceleration of the maturity
of the indebtedness outstanding under the Indentures or the Credit Agreement by
the requisite holders thereof.
1.6 "Breaching Party" shall have the meaning set forth in Section
10.1(a)(iii).
1.7 "Business Day" shall mean any day other than a Saturday, Sunday,
federal holiday or day on which banking institutions in New York are authorized
or obligated by law or executive order to be closed.
1.8 "Cingular Amendment Terms" shall have the meaning set forth in
Section 2.1(a).
1.9 "Cingular Roamer Agreements" shall mean each of (i) the Intercarrier
Roamer Service Agreement dated as of May 7, 2002 between Cingular and Triton
Operating, as it may be amended from time to time in accordance with its terms,
and (ii) the Intercarrier Multi-Standard Roaming Agreement, dated as of May 7,
2002 by and between Cingular Wireless LLC and Triton Operating and the Roaming
Agreement for GSM and/or 3GSM, dated as of February 13, 2003, between Cingular
Wireless LLC and Triton PCS License Company L.L.C., including The General Terms
and Conditions for GSM and/or 3GSM Roaming and the Annexes (GSM Association
Permanent Reference Documents AA.13 and AA.14), as it may be amended from time
to time in accordance with its terms.
1.10 "Closing" shall have the meaning set forth in Section 9.1(a).
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1.11 "Closing Date" shall mean the date on which the Closing occurs.
1.12 "Confidentiality Agreement" shall mean the Information Exchange
Agreement dated as of April 14, 2004 among AWS, Cingular and Triton PCS
Holdings, Inc.
1.13 "Consents" shall mean the consents, permits, approvals and
authorizations of Governmental Authorities and other Persons necessary to
consummate the transactions contemplated by the Transaction Documents or, in the
case of the first sentence of Section 5.2, the Merger.
1.14 "Credit Agreement" shall mean the Credit Agreement dated as of June
13, 2003 among Triton, Triton PCS Holdings, Inc., the Lenders party thereto,
Xxxxxx Commercial Paper Inc., as Administrative Agent, Cobank ACB, as
Co-Syndication Agent, Chase Lincoln First Commercial Corporation, as
Co-Documentation Agent, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as
Co-Documentation Agent, and Xxxxxx Brothers Inc., Cobank ACB and Citigroup
Global Markets Inc., as Joint Lead Arrangers, as amended by the First Amendment
dated as of September 29, 2003.
1.15 "Enforceability Exceptions" shall mean the exceptions or limitations
to the enforceability of contracts under bankruptcy, insolvency, fraudulent
conveyance or transfer, moratorium or similar laws affecting creditors rights
generally or by judicial discretion in the enforcement of equitable remedies and
by public policies generally.
1.16 "FCC" shall mean the Federal Communications Commission.
1.17 "Governmental Authority" shall mean any federal, state or local
governmental authority or instrumentality, including any court, tribunal or
administrative or regulatory agency, department, bureau, commission or board.
1.18 "Indentures" shall mean each of (i) the Indenture dated as of
January 19, 2001 between Triton, the Guarantors party thereto and The Bank of
New York, as Trustee, relating to Triton's 9-3/8% Senior Subordinated Notes due
2011, (ii) the Indenture dated as of November 14, 2001 between Triton, the
Guarantors party thereto and The Bank of New York, as Trustee, relating to
Triton's 8-3/4% Senior Subordinated Notes due 2011, and (iii) the Indenture
dated as of June 13, 2003 among Triton, the Guarantors party thereto and The
Bank of New York, as Trustee, relating to Triton's 8-1/2% Senior Notes due 2013.
1.19 "Legal Requirement" shall mean applicable common law and any
applicable statute, permit, ordinance, code or other law, rule, regulation or
order enacted, adopted, promulgated or applied by any Governmental Authority,
including any applicable order, decree or judgment handed down, adopted or
imposed by any Governmental Authority, all as in effect from time to time.
1.20 "Legal Restrictions" shall mean restrictions on transfer arising
under the Securities Acts and all applicable state securities laws.
1.21 "License Exchange Agreement" shall mean the License Exchange
Agreement among AWS, AWS PCS, Cingular and Triton in the form attached hereto as
Exhibit 1.21.
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1.22 "Liens" shall mean any all claims, liabilities, security interests,
mortgages, liens, pledges, conditions, charges or encumbrances of any nature
whatsoever other those created by or in favor of Triton or its Affiliates.
