EXHIBIT 10.29
ASSET PURCHASE AGREEMENT
between
AT&T WIRELESS PCS INC.
and
TRITON PCS HOLDINGS, INC.
Dated as of August 20, 1998
ASSET PURCHASE AGREEMENT
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ASSET PURCHASE AGREEMENT (the "Agreement"), dated as of August 20,
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1998, between AT&T WIRELESS PCS INC., a Delaware corporation ("AT&T PCS"), and
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TRITON PCS HOLDINGS, INC., a Delaware corporation (the "Company").
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WHEREAS, AT&T PCS has been granted the PCS License described on Schedule I
(the "PCS License");
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WHEREAS, AT&T PCS and Triton PCS Operating Company, L.L.C., a Delaware
limited liability company and Subsidiary (as hereinafter defined) of the Company
("Triton Operating Co."), have entered into a certain Construction and Operating
Agreement dated July 31, 1998 (the "Management Agreement") pursuant to which
Triton Operating Co. will manage and operate the System during the period prior
to Closing (as hereinafter defined);
WHEREAS, AT&T PCS wishes to sell to the Company, and the Company wishes to
acquire from AT&T PCS, the AT&T PCS Contributed License (as hereinafter defined)
and certain of the assets of AT&T PCS used in the operation of the System (as
hereinafter defined), all on the terms and subject to the conditions herein set
forth;
NOW, THEREFORE, in consideration of the promises and the mutual
representations, warranties, covenants, conditions and agreements hereinafter
set forth, the parties agree as follows:
ARTICLE I
DEFINITIONS
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For purposes of this Agreement:
"Affiliate" means, with respect to any Person, any other Person that
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directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with that Person. For purposes of this
definition, "control" (including the terms "controlling" and "controlled") means
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the power to direct or cause the direction of the management and policies of a
Person, directly or indirectly, whether through the ownership of securities or
partnership or other ownership interests, by contract or otherwise, provided
that the Company and Triton Operating Co. shall not be deemed to control AT&T
PCS by reason of the Management Agreement or otherwise.
"Assigned Agreements" has the meaning set forth in Section 2.1(d).
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"Assumed Liabilities" has the meaning set forth in Section 2.4.
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"AT&T PCS" has the meaning set forth in the preamble.
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"AT&T PCS Contributed License" has the meaning set forth in Section 2.1.
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"AT&T PCS Material Adverse Effect" means a material adverse effect on the
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AT&T PCS Contributed License or the Purchased Assets, taken as a whole, or on
the Transactions.
"AT&T PCS Retained License" has the meaning set forth in Section 2.1.
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"Business Day" means any day other than a Saturday, Sunday or a legal
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holiday in New York, New York or any other day on which commercial banks in New
York, New York are authorized by law or governmental decree to close.
"BTA" means the unit of division (of which there are four hundred ninety-
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three (493)) for the United States of America, devised by Rand XxXxxxx based
upon geography, population and other factors, which units form the basis for the
auction by the FCC of a portion of the Licenses for PCS Systems for Basic
Trading Areas, as defined by the FCC.
"Cash Purchase Price" has the meaning set forth in Section 2.3.
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"Claim" has the meaning set forth in Section 8.4.
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"Closing" has the meaning set forth in Section 3.1.
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"Closing Date" has the meaning set forth in Section 3.1.
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"Company" has the meaning set forth in the preamble.
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"Company Material Adverse Effect" means a material adverse effect on the
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business, financial condition, assets, liabilities or results of operations,
taken as a whole, of the Company or on the AT&T PCS Contributed License or the
Purchased Assets, taken as a whole, or on the Transactions.
"Company Plan" has the meaning set forth in Section 4.5(d).
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"Confidential Information" means any and all information regarding the
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business, finances, operations, products, services and customers of the Person
specified and its Affiliates, in written or oral form or in any other medium.
"Consents" means all consents and approvals of Governmental Authorities or
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other third parties necessary to authorize, approve or permit the parties hereto
to consummate the Transactions and for the Company to operate its business after
the Closing Date as currently contemplated.
"Continuing Employees" has the meaning set forth in Section 4.5(a).
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"Designated Purchaser" has the meaning set forth in Section 10.4.
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"Employee" has the meaning set forth in Section 4.5(a).
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"Environmental Law" means any of the following: the Resource Conservation
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Recovery Act, the Comprehensive Environmental Responsibility Compensation and
Liability Act, the Superfund Amendments and Reauthorization Act, the Toxic
Substances Control Act, the Hazardous Materials Transportation Act, the Clean
Air Act, the Clean Water Act, and other similar Federal and state and local
laws, as amended, together with all regulations issued or promulgated
thereunder, relating to pollution, the protection of the environment or the
health and safety of workers or the general public.
"Excluded Liabilities" has the meaning set forth in Section 2.4(a).
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"Excluded Periods" has the meaning set forth in Section 2.4(a).
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"FCC" means the Federal Communications Commission or similar regulatory
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authority established in replacement thereof.
"FCC Law" means the Communications Act of 1934, as amended, including as
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amended by the Telecommunications Act of 1996, and the rules, regulations and
policies promulgated thereunder.
"Final Order" has the meaning set forth in Section 7.1(b).
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"Governmental Authority" means a Federal, state or local court,
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legislature, governmental agency, commission or regulatory or administrative
authority or instrumentality.
"Hazardous Material" shall mean anything defined as a "hazardous
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substance," "hazardous material," "hazardous waste," "pollutant," "contaminant,"
"toxic substance" or other similar item in any Environmental Law.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
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1976, as amended, and the rules and regulations promulgated thereunder.
"Indemnified Party" has the meaning set forth in Section 8.4.
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"Indemnifying Party" has the meaning set forth in Section 8.4.
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"Independent Accountant" means Xxxxxx Xxxxxxxx LLP.
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"Law" means applicable common law and any statute, ordinance, code or
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other
law, rule, permit, permit condition, regulation, order, decree, technical or
other standard, requirement or procedure enacted, adopted, promulgated, applied
or followed by any Governmental Authority.
"License" means a license, permit, certificate of authority, waiver,
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approval, certificate of public convenience and necessity, registration or other
authorization, consent or clearance to construct or operate a facility,
including any emissions, discharges or releases therefrom, or to transact an
activity or business, to construct a tower or to use an asset or process, in
each case issued or granted by a Governmental Authority.
"License Transfer" has the meaning set forth in Section 3.2(a).
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"Lien" means, with respect to any asset, any mortgage, lien, pledge,
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charge, security interest, right of first refusal or right of others therein, or
encumbrance of any nature whatsoever in respect of such asset.
"Losses" has the meaning set forth in Section 8.2.
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"Management Agreement" has the meaning set forth in the recital
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clauses.
"Material Agreements" means those Assigned Agreements designated to be
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material on Exhibit 2.1(d) and as to which AT&T PCS shall be required to obtain
the consent of the other party thereto to the assignment of such Assigned
Agreement to the Company.
"MTA" means the unit of division (of which there are fifty-one (51))
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for the United States of America, devised by Rand XxXxxxx based upon geography,
population and other factors, which units form the basis for the auction by the
FCC of a portion of the Licenses for PCS Systems for Major Trading Areas, as
defined by the FCC.
"New York Courts" has the meaning set forth in Section 10.6.
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"Person" means an individual, corporation, partnership, limited
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liability company, association, joint stock company, Governmental Authority,
business trust, unincorporated organization, or other legal entity.
"PCS" means Personal Communications Services, which is the term to
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describe the services that may be provided as a result of obtaining the AT&T PCS
Contributed License under FCC Law.
"Potentially Rejected Sites" has the meaning set forth in Section
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7.2(g).
"Purchase Price" has the meaning set forth in Section 2.3.
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"Purchased Assets" means the assets described in Section 2.1.
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"Representatives" has the meaning set forth in Section 4.2(a).
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"Search Results" has the meaning set forth in Section 4.10.
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"Section 8.2 Indemnified Party" has the meaning set forth in
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Section 8.2.
"Section 8.3 Indemnified Party" has the meaning set forth in
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Section 8.3.
"Securities" means the shares of Series D Preferred Stock being issued
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hereunder, together with any shares of Common Stock of the Company issued upon
conversion of shares of Series D Preferred Stock.
"Securities Act" means the Securities Act of 1933, as amended.
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"Series D Preferred Stock" has the meaning set forth in Section 2.3.
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"Stockholders Agreement" means the Stockholders Agreement of the
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Company, dated as of February 4, 1998, as the same may be amended, modified or
supplemented in accordance with the terms thereof.
"Subsidiary" shall mean, with respect to any Person, a corporation or
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other entity of which 50% or more of the voting power or the voting equity
securities or equity interest is owned, directly or indirectly, by such Person.
"System" means the wireless PCS telecommunications system constructed
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by AT&T PCS in the Norfolk, Virginia BTA.
"System Cell Sites" has the meaning set forth in Section 4.11.
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"Third-Party Proposal" has the meaning set forth in Section 4.9.
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"Transactions" means the transactions contemplated by this Agreement.
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"Triton Operating Co." has the meaning set forth in the recital
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clauses.
When a reference is made in this Agreement to an Article or a Section, such
reference shall be to an Article or a Section of this Agreement unless otherwise
indicated. Unless the context otherwise requires, the terms defined hereunder
shall have the meanings therein specified for all purposes of this Agreement,
applicable to both the singular and plural forms of any of the terms defined
herein. Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation." The use of a
gender herein shall be deemed to include the neuter, masculine and feminine
genders whenever necessary or appropriate. Whenever the word "herein" or
"hereof" is used in this Agreement, it shall be deemed to refer to this
Agreement and not to a particular Section of this Agreement unless expressly
stated otherwise.
ARTICLE II
PURCHASE AND SALE OF ASSETS; PAYMENT OF CONSIDERATION;
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CERTAIN RESTRICTIONS ON TRANSFER
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2.1 Purchase and Sale of Purchased Assets. Upon the terms and subject to
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the conditions hereof and in reliance upon the representations, warranties,
covenants and agreements herein contained: (a) AT&T PCS shall partition and
disaggregate the PCS License to create, as more particularly described on
Exhibit 2.1, (i) a License (the "AT&T PCS Contributed License") providing in the
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aggregate the right to use 20 MHz of authorized frequencies to provide broadband
PCS services throughout the entirety of the Norfolk, Virginia BTA, and (ii) a
License (the "AT&T PCS Retained License") providing in the aggregate the right
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to use the balance of the authorized frequencies under the PCS License to
provide broadband PCS services throughout the entirety of the Norfolk-Richmond,
Virginia MTA (which right shall be exercised by AT&T PCS in accordance with the
Stockholders Agreement), and (b) at the Closing, AT&T PCS shall sell, transfer,
assign, convey and deliver to the Company (or one or more Designated
Purchasers), free and clear of all Liens (other than those arising under any of
the obligations being assumed by the Company pursuant to Section 2.4), and the
Company shall purchase, acquire and accept from AT&T PCS, the AT&T PCS
Contributed License. In addition to the AT&T PCS Contributed License, upon the
terms and subject to the conditions hereof and in reliance upon the
representations, warranties, covenants and agreements herein contained, at the
Closing, AT&T PCS shall sell, transfer, assign, convey and deliver to the
Company (or one or more Designated Purchasers), free and clear of all Liens
(other than Liens securing the Assumed Liabilities), and the Company shall
purchase, acquire and accept from AT&T PCS, the following assets of AT&T PCS
used in the operation of the System as the same exist at the Closing Date
(together with the AT&T PCS Contributed License, the "Purchased Assets"):
(a) the fixed assets of AT&T PCS listed on Exhibit 2.1(a) (consisting
of real property, buildings and improvements to real property, furniture,
furnishings, fixtures, leasehold improvements, office or other equipment,
vehicles, machinery and equipment, switches, cell site equipment, electrical
power units, antennas, transmission lines, microwave equipment, tools and
computer hardware and software listed on Exhibit 2.1(a)) or acquired after the
date hereof for use exclusively in the operation of the System;
(b) supplies of AT&T PCS held for use exclusively in the operation of
the System;
(c) all prepaid property taxes, prepaid rent, prepaid freight and
other prepaid
expenses, deposits and deferred charges of AT&T PCS relating to the operation of
the System;
(d) all rights and benefits under all leases, contracts and other
agreements listed on Exhibit 2.1(d) (the "Assigned Agreements") or entered into
after the date hereof and prior to the Closing Date in accordance with Section
4.3(c) or the Management Agreement;
(e) any operating data, books and records, customer and subscriber
lists and credit information, engineering data, drawings and advertising and
promotional materials, suppliers' lists, manuals, blueprints, employee payroll
and benefit records, economic, demographic and other studies and construction
reports relating exclusively to the System. AT&T PCS may make and retain, or
the Company will furnish to AT&T PCS, copies of such records as reasonably
required by AT&T PCS; and
(f) all other assets used by AT&T PCS exclusively in the business
relating to the System.
