SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
October 6, 1997 1-8309
Date of Report (Date of earliest Commission File Number
event reported)
Price Communications Corporation
(Exact name of registrant as specified in its charter)
New York 13-2991700
(State or other jurisdiction (I.R.S. Employer Identification
of incorporation) Number)
45 Rockefeller Plaza
New York, New York 10020
(Address of principal executive offices) (Zip Code)
(212) 757-5600
Registrant's telephone number, including area code
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Item 2. Acquisition or Disposition of Assets.
The previously reported acquisition by the Registrant of
Palmer Wireless, Inc. and disposition of the Palmer Fort Myers
system were consummated on October 6, 1997.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
(a) Financial Statements of Businesses Acquired -
previously reported.
(b) Pro Forma Financial Information - previously
reported.
(c) Exhibits.
1. Agreement and Plan of Merger by and among Palmer
Wireless, Inc., the Registrant and Price Communications Cellular
Merger Corp., dated as of May 23, 1997, incorporated by reference
to Exhibit 2.1 to Registrant's Registration Statement on Form S-4
(No. 333-34017).
2. Asset Purchase Agreement by and among the
Registrant, Price Communications Cellular Merger Corp. and
Wireless One Network, L.P., dated as of June 13, 1997.
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
PRICE COMMUNICATIONS CORPORATION
By: /s/ Robert Price
Robert Price
President
Date: October 15, 1997
<PAGE>
EXHIBIT INDEX
Exhibit No.
1. Agreement and Plan of Merger by and among Palmer
Wireless, Inc., the Registrant and Price
Communications Cellular Merger Corp., dated as of
May 23, 1997, incorporated by reference to Exhibit
2.1 to Registrant's Registration Statement on Form
S-4 (No. 333-34017).
2. Asset Purchase Agreement by and among the
Registrant, Price Communications Cellular Merger
Corp. and Wireless One Network, L.P., dated as of
June 13, 1997.
EXHIBIT 2
ASSET PURCHASE AGREEMENT
BY AND AMONG
PRICE COMMUNICATIONS CORPORATION,
PRICE COMMUNICATIONS CELLULAR MERGER CORP.
AND
WIRELESS ONE NETWORK, L.P.
Dated as of June 13, 1997
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT ("Agreement"), dated as of June 13, 1997,
is by and among PRICE COMMUNICATIONS CORPORATION, a New York corporation
("Price"), PRICE COMMUNICATIONS CELLULAR MERGER CORP., a Delaware corporation
("Merger Sub" and together with Price, the "Seller"), and WIRELESS ONE
NETWORK, L.P., a Delaware limited partnership ("Buyer").
Recitals
A. Palmer Wireless, Inc., a Delaware corporation ("Palmer"), owns,
among other things, 100% of the issued and outstanding shares of capital stock
of Palmer Wireless Holdings, Inc., a Delaware corporation ("PWHI"). PWHI, in
turn, owns, among other things, 99% of the partnership interests of FMT, Ltd.,
a Florida limited partnership ("FMT").
B. FMT owns and operates all of the non-wireline cellular telephone
business and system, including all of the assets used in connection therewith,
serving the Fort Myers, Florida Metropolitan Statistical Area (the "System").
C. Merger Sub, a wholly-owned subsidiary of Price, has entered into an
Agreement and Plan of Merger (as in effect on the date hereof, the "Palmer
Agreement") dated as of May 23, 1997, pursuant to which Seller will, through a
merger transaction (the "Merger"), acquire all of the issued and outstanding
shares of capital stock of Palmer.
D. Upon the effectiveness of the Merger, the parties desire that
Seller will cause FMT to sell all of the assets of the System to Buyer, upon
the terms and subject to the conditions set forth herein.