1.23 "Merger" shall mean the acquisition of AWS by Cingular Wireless
Corporation pursuant to the Agreement and Plan of Merger, dated as of February
17, 2004, by and among AWS, Cingular Wireless Corporation, Cingular and Links I
Corporation and, for certain limited purposes, SBC Communications, Inc. and
BellSouth Corporation, as it may be amended from time to time (the "Merger
Agreement").
1.24 "Network Membership License Agreement" shall mean the AT&T Network
Membership License Agreement between AT&T Corp. and Triton Operating dated as of
February 4, 1998 as amended by Amendment No. 1 dated as of December 1, 1998,
Amendment No. 2 dated as of June 8, 1999, Amendment No. 3 dated April 4, 2002,
Amendment No. 4 dated as of October 22, 2002 and Amendment No. 5 dated October
31, 2003.
1.25 "Organizational Documents" shall mean, with respect to any Person
(other than an individual), the articles or certificate of incorporation,
bylaws, certificate of limited partnership, partnership agreement, certificate
of formation, limited liability company operating agreement, and all other
organizational documents of such Person.
1.26 "Person" shall mean any individual, corporation, association,
partnership, joint ventures, trust, estate, limited liability company, limited
liability partnership, Governmental Authority, or other entity or organization.
1.27 "Representatives" shall mean, with respect to any Person, such
Person's employees, officers, directors, financial advisors or legal counsel or
Affiliates or any of such Affiliate's employees, officers, directors, financial
advisors or legal counsel.
1.28 "Required Consents" shall mean the Consents set forth on Schedule
4.2.
1.29 "Securities Acts" shall mean the Securities Act of 1933, as amended,
and the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the U.S. Securities and Exchange Commission (the "SEC")
promulgated thereunder, as in effect from time to time.
1.30 "Transaction Documents" shall have the meaning set forth in Section
3.1.
1.31 "Triton Operating" shall have the meaning set forth in Section 1.4.
1.32 "Triton PCS Holdings Agreement" shall mean that certain Agreement,
of even date herewith, by and among Triton PCS Holdings, Inc., AWS, AWS PCS and
Cingular.
1.33 Rules of Construction. Words used in this Agreement, regardless of
the gender and number specifically used, shall be deemed and construed to
include any other gender and any other number as the context requires. As used
in this Agreement, the word "including" is not limiting, and the word "or" is
not exclusive. Except as specifically otherwise provided in this Agreement in a
particular instance, a reference to a Section is a reference to a Section of
this
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Agreement, a reference to an Exhibit is a reference to an Exhibit to this
Agreement, and a reference to a Schedule is a reference to a Schedule to this
Agreement. The terms "hereof, " "herein" and other like terms refer to this
Agreement as a whole, including the Schedules and Exhibits to this Agreement,
and not solely to any particular part of this Agreement. The descriptive
headings in this Agreement are inserted for convenience of reference only and
are not intended to be part of or to affect the meaning or interpretation of
this Agreement.
ARTICLE 2
CLOSING TRANSACTIONS
2.1 Closing Transactions. Subject to the terms and conditions set forth
in this Agreement:
(a) Amendment of Cingular Roamer Agreements. Cingular and Triton
hereby amend, effective upon the Closing (or such earlier date as is provided in
Section 2.2), the Cingular Roamer Agreements to incorporate the terms and
conditions set forth in Schedule 2.1(a) attached hereto (the "Cingular Amendment
Terms"). Cingular and Triton hereby agree that from and after the Closing, to
the extent that the Cingular Roamer Agreements have not been otherwise amended
by Cingular and Triton, the Cingular Roamer Agreements shall be deemed to have
been amended to incorporate the Cingular Amendment Terms, with such other
changes as are necessary to give effect thereto. Cingular and Triton agree that,
in the event that AWS PCS has delivered to Triton PCS Holdings, Inc. the Stock
(as defined under the Triton PCS Holdings Agreement), subject to and in
accordance with the terms of the Triton PCS Holdings Agreement, then upon
consummation of the Merger, the AWS Roamer Agreements shall be terminated and
the Cingular Roamer Agreements, as amended hereby, shall govern roaming
relationships between Cingular and its Affiliates, on the one hand, and Triton
and its Affiliates, on the other hand.