The Purchased Assets constitute all of the assets of AT&T PCS which are
used exclusively in the operation of the System and not used by AT&T PCS in any
other of its operations.
2.2 Excluded Assets. Notwithstanding anything to the contrary herein
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contained, there is hereby expressly excluded from the Purchased Assets the
following:
(a) all cash on hand or in banks;
(b) all trade accounts receivable, miscellaneous accounts receivable,
intercompany receivables, claims receivable and notes receivable, whether
relating to the System or otherwise;
(c) subject to the Network Membership License Agreement (as such term
is defined in the Stockholders Agreement), all patents, trade secrets,
inventions, trademarks, service marks, trade names, logos, slogans, copyrights
and mask works (including all registrations and applications for registration of
any of the foregoing), and all other intellectual property rights of any nature
whatsoever of AT&T PCS or its Affiliates, including without limitation any and
all rights to the name and xxxx "AT&T," any name or xxxx which incorporates
"AT&T" and any variations, derivations and combinations thereof, whether
relating to the System or otherwise;
(d) AT&T PCS's right to receive payment under the various Cost Sharing
Agreements between AT&T PCS and SprintCom, Inc. relating to co-location by
SprintCom, Inc. of communications equipment at the cell sites leased from the
Virginia Department of Transportation set forth on Exhibit 2.2(d).
(e) all assets of any kind or nature, whether tangible or intangible,
which are not specified herein or are used by AT&T PCS in any of its operations
other than the System; and
(f) the AT&T PCS Retained License.
2.3 Payment of Consideration. Upon the terms and subject to the
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conditions hereof and in reliance upon the representations, warranties,
covenants and agreements herein contained, at the Closing, in consideration of
the assignment of the Purchased Assets, the Company shall (i) pay to AT&T PCS by
wire transfer of immediately available funds the amount of Ninety One Million
Five Hundred Eighteen Thousand Six Hundred Fifty One ($91,518,651) Dollars (the
"Cash Purchase Price") (subject to adjustment pursuant to Section 2.4(b) and, in
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the event that the System Cell Sites shall not have been completed on or prior
to the Closing Date, Section 4.11), (ii) issue and deliver to AT&T PCS
134,813.49 shares of Series D Preferred Stock, par value $0.01 per share
("Series D Preferred Stock"), of the Company and (iii) assume the Assumed
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Liabilities in accordance with Section 2.4 (the Cash Purchase Price, the Series
D Preferred Stock and the assumption of the Assumed Liabilities are collectively
referred to herein as the "Purchase Price").
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2.4 Assumption of Obligations.
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(a) On and as of the Closing Date, the Company (or, if applicable, the
Company and any Designated Purchasers, jointly and severally) shall assume and
agree to discharge and perform, when due, the following liabilities and
obligations of AT&T PCS (collectively, the "Assumed Liabilities"): (i) those
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liabilities and obligations accruing, arising out of or relating to events or
occurrences on or after the date of execution of the Management Agreement under
the Assigned Agreements; and (ii) any and all obligations and liabilities
accruing, arising out of or relating to events or occurrences on or after the
date of execution of the Management Agreement relating to or arising out of the
ownership (after the Closing), use or operation of the System or any of the
Purchased Assets (other than those liabilities and obligations arising out of
(A) a breach by AT&T PCS of this Agreement or the Management Agreement or (B)
any negligence or willful misconduct by AT&T PCS on or after the date of
execution of the Management Agreement or (C) matters relating to the System for
which the Company does not have management responsibility under the Management
Agreement (e.g. employee benefit plans for the System's employees)); provided
that if during any period prior to Closing the Management Agreement is not in
effect (each, an "Excluded Period"), the Assumed Liabilities shall not include
items described in clauses (i) and (ii) above that accrue, arise out of or
relate to events or occurrences during the Excluded Periods. Except for the
Assumed Liabilities, neither the Company nor any of its Affiliates shall assume
or in any way undertake to pay, perform, satisfy or discharge any liabilities
and obligations of AT&T PCS, and AT&T PCS agrees to pay and satisfy when due any
liabilities and obligations relating to or arising out of the ownership, use or
operation of the System or any of the Purchased Assets other than the Assumed
Liabilities (collectively, the "Excluded Liabilities").
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(b) All payments made by AT&T PCS, and all obligations arising, under
the
Assigned Agreements shall be prorated as of the Closing Date, and the amounts
thereof allocable or attributable to periods ending prior to the Closing Date
shall be for the account of AT&T PCS and amounts thereof allocable or
attributable to periods commencing on and after the Closing Date shall be for
the account of the Company. For purposes of this Section 2.4(b), AT&T PCS and
the Company agree that amounts expended by AT&T PCS pursuant to Assigned
Agreements with (x) the Virginia Department of Transportation and (y) the
Commonwealth of Virginia, in each case in respect of construction and other
related costs that are credited against AT&T PCS's rental obligations for
periods on or after the Closing Date under leases entered into or to be entered
into pursuant to such Assigned Agreements, shall constitute payments made by
AT&T PCS that are subject to proration pursuant to this Section 2.4(b); provided
that such obligation of the Company to reimburse AT&T PCS in respect of amounts
allocable to periods after the Closing Date pursuant to Assigned Agreements with
the Virginia Department of Transportation shall not exceed $2,600,000. A
preliminary schedule of all adjustments pursuant to this Section 2.4(b) shall be
prepared by AT&T PCS and delivered to the Company at least ten (10) Business
Days prior to the Closing Date. The Company and its representatives will be
provided with supporting documentation used in the preparation thereof by AT&T
PCS. The Company shall have a period of five (5) Business Days to review such
preliminary schedule and supporting documentation and provide AT&T PCS with
written notice of any objections or corrections thereto that the Company may
have. An initial adjustment to the Cash Purchase Price based upon the aggregate
amount of undisputed adjustments on the preliminary schedule shall be made at
the Closing. A final schedule of such adjustments (including the disputed
adjustments) shall be prepared jointly by the Company and AT&T PCS on or prior
to the twentieth (20/th/) Business Day following the Closing Date. In the
absence of mutual agreement regarding such final schedule within such twenty
(20) day period, the parties shall engage the Independent Accountant to
determine the amount of the adjustment to be made pursuant to this Section
2.4(b). The determination of the Independent Accountant shall be final, binding
and conclusive on the parties hereto, and the fees and expenses of the
Independent Accountant shall be borne equally by the parties. A final adjustment
to the Cash Purchase Price based upon such final schedule and payment of the net
amount thereof to which AT&T PCS or the Company shall be entitled under this
Section 2.4(b) shall be made on the twentieth (20/th/) Business Day following
the Closing Date, or upon the determination of the Independent Accountant, as
the case may be. In connection with the final calculation of any such
adjustment, each party shall give to the other party and its agents and
representatives (including its independent auditors and attorneys) and the
Independent Accountant, reasonable access, during normal business hours and upon
reasonable notice, to the records, books, contracts and documents reasonably
requested by such other party or the Independent Accountant for such purpose,
furnish such other party and the Independent Accountant, with all such
information as such other party or the Independent Accountant may reasonably
request for such purpose and cause its appropriate officers, employees,
consultants, agents, accountants and attorneys to cooperate with such attorneys
and representatives and the Independent Accountant in connection therewith.
2.5 No Expansion of Third-Party Rights. The assumption by the Company
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(or, if applicable, the Company and any Designated Purchasers) of the Assumed
Liabilities, and the
transfer thereof by AT&T PCS to the Company, shall in no way expand the rights
or remedies of any third party against the Company (and, if applicable, such
Designated Purchasers) as compared to the rights and remedies that such third
party would have had against AT&T PCS had the Company (and, if applicable, such
Designated Purchasers) not assumed the Assumed Liabilities. Without limiting the
generality of the preceding sentence, the assumption by the Company (and, if
applicable, such Designated Purchasers) of the Assumed Liabilities shall not
create any third-party beneficiary rights.
2.6 Payment of Certain Expenses. The Company agrees, in the event
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the Transactions are consummated, to pay, and save AT&T PCS harmless against,
the reasonable and documented fees and disbursements of AT&T PCS's counsel, up
to a maximum of $50,000 in the aggregate, in connection with (i) the
preparation, negotiation, execution and delivery of this Agreement, the
instruments and documents executed pursuant hereto or in connection herewith,
and (ii) the consummation of the Transactions, including, without limitation,
all legal fees and related expenses incurred in connection with the preparation
and filing of applications on Form 490 with the FCC necessary to effect the
License Transfer.
2.7 Restrictive Legends. Each certificate representing Securities
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(including the Securities originally issued hereunder or delivered upon
conversion of the Series D Preferred Stock, or delivered in substitution or
exchange for any of the foregoing) will bear a legend reading substantially as
follows until such Securities have been sold pursuant to an effective
registration statement under the Securities Act, Rule 144 under the Securities
Act, or an opinion of counsel reasonably satisfactory in form and substance to
the Company and otherwise in full compliance with any other applicable
restrictions on transfer, including those contained in this Agreement and the
Stockholders Agreement:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE 'ACT'), OR UNDER ANY STATE SECURITIES OR 'BLUE SKY' LAWS. SAID
SECURITIES MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF, UNLESS AND UNTIL REGISTERED UNDER THE ACT AND THE RULES
AND REGULATIONS THEREUNDER AND ALL APPLICABLE STATE SECURITIES OR 'BLUE SKY'
LAWS OR EXEMPTED THEREFROM UNDER THE ACT AND ALL APPLICABLE STATE SECURITIES OR
'BLUE SKY' LAWS."
2.8 Allocation of Purchase Price. On or prior to the Closing Date, the
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Company and AT&T PCS shall mutually agree upon the allocation of the Purchase
Price among the Purchased Assets. The parties agree that such allocation shall
be made based upon the relative fair market values of the Purchased Assets as of
the Closing Date. In the absence of mutual agreement within such period, the
parties shall submit promptly the determination of such allocation to
Independent Accountant who will be engaged by the parties to allocate the
Purchase Price among the Purchased Assets based upon their relative fair market
values as of the Closing Date. The
determination of the Independent Accountant shall be final, binding and
conclusive on the parties hereto, and the fees and expenses of the Independent
Accountant shall be borne equally by the parties. The Company and AT&T PCS agree
to file all tax returns and reports, including Internal Revenue Service Form
8594, in accordance with such allocation and not to take any position
inconsistent therewith unless required to do so pursuant to a "determination" as
such term is defined in Section 1313 of the Code.
ARTICLE III
CLOSING
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3.1 Time and Place of Closing. Upon the terms and subject to the
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conditions hereof, the closing of the Transactions (the "Closing") shall take
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place at the offices of Xxxxx Xxxx Xxxxx Constant & Xxxxxxxx, 00 Xxxxxxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 a.m. local time on the twelfth Business Day
following the date of receipt of the last Consent required by subsections (a)
through (c) of Section 7.1, or at such other place and/or time and/or on such
other date as the parties may agree or as may be necessary to permit the
fulfillment or waiver of the conditions set forth in Article VII (the "Closing
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Date"). The Closing shall be deemed to have occurred as of 12:01 a.m. on the
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Closing Date.
3.2 Closing Actions and Deliveries. Upon the terms and subject to
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the satisfaction or waiver by the appropriate party, if applicable, of the
conditions set forth in Article VII, to effect the purchase and sale of the
Purchased Assets and the issuance of the Securities in consideration therefor,
the parties shall on the Closing Date take the following actions:
(a) Assignment of License. AT&T PCS shall execute and deliver to the
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Company one or more instruments of assignment, substantially in the form of
Exhibit 3.2(a), sufficient to assign to the Company (or any Designated
Purchasers) the AT&T PCS Contributed License (such assignment being herein
referred to as the "License Transfer").