The parties agree, for good and valuable consideration, as follows:
ARTICLE 1
PURCHASE AND SALE OF ASSETS
1.1 Sale and Purchase of Assets. On the terms and subject to the
conditions set forth in this Agreement, Seller shall, on the Closing Date,
cause FMT and any other Affiliates of Seller, if applicable, to sell, transfer
and assign to Buyer, FMT's, Seller's and such other of Seller's Affiliates
entire right, title and interest in and to all of the assets and rights of
FMT, Seller and any other Affiliates of Seller, if applicable, related to and
used in or located on the real property used in the System as it is currently
conducted (other than the Excluded Assets (as defined in Section 1.2 below)),
free and clear of all liens, security interests, pledges, encumbrances, claims
and equities of every kind (the "Assets"), including, without limitation, the
following:
(a) Fixed Assets and Personal Property. All fixed assets and
personal property of every type or description owned, used or leased on
the Closing Date, including, without limitation, all
transmitters/receivers, towers and antennas, switching equipment,
computer hardware and all spare parts, accessories and supplies related
thereto ("Fixed Assets"), including, without limitation, the Fixed
Assets identified on Schedule 1.1(a) attached hereto and made a part
hereof.
(b) Real Property. All real property (and any interest therein
and improvements thereon) ("Real Property"), including, without
limitation, the Real Property identified on Schedule 1.1(b) attached
hereto and made a part hereof.
(c) Leases, Contracts, Options and Other Obligations. All
leases, contracts, options, manufacturer's warranties and other rights
and obligations held on the Closing Date ("Contracts") (i) set forth on
Schedule 1.1(c) attached hereto and made a part hereof, (ii) existing on
the date hereof and not set forth on Schedule 1.1(c) attached hereto
which require aggregate payments not to exceed $20,000.00 per Contract
up to $200,000.00 in the aggregate for all such Contracts, (iii) any
other Contracts entered into by FMT in the ordinary course of business
between the date hereof and the Closing Date not to exceed individual
payments per Contract of $100,000.00 with aggregate payments of
$250,000.00 for all such Contracts and (iv) any other Contracts approved
in writing by Buyer.
(d) Licenses, Certificates, Permits and Authorizations. All
licenses, certificates, permits and authorizations, and all applications
and construction permits related thereto, (the "Licenses") from the
Federal Communications Commission (the "FCC") and Federal Aviation
Administration ("FAA") issued in connection with the System on or before
the Closing Date, including, without limitation the Licenses identified
on Schedule 1.1(d) attached hereto and made a part hereof.
(e) Current Assets. All cash, cash equivalents and marketable
securities ("Cash"), trade and other accounts receivable and accrued
revenues from third parties who are not Affiliates of Seller or Palmer
("Receivables"), prepaid expenses ("Prepaids"), and deposits
("Deposits"), as of the Closing Date and related to or generated by the
operation of the System (Cash, Receivables, Prepaids, Deposits and
Cellular Phones (as defined in Section 1.1(f)), are collectively
referred to as the "Current Assets").
(f) Cellular Telephone Units. All cellular telephone units and
related components, spare parts and accessories, owned, used or leased
and either (i) related to and used in the System and either maintained
in inventory or shipped by a supplier and en-route for delivery on the
Closing Date and (ii) related to the System and in the custody of
customers of the System (on a rented or leased basis) or repair or
service personnel on the Closing Date ("Cellular Phones"), including,
without limitation the Cellular Phones identified on Schedule 1.1(f)
attached hereto and made a part hereof.
(g) Other Assets and Rights. All computer software including
source and object codes (to the extent transferable), accounting data,
trade secrets, customer lists, supplier lists, goodwill, causes of
action, books and records (other than the general ledger and account
books of original entry (provided that Seller will provide Buyer with
access to such items at Buyer's reasonable request following the
Closing)) and other tangible and intangible property related to the
System on the Closing Date.
For purposes of this Agreement, an "Affiliate" of a Person shall mean any
other Person directly or indirectly owning, controlling or holding, with power
to vote, ten percent (10%) or more of the outstanding voting securities of
such first-named Person; and any other Person ten percent (10%) or more of
whose outstanding voting securities are directly or indirectly controlled by
or under common control with such first-named Person. As used herein, the
term "control," together with "controlled," "controlling" or similar variants
used herein, means the possession, directly or indirectly, of the power to
direct or cause the direction and management and policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
"Person" shall mean an individual, partnership, corporation, association,
joint venture, trust or other entity. On and after the effective date of the
Merger, Palmer and its Affiliates shall be Affiliates of Seller.
