EXHIBIT 10.13
LICENSE EXCHANGE AND ACQUISITION AGREEMENT
among
AT&T WIRELESS PCS INC.,
TRITON PCS HOLDINGS, INC.
and
TRITON PCS LICENSE COMPANY L.L.C.
Dated as of June 8, 1999
LICENSE EXCHANGE AND ACQUISITION AGREEMENT
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LICENSE EXCHANGE AND ACQUISITION AGREEMENT, dated as of June 8,
1999, among AT&T WIRELESS PCS INC., a Delaware corporation ("AT&T PCS"), TRITON
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PCS HOLDINGS, INC., a Delaware corporation (the "Company") and TRITON PCS
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LICENSE COMPANY L.L.C., a Delaware limited liability company and an indirect
wholly owned Subsidiary (as hereinafter defined) of the Company ("Triton License
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Company"). Each of the Company and Triton License Company are sometimes
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referred to herein, individually as a "Triton Entity" and, collectively, as the
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"Triton Entities".
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WHEREAS, AT&T PCS has been granted the PCS license described on
Schedule I (the "Atlanta License");
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WHEREAS, Triton License Company has been granted the PCS license
described on Schedule II (the "Washington-Baltimore License");
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WHEREAS, (a) AT&T PCS wishes to purchase additional securities of
the Company in consideration of the contribution to the capital of the Company
of a 20 MHz portion of the Atlanta License covering Xxxxx County, GA, Chatham
County, GA, Effingham County, GA and Liberty County, GA, and the Company wishes
to accept such contribution and issue such securities to AT&T PCS, and (b) the
parties to this Agreement desire to effect an exchange of a 20 MHz portion of
the Atlanta License covering the Athens BTA for the portions of the Washington-
Baltimore License covering the Cumberland, MD BTA and the Hagerstown-
Chambersburg, PA-Martinsburg, WV BTA in a like kind exchange of property
pursuant to Section 1031 of the Internal Revenue Code of 1986, as amended (the
"Code"), all on the terms and subject to the conditions herein set forth below.
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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")
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means 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.
"Agreement" means this License Exchange and Acquisition Agreement, as
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the same may be amended, modified or supplemented in accordance with the terms
hereof.
"AT&T PCS Material Adverse Effect" means a material adverse effect on
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the AT&T PCS Transferred License.
"AT&T Party" means AT&T PCS and each Affiliate of AT&T PCS that is a
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party to any of the Related Agreements.
"AT&T PCS" has the meaning set forth in the preamble.
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"AT&T PCS Retained License" means a License or multiple Licenses,
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which, after giving effect to the Transactions set forth in Sections 2.1(a)(i)
and 2.2(a)(i)(A), provides in the aggregate the right to use the balance of the
authorized frequencies under the Atlanta License to provide PCS throughout the
entirety of the territory covered by the Atlanta License, as more particularly
described on Schedule 2(a).
"AT&T PCS Transferred License" means a License or multiple Licenses
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covering the right to use 20 MHz of authorized frequencies to provide PCS
throughout (i) Xxxxx County, GA, Chatham County, GA, Effingham County, GA and
Liberty County, GA within the Atlanta MTA, as more particularly described in
Section 2.1(a)(i), in connection with the License Contribution, and (ii) the
Athens, GA BTA within the Atlanta MTA, as more particularly described in Section
2.2(a)(i)(A), in connection with the License Exchange.
"Atlanta License" has the meaning set forth in the recitals.
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"BTA" means the unit of division (of which there are four hundred
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ninety-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.
"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.
"Capital Stock" means any and all shares, interests, participations or
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other equivalents (however designated) of capital stock of a corporation, and
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants, rights or options to purchase or
subscribe for any of the foregoing or any warrants, rights or options to
purchase or subscribe for any such warrants, rights or options.
"Claim" has the meaning set forth in Section 8.4(a).
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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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"Code" has the meaning set forth in the recitals.
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"Common Stock" has the meaning set forth in Section 2.4.
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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
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the business, financial condition, assets, liabilities or results of operations,
taken as a whole, of the Company, or Cumberland/Hagerstown Exchanged License.
"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
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Authorities or 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.
"Cumberland/Hagerstown Exchanged License" has the meaning set forth in
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Section 2.2(a)(ii)(A).
"Cumberland/Hagerstown Retained License" has the meaning set forth in
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Section 2.2(a)(ii)(B).
"Designated Purchaser" has the meaning set forth in Section 10.14.
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"FCC" means the Federal Communications Commission or similar
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regulatory authority established in replacement thereof.
"FCC Law" means the Communications Act of 1934, as amended, including
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as 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.
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"XXX Xxx" 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(a).
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"Indemnifying Party" has the meaning set forth in Section 8.4(a).
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"Independent Accountant" means Deloitte & Touche LLP.
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"Independent Directors" means the individuals listed on Schedule III.
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"Initial Closing Date" has the meaning set forth in the recitals.
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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 Contribution" has the meaning set forth in Section 2.1(a).
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"License Exchange" has the meaning set forth in Section 2.2.(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 Stockholders" means the individuals listed on Schedule IV.
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"Minutes" has the meaning set forth in Section 4.1(e).
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"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.
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"Network Membership License Agreement" means the Network Membership
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License Agreement dated as of February 4, 1998 between AT&T Corp., a New York
corporation, and Triton Operating Company, as the same may be amended, modified
or supplemented in accordance with the terms thereof.
"New York Courts" has the meaning set forth in Section 10.5.
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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
Transferred License under FCC Law.
"Related Agreements" means the Stockholders' Agreement, the Roaming
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Agreement, the Network Membership License Agreement and the Resale Agreement,
collectively.
"Related Agreement Amendments" means Amendment No. 2 to Stockholders'
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Agreement attached as Exhibit A, Amendment No. 2 to Intercarrier Roaming Service
Agreement attached as Exhibit B, and Amendment No. 2 to Network Membership
License Agreement attached as Exhibit C.
"Representatives" has the meaning set forth in Section 4.2(a).
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"Resale Agreement" means the form of Resale Agreement attached as
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Exhibit C to the Securities Purchase Agreement, as the same may be amended,
modified or supplemented in accordance with the terms thereof.