(b) Cingular Wireless Network. From and after the Closing (or such
earlier date as is provided in Section 2.2), subject to any applicable FCC rules
and other Legal Requirements that may be adopted hereafter regarding customer
disclosures, Triton shall have the right to communicate, subject to Cingular's
prior written approval, which will not be unreasonably withheld or delayed (with
Cingular to respond to any request by Triton for such approval within 10
Business Days), orally and in writing to its customers and potential customers
and in Triton's in-store and print collateral materials (such as signs,
booklets, brochures, pamphlets, network maps and charts) and website collateral
materials (such as website pages, network maps and charts) (but only in the same
type, style and size as other similar technical information, but not in other
types of promotional materials or advertising), that Cingular is the preferred
wireless network provider for roaming for Triton's customers' out-of-territory
roaming. In such connection, Triton shall not identify itself as an "affiliate,"
"partner" or other similar descriptive term of Cingular, but may indicate that
roaming coverage is provided for Triton customers primarily (but not
exclusively) through Cingular.
(c) Exchange of FCC Licenses. Concurrently with the execution and
delivery of this Agreement, the parties to the License Exchange Agreement are
executing and delivering the License Exchange Agreement. During the period
between the date hereof and the closing of
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the transactions contemplated by the License Exchange Agreement, the parties may
enter into good faith negotiations (which may be terminated by any party at any
time) with respect to the issue of interim spectrum leasing arrangements, on
such terms and conditions as may be mutually agreeable to such parties, for
spectrum owned by Cingular, AWS and Triton in the markets that are the subject
of the License Exchange Agreement.
(d) Network Membership License Agreement. Notwithstanding anything
to the contrary contained in this Agreement, AWS and AWS PCS acknowledge and
agree that neither of such parties shall take any action to terminate the
Network Membership License Agreement dated as of February 4, 1998, as amended,
prior to February 4, 2005; provided, however, nothing contained herein or in the
other Transaction Documents will constitute a waiver or modification of any
right or obligation of any party to the Network Membership License Agreement
including, without limitation, the rights contained in Section 11.1 of the
Network Membership License Agreement regarding the renewal of the term of
Network Membership License Agreement.
2.2 Acceleration of Effectiveness of Cingular Amendment Terms Under
Certain Circumstances. Notwithstanding any provision to the contrary contained
herein, in the event that AWS PCS has delivered to Triton PCS Holdings, Inc. the
Stock (as defined under the Triton PCS Holdings Agreement), subject to and in
accordance with the terms of the Triton PCS Holdings Agreement, and (i) Triton
or any of its Affiliates breaches Section 5.2 hereof, or (ii) there is a
material breach by Triton of any of the representations contained in Sections
4.3, 4.4, or 4.5 hereof, or (iii) there is a Triton Bankruptcy, then the
Cingular Amendment Terms and the provisions of Section 2.1(b) shall become
immediately effective, and shall be in full force and effect without any further
action and shall survive any termination of this Agreement or of the Triton PCS
Holdings Agreement. In addition, notwithstanding any provision to the contrary
contained herein, in the event that Triton PCS Holdings, Inc. fails to accept,
for any reason, the Stock, as defined under the Triton PCS Holdings Agreement,
when delivered by AWS PCS subject to and in accordance with the terms of the
Triton PCS Holdings Agreement, then the Cingular Amendment Terms and the
provisions of Section 2.1(b) shall become immediately effective, and shall be in
full force and effect without any further action and shall survive any
termination of this Agreement or of the Triton PCS Holdings Agreement.
2.3 Amendment of AWS Roamer Agreements. AWS and Triton hereby agree
that, effective upon the effectiveness of the Cingular Amendment Terms and the
provisions of Section 2.1(b) in accordance with Section 2.2, the AWS Roamer
Agreements shall be amended, automatically and without any further action by AWS
or Triton, to incorporate the terms and conditions set forth in Schedule 2.3
(the "AWS Amendment Terms") with such other changes as are necessary to give
effect thereto.
2.4 Mutual Release. Cingular, Triton, AWS and AWS PCS have executed and
delivered, concurrently with the execution and delivery of this Agreement, the
Release in the form of Exhibit 2.4.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
Each of AWS, AWS PCS, Cingular and Triton severally represents with
respect to itself only to the other parties to this Agreement as follows:
3.1 Organization. It has been duly organized and is validly existing and
in good standing under the laws of the jurisdiction of its organization, with
full corporate or limited liability company (as the case may be) power and
authority to enter into this Agreement, the License Exchange Agreement, and the
other instruments, agreements, certificates and documents to be executed and
delivered by it in connection with this Agreement (collectively with this
Agreement, the "Transaction Documents"), and to execute and deliver the
Transaction Documents and to perform its obligations hereunder and thereunder.