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(b) Assignment of Purchased Assets. AT&T PCS shall execute and
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deliver to the Company one or more bills of sale or instruments of assignment,
substantially in the form of Exhibit 3.2(b), sufficient to assign to the Company
(or any Designated Purchasers) the Purchased Assets.
(c) Delivery of Cash Purchase Price. The Company shall deliver to
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AT&T PCS the Cash Purchase Price, as adjusted in accordance with Sections 2.4(b)
and 4.11, by wire transfer of immediately available funds.
(d) Delivery of Series D Preferred Stock. The Company shall deliver
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to AT&T PCS stock certificates, duly executed by authorized signatories of the
Company, representing the shares of Series D Preferred Stock to be issued to
AT&T PCS in accordance with the terms of Section 2.3.
(e) Assumption of Obligations. The Company shall execute and deliver
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to AT&T PCS an instrument of assumption, substantially in the form of Exhibit
3.2(e), in respect of the obligations to be assumed by the Company pursuant to
Section 2.4(a).
(f) Other Deliveries.
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(i) AT&T PCS shall execute and deliver or cause to be executed
and delivered to the Company the following additional documents:
(A) original or copies of all Assigned Agreements to the
extent not previously provided to the Company;
(B) the opinion of Xxxxx Xxxx Xxxxx Constant & Xxxxxxxx,
dated the Closing Date, addressed to the Company (and its lenders, if
applicable) and substantially in the form of Exhibit 3.2(f)(i)(B);
(C) the opinion of Young & Jatlow, dated the Closing Date,
addressed to the Company (and its lenders, if applicable) and substantially in
the form of Exhibit 3.2(f)(i)(C);
(D) a certificate of an officer of AT&T PCS, dated the
Closing Date, certifying as to the fulfillment of the conditions set forth in
Sections 7.2(a) and 7.2(b) and that all of the conditions precedent to the
obligations of AT&T PCS hereunder have been waived by AT&T PCS or satisfied;
(E) a certificate of an officer of AT&T PCS, dated the
Closing Date, certifying as to (I) the resolutions adopted by AT&T PCS duly
authorizing the execution, delivery and performance of this Agreement by AT&T
PCS and the execution and delivery by AT&T PCS of all instruments and documents
contemplated hereby and (II) the signatures of the Persons who have been
authorized to execute and deliver this Agreement on behalf of AT&T PCS and any
other agreement executed or to be executed in connection herewith;
(F) A good standing certificate of AT&T PCS from the
Secretary of State of Delaware, dated no earlier than 30 days prior to the
Closing;
(G) The Search Results, as set forth in Section 4.10,
together with all releases, satisfaction pieces and UCC-3 Termination Statements
required to release the Liens on the Purchased Assets shown in the Search
Results (other than Liens securing the Assumed Liabilities).
(H) updated versions of Exhibits 2.1(a) and 2.1(d)
reflecting all acquisitions of Purchased Assets by AT&T PCS since the date
hereof;
(I) all required consents to the assignments of the
Material Agreements (containing, with respect to the real property leases
included in the Material Agreements, appropriate estoppel representations in
form and substance reasonably satisfactory to the Company); and
(J) all such other documents and instruments as the Company
or its counsel may reasonably request in order to consummate the Transactions.
(ii) The Company shall execute and deliver or cause to be
executed and delivered to AT&T PCS the following additional documents:
(A) the opinion of Xxxxxxxxx, Xxxx & Xxxxxxx LLP, dated the
Closing Date, addressed to AT&T PCS and substantially in the form of Exhibit
3.2(f)(ii)(A);
(B) the opinion of Xxxxxx & Xxxxxxx, dated the Closing
Date, addressed to AT&T PCS and substantially in the form of Exhibit
3.2(f)(ii)(B);
(C) a certificate of an officer of the Company, dated the
Closing Date, certifying as to the fulfillment of the conditions set forth in
Sections 7.3(a) and 7.3(b) and that all of the conditions precedent to the
obligations of the Company hereunder have been waived by the Company or
satisfied;
(D) a certificate of an officer of the Company, dated the
Closing Date, certifying as to (I) the resolutions adopted by the Company duly
authorizing the execution, delivery and performance of this Agreement by the
Company and the execution and delivery by the Company of all instruments and
documents contemplated hereby and (II) the signatures of the Persons who have
been authorized to execute and deliver this Agreement on behalf of the Company
and any other agreement executed or to be executed in connection herewith;
(E) A good standing certificate of the Company from the
Secretary of State of Delaware, dated no earlier than 30 days prior to the
Closing; and
(F) all such other documents and instruments as AT&T PCS or
its counsel may reasonably request in order to consummate the Transactions.
3.3 Closing Costs; Taxes and Fees. The Company shall pay or cause to
-----------------------------
be paid at the Closing or, if due prior to the Closing or thereafter, promptly
when due: (i) all gross receipts taxes, transfer taxes, sales taxes, stamp
taxes, and any other taxes, but excluding any Federal, State or local income
taxes payable in connection with the transfer of the Purchased Assets; and (ii)
one fee under the HSR Act relating to the Transactions hereunder. AT&T PCS
shall pay or cause to be paid at the Closing, or if due prior to the closing or
thereafter, promptly when due, any additional fee under the HSR Act that may be
required to consummate the Transactions.
ARTICLE IV
COVENANTS
---------
4.1 Consummation of Transactions. Each party shall use all
----------------------------
commercially reasonable efforts to take, or cause to be taken, all actions, and
to do, or cause to be done, all things necessary, proper or advisable and
consistent with applicable law to carry out all of their respective obligations
under this Agreement to consummate the Transactions, which efforts shall include
the following:
(a) The parties shall use all commercially reasonable efforts to cause
the Closing to occur and the Transactions to be consummated in accordance with
the terms hereof, and, without limiting the generality of the foregoing, to
obtain all necessary Consents including the approval of this Agreement and the
Transactions by all Governmental Authorities and agencies, including the FCC,
and to make all filings with and to give all notices to third parties which may
be necessary or reasonably required in order for the parties to consummate the
Transactions.
(b) Each party shall furnish to the other party all information
concerning such party and its Affiliates reasonably required for inclusion in
any application or filing to be made by AT&T PCS or the Company or any other
party in connection with the Transactions or otherwise to comply with applicable
FCC Law.
(c) Upon the request of the other party, each party shall forthwith
execute and deliver, or cause to be executed and delivered, such further
instruments of assignment, transfer, conveyance, endorsement, direction or
authorization and other documents as may reasonably be requested by such party
in order to effectuate the purposes of this Agreement.
(d) Each party covenants and agrees from and after the execution and
delivery of this Agreement to and including the Closing Date as follows:
(i) It is understood that the Closing is subject to prior approval of
the FCC and may be subject to the prior approval of one or more state regulatory
commissions. The parties shall use their best efforts to file with the FCC and
any relevant state agency or agencies, as soon as practicable following the date
hereof and in no event later than ten (10) Business Days from the date hereof, a
joint application requesting the approval of the transfer of the Purchased
Assets to the Company, or its designee. Each of the parties hereto shall
diligently take or cooperate in the taking of all steps which are necessary or
appropriate to expedite the prosecution and favorable consideration of such
applications. The parties covenant and agree to undertake all actions
reasonably requested by the FCC or other regulatory authority and to file such
material as shall be necessary or required to obtain any necessary waivers or
other authority from the FCC or such state agency or agencies in connection with
the foregoing applications.
(ii) Within fifteen (15) Business Days of the date of execution
hereof, the parties shall file, or cause to be filed, with the Federal Trade
Commission and the Antitrust Division of the Department of Justice any and all
reports or notifications which are required to be filed under the HSR Act or
other Law.
4.2 Confidentiality.
---------------
(a) Each party shall, and shall cause each of its Affiliates, and its
and their respective shareholders, members, managers, directors, officers,
employees and agents (collectively, "Representatives") to, keep secret and
---------------
retain in strictest confidence any and all Confidential Information relating to
any other party that it receives in connection with the negotiation or
performance of this Agreement, and shall not disclose such Confidential
Information, and shall cause its Representatives not to disclose such
Confidential Information, to anyone except the receiving party's Affiliates and
Representatives and any other Person that agrees in writing to keep in
confidence all Confidential Information in accordance with the terms of this
Section 4.2. Until the Closing, each party agrees to use Confidential
Information received from another party only to pursue such Transactions, but
not for any other purpose. All tangible embodiments of Confidential Information
furnished pursuant to this Agreement shall be returned promptly to the party to
whom it belongs upon request by such party.
(b) The obligations set forth in Section 4.2(a) shall be inoperative
with respect to Confidential Information that (i) is or becomes generally
available to the public other than as a result of disclosure by the receiving
party or its Representatives, (ii) was available to the receiving party on a
non-confidential basis prior to its disclosure to the receiving party, or (iii)
becomes available to the receiving party on a non-confidential basis from a
source other than the providing party or its agents, provided, that such source
is not known by the receiving party to be bound by a confidentiality agreement
with the providing party or the providing party's agents. In addition, from and
after the Closing the obligations set forth in Section 4.2(a) shall not apply to
the Company with respect to Confidential Information relating to the System or
the Purchased Assets.
(c) To the fullest extent permitted by law, if a party or any of its
Affiliates or Representatives breaches, or threatens to commit a breach of, this
Section 4.2, the party whose Confidential Information shall be disclosed, or
threatened to be disclosed, shall have the right and remedy to have this Section
4.2 specifically enforced by any court having jurisdiction, it being
acknowledged and agreed that money damages will not provide an adequate remedy
to such party. Nothing in this Section 4.2 shall be construed to limit the
right of any party to collect money damages in the event of breach of this
Section 4.2.
(d) Anything else in this Agreement notwithstanding, each party shall
have the right to disclose any information, including Confidential Information
of the other party or such other party's Affiliates: (i) to the other party and
its Affiliates or Representatives; (ii) as otherwise required by Law, including
securities laws; provided, that any such disclosure shall be
as limited in scope as possible and shall be made only after giving the other
party as much notice as practicable of such required disclosure and an
opportunity to contest such disclosure if possible; (iii) as required by its
existing or potential lending sources (such lending sources to acknowledge that
any such Confidential Information disclosed to them is subject to the provisions
hereof); (iv) as required to enforce its rights under this Agreement; or (v) as
required to obtain the Consents specified in Sections 7.1(a) through (c).