"Restated Certificate Amendment" means an amendment to the Restated
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Certificate, which has been (or as of the Closing will have been) duly
authorized and approved in accordance with Delaware General Corporation Law by
the Board of Directors and Stockholders of the Company, amending Section
4.3(d)(iii) and Section 4.4 of the Restated Certificate as set forth on Schedule
V.
"Roaming Agreement" means the Intercarrier Roamer Service Agreement
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dated as of February 4, 1998 between Triton Operating Company and AT&T Wireless
Services, Inc., as the same may be amended, modified or supplemented in
accordance with the terms thereof.
"Section 8.2 Indemnified Party" has the meaning set forth in Section
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8.2.
"Section 8.3 Indemnified Party" has the meaning set forth in Section
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8.3.
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"Securities" means the shares of Series A Preferred Stock, Series D
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Preferred Stock and Common Stock to be issued hereunder in accordance with the
terms hereof, together with any shares of Capital Stock issued upon conversion
of any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended.
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"Securities Purchase Agreement" means the Securities Purchase
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Agreement dated as of October 8, 1997, among AT&T PCS, the Company, and the
other stockholders of the Company party thereto, as amended.
"Series A Preferred Stock" has the meaning set forth in Section 2.3.
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"Series B Preferred Stock" has the meaning set forth in Section 6.7.
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"Series C Preferred Stock" has the meaning set forth in Section 6.7.
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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.
"Telephones" has the meaning set forth in Section 4.1(e).
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"Third-Party Proposal" has the meaning set forth in Section 4.8(a).
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"Transactions" means the transactions contemplated by this Agreement
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and the Related Agreement Amendments.
"Triton Entity" or "Triton Entities" has the meaning set forth in the
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preamble.
"Triton License Company" has the meaning set forth in the preamble.
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"Triton PCS" has the meaning set forth in the recitals.
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"Washington-Baltimore License" has the meaning set forth in the
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recitals.
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
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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
LICENSE CONTRIBUTION;
LICENSE EXCHANGE
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2.1 License Contribution.
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(a) Upon the terms and subject to the conditions hereof and in
reliance upon the representations, warranties, covenants and agreements herein
contained AT&T PCS shall, partition and disaggregate the Atlanta License, in
addition to the partitioning and disaggregation of the Atlanta License described
on Section 2.2(a)(i), to create, as more particularly described on Schedule
2(a), (i) a License providing in the aggregate the right to use 20 MHz of
authorized frequencies to provide PCS throughout the entirety of Xxxxx County,
GA, Chatham County, GA, Effingham County, GA and Liberty County, GA within the
Atlanta MTA, and (ii) after giving effect to the Transactions described in
clause (i) hereof and in Section 2.2(a)(i)(A), a License providing in the
aggregate the right to use the balance of the authorized frequencies under the
Atlanta License to provide PCS throughout the entirety of the territory covered
by the Atlanta License (which right shall be exercised by AT&T PCS in accordance
with the terms of the Stockholders' Agreement). At the Closing, AT&T PCS shall
assign to the Company (or one or more Designated Purchasers), free and clear of
any Liens, a License for the portion of the Atlanta MTA described in Section
2.1(a)(i) and the Company shall issue to AT&T PCS, in full consideration for
such License, the securities of the Company specified in Section 2.3 (such
transactions relating to such contribution are herein collectively referred to
as the "License Contribution").
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(b) Notwithstanding anything to the contrary herein contained, with
respect to the License Contribution, AT&T PCS is not selling, transferring or
assigning to the Company pursuant to this Agreement any assets, rights or
properties other than a License for the portion of the Atlanta MTA described in
Section 2.1(a)(i).
2.2 License Exchange.
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(a) Upon the terms and subject to the conditions hereof and in
reliance upon the representations, warranties, covenants and agreements herein
contained, (i) AT&T PCS shall
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partition and disaggregate the Atlanta License, in addition to the partitioning
and disaggregation of the Atlanta License described in Section 2.1, to create,
as more particularly described on Schedule 2(a), (A) a License providing in the
aggregate the right to use 20 MHz of authorized frequencies to provide PCS
throughout the entirety of the Athens, Georgia BTA within the Atlanta MTA, and
(B) after giving effect to the transactions described in clause (i) hereof and
in Section 2.1(a)(i), a License providing in the aggregate the right to use the
balance of the authorized frequencies under the Atlanta License to provide PCS
throughout the entirety of the territory covered by the Atlanta License (which
right shall be exercised by AT&T PCS in accordance with the terms of the
Stockholders' Agreement); and (ii the Triton Entities shall partition the
Washington-Baltimore License to create, as more particularly described on
Schedule 2(b), (A) a License (the "Cumberland/Hagerstown Exchanged License")
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providing in the aggregate the right to use the entirety (consisting of 20MHz)
of the authorized frequencies under the Washington-Baltimore License to provide
PCS throughout the entirety of the Cumberland, MD BTA and the Hagerstown MD-
Chambersburg, PA-Martinsburg, WV BTA, and (B) a License (the
"Cumberland/Hagerstown Retained License") to use the entirety of the authorized
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frequencies under the Washington-Baltimore License to provide PCS throughout the
balance of the territory covered by the Washington-Baltimore License (which
right shall be exercised by the Triton Entities in accordance with the terms of
the Stockholders' Agreement). At the Closing, Triton License Company shall, and
the Company will cause Triton License Company to, assign to AT&T PCS, free and
clear of any Liens, in full consideration for a License for the Athens, GA BTA
within the Atlanta MTA described in Section 2.2(a)(i)(A), the
Cumberland/Hagerstown Exchanged License, and AT&T PCS shall assign to Triton
License Company free and clear of any Liens, in full consideration for the
Cumberland/Hagerstown Exchanged License, a License for the Athens, GA BTA within
the Atlanta MTA described in Section 2.2(a)(i)(A) (such transactions relating to
such exchange are herein collectively referred to as the "License Exchange").
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(b) Notwithstanding anything to the contrary herein contained, with
respect to the License Exchange, (i) AT&T PCS is not selling, transferring or
assigning to the Triton Entities pursuant to this Agreement any assets, rights
or properties other than a License for the Athens, GA BTA within the Atlanta MTA
described in Section 2.2(a)(i)(A), and (ii) the Triton Entities are not selling,
transferring or assigning to AT&T PCS pursuant to this Agreement any assets,
rights or properties other than the Cumberland/Hagerstown Exchanged License.