3.2 Authorization; Enforceability. The execution, delivery and
performance by it of the Transaction Documents are within its corporate or
limited liability company (as the case may be) power and authority and have been
duly authorized and approved by all necessary corporate or limited liability
company (as the case may be) actions. The Transaction Documents have been duly
executed and delivered by it, and the Transaction Documents are or will be, as
the case may be, when executed and delivered by the parties hereto and thereto
other than it, the valid and binding obligations of it, enforceable against it
in accordance with their respective terms, subject to the Enforceability
Exceptions.
3.3 No Violation or Conflict. The execution, delivery and performance by
it of the Transaction Documents to which it is a party (with or without the
giving of notice, the lapse of time, or both): (a) except as set forth opposite
its name on Schedule 3.3, do not require any Consent, declaration to, or filing
with any Governmental Authority or any other Person that has not been obtained;
(b) will not conflict with any provision of its Organizational Documents as
currently in effect; (c) will not conflict with, result in a breach of, or
constitute a default under any Legal Requirement to which it is bound; and (d)
will not conflict with, constitute grounds for termination of, result in a
breach of, constitute a default under, or accelerate or permit the acceleration
of any performance required by the terms of any agreement or instrument to which
it is a party or bound.
3.4 Claims and Litigation. As of the date of this Agreement, there is no
pending or written threat of a claim, legal action, arbitration, governmental
investigation or other legal, administrative or tax proceeding, nor any order,
decree or judgment pending, or, to its knowledge, threatened other than in
writing, against or relating to it or its subsidiaries' assets or business that
would have an adverse effect on its ability to perform its obligations under the
Transaction Documents.
3.5 Certain Fees. No finder, broker, agent, financial advisor or other
intermediary has acted on its behalf in connection with the Transaction
Documents or the transactions contemplated thereby, or is entitled to any
payment in connection herewith or therewith which, in either case, would result
in any obligation or liability to any other party to this Agreement or any
Affiliate of any such other party.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF TRITON
Triton represents and warrants to Cingular, AWS & AWS PCS as follows:
4.1 Legal Opinion. Triton has caused Dow, Xxxxxx & Xxxxxxxxx, PLLC to
deliver a legal opinion addressed to Cingular, AWS and AWS PCS in the form of
Exhibit 4.1 on and dated as of the date hereof.
4.2 Required Consents. As of the date hereof, Triton has received the
Required Consents set forth on Schedule 4.2 that are marked with an asterisk and
such consents are irrevocable and in full force and effect.
4.3 Intent. Triton is not entering into the transactions contemplated by
this Agreement or the other Transaction Documents with an actual intent to
hinder, delay or defraud its present or future creditors.
4.4 Solvency. On and as of the date hereof, both before and after giving
effect to the consummation of the transactions contemplated by this Agreement or
the other Transaction Documents: (a) the fair value of Triton's assets at a fair
valuation, will exceed its debts and liabilities, subordinated, contingent or
otherwise; (b) the present fair saleable value of Triton's property will be
greater than the amount that will be required to pay the probable liability of
its debts and other liabilities, subordinated, contingent or otherwise, as such
debts and other liabilities become absolute and matured; (c) Triton will be able
to pay its debts and liabilities, subordinated, contingent or otherwise, as such
debts and liabilities become absolute and matured; and (d) Triton will not have
unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be conducted
following the date hereof.
4.5 Bankruptcy. Triton is not contemplating filing a petition in
bankruptcy or for reorganization under the federal Bankruptcy Code, nor does
Triton have any knowledge of any threatened bankruptcy or insolvency proceedings
against it.