4.3 Covenants of AT&T PCS. From and after the execution and delivery
---------------------
of this Agreement to and including the Closing Date, AT&T PCS shall:
(a) Comply with all applicable Laws relating to the PCS License and
the Purchased Assets or their use except to the extent that such failure to
comply would not have an AT&T PCS Material Adverse Effect;
(b) Use its reasonable best efforts to maintain the PCS License in
full force and effect;
(c) Without the Company's prior written consent, such consent not to
be unreasonably withheld, delayed or conditioned, not (i) sell, transfer, assign
or dispose of, or offer to, or enter into any agreement, arrangement or
understanding to, sell, transfer, assign or dispose of any of the Purchased
Assets or any interest therein, or negotiate therefor, or (ii) create, incur or
suffer to exist any Lien of any nature whatsoever relating to any of the
Purchased Assets or any interest therein (other than Liens securing the Assumed
Liabilities or Liens which will be terminated and released prior to Closing);
or (iii) enter into any contract or agreement relating exclusively to the
Purchased Assets or the System (it being understood that any such agreement
entered into between the date hereof and the Closing Date with the Company's
prior written consent shall constitute an Assigned Agreement) other than those
which are terminable by AT&T PCS without penalty or any liability at the
Closing;
(d) Give to the Company and its agents and representatives (including
its independent auditors and attorneys) reasonable access (such access not to
interfere unreasonably with the operation of the System or with any other
operations of AT&T PCS) during normal business hours and upon reasonable notice,
to the Purchased Assets and the employees of the System, and to records, books,
contracts and documents relating to the Purchased Assets or the System, furnish
the Company with all such information concerning the Purchased Assets or the
System as the Company may reasonably request and cause the appropriate officers,
employees, consultants, agents, accountants and attorneys of AT&T PCS to
cooperate with such attorneys and representatives in connection with such review
and examination;
(e) Deliver to the Company copies of all environmental assessment
reports, if any, it has in its possession covering any real property at or on
which any of the Purchased Assets is located or that is leased pursuant to an
Assigned Agreement;
(f) AT&T PCS shall use commercially reasonable efforts to preserve the
Purchased Assets intact and, from time to time, to make all reasonably necessary
repairs thereto;
(g) Give written notice to the Company promptly upon the commencement
of, or upon obtaining knowledge of any facts that would give rise to a threat
of, any claim, action or proceeding commenced against or relating to (other than
proceedings affecting the PCS or wireless communications services industry
generally) the Purchased Assets or their use, and which would reasonably be
expected to have an AT&T PCS Material Adverse Effect;
(h) Promptly after obtaining knowledge of the occurrence of, or the
impending or threatened occurrence of, any event which would cause or constitute
a material breach of any of its warranties, representations, covenants or
agreements contained in this Agreement, or which would reasonably be expected to
have an AT&T PCS Material Adverse Effect, give notice in writing of such event
or occurrence or impending or threatened event or occurrence (provided, that
such disclosure shall not be deemed to cure any violation or breach of any such
representation, warranty, covenant, agreement or provision), to the Company and
use commercially reasonable efforts to prevent or to promptly remedy such
breach;
(i) Cause the Company to be advised promptly in writing of (i) any
event, condition or state of facts known to it, which has had or would
reasonably be expected to have an AT&T PCS Material Adverse Effect, or
materially adversely affect the Purchased Assets (taken as a whole) or their use
(other than proceedings affecting the PCS or wireless communications services
industry generally), (ii) any claim, action or proceeding which seeks to enjoin
the consummation of the Transactions and (iii) any event, occurrence,
transaction or other item that would have been required to have been disclosed
on any Exhibit or Schedule delivered hereunder, had such event, occurrence,
transaction or item existed on the date hereof;
(j) Conduct the business of the System only in the ordinary course and
in this regard use its diligent efforts to preserve the Purchased Assets intact;
(k) use commercially reasonable efforts to preserve its relationships
with all parties to the Assigned Agreements and to perform in all material
respects all of its obligations under the Assigned Agreements according to the
terms and conditions thereof (it being understood and agreed by the parties that
AT&T PCS, in accordance with the Management Agreement, is seeking to amend the
terms of the Assigned Agreements with the Virginia Department of Transportation
to, among other things, increase the amount of rent credits to which AT&T PCS is
entitled thereunder);
(l) maintain true, correct and complete books and records relating to
the System; and
(m) not fail to pay when due any liability or obligations that, if
unpaid, would become a Lien upon any of the Purchased Assets.
4.4 Covenants of the Company. From and after the execution and
------------------------
delivery of this Agreement to and including the Closing Date, the Company shall:
(a) Comply with all applicable Laws, including all such Laws relating
to the PCS License and the Purchased Assets or their use except to the extent
that such failure to comply would not have a Company Material Adverse Effect;
(b) Comply with the terms of the Stockholders Agreement;
(c) Give written notice to AT&T PCS promptly upon the commencement of,
or upon obtaining knowledge of any facts that would give rise to a threat of,
any claim, action or proceeding commenced against or relating to (other than
proceedings affecting the PCS or wireless communications services industry
generally) it, its properties or assets, and which would reasonably be expected
to have a Company Material Adverse Effect;
(d) Promptly after obtaining knowledge of the occurrence of, or the
impending or threatened occurrence of, any event which would cause or constitute
a material breach of any of its warranties, representations, covenants or
agreements contained in this Agreement or which would reasonably be expected to
have a Company Material Adverse Effect, give notice in writing of such event or
occurrence or impending or threatened event or occurrence (provided, that such
disclosure shall not be deemed to cure any violation or breach of any such
representation, warranty, covenant, agreement or provision), to AT&T PCS and use
commercially reasonable efforts to prevent or to promptly remedy such breach;
and
(e) Cause AT&T PCS to be advised promptly in writing of (i) any event,
condition or state of facts known to it, which has had or would reasonably be
expected to have a Company Material Adverse Effect (other than proceedings
affecting the PCS or wireless communications services industry generally), (ii)
any claim, action or proceeding which seeks to enjoin the consummation of the
Transactions and (iii) any event, occurrence, transaction or other item that
would have been required to have been disclosed on any Exhibit or Schedule
delivered hereunder, had such event, occurrence, transaction or item existed on
the date hereof.
4.5 Employees.
---------
(a) Except as set forth on Exhibit 4.5 or as otherwise agreed by the
Company and AT&T PCS, on or before thirty (30) days prior to the Closing Date,
the Company shall offer each of the employees of AT&T PCS rendering services
exclusively to the System employment with the Company after the Closing Date on
terms consistent with the Company's standard policies (each such employee other
than any person that the Company and AT&T PCS agrees shall not be so offered
employment by the Company, an "Employee"). Notwithstanding the foregoing, the
Company shall offer each Employee comparable employment, whereby the
Employee's duties and responsibilities are not significantly reduced, the
Employee's base pay is not reduced by more than 10%, and the Employee is not
transferred to a new facility located more than 50 miles from such Employee's
current work site, except that the Company shall, as a condition of such offer
of employment, be permitted to require any Employee to relocate to the Richmond,
Virginia area. Upon reasonable notice, AT&T PCS shall provide the Company with
access to the Employees during normal business hours throughout the period from
the date hereof through the Closing Date, for the purpose of interviewing such
employees, negotiating with the Employees regarding their salary and other terms
of employment, and providing transition training for those employees continuing
in employment after the Closing Date ("Continuing Employees"). AT&T PCS agrees
to use all reasonable efforts to assist the Company in employing the Employees
and, in this regard, to terminate the Employees on or prior to the Closing Date.
Upon such termination, AT&T PCS shall pay each Employee all amounts due and
owing such Employee in respect of salary or benefits (including severance
benefits, if any) relating to the Employee's employment by AT&T PCS. AT&T PCS
waives any claims against the Company or any Employee arising from such
employment of the Continuing Employees of the Company (including arising from
any employment agreement or noncompetition agreement). Nothing contained in this
Agreement shall confer upon any Employee any right with respect to continued
employment by AT&T PCS or the Company. No provision of this Agreement shall
create any third-party rights in any Employee, or any beneficiary or dependent
thereof, with respect to the compensation, terms and conditions of employment
and benefits that may be provided to such Employee by the Company or under any
employee benefit plan that the Company may maintain.
(b) All expenses covered under any medical, dental, vision,
prescription drug, disability, travel accident, accidental death and
dismemberment, and life insurance plans of the Company and which are incurred by
Continuing Employees and their dependents on or after the Closing Date,
including any expenses attributable to facts or conditions existing on or before
the Closing Date, are the responsibility of the Company and shall be paid
directly by the Company or its insurance carrier to such Continuing Employees
and dependents. The Company shall be responsible for any medical, dental or
life insurance coverage under the terms of the Company's plans (if any) due to
any Continuing Employees and their dependents who retire after the Closing Date.
The Company shall fulfill the obligations under continuation coverage rules of
the Consolidation Omnibus Budget Reconciliation Act (COBRA) with respect to a
"qualifying event" within the meaning of Section 4980B(f) of the Internal
Revenue Code of 1986, as amended (the "Code") or Section 603 of the Employee
Retirement Income Security Act of 1974, as amended, occurring on or after the
Closing Date with respect to any Continuing Employees and their dependents. All
short-term, long-term and extended disability benefits under the terms of the
Company's plans (if any) payable to Continuing Employees and their dependents
who become disabled on or after the Closing Date shall be the responsibility of
the Company and shall be paid directly by the Company or its insurance carrier
to such Continuing Employees and their dependents.
(c) Effective as of the Closing Date, the Company shall (to the extent
permitted under the provisions of the Company's group health plan) cause all
Continuing Employees and their dependents to be eligible to participate in a
group health plan and shall waive any minimum eligibility period of employment
for coverage and any preexisting condition requirement and provide credit
towards the payment of any deductible for any Continuing Employees and their
dependents with respect to such plan.
(d) As soon as practicable after the Closing Date, the Company shall
(to the extent permitted under the Company Plan) cause each Continuing Employee
to be eligible to participate in a defined contribution plan qualified under
Code Section 401(a) and 401(k) (the "Company Plan"). The Company shall (to the
extent permitted under the Company Plan) cause each Continuing Employee to be
granted credit for service with AT&T PCS or any affiliate thereof for purposes
of eligibility and vesting in the Company Plan.
(e) An amount in cash equal to the aggregate value of account balances
in the AT&T Wireless Service 401(k) Retirement Plan attributable to Continuing
Employees, which account balances shall include any employer matching
contributions in respect of employee contributions made prior to the Closing
Date and shall be valued, to the extent administratively feasible, so as to
include earnings and losses to a date not more than 30 days prior to the date of
transfer, will (to the extent permitted under the Company Plan) be transferred
to the Company's Plan, along with corresponding liabilities to pay benefits.
After the aforesaid transfer of account balances, the payment of benefits under
the Company Plan for Continuing Employees shall be the sole responsibility of
the Company, and the Company acknowledges and warrants that AT&T PCS and its
affiliates shall have no responsibility therefor.
4.6 Bulk Sales. Each of the parties hereto waives the obligation of
----------
the other party under the provisions of any "Bulk Sales" laws of the Uniform
Commercial Code as in effect in any state having jurisdiction over AT&T PCS or
the Transactions.
4.7 Assignment of Assigned Agreements. To the extent that any of the
---------------------------------
Assigned Agreements being assigned pursuant hereto is not assignable without the
consent of another Person and such Consent has not been obtained on or prior to
the Closing Date, this Agreement shall not constitute an assignment or attempted
assignment of such Assigned Agreement if such assignment or attempted assignment
would constitute a breach thereof. AT&T PCS agrees to use commercially
reasonable efforts to obtain (i) the Consent of such other Person to an
assignment in all cases in which Consent is required or (ii) novation agreements
to Assigned Agreements not so assignable. If such Consent or novation is not
obtained, AT&T PCS agrees to cooperate with the Company to provide for the
Company, to the extent permitted under the terms of such Assigned Agreement, the
benefits under such Assigned Agreement, including enforcement of any and all
rights of AT&T PCS against the other Person that is a party thereto arising out
of the cancellation by such other Person or otherwise.
4.8 Title; Risk of Loss. Legal title and risk of loss with respect
-------------------
to the Purchased Assets shall not pass to the Company until the Purchased Assets
are transferred at Closing.
4.9 Non-Solicitation.
----------------
(a) From the date hereof until the Closing Date, AT&T PCS (and any of
AT&T PCS's officers, directors, partners, employees, representatives or agents)
will not solicit, initiate, encourage or participate in negotiations in any
manner with respect to, or furnish or cause or permit to be furnished any
information to any Person (other than to the Company or the Company's
representatives) in connection with, any inquiry or offer for any purchase or
sale of any Purchased Asset or the System (collectively, a "Third-Party
-----------
Proposal"). During such period, AT&T PCS shall promptly inform the Company of
the occurrence of a Third-Party Proposal and the terms thereof (including the
identity of the prospective soliciting party).
(b) If AT&T PCS (or any of AT&T PCS's officers, directors, partners,
employees, representatives or agents) breaches or threatens to commit a breach
of any of the provisions of this section, the Company shall have the right (in
addition to any other rights and remedies available to the Company at law or in
equity) to equitable relief (including injunctions) against such breach or
threatened breach, it being acknowledged and agreed that any such breach or
threatened breach will cause irreparable harm to the Company and that money
damages would not be an adequate remedy to the Company. AT&T PCS agrees that it
will not seek, and hereby waives any requirement for, the securing or posting of
a bond or proving actual damages in connection with the Company's seeking or
obtaining such relief.
4.10 Lien Searches. At least ten (10) days prior to the Closing,
-------------
AT&T PCS shall deliver to the Company Uniform Commercial Code, federal tax lien,
bankruptcy and judgment search reports issued by the Offices of the Secretary of
State of all applicable jurisdictions and all applicable local offices with
respect to the System and the Purchased Assets (the "Search Results"). If the
--------------
Search Results reveal that any Liens on the Purchased Assets exist (other than
Liens securing the Assumed Liabilities), AT&T PCS shall use commercially
reasonable efforts to have such Liens removed as of the Closing.