(c) The parties hereby agree that the License Exchange shall be
treated as a like kind exchange of property pursuant to Section 1031 of the
Code.
2.3 Payment of Consideration for the License Contribution. Upon the terms
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and subject to the conditions hereof and in reliance upon the representations,
warranties, covenants and agreements herein contained, at the Closing, in
consideration of the License Contribution, the Company shall issue and deliver
to AT&T PCS (i) 53,881.64 shares of the Company's Series A Convertible
Preferred Stock, par value $0.01 per share ("Series A Preferred Stock"), and
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(ii) 42,738.98 shares of the Company's Series D Convertible Preferred Stock, par
value
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$0.01 per share ("Series D Preferred Stock" and, collectively with the shares of
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Series A Preferred Stock issued and delivered to AT&T PCS pursuant to Section
2.3(i), the "Purchase Price"). The Company shall not issue or deliver any
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securities in connection with the License Exchange.
2.4 Issuance of Securities to Management Stockholders and Independent
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Directors.
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(a) Upon the terms and subject to the conditions hereof and in
reliance upon the representations warranties, covenants and agreements contained
in the Joinder of Management Stockholders and Independent Directors attached
hereto, in consideration of the Transactions, the Company shall issue, sell and
deliver to the Management Stockholders and the Independent Directors the
following Securities at the Closing:
(i) to each of the Management Stockholders, the number of shares
of the Company's Common Stock, par value $.01 per share ("Common Stock"), set
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forth opposite his name on Schedule IV; and
(ii) to each of the Independent Directors, the number of shares of
Common Stock set forth opposite his name on Schedule III.
(b) On the Closing Date, the Company shall deliver to the Management
Stockholders and Independent Directors, certificates duly executed by authorized
signatories of the Company, representing the shares of Common Stock to be issued
in accordance with Section 2.4(a).
2.5 Payment of Certain Expenses. The Company agrees, in the event the
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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 in
connection with (i) the preparation, negotiation, execution and delivery of this
Agreement, and the instruments and documents executed pursuant hereto or in
connection herewith, and (ii) the consummation of the Transactions, including
all legal fees and related expenses incurred in connection with the preparation
and filing of applications on Form 603 with the FCC necessary to effect the
License Exchange and the License Contribution.
2.6 Restrictive Legends. Each certificate representing Securities
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(including the Securities originally issued hereunder or delivered upon
conversion of the Series A Preferred Stock or 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:
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"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."
2.7 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 paid pursuant to the License Contribution. The parties agree that such
allocation shall be made based upon the fair market value of the License being
transferred pursuant to the License Contribution 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 the Independent Accountant who
will be engaged by the parties to allocate the Purchase Price for such License
being transferred pursuant to the License Contribution based upon its relative
fair market value 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 Xxxxxxxx Xxxxxx & Xxxxxx LLP, 875 Third Avenue, New
York, New York, 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 Date"). The Closing
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shall be deemed to have occurred as of 12:01 a.m. on the Closing Date.
3.2 Closing Actions and Deliveries. Upon the terms and subject to the
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satisfaction or waiver by the appropriate party, if applicable, of the
conditions set forth in Article VII, to consummate the Transaction, the parties
shall on the Closing Date take the following actions:
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(a) AT&T PCS Deliveries. AT&T PCS shall execute and deliver (or
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cause to be executed and delivered) to the Company :
(i) one or more instruments of assignment, substantially in the form
of Exhibit 3.2(a)(i), sufficient to assign to Triton License Company the AT&T
PCS Transferred License;
(ii) the opinion of Xxxxxxxx Xxxxxx & Xxxxxx LLP, dated the Closing
Date, addressed to the Triton Entities (and its lenders, if applicable) and
substantially in the form of Exhibit 3.2(a)(ii);
(ii) 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(a)(iii);
(iv) 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 each of the conditions precedent to the obligations of AT&T
PCS hereunder have been waived by AT&T PCS or have been satisfied;
(v) a certificate of an officer of AT&T PCS, dated the Closing Date,
certifying as to (A) 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 (B) 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;
(vi) 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;
(vii) the Related Agreement Amendments executed by any AT&T Party
thereto; and
(viii) all such other documents and instruments as the Company or its
counsel may reasonably request in order to consummate the Transactions.
(b) Triton Entity Deliveries. The Triton Entities shall execute and deliver
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(or cause to be executed and delivered) to AT&T PCS:
(i) certificates duly executed by authorized signatories of the
Company, representing the shares of Series A Preferred Stock and Series D
Preferred Stock to be issued in accordance with Section 2.3;
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(ii) one or more instruments of assignment, substantially in the form
of Exhibit 3.2(b)(ii), sufficient to assign to AT&T PCS the
Cumberland/Hagerstown Exchanged License;
(iii) 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(b)(iii);
(iv) the opinion of Xxxxxx & Xxxxxxx, dated the Closing Date,
addressed to AT&T PCS and substantially in the form of Exhibit 3.2(b)(iv);
(v) a certificate of an officer of each Triton Entity, 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 each of the conditions precedent to the
obligations of such Triton Entity hereunder have been waived by such Triton
Entity or have been satisfied;
(vi) a certificate of an officer of each Triton Entity, dated the
Closing Date, certifying as to (A) the resolutions adopted by such Triton Entity
duly authorizing the execution, delivery and performance of this Agreement by
such Triton Entity and the execution and delivery by such Triton Entity of all
instruments and documents contemplated hereby, and (B) the signatures of the
Persons who have been authorized to execute and deliver this Agreement on behalf
of such Triton Entity and any other agreement executed or to be executed in
connection herewith;
(vii) a good standing certificate of each Triton Entity from the
Secretary of State of Delaware, dated no earlier than 30 days prior to the
Closing;
(vi the Related Agreement Amendments executed by the parties
thereto (other than any AT&T Party);
(ix a copy of the Restated Certificate Amendment certified by
the Secretary of State of the State of Delaware; and
(x) 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
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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 (or
franchise taxes similar to income taxes) payable by AT&T PCS, if any, in
connection with the Transactions; 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.