ARTICLE 5
COVENANTS AND OTHER AGREEMENTS
5.1 Access to Information. Between the date of this Agreement and the
Closing, each party to this Agreement shall give each other party to this
Agreement and such other party's officers, employees, agents, counsel,
accountants and other Representatives, reasonable access during normal business
hours upon reasonable prior notice and approval, which shall not be unreasonably
withheld, to all of such party's records and information that such other party
reasonably requests as may be reasonably necessary in connection with the
consummation of the transactions contemplated by the Transaction Documents;
provided, that any inspection of another party's properties or discussion with
another party's personnel shall occur only if a representative designated by
such other party is present. All such information provided pursuant
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to this Section 5.1 shall be subject to the Confidentiality Agreement. The
rights of the parties under this Section 5.1 shall not be exercised in such a
manner as to interfere unreasonably with the business or operations of any party
or for any purpose other than in connection with the consummation of the
transactions contemplated by this Agreement.
5.2 Covenant Not to Xxx; No Objection to the Merger. Triton, on behalf
of itself and its Affiliates, hereby covenants and agrees not to bring,
commence, prosecute, maintain or cause or permit to be brought, commenced,
prosecuted or maintained any suit, action or proceeding, either at law or in
equity, in any court or before any other Governmental Authority (i) regarding
the Merger or on account of Cingular's acquisition of AWS and AWS PCS or (ii)
challenging the enforceability of this Section 5.2, including without limitation
a filing at the FCC with respect to, or otherwise seek to cause any Governmental
Authority to refuse to issue its Consent to, the Merger. The foregoing covenant
not to xxx xxx be raised or pleaded in any action or other proceeding which may
be brought, instituted or taken by any party or its predecessors, successors or
assigns and all past and present shareholders, directors, officers, agents,
Affiliates, heirs, and personal Representatives. The foregoing covenant not to
xxx shall not be deemed or construed to be an acknowledgement or agreement by
Cingular, AWS or AWS PCS that Triton has any claim or standing to challenge the
Merger in any way.
ARTICLE 6
CONFIDENTIALITY
6.1 Confidentiality. AWS, Cingular and Triton PCS Holdings, Inc., the
corporate parent of Triton, are parties to the Confidentiality Agreement, and
the disclosure of this Agreement, or of the terms hereof or the existence of the
transactions contemplated hereby, shall be governed by the terms of the
Confidentiality Agreement. Notwithstanding the execution, delivery and
performance of this Agreement or the termination of this Agreement prior to
Closing in accordance with Article 10, the Confidentiality Agreement shall
remain in full force and effect in accordance with its terms, but shall expire
concurrently with the Closing hereunder.
ARTICLE 7
JOINT COVENANTS
Each of the parties to this Agreement covenant and agree as follows:
7.1 Cooperation. Without limiting any of the obligations of the parties
hereunder, each of the parties to this Agreement shall cooperate fully with each
other and their respective counsel, accountants, agents and other
Representatives in all commercially reasonable respects in connection with any
actions required to be taken as part of their respective obligations under the
Transaction Documents, and the parties hereto shall use their commercially
reasonable efforts to consummate the transactions contemplated hereby and to
fulfill their respective obligations under the Transaction Documents as
expeditiously as practicable provided, however, neither Cingular, AWS, nor AWS
PCS shall have any obligation to Triton or its Affiliates to cause the closing
of the Merger. Subject to the terms and conditions of this Agreement, from time
to time prior to, at and after the Closing, each party hereto will use
commercially reasonable efforts to
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take, or cause to be taken, all such actions and to do or cause to be done, all
things, necessary, proper or advisable under applicable Legal Requirements and
regulations to consummate and make effective the transactions contemplated by
the Transaction Documents, including, without limitation, executing and
delivering such documents as any of the other parties being advised by counsel
shall reasonably request in connection with the consummation of this Agreement.
After the Closing, each of the parties to this Agreement will execute any
further documents consistent with the Transaction Documents, provide any further
reasonably available information, and take any other actions not imposing
significant financial or operational obligations in excess of the other
obligations imposed by the Transaction Documents, upon the request of any other
party to this Agreement based upon any such other party's reasonable
determination that those actions are required to enable such other party to
effectuate the Transaction Documents. No party to this Agreement shall take any
action which is materially inconsistent with its obligations under the
Transaction Documents. Each party to this Agreement shall notify each other
party to this Agreement of any litigation, arbitration or administrative
proceeding pending or, to its knowledge, threatened, which challenges any of the
transactions contemplated by the Transaction Documents or which threatens to
delay them, and shall use commercially reasonable efforts to take such steps as
may be necessary to remove any such impediment to the consummation of the
transactions contemplated by the Transaction Documents.