4.11 Completion of Construction. AT&T PCS has advised the Company
--------------------------
that it intends to construct 108 cell sites as described on Exhibit 4.11 (the
"System Cell Sites"). Such Exhibit 4.11 sets forth that portion of the
------------------
construction of the System Cell Sites that has not been completed as of the date
of the Management Agreement and the budgeted cost of such completion. Subject
to the Management Agreement, AT&T PCS covenants and agrees to use its
commercially reasonable efforts to complete such construction on or prior to the
Closing Date; provided, that (i) AT&T PCS shall not be obligated to complete
such construction (it being understood and agreed by the Company that the
completion of such construction shall not be a condition to Closing hereunder),
and (ii) except as set forth in the next succeeding sentence, the Company shall
have no rights of any nature whatsoever against AT&T PCS arising from any
failure on the part of AT&T PCS to complete such construction. In the event
that AT&T PCS has not completed such construction on or prior to the Closing
Date, the Company shall receive at the Closing a credit against the Cash
Purchase Price in respect of each item not completed in
an amount equal to the budgeted cost for such item on Exhibit 4.11. In the event
that the Management Agreement shall have been terminated, at least ten (10)
Business Days prior to the Closing Date, AT&T PCS shall deliver to the Company a
certificate, signed by an authorized representative, setting forth the status of
such construction and with respect to any portion of such construction that has
not been completed, the corresponding amount by which the Cash Purchase Price
shall be reduced. The Company shall have a period of five (5) Business Days to
review such certificate and provide AT&T PCS with written notice of any
objections or corrections thereto that the Company may have. An initial
adjustment to the Cash Purchase Price based upon the undisputed items shown on
such certificate shall be made at Closing. To the extent that disputed items
exist, a final adjustment to the Cash Purchase Price shall be determined jointly
by the Company and AT&T PCS on or prior to the twentieth (20/th/) Business Day
following the Closing Date. In the absence of mutual agreement regarding such
final adjustment within such twenty (20) day period, the parties shall engage
the Independent Accountant to determine the amount of the adjustment to be made
pursuant to this Section 4.11. The determination of the Independent Accountant
shall be final, binding and conclusive on the parties hereto, and the fees and
expenses of the Independent Accountant shall be borne equally by the parties.
Notwithstanding anything to the contrary contained herein, in the event that the
Management Agreement shall be in effect on the Closing Date, AT&T PCS shall have
no obligation to credit against the Cash Purchase Price any such cost of
construction that has not been completed on or prior to the Closing Date; it
being understood that in such event nothing contained herein shall affect the
obligations of AT&T PCS to the Company pursuant to the Management Agreement with
respect to such cost of completion of such construction.
4.12 FCC Construction Requirement. The Company and AT&T PCS hereby
----------------------------
agree that the Company shall assume and be obligated to satisfy the construction
requirements set forth in 47 C.F.R. 24.203 with respect to the AT&T PCS Retained
License and the AT&T PCS Contributed License.
4.13 Environmental Due Diligence. The Company shall have conducted
---------------------------
an environmental due diligence investigation of the Purchased Assets and the
System, the results of which investigation shall be reasonably satisfactory to
the Company, it being understood that such investigation shall include: (i)
reviewing all Phase I environmental assessments prepared prior to the date
hereof on behalf of AT&T PCS for the parcels of real property subject to leases
included in the Assigned Agreements; and (ii) conducting and reviewing Phase I
environmental assessments for parcels of real property subject to leases
included in the Assigned Agreements for which such assessments have not been
performed prior to the date hereof. In the event the Company is not reasonably
satisfied with the results of its environmental due diligence investigation with
respect to any such parcel, the Company shall provide AT&T PCS with written
notice of such dissatisfaction no later than 30 days after the date hereof,
which written notice shall set forth in reasonable detail the parcels as to
which the Company is not reasonably satisfied and the reasons therefor (the
"Potentially Rejected Sites"). In the event there are five (5) or fewer
---------------------------
Potentially Rejected Sites, the Closing shall take place in accordance with the
terms hereof with no reduction in the Purchase Price, and (i) with respect to
each Potentially Registered
Site the Company shall have the right at the Company's sole cost and expense to
deinstall and remove all Purchased Assets located at any Potentially Rejected
Site, (ii) Section 4.11 shall not be applicable to any Potentially Rejected Site
as to which such right shall be exercised, and (iii) any Assigned Agreements
relating to a Potentially Rejected Site as to which such right shall be
exercised shall be excluded from the Purchased Assets and shall not be assigned
to the Company pursuant to Section 2.1(d) and the liabilities arising thereunder
shall not be Assumed Liabilities pursuant to Section 2.4(a). The Company shall
exercise such right by written notice thereof given at least ten (10) Business
Days prior to the Closing Date. In the event there are more than five (5)
Potentially Rejected Sites, the Company may elect by written notice provided to
AT&T PCS no later than 30 days after the date hereof to terminate this Agreement
in accordance with Article IX; provided, however, that such 30 day period may be
-------- -------
extended by the Company, by written notice given to AT&T PCS, for such period
not to exceed 30 days, as shall be necessary to investigate any potential
environmental liability relating to any Potentially Rejected Site. In the event
that the Company elects to deinstall and remove any Purchased Assets located at
any Potentially Rejected Site in accordance with this Section 4.13, and this
Agreement shall thereafter be terminated without the Closing having occurred,
the Company shall at its sole cost and expense reinstall and restore all
Purchased Assets to their prior locations. Notwithstanding anything to the
contrary contained herein, AT&T PCS shall not be deemed to be in breach of any
representation or warranty contained in this Agreement, or have any
indemnification obligation relating thereto, in respect of any matter of which
the Company acquires knowledge during the course of its environmental due
diligence investigation of the Purchased Assets. As used in this Section 4.13,
the term "knowledge" refers to actual and not constructive knowledge of the
Company. Notwithstanding the foregoing, in the event that the Company shall have
placed the System into commercial operation while the Management Agreement shall
be in effect, the Company shall have no right to terminate this Agreement
pursuant to this Section 4.13.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF AT&T PCS
------------------------------------------
AT&T PCS represents and warrants to the Company as follows:
5.1 Organization, Power and Authority.
---------------------------------
(a) It is a corporation duly organized, validly existing and in good
standing under the laws of Delaware and has the requisite power and authority to
own, lease and operate the Purchased Assets and to carry on its business
relating to the System as now being conducted.
(b) It has the requisite power and authority to execute, deliver and
perform this Agreement and each other instrument, document, certificate and
agreement required or contemplated to be executed, delivered and performed by it
hereunder and thereunder to which it is or will be a party.
(c) It is duly qualified to do business in each jurisdiction where the
Purchased Assets are used or the nature of its activities conducted in the
operation of the System makes such qualification necessary other than any such
jurisdiction in which the failure to be so qualified would not have an AT&T PCS
Material Adverse Effect.
(d) The execution and delivery of this Agreement by it and the
consummation of the Transactions by it have been duly and validly authorized by
its Board of Directors and no other proceedings on its part which have not been
taken (including approval of its stockholders, partners or members) are
necessary to authorize this Agreement or to consummate the Transactions.
(e) This Agreement has been duly executed and delivered by it and
constitutes its valid and binding obligation, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting or relating
to enforcement of creditors' rights generally or may be subject to general
principles of equity.
5.2 Consents; No Conflicts. Neither the execution, delivery and
----------------------
performance by it of this Agreement nor the consummation of the Transactions
will (a) conflict with, or result in a breach or violation of, any provision of
its organizational documents; (b) constitute, with or without the giving of
notice or passage of time or both, a breach, violation or default, create a Lien
on any of the Purchased Assets, or give rise to any right of termination,
modification, cancellation, prepayment or acceleration, under (i) any Law or the
PCS License or (ii) any note, bond, mortgage, indenture, lease, agreement or
other instrument, in each case which is applicable to or binding upon it or any
of its assets; or (c) require any Consent, other than those set forth on Exhibit
5.2, except in the case of clauses (a) and (b), where such breach, violation,
default, Lien or right would not have an AT&T PCS Material Adverse Effect. To
its knowledge, there is no fact relating to it or its Affiliates that would be
reasonably expected to prevent it from consummating the Transactions or
disqualify the Company from obtaining the Consents (including the Consent of the
FCC) required in order to consummate the License Transfer as provided for in
this Agreement.
5.3 Litigation. There is no action, proceeding or investigation
----------
pending or, to its knowledge, threatened against it or any of its properties or
assets that would be reasonably expected to have a material adverse effect on
its ability to consummate the Transactions or to fulfill its obligations under
this Agreement, or which seeks to prevent or challenge the Transactions.
5.4 FCC Compliance. To its knowledge, it is in compliance with all
--------------
eligibility rules issued by the FCC to hold broadband PCS Licenses, including
FCC rules on foreign ownership and the CMRS spectrum cap. To its knowledge, the
fact that it will own the interest in the Company contemplated by this Agreement
will not cause the Company or its wholly owned Subsidiaries to be ineligible
under FCC rules to hold PCS Licenses in general or the AT&T PCS Contributed
License.
5.5 Brokers. It has not employed any broker, finder or investment
-------
banker and has not incurred and will not incur any liability for any brokerage
fees, commissions or finder's fees in connection with the Transactions.
5.6 Stockholders Agreement. From and after February 4, 1998, through
----------------------
and including the Closing Date, AT&T PCS has performed all covenants and
agreements required to be performed by it pursuant to the Stockholders
Agreement.
5.7 License. It is the authorized legal holder, free and clear of
-------
any Liens, of the PCS License, evidence of which is attached to Schedule I. The
PCS License is, and on the Closing Date the AT&T PCS Contributed License will
be, valid and in full force and effect. Except for proceedings affecting the
PCS or wireless communications services industry generally, there is not
pending, nor to the knowledge of AT&T PCS, threatened against AT&T PCS or
against the PCS License, any application, action, petition, objection or other
pleading, or any proceeding with the FCC which questions or contests the
validity of, or seeks the revocation, nonrenewal or suspension of, the PCS
License, which seeks the imposition of any modification or amendment with
respect thereto, or which adversely affects the ability of the Company to employ
the AT&T PCS Contributed License in its business after the Closing Date. The
PCS License is not subject to any conditions other than those appearing on the
face of the PCS License itself and those imposed by FCC Law.
5.8 No Distribution. It is acquiring the Securities to be acquired
---------------
by it hereunder for the purpose of investment and not with a view to or for sale
in connection with any distribution thereof (other than in compliance with the
Stockholders Agreement and the Securities Act and all applicable state
securities laws).
5.9 Investor Acknowledgments.
------------------------
(a) It is an "accredited investor" as defined in Regulation D of the
Securities Act. Its representatives have been provided an opportunity to ask
questions of, and have received answers thereto from, the Company and its
representatives regarding the terms and conditions of its acquisition of
Securities, and the Company and its proposed business generally, and have
obtained all additional information requested by it to verify the accuracy of
all information furnished to it in connection with such purchase. It is an
existing stockholder of the Company, owning on the date hereof 732,371 shares of
the Company's Series A Preferred Stock, par value $0.01 per share, and 366,131
shares of the Company's Series D Preferred Stock.
(b) It has such knowledge and experience in financial and business
affairs that it is capable of evaluating the merits and risks of acquiring the
Securities it is acquiring hereunder.
(c) It is not relying on and acknowledges that no representation is
being made
by the Company or any of its officers, employees, Affiliates, agents or
representatives, except for representations and warranties expressly set forth
in this Agreement (including the Exhibits and Schedule attached hereto), and, in
particular, it is not relying on, and acknowledges that no representation is
being made in respect of, (i) any projections, estimates or budgets delivered to
or made available to it of future revenues, expenses or expenditures, or future
results of operations and (ii) any other information or documents delivered or
made available to it or its representatives, except for representations and
warranties expressly set forth in this Agreement (including the Exhibits and
Schedule attached hereto) and such information and documents obtained by it as a
stockholder of the Company and through its representative who serves as a member
of the Company's board of directors.