1.2 Excluded Assets. Buyer shall not acquire the following assets used
in or located on the real property used in connection with the System
("Excluded Assets"):
(a) that certain Office Lease dated February 1, 1990
("Headquarters Lease") between University Associates, Ltd., Songy
Partners, Ltd., successors in interest to University Center Investors,
Ltd., as Landlord, and Palmer, successor in interest to Palmer Cellular
Partnership, as Tenant in connection with Palmer's University Park
corporate headquarters (the "Headquarters") located in Fort Myers,
Florida, as amended, and any assets located therein which are not part
of the Assets (such as the cell site equipment, antenna and lines
located on the fifth floor and the roof of the Headquarters);
(b) those assets described on Schedule 1.2 attached hereto and
made a part hereof;
(c) any Contract for which consent is required but not obtained;
and
(d) that certain receivable from Palmer or its Affiliates in the
amount of $3,129,112 (the "Palmer Receivable") and any other accounts
receivable from Palmer or its Affiliates.
1.3 Assumed Liabilities. Concurrent with the transfer of the Assets
to Buyer on the Closing Date, Buyer shall assume or undertake solely and only
the following obligations, commitments and liabilities of FMT (a) those
arising under the Contracts, an d then only for those obligations, commitments
and liabilities to the extent they relate to the period from and after the
Closing Date, (b) FMT's trade accounts payable arising in the ordinary course
of business (but only to the extent such payables have been included in the
calculation of Working Capital pursuant to Section 1.5(c)), including, but not
limited to, accounts payable relating to the purchase of Fixed Assets and
Cellular Phones and (c) accrued expenses (such as normal proratable items such
as security deposits, rents, estimated personal property and real estate taxes
and deferred revenue, and wages and payroll costs and benefits for employees
hired by Buyer) but only to the extent such amounts have been included in the
calculation of Working Capital pursuant to Section 1.5(c) (the items set forth
in clauses (b) and (c) are collectively, the "Assumed Current Liabilities")
but only to the extent that the Assumed Current Liabilities are outstanding
and recorded on the books and records of FMT on the Closing Date and related
to or generated by the operation of the System but in each case excluding any
such item which is an Excluded Liability (those items set forth in clauses
(a), (b) and (c) are to be assumed by Buyer, collectively, the "Assumed
Liabilities").
1.4 Excluded Liabilities. Except for the Assumed Liabilities, Buyer
will not assume or otherwise be responsible for any liabilities or obligations
of Seller, FMT or any other Affiliates of Seller or FMT, as the case may be,
whether attributable to the System or otherwise, direct or indirect, known or
unknown, absolute or contingent, and, by way of illustration but not
limitation, for any of the following liabilities, obligations or commitments
(the "Excluded Liabilities"):
(a) any foreign, federal, state, county or local income or other
tax arising from the operation of the System or the ownership of the
Assets prior to the Closing Date;
(b) any liability to any Affiliates of Seller or Palmer;
(c) any cost, broker's or finder's fee or expense incurred
incident to the negotiation or preparation of this Agreement or the
performance and compliance with the agreements and conditions contained
herein;
(d) any liability, obligation or commitment to creditors or to
any party holding a lien on any assets of Seller, FMT or any other
Affiliates of Seller or FMT, as the case may be;
(e) any employee obligation (except as provided in Section 1.3)
including, without limitation, any obligation for wages, commissions,
vacation and holiday pay, sick pay, bonuses, severance pay, retiree
medical benefits, withdrawal liability under the Multi- Employer Pension
Plan Amendment Act of 1980, as amended, or any obligation under any
collective bargaining agreement, employment agreement or employment
at-will relationship;
(f) any liability imposed by the Worker Adjustment Retraining
and Notification Act, 29 U.S.C. 2101 et. seq. ("WARN") in connection
with the notice or failure to provide notice of a plant closing or
termination of employees;
(g) subject to section 10.8, any liability for any sales or
transfer taxes incident to the transactions contemplated hereby;
(h) any liability, obligation or commitment of Seller, FMT or
any other Affiliates of Seller or FMT, as the case may be, incurred
after the Closing Date;
(i) any liability the existence of which would constitute a
breach of any of the representations, warranties and covenants of any
party other than Buyer hereunder;
(j) any liability for violation of any Environmental Law (as
defined in section 4.6) except as otherwise provided in section 4.6;
(k) any liability of Seller under the Palmer Agreement; or
(l) any other liability, obligation or commitment not expressly
assumed by Buyer hereunder.