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ARTICLE IV
COVENANTS
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4.1 Consummation of Transactions. Each party shall use (except as
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otherwise provided in this Section 4.1) 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 and the
Related Agreements Amendments and 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 any Consents necessary or advisable in the reasonable judgment of AT&T PCS
in connection with franchise laws applicable to the execution, delivery and
performance of this Agreement or the Related Agreement Amendments or the
consummation of the Transactions, 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, the Company, Triton License
Company or any other party in connection with the Transactions or otherwise to
comply with applicable FCC Law.
(c) Upon the request of another 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 and the Related Agreements
Amendments.
(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) As reported by Public Notice issued by the FCC (Report No. 204
dated April 14, 1999), the parties acknowledged that the FCC approved separately
filed applications by each of AT&T PCS and Triton License Company, respectively,
requesting FCC Consent to the assignment of, in the case of AT&T PCS, the AT&T
PCS Transferred License and, in the case of Triton License Company, the
Cumberland/Hagerstown Exchanged License. Each party hereby agrees to use its
best efforts to take, or forbear from taking, all such actions, so as to
maintain such approval in full force and effect and not to engage in, or forbear
from engaging in, any activity which would result in the revocation or
modification of such approval. In addition to FCC approval, it is understood
that the Closing may be subject to the prior
-13-
approval of one or more state regulatory commissions. The parties shall use
their best efforts to file with 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 License Exchange and the License Contribution. 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 any regulatory authority and to file such material as
shall be necessary or any required to obtain any necessary waivers or other
authority from the any 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.
(e) Each party shall use all commercially reasonable efforts to modify
the structure of the Transactions in such a manner that no franchise laws shall
be applicable to the relationship between AT&T PCS (or its Affiliates) and the
Company; provided that, no party shall be obligated to agree to any modification
that adversely affects such party. The Company acknowledges that (i) the
Company and AT&T PCS and its Affiliates do not intend to create a franchise or
business opportunity relationship; (ii) the wireless telephones ("Telephones")
----------
if any, purchased by the Company from AT&T PCS and its Affiliates and minutes
for mobile wireless radiotelephonic service ("Minutes") purchased by the Company
-------
under the terms of the Roaming Agreement are being sold at bona fide wholesale
prices; (iii) the Company is not required by this Agreement or the Related
Agreements or as a matter of practical necessity to purchase more than a
reasonable quantity of Telephones or Minutes; and (iv) neither AT&T PCS nor any
of its Affiliates has made any representation to the Company that (a) the
Company or its equity holders will earn, or are likely to earn, a gross or net
profit, (b) AT&T PCS or any of its Affiliates has knowledge of the market that
the Company will operate in or that the market demand will enable the Company to
earn a profit, (c) there is a guaranteed market for the Company, or (d) AT&T PCS
or any of its Affiliates will provide the Company with locations or assist the
Company in finding locations for use or operation of its business. The Company
has been informed at least seven days prior to the execution of this Agreement
that AT&T PCS's principal business address is, and AT&T's agent for service of
process is, c/o AT&T Corp., 00 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Notwithstanding the foregoing, no acknowledgment of the Company contained in
this Section 4.1(e) shall be deemed to alter, modify or otherwise amend any of
the Related Agreements or the rights and obligations of the parties thereunder.
Nothing in this Agreement shall be construed to require the parties to
consummate the Closing if any regulatory approval would require that it (i)
divest or hold separate any of its assets existing as of the date hereof other
than as contemplated by this Agreement and the Related Agreements or (ii)
otherwise take or commit to take any action that limits its freedom of action in
any
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material respect with respect to any of its businesses, product lines or assets
other than as contemplated by this Agreement or the Related Agreements.
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.
(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;
(v) as required to obtain the Consents specified in Sections 7.1(a) through (c);
or (vi) in the case of the Company, relating solely to the AT&T PCS Transferred
License, and in the case of AT&T PCS, relating solely to the
Cumberland/Hagerstown Exchanged License, on and after the Closing Date.
4.3 AT&T PCS Retained License. AT&T PCS and its Affiliates may use the
-------------------------
AT&T PCS Retained License and may market and sell to their customers or others
any services that use such Licenses permitted under applicable Laws, in each
case as it may determine, and may otherwise deal with and permit others to deal
with the AT&T PCS Retained License except from and after the date hereof to the
extent otherwise expressly agreed by any AT&T Party in any of the Related
Agreements.
4.4 No Further Commitment. The parties acknowledge and agree that,
---------------------
except to the extent expressly set forth in this Agreement and the Related
Agreements, neither AT&T PCS nor any of its Affiliates has any legal,
contractual or other obligation to acquire debt or equity securities of the
Company, provide or arrange for debt or equity financing required by the
Company, provide services to or otherwise assist the Company in connection with
the conduct of its business or in any other manner, refrain from exercising its
rights under this Agreement and the Related Agreements (including the right to
terminate the Network Membership License Agreement in accordance with its terms)
or refrain from competing, directly or indirectly, with businesses conducted by
the Company. Nothing herein shall be construed to relieve any Person of its
express contractual obligations under this Agreement and the Related Agreements
or from any common Law obligation of good faith relating to its performance of
such contractual obligations.
4.5 Offering of Securities. None of the Company or any Person acting
----------------------
on its behalf will, directly or indirectly, take any action which might subject
the offering, issuance or sale of the Securities to the registration and
prospectus delivery requirements of Section 5 of the Securities Act.
4.6 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 Atlanta License
except to the extent that such failure to comply would not have an AT&T PCS
Material Adverse Effect or a material adverse effect on the Transactions;
(b) Use its reasonable best efforts to maintain the Atlanta 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) create, incur or
suffer to exist any Lien of any nature whatsoever relating to the AT&T PCS
Transferred License or any interest therein, or
-16-
(ii) enter into any contract or agreement relating exclusively to the AT&T PCS
Transferred License other than those which are terminable by AT&T PCS without
penalty or any liability at the Closing;
(d) Not 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 AT&T PCS Transferred License or any interest therein, or
negotiate therefor;
(e) Furnish the Company with all such information concerning the AT&T
PCS Transferred License as the Company may reasonably request and cause the
appropriate officers, employees, consultants, agents, accountants and attorneys
of AT&T PCS to cooperate with the Company in connection with such review and
examination;
(f) 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 AT&T PCS Transferred License, and which would reasonably be
expected to have an AT&T PCS Material Adverse Effect or a material adverse
effect on the Transactions;
(g) 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 or a material adverse effect on the
Transactions, 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; and
(h) 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 a material
adverse effect on the Transactions (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.