(d) In deciding to invest in the Company, it has relied exclusively on
the representations and warranties expressly set forth in this Agreement,
investigations made by itself and its representatives and its and such
representatives' knowledge of the industry in which AT&T PCS and the Company
operate. Based solely on such representations and warranties and such
investigations and knowledge and such information obtained by AT&T PCS by virtue
of its status as a stockholder of the Company and through its representative who
serves as a member of the Company's board of directors, it has determined that
the Securities it is acquiring are a suitable investment for it.
5.10 Title to Purchased Assets. AT&T PCS has good and marketable
-------------------------
title to, or a valid and enforceable leasehold interest in, all of the Purchased
Assets, free and clear of all Liens except (only with respect to Purchased
Assets other than the AT&T PCS Contributed License) for Liens for taxes,
assessments, governmental charges or levies which are not due and delinquent or
which hereafter can be paid without penalty, and except for warehousemen's,
mechanics', carriers', landlords', repairmen's, or other similar Liens arising
in the ordinary course of business (none of which, either singly or in the
aggregate, is material). The Purchased Assets do not include fee simple title to
any parcel of real property.
5.11 Employees. Exhibit 5.11 contains a list setting forth as of the
---------
date hereof the name and current annual salary and other compensation payable by
AT&T PCS to each Employee, and the profit sharing, bonus or other form of
additional compensation paid or payable by AT&T PCS to or for the benefit of
each such Employee for the current fiscal year. There are no agreements,
arrangements or understandings that would restrict the ability of the Company to
terminate the employment of any or all of the Employees for any lawful reason or
for no reason at all, without penalty or liability. All Employees are employees
at will. AT&T PCS has withheld all amounts required by law or agreement to be
withheld by it from the wages, salaries and other payments to Employees and is
not liable for any arrears of wages or any taxes for failure to comply with any
of the foregoing. There is no pending action, suit, claim, arbitration, or
other legal or administrative proceedings against AT&T PCS by or with respect to
any Employee.
5.12 Contracts.
---------
(a) Exhibit 2.1(d) contains a list of all Assigned Agreements existing
at the date hereof.
(b) AT&T PCS has performed and will, up to the Closing Date, perform
in all material respects all obligations required to be performed by it under
all Assigned Agreements.
(c) Each of the Assigned Agreements has been, and each Assigned
Agreement entered into after the date hereof as permitted by Section 4.3(c) will
be, lawfully entered into and is or will be valid and in full force and effect
and is or will be enforceable in accordance with its terms for the period stated
in such Assigned Agreement. There are no currently threatened cancellations of,
nor are there any outstanding disputes or material defaults under, any Assigned
Agreement. AT&T PCS will not modify, amend or waive any provisions of any
Assigned Agreement in a manner that would materially adversely affect the
Purchased Assets or terminate any Assigned Agreement prior to the Closing other
than in the ordinary course of business and with the prior written consent of
the Company, which consent will not be unreasonably withheld.
5.13 Equipment. The items of equipment set forth on Exhibit 2.1(a)
---------
are in good working condition (reasonable wear and tear excepted) and are
useable for the purposes for which intended. To AT&T PCS's knowledge, AT&T PCS
has maintained such equipment in accordance with all warranties provided by the
vendors or manufacturers thereof.
5.14 Environmental Matters. There has been no manufacture, refining,
---------------------
storage, disposal or treatment of Hazardous Substances by AT&T PCS (or, except
as disclosed in any Phase I environmental assessment with respect to any parcel
of real property at which any Purchased Assets are located, to the knowledge of
AT&T PCS, its predecessors in interest) at or from any real property (x) on
which any of the Purchased Assets is located, or (y) that is leased pursuant to
an Assigned Agreement, in violation of any Environmental Laws or which would
require remedial action under any Environmental Law. During its ownership or
occupancy of such real property, AT&T PCS has not received with respect to any
such real property any (i) notice of any such violation with respect to any
Hazardous Substance at or on any of such real property, (ii) notice from any
governmental agency that it, or any present or former owner, lessee or operator
of such real property is a potentially responsible party for cleanup liability
with respect to the emission, discharge or release of any Hazardous Substance or
for any other matter arising under the Environmental Laws or in any litigation,
administrative proceeding, finding, order, citation, notice, investigation or
complaint under any Environmental Law, or (iii) notice of violation, citation,
complaint, request for information, order, directive, compliance schedule,
notice of claim, proceeding or litigation from any party concerning the
compliance of AT&T PCS with any Environmental Law. As used in this Section 5.14,
the term "knowledge" refers to actual and not constructive knowledge and is not
intended to impose upon AT&T PCS any duty to investigate the condition of any
real property.
5.15 Compliance With Laws. With respect to the System and the
--------------------
Purchased Assets,
AT&T PCS is in, and has operated in, compliance with all applicable Laws,
including all FCC Laws, Environmental Laws and Laws relating to taxes, except
for noncompliance that, individually or in the aggregate, has not and would not
reasonably be expected to have an AT&T PCS Material Adverse Effect. AT&T PCS has
not received notice to the effect that, or otherwise been advised that, it is
not in compliance with any Laws with respect to the System or the Purchased
Assets, and AT&T PCS has not taken any action or failed to take any action that
is a violation of any such Laws with respect to the System or the Purchased
Assets, except for actions or failures to take action that, individually or in
the aggregate, have not and would not reasonably be expected to have an AT&T PCS
Material Adverse Effect.
5.16 Books and Records. All financial, business and accounting
-----------------
books, ledgers, accounts and official and other records relating to the System
and the Purchased have been properly and accurately kept and completed in all
material respects, and there are no material inaccuracies or discrepancies
contained or reflected therein.
5.17 FCC Construction Requirements. Each of the System Cell Sites
-----------------------------
that shall have been constructed by AT&T PCS prior to Closing has been built in
conformance in all material respects with FCC Law, including the technical
requirements of Subpart E of Part 24 of the FCC rules and regulations, and
operates, or shall operate, in conformance in all material respects with FCC
Law. The System would, if in commercial service on the date of this Agreement,
satisfy the five-year construction milestone set forth in 47 CFR 24.203(a) by
providing coverage to 545,100 POPs within the Norfolk, Virginia BTA.
5.18 Incursion Sites. Exhibit 5.18 identifies each System Cell Site
---------------
for which the predicted or measured median field strength exceeds 47dBuV/m at
the boundary of the Norfolk, Virginia BTA.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
---------------------------------------------
The Company represents and warrants to AT&T PCS as follows:
6.1 Organization, Power and Authority.
---------------------------------
(a) Each of the Company and each of its Subsidiaries is a corporation
duly organized, validly existing and in good standing under the laws of Delaware
and has the requisite corporate power and authority to own, lease and operate
its properties and to carry on its business as now being conducted and proposed
to be conducted.
(b) It has the requisite power and authority to execute, deliver and
perform this Agreement, and each other instrument, document, certificate and
agreement required or contemplated to be executed, delivered and performed by it
hereunder and thereunder to which it is or will be a party.
(c) The Company and each of its Subsidiaries is duly qualified to do
business in each jurisdiction where the character of its properties owned or
held under lease or the nature of its activities makes such qualification
necessary other than any such jurisdiction in which the failure to be so
qualified would not have a Company Material Adverse Effect.
(d) The execution and delivery of this Agreement by the Company and
the consummation of the Transactions by it have been duly and validly authorized
by its Board of Directors and no other proceedings on its part which have not
been taken (including approval of its shareholders) are necessary to authorize
this Agreement or to consummate the Transactions.
(e) This Agreement has been duly executed and delivered by the Company
and constitutes its valid and binding obligation, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting or relating
to enforcement of creditors' rights generally or may be subject to general
principles of equity.
(f) As of the Closing, after giving effect to the Transactions, the
Company is not in breach of any obligation under this Agreement or the
Stockholders Agreement.
6.2 Consents; No Conflicts. Neither the execution, delivery and
----------------------
performance by the Company of this Agreement nor the consummation of the
Transactions will (a) conflict with, or result in a breach or violation of, any
provision of its organizational documents; (b) constitute, with or without the
giving of notice or passage of time or both, a breach, violation or default,
create a Lien on its assets, or give rise to any right of termination,
modification, cancellation, prepayment or acceleration, under (i) any Law, or
(ii) any note, bond, mortgage, indenture, lease, agreement or other instrument,
in each case which is applicable to or binding upon it or any of its assets; or
(c) require any Consent on its part, other than those set forth on Exhibit 6.2
or the approval of its Board of Directors, except in the case of clauses (a) and
(b) where such breach, violation, default, Lien or right would not have a
Company Material Adverse Effect. To its knowledge, there is no fact relating to
it or its Affiliates that would be reasonably expected to prevent it from
consummating the Transactions or performing its obligations under this Agreement
or disqualify the Company from obtaining the Consents (including the Consent of
the FCC) required in order to consummate the License Transfer as provided for in
this Agreement.
6.3 Litigation. There is no action, proceeding or investigation
----------
pending or, to the Company's knowledge, threatened against it or any of its
properties or assets that would have a material adverse effect on its ability to
consummate the Transactions or to fulfill its obligations under this Agreement,
or to operate its business after the Closing Date, or which seeks to prevent or
challenge the Transactions. There is no judgment, decree, injunction, rule or
order outstanding against the Company which would limit in any material respect
its ability to operate its business in the manner currently contemplated.
6.4 FCC Compliance. It complies, and after giving effect to the
--------------
consummation of the Transactions will comply, with all eligibility rules issued
by the FCC to hold broadband PCS Licenses, including FCC rules on foreign
ownership and the CMRS spectrum cap.
6.5 Brokers. The Company has not employed any broker, finder or
-------
investment banker and has not incurred and will not incur any liability for any
brokerage fees, commissions or finder's fees in connection with the
Transactions.
6.6 Stockholders Agreement. From and after February 4, 1998, through
----------------------
and including the Closing Date, the Stockholders Agreement has been in full
force and effect, the Company has performed all covenants and agreements
required to be performed by it pursuant to the Stockholders Agreement.
6.7 Shares. The Series D Preferred Stock being issued to AT&T PCS
------
hereunder, when issued pursuant to the terms of this Agreement, will be duly
authorized, validly issued, fully paid and non-assessable, and will be free of
any Liens caused or created by the Company, except as set forth in the
Stockholders Agreement and the Certificate of Incorporation of the Company. The
shares of Common Stock issued upon conversion of the Series D Preferred Stock,
when issued pursuant to the terms of the Series D Preferred Stock, will be
validly issued, fully paid and non-assessable, and will be free of any Liens
caused or created by the Company, except as set forth in the Stockholders
Agreement and the Certificate of Incorporation of the Company.
6.8 No Additional Representations. The Company is not relying on and
-----------------------------
acknowledges that no representation or warranty is being made by AT&T PCS or any
of its officers, employees, Affiliates, agents or representatives, except for
representations and warranties expressly set forth in this Agreement (including
the Exhibits and Schedule attached hereto), and, in particular, it is not
relying on, and acknowledges that no representation or warranty is being made in
respect of, (i) any projections, estimates or budgets delivered to or made
available to them of future revenues, expenses or expenditures, or future
results of operations of the System and (ii) any other information or documents
delivered or made available to it or its representatives, except for
representations and warranties expressly set forth in this Agreement (including
the Exhibits and Schedule attached hereto).
6.9 Compliance With Laws. The Company is in, and has operated in,
--------------------
compliance with all applicable Laws, except for noncompliance that, individually
or in the aggregate, has not and would not reasonably be expected to have a
Company Material Adverse Effect. The Company has not received notice to the
effect that, or otherwise been advised that, it is not in compliance with any
Laws, and the Company has not taken any action or failed to take any action that
is a violation of any such Laws, except for actions or failures to take action
that, individually or in the aggregate, have not and would not reasonably be
expected to have a Company Material Adverse Effect.
6.10 No Material Adverse Effect. Since the formation of the Company,
--------------------------
there has been no Company Material Adverse Effect.
ARTICLE VII
CLOSING CONDITIONS
------------------
7.1 Conditions to Obligations of All Parties. The obligation of each
----------------------------------------
of the parties to consummate the Transactions contemplated to occur at the
Closing shall be conditioned on the following, unless waived by each of the
parties:
(a) Any applicable waiting period under the HSR Act shall have expired
or been terminated.