1.5 Purchase Price Computation and Payment.
(a) Computation. The purchase price for the Assets shall be (x)
One Hundred Sixty-Eight Million Dollars ($168,000,000) plus (y) (I) 0.50
multiplied by (II) the Working Capital (as defined in section 1.5(c))
(clauses (x) and (y) are collectively, the "Purchase Price") payable as
follows:
(i) On the Closing Date, Buyer shall deposit the sum of
Three Million Dollars ($3,000,000.00) ("Holdback Deposit")
directly with a mutually agreed upon escrow agent (the "Deposit
Escrow Agent"), pursuant to a Holdback Escrow Agreement (the
"Holdback Agreement") in the form of Exhibit 1.5(a)(i), which
Holdback Deposit shall accrue interest for the benefit of the
parties in the proportion in which the Holdback Deposit is
ultimately distributed and be held for a period of eighteen months
following the Closing, provided that Two Million Dollars
($2,000,000.00) of the Holdback Deposit shall be disbursed to
Seller, less 110% of the amount of any claims then pending and
filed with the Deposit Escrow Agent and less amounts previously
paid from the Holdback Deposit, on the first year anniversary of
the Closing Date, all as set forth in the Holdback Agreement; and
(ii) the balance of the Purchase Price shall be paid to
Seller by wire transfer of immediately available funds on the
Closing Date to such bank account or accounts as Seller shall
designate.
(b) Allocation. The parties shall negotiate in good faith to
attempt to agree on an allocation (the "Allocation") of the Purchase
Price and shall attempt to reach agreement on such allocation on or
before the Closing Date. To the extent that the parties agree in writing
on an Allocation, then the parties hereby covenant and agree that
neither of them will take a position on any tax return, before any
governmental or regulatory body charged with the collection of any tax,
or in any judicial or administrative proceeding, that is in any way
inconsistent with the Allocation. If the parties do not agree in writing
on an Allocation, then each party will prepare its own Allocation in
good faith.
(c) Working Capital.
(i) Calculation. Working Capital shall equal Current
Assets minus Assumed Current Liabilities, subject to the following
adjustments:
(I) Receivables shall be valued for purposes of Working
Capital as follows:
(A) 100% of the accrued revenues and 100% of the
face amount for any Receivables which are 30 days or
less past due;
(B) 85% of the face amount for any Receivables which
are 31 days or more and 60 days or less past due;
(C) 40% of the face amount for any Receivables which
are 61 days or more and 90 days or less past due; and
(D) 0% of the face amount for any Receivables which
are 91 days or more past due.
Notwithstanding the foregoing, to the extent that any such
Receivables are in dispute at the time of the Closing Date or
classified under clause (D) of this Section 1.5(c)(i), the entire
Receivable shall be valued under subsection (D) above (and to the
extent that the Receivable is paid, the proceeds will be remitted
to Seller). Receivables shall not include any Excluded Assets,
including the Palmer Receivable.
(II) The book value of Cellular Phones as of the Closing
Date shall be estimated by Seller and Buyer in good faith based on
a lower of cost (last-in, first-out) or market basis with
appropriate adjustments for obsolete, slow-moving, damaged or
defective goods and such amount shall be included on the Closing
Statement (as defined in Section 1.5(c)(II) below). As close as
practicable to the Closing Date, Buyer shall take, and Seller
shall observe, a physical count of the inventory of Cellular
Phones. Seller shall have full access to all work papers and
records of such physical count. If Buyer's valuation of the
physical inventory differs from the estimate included on the
Closing Statement, the differences shall be resolved in accordance
with the procedures set forth in Section 1.5(c)(II)(C) below.