4.7 Covenants of the Triton Entities. From and after the
--------------------------------
execution and delivery of this Agreement to and including the Closing Date, each
Triton Entity shall:
-17-
(a) Comply with all applicable Laws, including all such Laws relating
to the Washington-Baltimore License, except to the extent that such failure to
comply would not have a Company Material Adverse Effect or a material adverse
effect on the Transactions;
(b) Use its reasonable best efforts to maintain the Washington-
Baltimore License in full force and effect;
(c) Without the prior written consent of AT&T PCS, such consent not
to be unreasonably withheld, delayed or conditioned, not (i) create, incur or
suffer to exist any Lien of any nature whatsoever relating to the
Cumberland/Hagerstown Exchanged License or any interest therein, or (ii) enter
into any contract or agreement relating exclusively to the Cumberland/Hagerstown
Exchanged License other than those which are terminable by the Company without
penalty or any liability at the Closing;
(d) Not sell, transfer, assign or dispose of, or offer to, or enter
into any agreement, arrangement or understanding to, sell, transfer, assign or
dispose of the Cumberland/Hagerstown Exchanged License or any interest therein,
or negotiate therefor;
(e) Furnish AT&T PCS with all such information concerning the
Cumberland/Hagerstown Exchanged License as AT&T PCS may reasonably request and
cause the appropriate officers, employees, consultants, agents, accountants and
attorneys of such Triton Entity to cooperate with AT&T PCS in connection with
such review and examination;
(f) 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) the Cumberland/Hagerstown Exchanged License, its properties or
assets, and which would reasonably be expected to have a Company Material
Adverse Effect or a material adverse effect on the Transactions;
(g) 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 or a material adverse effect on the
Transactions, 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;
(h) 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 or a material
adverse effect on the Transactions (other than
-18-
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; and
(i) The Company shall use its reasonable best efforts to cause the
Restated Certificate Amendment to be (A) authorized and approved by the
Company's Board of Directors and the stockholders of the Company and, (B) duly
executed by the appropriate officers of the Company and filed with the Secretary
of State of the State of Delaware.
4.8 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)
with respect to the AT&T PCS Transferred License, and each Triton Entity (and
any of such Triton Entity's officers, directors, partners, employees,
representatives or agents) with respect to the Cumberland/Hagerstown Exchanged
License, 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 of, in the case of AT&T PCS, the AT&T PCS Transferred License, and
in the case of each Triton Entity, the Cumberland/Hagerstown Exchanged License
(collectively, a "Third-Party Proposal"). During such period, AT&T PCS or such
--------------------
Triton Entity, as the case may be, shall promptly inform the other parties of
the occurrence of a Third-Party Proposal and the terms thereof (including the
identity of the prospective soliciting party).
(b) If any party (or any of such party's respective officers,
directors, partners, employees, representatives or agents) breaches or threatens
to commit a breach of any of the provisions of this section, the non-breaching
party shall have the right (in addition to any other rights and remedies
available to it 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 such
non-breaching party and that money damages would not be an adequate remedy to
the such non-breaching party. Each party 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 such non-breaching party's seeking or
obtaining such relief.
4.9 FCC Construction Requirement. The Triton Entities and AT&T PCS
----------------------------
hereby agree that the Triton Entities shall (i) assume and be obligated to
satisfy the construction requirements set forth in 47 C.F.R. 24.203 with respect
to the Atlanta License covering the Athens, GA BTA and Xxxxx County, GA, Chatham
County, GA, Effingham County, GA and Liberty County, GA; and (ii) be released
from the obligation to provide "substantial service" (as
-19-
defined in 47 C.F.R. 24.16(a)) throughout the territory covered by the
Cumberland/Hagerstown Exchanged License.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF AT&T PCS
------------------------------------------
AT&T PCS represents and warrants as to itself and each other AT&T
Party 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 its jurisdiction of incorporation.
(b) It has the requisite power and authority to execute, deliver and
perform this Agreement, each Related Agreement Amendment to which it is (or will
be) a party 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 and to consummate the
Transactions.
(c) It is duly qualified to do business in each jurisdiction where 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 an AT&T PCS
Material Adverse Effect or a material adverse effect on the Transactions.
(d) The execution and delivery of this Agreement by it and the
consummation of the Transactions by it, including the execution and delivery of
the Related Agreement Amendments to which it is (or will be) a party, have been
duly and validly authorized by its Board of Directors (or equivalent body) and
no other proceedings on its part which have not been taken (including approval
of its stockholders, partners or members) are or, in the case of the Related
Agreement Amendments will be, necessary to authorize this Agreement or the
Related Agreement Amendments 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. Each of the Related Agreement Amendments to which it is a
party shall be duly executed and delivered by it at (or prior to) the Closing
and, upon such execution and delivery, shall constitute its valid and binding
obligation, enforceable against it in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency,
-20-
moratorium or other similar Laws affecting or relating to enforcement of
creditors' rights generally and may be subject to general principles of equity.
(f) As of the Closing Date, after giving effect to the Transactions,
it will not be in breach of any obligation under this Agreement or any of the
Related Agreement Amendments.
5.2 Consents; No Conflicts. Neither the execution, delivery and
----------------------
performance by it of this Agreement and the Related Agreement Amendments to
which it is a party, 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 the AT&T PCS
Transferred License, or give rise to any right of termination, modification,
cancellation, prepayment or acceleration, under (i) any Law or the AT&T PCS
Transferred 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 Schedule 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 or a material adverse effect on the Transactions. 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 the Related Agreement
Amendments or disqualify AT&T PCS from obtaining the Consents (including the
Consent of the FCC) required in order to consummate the Transactions.
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, if adversely determined, 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 the Related Agreement Amendments 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 Transferred
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 License. AT&T PCS is the authorized legal holder, free and clear of
-------
any Liens, of the Atlanta License evidence of which is attached as Schedule I.
The AT&T PCS Transferred
-21-
License is, and on the Closing Date the AT&T PCS Transferred 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 AT&T
PCS Transferred 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 AT&T PCS
Transferred 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 Transferred License in its business after the Closing Date.
The Atlanta License is not subject to any conditions other than those appearing
on the face of the Atlanta License itself, and those imposed by FCC Law.