7.2 Consents. Each party to this Agreement shall diligently make and
cooperate with the other parties to this Agreement in using all commercially
reasonable efforts to obtain or cause to be obtained prior to the Closing all
Consents which have not been obtained on or before the date of this Agreement.
7.3 Public Announcements. No party to this Agreement will issue any
press release or make any other public announcements concerning this Agreement
or any of the other Transaction Documents or the transactions contemplated
hereby or thereby except with the prior approval (not to be unreasonably
withheld or delayed) of the other parties; provided, however, that if any such
disclosure is required by any applicable Legal Requirements or the rules or
regulations of any securities exchange, such consent shall not be required, but,
in such circumstances no party hereto will make such disclosure without first
providing to the other parties an advance copy of any such disclosure and a
reasonable opportunity to review and comment, to the extent practicable.
Notwithstanding anything to the contrary contained herein, the parties hereto
shall use commercially reasonable efforts to prepare and issue a press release
with respect to the transactions contemplated by this Agreement and the License
Exchange Agreement upon the execution and delivery of this Agreement and the
License Exchange Agreement.
ARTICLE 8
CONDITIONS PRECEDENT TO OBLIGATION TO CLOSE
8.1 Conditions Applicable to all of the Parties. The obligations of each
of the parties to this Agreement to consummate the transactions to occur at the
Closing pursuant to this Agreement are subject to satisfaction, at or prior to
the Closing, of each of the following conditions:
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(a) Representations, Warranties and Covenants.
(i) All representations and warranties of the other parties
to this Agreement made in this Agreement shall be true and correct in all
material respects at and as of the time of the Closing as though made at and as
of that time, except to the extent such representations and warranties expressly
relate to an earlier date in which case such representations and warranties
shall be true and correct in all material respects on and as of such earlier
date and except in each case for changes contemplated by this Agreement.
(ii) All of the covenants and agreements of the other parties
to this Agreement contained in this Agreement to be complied with and performed
by such parties on or prior to Closing shall have been complied with or
performed in all material respects.
(b) Adverse Proceedings. No judgment, injunction, restraining
order or decree of any nature of any court of competent jurisdiction or other
Governmental Authority shall be in effect that restrains or prohibits any party
to this Agreement from consummating any transaction contemplated by the
Transaction Documents.
(c) Merger Closing. The Merger shall have been consummated.
(d) Triton PCS Holdings Agreement Closing. The Closing (as defined
in the Triton PCS Holdings Agreement) or the completion of the transactions
contemplated in Section 7.4 of the Triton PCS Holding Agreement shall have
occurred.
(e) Deliveries. Each party to this Agreement shall have made or
stand willing to make all the deliveries set forth to be made by it in Section
9.2.
(f) Consents. Each party to this Agreement shall have received its
Required Consents with all such Required Consents being irrevocable.
8.2 Waiver of Conditions, Etc. Notwithstanding anything to the contrary
contained in this Article 8, any party to this Agreement may, in its sole
discretion, waive any condition to its obligation to consummate the transactions
contemplated by this Agreement. No party to this Agreement may rely on the
failure of any condition set forth in this Article 8 to be satisfied if the
failure of such condition to be satisfied is the result of the breach of this
Agreement by such party or, in the case of a non-fulfillment of the condition
set forth in Section 8.1(b), if such party shall not have used commercially
reasonable efforts to prevent the entry of such judgment, injunction,
restraining order or decree and to appeal as expeditiously as reasonably
possible any such judgment, injunction, restraining order or decree that may be
entered.
ARTICLE 9
CLOSING AND CLOSING DELIVERIES
9.1 Closing.
(a) Closing Date. Subject to (i) the satisfaction or, to the
extent permissible by law, waiver (by the party for whose benefit the closing
condition is imposed) on the date
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scheduled for Closing of the closing conditions described in Article 8 hereof
and (ii) the provisions of Article 10 hereof, the parties hereto shall be
obligated to give effect to the provisions of Article 2 hereof (other than the
provisions of Section 2.1(c), with the transactions described therein to be
governed by the License Exchange Agreement) (the "Closing") at the Closing,
which shall take place (A) immediately after the consummation of the Merger or
(B) no later than ten (10) Business Days following the satisfaction of the
conditions described in Article 8 to the extent such conditions have not been
satisfied at the time of the consummation of the Merger.
(b) Closing Place. The Closing shall be held at the offices of
Xxxxxx & Bird LLP, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other
location as agreed upon by the parties.