(III) It is intended that Cash shall include all cash, cash
equivalents and marketable securities generated from the System
between January 1, 1997 and the Closing Date except for (W) an
amount equal to $430,269 representing amounts repaid by FMT to
Palmer in 1997 on loans from prior years, (X) the Palmer
Receivable, (Y) investments in Assets used in the System and (Z)
an amount up to $400,000 per month which FMT may distribute
(beginning June 1, 1997) to Palmer or its Affiliates, as the case
may be (the "Permitted Monthly Distribution"). To the extent that
any Cash, except for the Palmer Receivable and cumulative
Permitted Monthly Distributions, has been distributed, dividended
or paid, or committed to be distributed, dividended or paid to
Palmer or any Affiliate, between January 1, 1997 and the Closing
(the "Distributed Cash"), then, for purposes of the computation of
Working Capital, the Distributed Cash shall either (x) be treated
as if it were Cash and be remitted to FMT or (y) the Working
Capital shall decrease by the amount of the Distributed Cash. To
the extent that any Receivables or Inventory have likewise been
distributed to Palmer or any Affiliate between January 1, 1997 and
the Closing Date ("Distributed Other Current Assets"), then for
purposes of the computation of Working Capital, the Distributed
Other Current Assets shall either (x) be treated as if it were
Receivables or Inventory, as the case may be, and be remitted to
FMT or (y) the Working Capital shall decrease by the book value of
the Distributed Other Current Assets. To the extent that any Fixed
Asset has likewise been distributed or otherwise transferred to
Palmer or any Affiliate between January 1, 1997 and the Closing
Date ("Distributed Fixed Asset"), then for purposes of the
computation of Working Capital, the Working Capital shall be
reduced by the amount of the net book value of such Distributed
Fixed Asset.
(IV) Assumed Current Liabilities shall not include any
liabilities which are Excluded Liabilities.
(V) Severance pay actually paid by FMT to employees of FMT
on the Closing Date consistent with the severance pay plan now in
effect, a copy of which has been furnished to Buyer, shall be
equally split by Buyer and Seller. Notwithstanding the foregoing,
severance pay shall not be an Assumed Current Liability nor shall
severance pay be included as part of Working Capital.
(ii) Closing Date Statement.
(I) Fifteen (15) business days prior to the Closing,
Seller shall provide Buyer with a preliminary good faith
calculation of the Working Capital (the "Closing Statement"),
together with supporting documentation in reasonable detail. The
Closing Statement shall be considered preliminary and such Closing
Statement shall not discharge either party from any obligation it
might otherwise have hereunder with respect thereto in the event
that any amounts reflected thereon prove to be incorrect. There
shall be a continuing duty on the parties to make appropriate
credits and payments to the other party once the amounts are
finally determined and such duty shall survive the Closing.
(II) Buyer shall review the Closing Statement upon its
receipt from Seller. Five (5) business days prior to Closing,
Buyer shall deliver to Seller a statement setting forth any good
faith objections that Buyer may have to the Closing Statement,
together with any supporting documentation reasonably requested by
Seller ("Adjusted Closing Statement"). The payments to be made at
Closing shall be based upon the Adjusted Closing Statement.
(III) Within ninety (90) days after the Closing, Buyer or
Seller, as the case may be, shall notify the other party in
writing (the "Dispute Notice(s)") of any dispute as to the
Adjusted Closing Statement or any supporting documentation
furnished in connection therewith or in connection with the
Closing Statement. Buyer and Seller shall provide one another with
such additional information relating to the Closing Statement and
the Adjusted Closing Statement as each party shall reasonably
request. Within fifteen (15) days after delivery of the last of
the Dispute Notices, Seller and Buyer shall attempt to resolve
such dispute in good faith, and if the parties cannot agree within
thirty (30) days after Delivery of the last of the Dispute Notices
such dispute shall be resolved by a nationally known independent
firm of certified public accountants jointly chosen by Buyer and
Seller. The written decision of such accounting firm shall be
final and binding on the parties hereto and shall not be subject
to dispute or review. Any fees or expenses payable to such
accounting firm shall be shared equally between Seller and Buyer.