5.7 Compliance With Laws. With respect to the Atlanta License, AT&T PCS
--------------------
is in, and has operated in, compliance with all applicable Laws, including all
FCC Laws, 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 Atlanta
License 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 Atlanta License, 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 or a material adverse effect on the Transactions.
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 Series A Preferred Stock and 366,131 shares of 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.
-22-
(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.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE TRITON ENTITIES
----------------------------------------------------
Each Triton Entity, jointly and severally, represents and warrants, as
to itself and each of its Subsidiaries, to AT&T PCS as follows:
6.1 Organization, Power and Authority.
---------------------------------
(a) Each of the Company and each Subsidiary of a Triton Entity that
is a corporation, 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. Each of Triton License
Company and each Subsidiary of a Triton Entity that is a limited liability
company, is duly formed, validly existing and in good standing under the Laws of
the State of Delaware and has the requisite power and authority to own, lease
and operate its properties and to carry on its business as now being conducted
and as proposed to be conducted.
(b) It has the requisite power and authority to execute, deliver and
perform this Agreement, each Related Agreement Amendment to which it is (or will
be) a party, and each other instrument, document, certificate and agreement
required or contemplated to be executed,
-23-
delivered and performed by it hereunder and thereunder to which it is or will be
a party and to consummate the Transactions.
(c) It 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 or a material adverse effect on the Transactions.
(d) The execution and delivery of this Agreement by it and the
consummation of the Transactions by it, including the execution and delivery of
the Related Agreement Amendments to which it is (or will be) a party, have been
duly and validly authorized by its Board of Directors (or equivalent body) and
no other proceedings on its part which have not been taken (including
stockholders) are or, in the case of the Related Agreement Amendments, will be,
necessary to authorize this Agreement, the Related Agreement Amendments 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. Each of the Related Agreement Amendments to which it is a
party shall be duly executed and delivered by it at (or prior to) the Closing
and, upon such execution and delivery, shall constitute 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
and may be subject to general principles of equity.
(f) As of the Closing, after giving effect to the Transactions, it
will not be in breach of any obligation under this Agreement or any of the
Related Agreement Amendments.
6.2 Consents; No Conflicts. Neither the execution, delivery and
----------------------
performance by it of this Agreement and the Related Agreement Amendments to
which it is a party, 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,
including the Cumberland/Hagerstown Exchanged License, or give rise to any right
of termination, modification, cancellation, prepayment or acceleration, under
(i) any Law or the Cumberland/Hagerstown Exchanged 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 Schedule 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 or a material adverse effect on the Transactions. To its knowledge,
there is no fact relating to it or its Affiliates that would be
-24-
reasonably expected to prevent it from consummating the Transactions or
performing its obligations under this Agreement or the Related Agreement
Amendments or disqualify it from obtaining the Consents (including the Consent
of the FCC) required in order to consummate the Transactions.
6.3 Litigation. There is no action, proceeding or investigation
----------
pending or, to its knowledge, threatened against it or any of its properties or
assets that, if adversely determined, would have a material adverse effect on
its ability to consummate the Transactions or to fulfill its obligations under
this Agreement or the Related Agreement Amendments, 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. 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.
6.6 Stockholders' Agreement. From and after February 4, 1998, through
-----------------------
and including the Closing Date, the Company has performed, or will perform, all
covenants and agreements required to be performed by it pursuant to the
Stockholders' Agreement.
6.7 Capitalization.
--------------
(a) As of the date hereof, the authorized capital stock of the
Company consists of 10,000,000 shares of Common Stock, 1,000,000 shares of the
Company's Series A Convertible Preferred Stock, 2,000,000 shares of the
Company's Series B Preferred Stock, par value $.01 per share ("Series B
--------
Preferred Stock"), 3,000,000 shares of Series C Convertible Preferred Stock, par
---------------
value $0.01 per share ("Series C Preferred Stock"), and 1,000,000 shares of
------------------------
Series D Preferred Stock. As of the date hereof, there have been issued and are
outstanding 268,459.01 shares of Common Stock, 732,371 shares of Series A
Preferred Stock, no shares of Series B Preferred Stock, 1,195,186.51 shares of
Series C Preferred Stock and 500,944.49 shares of Series D Preferred Stock. The
record and beneficial owners of such outstanding shares of Capital Stock of the
Company as of the date hereof are set forth on Schedule 6.7(a).
(b) As of the date hereof, except as set forth on Schedule 6.7(b),
there are not any existing options, warrants, calls, subscriptions, or other
rights, or other agreements or commitments, obligating the Company to issue,
transfer or sell any shares of its Capital Stock, except the Securities
hereunder.
-25-
6.8 Shares. The Series A Preferred Stock and Series D Preferred Stock
------
being issued to AT&T PCS hereunder, and the shares of Common Stock being issued
to the Management Stockholders and the Independent Directors 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 Restated Certificate of Incorporation of the Company. The Securities issued
upon conversion of the Series A Preferred Stock and Series D Preferred Stock,
when issued pursuant to the terms of the Series A Preferred Stock or Series D
Preferred Stock, as the case may be, 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.
6.9 License. Triton License Company is the authorized legal holder,
-------
free and clear of any Liens, of the Washington-Baltimore License, evidence of
which is attached as Schedule II. The Cumberland/Hagerstown Exchanged License
is, and on the Closing Date the Cumberland/Hagerstown Exchanged 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 it, threatened against it or against the
Cumberland/Hagerstown Exchanged Licenses, 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 Cumberland/Hagerstown Exchanged License, which seeks the imposition of any
modification or amendment with respect thereto, or which adversely affects the
ability of it to employ the Cumberland/Hagerstown Exchanged License in its
business after the Closing Date. The Washington-Baltimore License is not
subject to any conditions other than those appearing on the face of the
Washington-Baltimore License itself and those imposed by FCC Law.
6.10 No Additional Representations. It 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, 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).
6.11 Compliance With Laws. It is in, and has operated in, compliance
--------------------
with all applicable Laws, including all FCC 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. It has not received notice to the
effect that, or otherwise been advised that, it is not in compliance with any
Laws, including with respect to the Washington-Baltimore License, and it
-26-
has not taken any action or failed to take any action that is a violation of any
such Laws, including with respect to the Washington-Baltimore License, 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 or a material adverse effect on the Transactions.
6.12 No Material Adverse Effect. Since December 31, 1998, there has
--------------------------
been no Company Material Adverse Effect.