(b) The Consent of the FCC to the License Transfer shall have been
obtained pursuant to a Final Order, free of any conditions materially adverse to
the Company or AT&T PCS, other than those applicable to the PCS or wireless
communications services industry generally. For the purposes of this paragraph,
"Final Order" means an action or decision that has been granted by the FCC as to
-----------
which (i) no request for a stay or similar request is pending, no stay is in
effect, the action or decision has not been vacated, reversed, set aside,
annulled or suspended and any deadline for filing such request that may be
designated by statute or regulation has passed, (ii) no petition for rehearing
or reconsideration or application for review is pending and the time for the
filing of any such petition or application has passed, (iii) the FCC does not
have the action or decision under reconsideration on its own motion and the time
within which it may effect such reconsideration has passed and (iv) no appeal is
pending, including other administrative or judicial review, or in effect and any
deadline for filing any such appeal that may be designated by statute or rule
has passed.
(c) All Consents by any Governmental Authority (other than the
Consents referred to in paragraphs (a) and (b) above) required to permit the
consummation of the Transactions shall have been obtained, except where the
failure to obtain such Consents would not be reasonably expected to have an AT&T
PCS Material Adverse Effect or a Company Material Adverse Effect or to
materially adversely affect the Transactions or the ability of AT&T PCS or the
Company to perform its obligations under this Agreement.
(d) No preliminary or permanent injunction or other order, decree or
ruling issued by a Governmental Authority, nor any statute, rule, regulation or
executive order promulgated or enacted by any Governmental Authority, shall be
in effect that would (i) impose material limitations on the ability of any party
to consummate the Transactions or prohibit such consummation, or (ii) impair in
any material respect the operations of the Company.
(e) The terms " Licensed Territory" as used in the Network Membership
License Agreement (as defined in the Stockholders Agreement) and "Territory" as
used in the
Stockholders Agreement, and Schedule 2 to the Roaming Agreement (as defined in
the Stockholders Agreement) shall have been appropriately amended to include the
Norfolk, Virginia BTA and the parties shall make such other conforming changes
to the terms of such agreements as shall be necessary to reflect the acquisition
by the Company of the Purchased Assets and to otherwise extend the benefits of
such agreements to the System and the Purchased Assets and, in addition, Exhibit
A to the Roaming Agreement shall have been amended to provide that roaming
charges in the Norfolk, Virginia BTA shall be calculated as set forth on Exhibit
7.1(e) hereto.
7.2 Conditions to Obligations of the Company. The obligation of the
----------------------------------------
Company to consummate the Transactions contemplated to occur at the Closing
shall be further conditioned upon the satisfaction or fulfillment, at or prior
to the Closing, of the following conditions unless waived by the Company:
(a) The representations and warranties of AT&T PCS contained herein
shall be true and correct in all material respects, in each case when made and
at and as of the Closing (except (i) for representations made as of a specified
date, which shall be true and correct as of such date, and (ii) for
representations and warranties that are qualified as to materiality which shall
be true and correct in all respects) with the same force and effect as though
made at and as of such time, except (x) for inaccuracies in respect of the
representations and warranties set forth in Section 5.3 and the third sentence
of Section 5.7 (disregarding any qualifications as to materiality contained
therein) that in the aggregate would not be reasonably expected to have an AT&T
PCS Material Adverse Effect or would not adversely affect AT&T PCS's ability to
perform its obligations under this Agreement and (y) for inaccuracies in respect
of the representations and warranties set forth in Sections 5.10 through 5.16 to
the extent that such inaccuracies are caused by acts or omissions (which
omissions relate to matters for which the Company has responsibility under the
Management Agreement) of the Company during the period that the Company is
managing the System under the Management Agreement.
(b) AT&T PCS shall have performed in all material respects all
agreements contained herein required to be performed by it at or before the
Closing.
(c) AT&T PCS shall have delivered to the Company the documents
required pursuant to Section 3.2(f)(i).
(d) Since the date hereof, neither the Purchased Assets nor the System
shall have been adversely affected in any material way by, or sustained any
material loss, whether or not insured, as a result of, any fire, flood,
lightning, explosion or other calamity or casualty, which shall not have been
repaired in all material respects by AT&T PCS, and no condemnation proceedings
affecting any material portion of the Purchased Assets or the System shall have
been commenced.
(e) Releases, duly executed by the appropriate parties (other than
with respect to Assumed Liabilities), releasing each of the Liens upon the
Purchased Assets, each in form and substance reasonably satisfactory to the
Company, shall have been obtained.
7.3 Conditions to the Obligations of AT&T PCS. The obligation of
-----------------------------------------
AT&T PCS to consummate the Transactions contemplated to occur at the Closing
shall be further conditioned upon the satisfaction or fulfillment, at or prior
to the Closing, of the following conditions, unless waived by AT&T PCS:
(a) The representations and warranties of the Company contained herein
shall be true and correct in all material respects, in each case when made and
at and as of the Closing (except for representations and warranties made as of a
specified date, which shall be true and correct as of such date and except for
representations and warranties that are qualified as to materiality which shall
be true and correct in all respects) with the same force and effect as though
made at and as of such time, except for inaccuracies in respect of the
representations and warranties set forth in Section 6.3 (disregarding any
qualifications as to materiality contained therein) that in the aggregate would
not be reasonably expected to have a Company Material Adverse Effect or would
not adversely affect the Company's ability to perform its obligations under this
Agreement.
(b) The Company shall have performed in all material respects all
agreements contained herein required to be performed by it at or before the
Closing.
(c) The Company shall have delivered to AT&T PCS the documents
required pursuant to Section 3.2(f)(ii).
(d) Section 8.6(a) of the Stockholders Agreement shall have been
amended as set forth on Exhibit 7.3(d) hereto.
ARTICLE VIII
SURVIVAL AND INDEMNIFICATION
----------------------------
8.1 Survival. Except for the representations and warranties contained in
--------
Sections 5.1(a), (b), (d) and (e), 5.10 and 6.1(a), (b), (d) and (e) (which
shall survive the Closing, without regard to any investigation made by any of
the parties hereto, until the expiration of the applicable statute of
limitations relating thereto), the representations and warranties made in this
Agreement shall survive the Closing without regard to any investigation made by
any of the parties hereto until the second anniversary thereof and shall
thereupon expire together with any right to indemnification in respect thereof
(except to the extent a written notice asserting a claim for breach of any such
representation or warranty and describing such claim in reasonable detail shall
have been given prior to the expiration of the applicable survival period to the
party which made such representation or warranty). The covenants and agreements
contained herein to be performed or complied with prior to the Closing shall
expire at the Closing. The covenants and agreements contained in this Agreement
to be performed or complied with after the Closing shall survive the Closing;
provided, that the right to indemnification pursuant to this Article VIII in
respect of a breach of a representation or warranty shall expire upon the
application of the applicable survival period (except to the extent written
notice asserting a claim thereunder and describing such claim in reasonable
detail shall have been given prior to such expiration to the party from whom
such indemnification is sought). After the Closing, the sole and exclusive
remedy of the parties for any breach or inaccuracy of any representation or
warranty contained in this Agreement, or any other claim (whether or not
alleging a breach of this Agreement) that arises out of the facts and
circumstances constituting such breach or inaccuracy, shall be the indemnity
provided in this Article VIII.
8.2 Indemnification by AT&T PCS. AT&T PCS shall indemnify and hold
---------------------------
harmless the Company and its Affiliates, and the shareholders, members,
managers, officers, employees, agents and/or the legal representatives of any of
them (each, a "Section 8.2 Indemnified Party"), against all liabilities and
-----------------------------
expenses (collectively, "Losses") incurred by any Section 8.2 Indemnified Party
------
(including, without limitation, amounts paid in satisfaction of judgments, in
compromise, as fines and penalties, and as counsel fees and Losses incurred in
connection with the investigation, defense, or disposition of any action, suit
or other proceeding in which any Section 8.2 Indemnified Party may be involved
or with which any Section 8.2 Indemnified Party may be threatened (whether
arising out of or relating to matters asserted by third parties against a
Section 8.2 Indemnified Party or incurred or sustained by such party in the
absence of a third-party claim), that arise out of or result from (a) any
representation or warranty of AT&T PCS contained in this Agreement being untrue,
including, without limitation Section 5.14 or (b) any default by AT&T PCS or any
of its Affiliates in the performance of their respective obligations under this
Agreement (including its obligation to discharge the Excluded Liabilities),
except to the extent (but only to the extent) any such Losses arise out of or
result from the gross negligence or willful misconduct of such Section 8.2
Indemnified Party or its Affiliates; provided, that the aggregate liability of
AT&T PCS to indemnify Section 8.2 Indemnified Parties against Losses arising out
of or resulting from (x) any representation or warranty of AT&T PCS contained in
this Agreement being untrue, or (y) any default by AT&T PCS or any of its
Affiliates in the performance of their respective obligations under this
Agreement shall (except, in the case of clause (y), to the extent (but only to
the extent) any such Losses arise out of or result from the gross negligence or
willful misconduct of AT&T PCS) be limited to $30,000,000; provided further,
that such $30,000,000 limitation shall not apply to the obligation of AT&T PCS
to indemnify the Section 8.2 Indemnified Parties against Losses arising out of
the Excluded Liabilities.
8.3 Indemnification by the Company. The Company shall indemnify and hold
------------------------------
harmless AT&T PCS and its Affiliates, and the shareholders, members, managers,
officers, employees, agents and/or the legal representatives of any of them
(each, a "Section 8.3 Indemnified Party"), against all Losses incurred by any
-----------------------------
Section 8.3 Indemnified Party (including, without limitation, amounts paid in
satisfaction of judgments, in compromise, as fines and penalties, and as counsel
fees and Losses incurred in connection with the investigation, defense, or
disposition of any action, suit or other proceeding in which any Section 8.3
Indemnified Party may be involved or with which any Section 8.3 Indemnified
Party may be threatened (whether
arising out of or relating to matters asserted by third parties against a
Section 8.3 Indemnified Party or incurred or sustained by such party in the
absence of a third party claim) that arise out of or result from (a) any
representation or warranty of the Company contained in this Agreement being
untrue or (b) any material default by the Company or any of its Affiliates in
the performance of their respective obligations under this Agreement (including
its obligation to discharge the Assumed Liabilities), except to the extent (but
only to the extent) any such Losses arise out of or result from the gross
negligence or willful misconduct of such Section 8.3 Indemnified Party or its
Affiliates; provided, that the aggregate liability of the Company to indemnify
Section 8.3 Indemnified Parties against Losses arising out of or resulting from
(x) any representation or warranty of the Company contained in this Agreement
being untrue, or (y) any default by the Company or any of its Affiliates in the
performance of their respective obligations under this Agreement shall (except,
in the case of clause (y), to the extent (but only to the extent) any such
Losses arise out of or result from the gross negligence or willful misconduct of
the Company) be limited to $30,000,000; provided further, that such $30,000,000
limitation shall not apply to the obligation of the Company to pay the Purchase
Price or to indemnify the Section 8.3 Indemnified Parties against Losses arising
out of the Assumed Liabilities.
8.4 Procedures.
----------
(a) The terms of this Section 8.4 shall apply to any claim (a "Claim")
-----
for indemnification under the terms of Sections 8.2 or 8.3. The Section 8.2
Indemnified Party or Section 8.3 Indemnified Party (each, an "Indemnified
-----------
Party"), as the case may be, shall give prompt written notice of such Claim to
the indemnifying party (the "Indemnifying Party") under the applicable Section,
------------------
which party may assume the defense thereof, provided, that any delay or failure
to so notify the Indemnifying Party shall relieve the Indemnifying Party of its
obligations hereunder only to the extent, if at all, that it is materially
prejudiced by reason of such delay or failure. The Indemnified Party shall have
the right to approve any counsel selected by the Indemnifying Party and to
approve the terms of any proposed settlement, such approvals not to be
unreasonably delayed or withheld (unless, in the case of approval of a proposed
settlement, such settlement provides only, as to the Indemnified Party, the
payment of money damages actually paid by the Indemnifying Party and a complete
release of the Indemnified Party in respect of the claim in question).