9.2 Documents To Be Delivered by Each Party to This Agreement at the
Closing. At the Closing, each party to this Agreement shall deliver or cause to
be delivered to each other party to this Agreement the following:
(a) a certificate of such party, dated the date of the Closing
certifying to the fulfillment of the conditions set forth in Section 8.1(a)(i)
and Section 8.1(a)(ii) by such party; and
(b) copies of all Consents received by such party as of the
Closing
(c) the Release in the form of Exhibit 9.2(c).
9.3 Deliveries by Triton at the Closing. At the Closing, Triton shall
cause to be delivered to Cingular , AWS and AWS PCS a legal opinion of Dow,
Xxxxxx & Xxxxxxxxx, PLLC in the form of Exhibit 4.1.
ARTICLE 10
TERMINATION
10.1 Termination
(a) This Agreement may be terminated:
(i) at any time by mutual written consent of all parties to
this Agreement;
(ii) by any party to this Agreement, if the Merger Agreement
is terminated;
(iii) by Triton, on the one hand, or Cingular, AWS and AWS
PCS, acting jointly, on the other hand, upon written notice to the other
parties, in the event such other party (the "Breaching Party") has breached in
any material respect any of its representations, warranties, covenants or other
agreements contained in this Agreement and failed to cure such breach within 30
days from the date of the Breaching Party's receipt of the notice specified
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above and such terminating party and its Affiliates are not in breach or default
in any material respect of their respective obligations, representations or
warranties under this Agreement; or
(iv) by any party to this Agreement if the Triton PCS
Holdings Agreement has been terminated.
(b) In the event of termination of this Agreement by any or all of
the parties for any reason, prompt written notice thereof shall forthwith be
given to the other parties and this Agreement shall terminate and the
transactions contemplated hereby and by the other Transaction Documents shall be
abandoned without further action by any of the parties hereto, but subject to
and without limiting any of the rights of the parties specified herein in the
event a party is in default or breach in any material respect of its
obligations, representations or warranties under this Agreement or any of the
other Transaction Documents. Notwithstanding the foregoing, Section 5.2 shall
survive indefinitely any termination of this Agreement or any of the other
Transaction Documents other than a termination of this Agreement pursuant to
Section 10.1(a)(iv) hereof but only in the event the Triton PCS Holdings
Agreement is terminated pursuant to Section 12.1(a)(iv) thereof.
(c) Notwithstanding any other provision of this Agreement, in the
event that this Agreement is terminated by any party pursuant Section 10.1(a)
and the Merger Agreement is terminated, no party shall be liable to any other
party hereto for any damages, costs or expenses related to its default or breach
in any of its obligations, representations or warranties or for any other reason
under this Agreement or any of the other Transaction Documents.
ARTICLE 11
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
11.1 Survival. The representations and warranties of the parties
contained herein shall survive the Closing until the fourth anniversary of the
date hereof.
ARTICLE 12
MISCELLANEOUS
12.1 Fees and Expenses. Except as otherwise provided in this Agreement,
each party shall pay its own expenses incurred in connection with the
authorization, preparation, execution, and performance of this Agreement and the
other Transaction Documents, including all fees and expenses of counsel,
accountants, agents, and Representatives, and each party shall be responsible
for all fees or commissions payable to any finder, broker, advisor, or similar
Person retained by or on behalf of such party; provided, however, that all
filing fees, and other charges levied by any Governmental Authority in
connection with the transactions contemplated by this Agreement shall be paid by
the party incurring the same.
12.2 Notices. All notices, demands and requests required or permitted to
be given under the provisions of this Agreement shall be (i) in writing, (ii)
sent by facsimile (with receipt personally confirmed by telephone), delivered by
personal delivery, or sent by commercial
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delivery service or certified mail, return receipt requested, (iii) deemed to
have been given on the date telecopied with receipt confirmed, the date of
personal delivery, or the date set forth in the records of the delivery service
or on the return receipt, and (iv) addressed as follows:
To AWS:
AT&T Wireless Services, Inc.
0000 000xx Xxxxxx, XX
Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
Telephone:(000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Telephone:(000) 000-0000
To AWS PCS:
AT&T Wireless PCS LLC
c/o AT&T Wireless Services, Inc.