6.13 Subsidiaries. Except for the Liens set forth on Schedule 6.13,
------------
the Company owns directly or indirectly all of the outstanding shares of Capital
Stock of each of its Subsidiaries, free and clear of any Liens. Set forth on
Schedule 6.13 is a complete list of its direct and indirect Subsidiaries
indicating the jurisdictions in which each such Subsidiary is organized or
qualified to conduct business.
6.14 Offering of Securities.
----------------------
(a) None of the Company or any Person acting on its behalf has
offered the Securities or any similar equity securities of the Company for sale
to, or solicited any offers to buy Securities or any similar equity securities
of the Company from, any Person, other than the Stockholders (as such term is
defined in the Stockholders' Agreement) and a limited number of other
"accredited investors" (as defined in Rule 501(a) under the Securities Act).
(b) Assuming the accuracy of the representations and warranties of
the AT&T PCS, in Section 5.8 and 5.9, the offering and sale of Securities under
this Agreement to AT&T PCS, complies with all applicable requirements of Federal
and state securities Laws.
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, in writing, by
each of the parties at or prior to Closing:
(a) Any applicable waiting period under the HSR Act shall have
expired or been terminated.
(b) The Consent of the FCC to each of the License Exchange and the
License Contribution 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,
-27-
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 any
Triton Entity to perform its obligations under this Agreement or the Related
Agreement Amendments.
(d) No preliminary or permanent injunction or other order, decree or
ruling issued by a Governmental Authority, nor any Law 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 any Triton Entity.
7.2 Conditions to Obligations of the Triton Entities. The obligation
------------------------------------------------
of the Triton Entities 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, in
writing, 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 for representations and warranties (i) made as
of a specified date, which shall be true and correct as of such date, and (ii)
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 5.3 and the third sentence of Section 5.6 (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.
(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(a).
-28-
(d) Each of the Related Agreement Amendments shall have been executed
and delivered by the parties thereto (other than the Company) and shall be in
full force and effect.
(e) The Company shall have received any Consent of the lenders
required pursuant to the terms of that certain Credit Agreement dated as of
February 3, 1998 among the Company and the lenders and agents party thereto, as
amended.
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, in writing, by AT&T PCS:
(a) The representations and warranties of the Triton Entities
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 (i) made as of a specified date, which shall be true and correct as
of such date, and (ii) 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 and the third sentence of Section 6.9
(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 Triton Entities' ability to
perform their respective obligations under this Agreement.
(b) Each Triton Entity shall have performed in all material respects
all agreements contained herein required to be performed by it at or before the
Closing.
(c) Each Triton Entity shall have delivered to AT&T PCS the documents
required pursuant to Section 3.2(b).
(d) Each of the Related Agreement Amendments shall have been executed
and delivered by the parties thereto (other than any AT&T PCS Party) and shall
be in full force and effect.
ARTICLE VII
SURVIVAL AND INDEMNIFICATION
----------------------------
8.1 Survival. Except for the representations and warranties contained in
--------
Sections 5.1(a), (b), (d), (e) and the first sentence of Section 5.6 and
6.1(a), (b), (d) and (e), and the first sentence of Section 6.9 (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
-29-
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 Triton Entities and their respective 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, or (b) any default by AT&T PCS or any of its
Affiliates in the performance of their respective obligations under this
Agreement, 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 Five Million ($5,000,000) Dollars.
8.3 Indemnification by the Triton Entities. Each Triton Entity shall,
--------------------------------------
jointly and severally, indemnify and hold harmless AT&T PCS and its Affiliates,
and the shareholders,
-30-
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 default by the
Company or any of its Affiliates in the performance of their respective
obligations under this Agreement, 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 Five Million ($5,000,000) Dollars.
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.
-31-
(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
advance that, in the event he, she 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, she 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 Triton Entities
and their respective 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 parties, if the
Closing shall not have occurred on or before the date that is nine months after
the date hereof, provided, that the party electing to exercise such right is not
otherwise in breach of its obligations under this Agreement; or
(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.
-32-
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 2.5.
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):
-33-
If to AT&T PCS, to it at:
c/o AT&T Wireless Services, Inc.
0000 000xx Xxx., X.X.
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxxx Xxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Triton Entities, to it at:
Triton PCS Holdings, Inc.
c/o Triton Communications
000 Xxxxxxxxxx Xxxxx
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 Parties in Interest; Assignment. This Agreement is binding upon, and
-------------------------------
is solely for the benefit of (except to the extent set forth in Section 10.13)
the parties hereto and their respective permitted successors, legal
representatives and permitted assigns. Subject to Section 10.14, neither party
may assign its rights and obligations hereunder without the prior written
consent of the other party.
10.5 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
-34-
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.
10.6 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.
10.7 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.
10.8 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.
10.9 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, including state and Federal securities Laws.
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 10.9 by a party shall not give rise to any right to terminate this
Agreement.
10.10 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.
10.11 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.
-35-
10.12 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.
10.13 Beneficiaries of Agreement. The representations, warranties,
--------------------------
covenants and agreements expressed in this Agreement are for the sole benefit of
the parties hereto and the Section 8.2 Indemnified Parties and Section 8.3
Indemnified Parties, and solely for purposes of Section 2.4, the Management
Stockholders and Independent Directors 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.
10.14 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 acquire all or part of the
--------------------
AT&T PCS Transferred License 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.
10.15 Access to Records. From and after the Closing Date (i) AT&T PCS
-----------------
shall furnish the Triton Entities with reasonable access to AT&T PCS's books and
records relating solely to the AT&T PCS Transferred License that after the
Closing are in the custody and control of AT&T PCS as the Triton Entities may
reasonably request in order to comply with their obligations under Law, and (ii)
each Triton Entity shall furnish AT&T PCS with reasonable access to such Triton
Entity's books and records relating solely to the Cumberland/Hagerstown
Exchanged License that after the Closing are in the custody and control of any
such Triton Entity as AT&T PCS reasonably request in order to comply with its
obligations under Law.
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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:
TRITON PCS LICENSE COMPANY L.L.C.