Notwithstanding any of the foregoing to the contrary, the provisions of this
Article VIII shall not be construed so as to provide for the indemnification of
any Indemnified Party for any liability to the extent (but only to the extent)
that such indemnification would be in violation of applicable law or that such
liability may not be waived, modified or limited under applicable law, but shall
be construed so as to effectuate the provisions of this Article VIII to the
fullest extent permitted by law.
(b) In the event that the Indemnifying Party undertakes the defense of
any Claim, the Indemnifying Party will keep the Indemnified Party advised as to
all material developments in connection with such Claim, including promptly
furnishing the Indemnified Party with copies of all material documents filed or
served in connection therewith.
(c) In the event that the Indemnifying Party fails to assume the
defense of any Claim within thirty (30) days after receiving written notice
thereof, the Indemnified Party shall have the right, subject to the Indemnifying
Party's right to assume the defense pursuant to the provisions of this Article
VIII, to undertake the defense, compromise or settlement of such Claim for the
account of the Indemnifying Party. Unless and until the Indemnified Party
assumes the defense of any Claim, the Indemnifying Party shall advance to the
Indemnified Party any of its reasonable attorneys' fees and other costs and
expenses incurred in connection with the defense of any such action or
proceeding. Each Indemnified Party shall agree in writing prior to any such
advancement that, in the event he or it receives any such advance, such
Indemnified Party shall reimburse the Indemnifying Party for such fees, costs
and expenses to the extent that it shall be determined that he or it was not
entitled to indemnification under this Article VIII.
(d) In no event shall an Indemnifying Party be required to pay in
connection with any Claim for more than one firm of counsel (and local counsel)
for each of the following groups of Indemnified Parties: (i) AT&T PCS, its
Affiliates, and the shareholders, members, managers, officers, employees, agents
and/or the legal representatives of any of them; and (ii) the Company and its
Affiliates, and the shareholders, members, managers, officers, employees, agents
and/or the legal representatives of any of them.
ARTICLE IX
TERMINATION
-----------
9.1 Termination. In addition to any other rights of termination set forth
-----------
herein, this Agreement may be terminated, and the Transactions abandoned,
without further obligation of any party, except as set forth herein, at any time
prior to the Closing Date:
(a) by mutual written consent of the parties;
(b) by any party by written notice to the other party, if the Closing
shall not have occurred on or before the date that is one year after the date
hereof, provided, that the party electing to exercise such right is not
otherwise in breach of its obligations under this Agreement;
(c) by any party by written notice to the other party, if the
consummation of the Transactions shall be prohibited by a final, non-appealable
order, decree or injunction of a court of competent jurisdiction; or
(d) by the Company in accordance with Section 4.13.
9.2 Effect of Termination
---------------------
(a) In the event of a termination of this Agreement, no party hereto
shall have
any liability or further obligation to any other party to this Agreement, except
as set forth in paragraph (b) below, and except that nothing herein will relieve
any party from liability for any breach by such party of this Agreement.
(b) In the event of a termination of this Agreement pursuant to
Section 9.1, all provisions of this Agreement shall terminate, except Section
4.2 and Articles VIII and X, except that nothing herein will relieve any party
from liability for any breach of this Agreement.
(c) Whether or not the Closing occurs, all costs and expenses incurred
in connection with this Agreement and the Transactions shall be paid by the
party incurring such expenses, except as otherwise provided in Section 2.6.
ARTICLE X
MISCELLANEOUS PROVISIONS
------------------------
10.1 Amendment and Modification. This Agreement may be amended,
--------------------------
modified or supplemented only by written agreement of each of the parties.
10.2 Waiver of Compliance; Consents. Any failure of any of the
------------------------------
parties to comply with any obligation, covenant, agreement or condition herein
may be waived by the party or parties entitled to the benefits thereof only by a
written instrument signed by the party granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure. Whenever this Agreement requires
or permits consent by or on behalf of any party hereto, such consent shall be
given in writing in a manner consistent with the requirement for a waiver of
compliance as set forth in this Section 10.2.
10.3 Notices. All notices or other communications hereunder shall be
-------
in writing and shall be given (and shall be deemed to have been duly given upon
receipt) by delivery in person against receipt, by facsimile transmission with
confirmation of receipt, or by registered or certified mail (return receipt
requested), postage prepaid, with an acknowledgment of receipt signed by the
addressee or an authorized representative thereof, addressed as follows (or to
such other address for a party as shall be specified by like notice; provided,
that notice of a change of address shall be effective only upon receipt
thereof):
If to AT&T PCS, to it at:
c/o AT&T Wireless Services, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
With a copy to:
Xxxxx Xxxx Xxxxx Constant & Xxxxxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Company, to it at:
Triton PCS Holdings, Inc.
c/o Triton Communications
000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxxxx, Xxxx & Xxxxxxx LLP
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
10.4 Designated Purchasers. It is understood and agreed between the
---------------------
parties that the Company may cause one or more of its direct or indirect wholly
owned Subsidiaries (each a "Designated Purchaser") to purchase all or part of
--------------------
the Purchased Assets hereunder; provided, that notwithstanding any such
designation, the Company shall remain fully liable for all of its obligations
and those of the Designated Purchaser hereunder.
10.5 Parties in Interest; Assignment. This Agreement is binding upon
-------------------------------
and is solely for the benefit of the parties hereto and their respective
permitted successors, legal representatives and permitted assigns. Neither party
may assign its rights and obligations hereunder without the prior written
consent of the other party.
10.6 Applicable Law. This Agreement shall be governed by and
--------------
construed in accordance with the laws of the State of New York without giving
effect to the conflicts of law principles thereof. The parties hereto hereby
irrevocably and unconditionally consent to submit to the non-exclusive
jurisdiction of the courts of the State of New York and of the United States of
America located in the County of New York, New York (the "New York Courts") for
---------------
any litigation arising out of or relating to this Agreement and the
Transactions, waive any objection
to the laying of venue of any such litigation in the New York Courts and agrees
not to plead or claim in any New York Court that such litigation brought therein
has been brought in an inconvenient forum.
10.7 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument. Facsimile signatures on
this Agreement shall be deemed to be original signatures for all purposes.
10.8 Interpretation. The article and section headings contained in
--------------
this Agreement are for convenience of reference only, are not part of the
agreement of the parties and shall not affect in any way the meaning or
interpretation of this Agreement.
10.9 Entire Agreement. This Agreement, including the Exhibits and
----------------
Schedule hereto and the certificates and instruments delivered pursuant to the
terms of this Agreement, embody the entire agreement and understanding of the
parties hereto in respect of the Transactions. There are no restrictions,
promises, representations, warranties, covenants or undertakings, other than
those expressly set forth or referred to herein or in the Stockholders
Agreement. This Agreement supersedes all prior agreements and understandings
between the parties with respect to the Transactions.
10.10 Publicity. So long as this Agreement is in effect, the parties
---------
agree to consult with each other in issuing any press release or otherwise
making any public statement with respect to the Transactions, and no party shall
issue any press release or make any such public statement prior to such
consultation, except as may be required by Law. No press release or other
public statement by a party shall disclose any of the financial terms of the
Transactions without the prior consent of the other party, except as may be
required by Law. A breach of the provisions of this Section 10.10 by a party
shall not give rise to any right to terminate this Agreement.
10.11 Specific Performance. The parties hereto agree that irreparable
--------------------
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any New York Courts.
10.12 Remedies Cumulative. All rights, powers and remedies provided
-------------------
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise or beginning of
the exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
10.13 Books and Records. Each party agrees that it will cooperate with
-----------------
and make available to the other party, during normal business hours, all books
and records relating to the
Purchased Assets, the System, information and employees (without substantial
disruption of employment) retained and remaining in existence after the Closing
that are necessary or useful in connection with any inquiry, audit,
investigation or dispute, any litigation or investigation or any other matter
requiring any such books and records, information or employees for any
reasonable business purpose.
10.14 Severability. Any provision of this Agreement that is prohibited
------------
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. If any court determines
that any covenant or any part of any covenant is invalid or unenforceable, such
covenant shall be enforced to the extent permitted by such court, and all other
covenants shall not thereby be affected and shall be given full effect, without
regard to the invalid portions.
10.15 Beneficiaries of Agreement. The representations, warranties,
--------------------------
covenants and agreements expressed in this Agreement are for the sole benefit of
the other parties hereto and the Section 8.2 Indemnified Parties and Section 8.3
Indemnified Parties and are not intended to benefit, and may not be relied upon
or enforced by, any other party as a third party beneficiary or otherwise.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
TRITON PCS HOLDINGS, INC.
By: ______________________________
Name:
Title:
AT&T WIRELESS PCS INC.
By: ______________________________
Name:
Title:
TABLE OF CONTENTS
-----------------
Page
ARTICLE I DEFINITIONS 1
ARTICLE II PURCHASE AND SALE OF ASSETS;
PAYMENT OF CONSIDERATION;CERTAIN RESTRICTIONS ON TRANSFER 6
2.1 Purchase and Sale of Purchased Assets 6
2.2 Excluded Assets 7
2.3 Payment of Consideration 8
2.4 Assumption of Obligations 8
2.5 No Expansion of Third-Party Rights 9
2.6 Payment of Certain Expenses 10
2.7 Restrictive Legends 10
2.8 Allocation of Purchase Price 10
ARTICLE III CLOSING 10
3.1 Time and Place of Closing 11
3.2 Closing Actions and Deliveries 11
3.3 Closing Costs; Taxes and Fees 13
ARTICLE IV COVENANTS 13
4.1 Consummation of Transactions 13
4.2 Confidentiality 14
4.3 Covenants of AT&T PCS 15
4.4 Covenants of the Company 17
4.5 Employees 18
4.6 Bulk Sales 20
4.7 Assignment of Assigned Agreements 20
4.8 Title; Risk of Loss 20
4.9 Non-Solicitation 20
4.10 Lien Searches 21
4.11 Completion of Construction 21
4.12 FCC Construction Requirement 22
4.13 Environmental Due Diligence 22
ARTICLE V REPRESENTATIONS AND WARRANTIES OF AT&T PCS 23
5.1 Organization, Power and Authority 23
5.2 Consents; No Conflicts 23
5.3 Litigation 24
5.4 FCC Compliance 24
5.5 Brokers 24
5.6 Stockholders Agreement 24
5.7 License 24
5.8 No Distribution 24
5.9 Investor Acknowledgments 25
5.10 Title to Purchased Assets 25
5.11 Employees 26
5.12 Contracts 26
5.13 Equipment 26
5.14 Environmental Matters 26
5.15 Compliance With Laws 27
5.16 Books and Records 27
5.17 FCC Construction Requirements 27
5.18 27
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE COMPANY 28
6.1 Organization, Power and Authority 28
6.2 Consents; No Conflicts 28
6.3 Litigation 29
6.4 FCC Compliance 29
6.5 Brokers 29
6.6 Stockholders Agreement 29
6.7 Shares 29
6.8 No Additional Representations 29
6.9 Compliance With Laws 30
6.10 No Material Adverse Effect 30
ARTICLE VII CLOSING CONDITIONS 30
7.1 Conditions to Obligations of All Parties 30
7.2 Conditions to Obligations of the Company 31
7.3 Conditions to the Obligations of AT&T PCS 32
ARTICLE VIII SURVIVAL AND INDEMNIFICATION 32
8.1 Survival 32
8.2 Indemnification by AT&T PCS 33
8.3 Indemnification by the Company 34
8.4 Procedures 34
ARTICLE IX TERMINATION 35
9.1 Termination 35
9.2 Effect of Termination 36
ARTICLE X MISCELLANEOUS PROVISIONS 36
10.1 Amendment and Modification 36
10.2 Waiver of Compliance; Consents 36
10.3 Notices 36
10.4 Designated Purchasers 37
10.5 Parties in Interest; Assignment 37
10.6 Applicable Law 38
10.7 Counterparts 38
10.8 Interpretation 38
10.9 Entire Agreement 38
10.10 Publicity 38
10.11 Specific Performance 38
10.12 Remedies Cumulative 38
10.13 Books and Records 39
10.14 Severability 39
10.15 Beneficiaries of Agreement 39