0000 000xx Xxxxxx, XX
Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
Telephone:(000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
To Cingular:
Cingular Wireless, LLC
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
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Telecopy: (000) 000-0000
Telephone:(000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxx
Telecopy: (000) 000-0000
Telephone:(000) 000-0000
To Triton:
Triton PCS, Inc.
0000 Xxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Chief Executive Officer
Telecopy: (000) 000-0000
Telephone:(000) 000-0000
With a copy (which shall not constitute notice) to:
Dow, Xxxxxx & Xxxxxxxxx, PLLC
0000 Xxx Xxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Telecopy: (000) 000-0000
Telephone:(000) 000-0000
or to any other or additional persons and addresses as the parties may from time
to time designate in a writing delivered in accordance with this Section 12.2.
12.3 Assignment; Benefit and Binding Effect. No party hereto may assign
this Agreement without the prior written consent of each of the other parties
hereto, provided, however, that (i) Cingular may, without the consent of the
other parties, assign any and all of its rights (but Cingular shall not thereby
be released from its obligations) hereunder to any Affiliate of Cingular and
(ii) Triton may, without the consent of the other parties, assign any and all of
its rights (but Triton shall not thereby be released from its obligations)
hereunder to any Affiliate of Triton. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns. The provisions of this Agreement shall be for the
exclusive benefit of the parties hereto (and their successors and permitted
assigns) and shall not be for the benefit of any other Person.
12.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE
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OF DELAWARE (WITHOUT REGARD TO THE CHOICE OF LAW PROVISIONS THEREOF). The
parties hereto hereby irrevocably submit to the exclusive jurisdiction of any
federal or state court located within the State of Delaware over any dispute
arising out of or relating to this Agreement or any of the transactions
contemplated hereby and each party hereby irrevocably agrees that all claims in
respect of such dispute or any suit, action proceeding related thereto may be
heard and determined in such courts. The parties hereby irrevocably waive, to
the fullest extent permitted by applicable law, any objection which they may now
or hereafter have to the laying of venue of any such dispute brought in such
court or any defense of inconvenient forum for the maintenance of such dispute.
Each of the parties hereto agrees that a judgment in any such dispute may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.
12.5 Entire Agreement. This Agreement, the other Transaction Documents
and the Schedules and Exhibits hereto and thereto collectively represent the
entire understanding and agreement of the parties with respect to the subject
matter of this Agreement. This Agreement supersedes all prior representations,
warranties, covenants, understandings, agreements, written or oral, discussions,
or negotiations among the parties with respect to the subject matter hereof and
cannot be amended, supplemented or changed, except by an agreement in writing
that makes specific reference to this Agreement and that is signed by each of
the parties hereto. Each party hereby represents, acknowledges and agrees that
it has not relied on any representation, warranty, covenant, understanding,
agreement, written or oral, discussion, or negotiation not expressly contained
herein in entering into this Agreement or the Transaction Documents. Each party
hereby represents, acknowledges and agrees that, except as otherwise expressly
stated herein, this Agreement and the other Transaction Documents are
independent of, and not in any way conditioned on or to be construed with any
other agreement or arrangement, written or oral, between the parties including,
but not limited to, that certain non-binding letter of intent between the
parties dated as of the date hereof and the transactions contemplated thereby.
12.6 Counterparts. This Agreement may be signed in counterparts with the
same effect as if the signature on each counterpart were upon the same
instrument.
12.7 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. Upon such determination that
any term or other provision is invalid or unenforceable, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the greatest
extent possible.
[Signatures on following page]
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby,
have duly executed this Agreement as of the 7th day of July, 2004.
TRITON PCS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman & CEO
AT&T WIRELESS SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President, Business Development,
AT&T Wireless Services, Inc.
AT&T WIRELESS PCS LLC
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President, Business Development,
AT&T Wireless Services, Inc.
CINGULAR WIRELESS LLC
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President & CEO
The undersigned parties to the Cingular Roamer Agreements and the AWS
Roamer Agreements hereby consent and agree to the amendment of those agreements
in accordance with the Cingular Amendment Terms and the AWS Amendment Terms
pursuant to Section 2.1(a) and Section 2.3 of the foregoing Agreement and
subject to the terms and conditions set forth in such Agreement.
TRITON PCS OPERATING COMPANY L.L.C.
By: Triton Management Company, Inc., Its
Manager
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman & CEO
TRITON PCS LICENSE COMPANY L.L.C.
By: Triton Management Company, Inc., Its
Manager
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman & CEO