By: Triton Management Company, Inc.,
its manager
By:__________________________
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SCHEDULE 5.2
AT&T PCS Consents
The execution, delivery and performance of the Agreement will or may
require the following consents, approvals and reviews:
1. The Federal Communications Commission.
2. The Federal Trade Commission/Department of Justice.
3. Various Governmental Authorities with respect to Franchise Laws.
SCHEDULE 6.2
Company Consents
----------------
The execution, delivery and performance of the Agreement will or may
require the following consents, approvals and reviews:
1. The Federal Communications Commission.
2. The Federal Trade Commission/Department of Justice.
3. Various Governmental Authorities with respect to Franchise Laws.
4. The lenders party to that certain Credit Agreement dated as of
February 3, 1998 among the Company and the lenders and agents party
thereto, as amended.
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I - DEFINITIONS.................................................... -1-
ARTICLE II - LICENSE CONTRIBUTION; LICENSE EXCHANGE........................ -7-
2.1 License Contribution........................................ -7-
2.2 License Exchange............................................ -7-
2.3 Payment of Consideration for the License Contribution....... -8-
2.4 Issuance of Securities to Management Stockholders and
Independent Directors....................................... -9-
2.5 Payment of Certain Expenses................................. -9-
2.6 Restrictive Legends......................................... -9-
2.7 Allocation of Purchase Price................................ -10-
ARTICLE III - CLOSING...................................................... -10-
3.1 Time and Place of Closing................................... -10-
3.2 Closing Actions and Deliveries.............................. -10-
3.3 Closing Costs; Taxes and Fees............................... -12-
ARTICLE IV - COVENANTS..................................................... -13-
4.1 Consummation of Transactions................................ -13-
4.2 Confidentiality............................................. -15-
4.3 Atlanta Retained License.................................... -16-
4.4 No Further Commitment....................................... -16-
4.5 Offering of Securities...................................... -16-
4.6 Covenants of AT&T PCS....................................... -16-
4.7 Covenants of the Triton Entities............................ -17-
4.8 Non-Solicitation............................................ -19-
4.9 FCC Construction Requirement................................ -19-
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF AT&T PCS..................... -20-
5.1 Organization, Power and Authority........................... -20-
5.2 Consents; No Conflicts...................................... -21-
5.3 Litigation.................................................. -21-
5.4 FCC Compliance.............................................. -21-
5.5 Brokers..................................................... -21-
5.6 License..................................................... -21-
5.7 Compliance With Laws........................................ -22-
5.8 No Distribution............................................. -22-
5.9 Investor Acknowledgments.................................... -22-
-i-
Page
----
ARTICLE VI - REPRESENTATIONS AND WARRANTIES OF THE
TRITON ENTITIES................................................... -23-
6.1 Organization, Power and Authority............................... -23-
6.2 Consents; No Conflicts.......................................... -24-
6.3 Litigation...................................................... -25-
6.4 FCC Compliance.................................................. -25-
6.5 Brokers......................................................... -25-
6.6 Stockholders' Agreement......................................... -25-
6.7 Capitalization.................................................. -25-
6.8 Shares.......................................................... -26-
6.9 License......................................................... -26-
6.10 No Additional Representations................................... -26-
6.11 Compliance With Laws............................................ -26-
6.12 No Material Adverse Effect...................................... -27-
6.13 Subsidiaries.................................................... -27-
6.14 Offering of Securities.......................................... -27-
ARTICLE VII - CLOSING CONDITIONS................................................ -27-
7.1 Conditions to Obligations of All Parties........................ -27-
7.2 Conditions to Obligations of the Triton Entities................ -28-
7.3 Conditions to the Obligations of AT&T PCS....................... -29-
ARTICLE VIII - SURVIVAL AND INDEMNIFICATION..................................... -29-
8.1 Survival........................................................ -29-
8.2 Indemnification by AT&T PCS..................................... -30-
8.3 Indemnification by the Triton Entities.......................... -31-
8.4 Procedures...................................................... -31-
ARTICLE IX - TERMINATION........................................................ -32-
9.1 Termination..................................................... -32-
9.2 Effect of Termination........................................... -33-
ARTICLE X - MISCELLANEOUS PROVISIONS............................................ -33-
10.1 Amendment and Modification...................................... -33-
10.2 Waiver of Compliance; Consents.................................. -33-
10.3 Notices......................................................... -33-
10.4 Parties in Interest; Assignment................................. -34-
10.5 Applicable Law.................................................. -34-
10.6 Counterparts.................................................... -35-
10.7 Interpretation.................................................. -35-
10.8 Entire Agreement................................................ -35-
-ii-
Page
----
10.9 Publicity.................................................... -35-
10.10 Specific Performance......................................... -35-
10.11 Remedies Cumulative.......................................... -35-
10.12 Severability................................................. -36-
10.13 Beneficiaries of Agreement................................... -36-
10.14 Designated Purchasers........................................ -36-
10.15 Access to Records............................................ -36-
-iii-
Schedules
---------
Schedule I -- Atlanta License
Schedule II -- Washington-Baltimore License
Schedule III -- Independent Directors
Schedule IV -- Management Stockholders
Schedule V -- Amendment to Section 4.3(d)(iii) of the Restated
Certificate
Schedule 2(a) -- Description of AT&T PCS Transferred License
Schedule 2(b) -- Description of Cumberland/Hagerstown Exchanged
License
Schedule 5.2 -- AT&T PCS Consents
Schedule 6.2 -- Company Consents
Schedule 6.7(a) -- Owners of Company's Capital Stock
Schedule 6.7(b) -- Agreements with Respect to Capital Stock
Schedule 6.13 -- Subsidiaries
Exhibits
Exhibit A -- Amendment No. 2 to Stockholders Agreement
Exhibit B -- Amendment No. 2 to Intercarrier Roaming Service
Agreement
Exhibit C -- Amendment No. 2 to Network Membership License
Agreements
Exhibit 3.2(a)(i) -- Instrument of Assignment by AT&T PCS
Exhibit 3.2(a)(ii) -- Opinion of Counsel Xxxxxxxx Xxxxxx & Xxxxxx LLP
Exhibit 3.2(a)(iii) -- Opinion of Young & Jatlow
Exhibit 3.2(b)(ii) -- Instrument of Assignment by Triton License
Company
Exhibit 3.2(b)(iii) -- Opinion of Xxxxxxxxx, Xxxx & Xxxxxxx LLP
Exhibit 3.2(b)(iv) -- Opinion of Xxxxxx & Xxxxxxx
-iv-