Any amounts payable by Seller pursuant to this Section
1.7(C)(II)(C) shall be payable from the Holdback Deposit up to an
amount equal to $250,000, and if the amounts payable by Seller are
in excess of $250,000, the difference shall be payable by transfer
of immediately available federal funds to such bank account as
Buyer shall designate. Any amounts payable by Buyer shall be
payable by transfer of immediately available federal funds to such
bank account as Seller shall designate. If any amounts prorated
as of the Closing Date as Assumed Current Liabilities are not
finally known within such time (such as real estate taxes), these
items shall be re-adjusted as soon as the final numbers are known.
1.6 Closing Date. Subject to the provisions of Section 9.1 hereof,
the completion of the purchase of the Assets is intended to be contemporaneous
with, but deemed immediately subsequent to, the consummation of the
transactions contemplated by the Palmer Agreement, which, in any event shall
be on a date after the HSR Termination and Final Approvals (as both terms are
defined in Section 6.4) have been received, unless such time is extended or
shortened as may be agreed upon by Buyer and Seller, and after the conditions
set forth in Articles 6 and 7 have been satisfied, at the location of the
Closing of the Palmer Agreement, or at such other place or at such other time
as shall be agreed upon in writing by Buyer and Seller (such date and time
being hereafter called the "Closing" or "Closing Date"). In the event that
the Palmer Agreement has closed prior to the Closing Date, then the Closing
Date shall occur after the conditions set forth in Articles 6 and 7 have been
satisfied, at a location and time as shall be agreed upon in writing by Buyer
and Seller.
1.7 Closing Date Deliveries.
(a) Seller's Deliveries. On the Closing Date, Seller shall
deliver to Buyer the following:
(i) general assignments and warranty bills of sale
executed by FMT and other Affiliates of Seller and FMT, as the
case may be, transferring the Assets to Buyer, in the form of
Exhibit 1.7(a)(i),
(ii) recordable warranty deed(s) and/or assignments of
leases to transfer the Real Property and any leased real property
to Buyer,
(iii) state, county and local transfer tax declarations for
the Real Property transferred to Buyer, a certificate that the
applicable Seller, FMT, or Affiliates of Seller and FMT, as the
case may be, is not a foreign person within the meaning of Section
1445 of the Code, and any required state or local environmental
disclosure forms in connection with the transfer of the Real
Property to Buyer,
(iv) terminations of all agreements with Affiliates
(including Affiliates of Palmer)dated the date prior to the
Closing Date (other than those agreements with Affiliates which
Buyer may expressly agree to assume in writing at or prior to
Closing) which terminations shall be obtained without cost or
penalty to Buyer,
(v) a termination of that certain Option Agreement dated
as of July 10, 1996 between Garbo Communications, Inc. and
Wireless One Technologies, Inc. relating to the F Block license
for a PCS mobile telephone system in the Ft. Myers, Florida Basic
Trading Area,
(vi) the Holdback Agreement,
(vii) certificates of the Secretary or an Assistant
Secretary or a General Partner of Seller, FMT, or their
Affiliates, as the case may be, dated the Closing Date: (i) as to
the incumbency and signatures of the officers or representatives
executing this Agreement and each of the ancillary agreements and
any other certificate or other document to be delivered pursuant
hereto or thereto, together with evidence of the incumbency of
such Secretary or Assistant Secretary or General Partner; and (ii)
certifying attached resolutions of the Board of Directors and
shareholders and or Partners of such entity, which authorize and
approve the execution and delivery of this Agreement and each of
the ancillary agreements to which any of Seller, FMT or their
Affiliates is a party and the consummation of the transactions
contemplated hereby and thereby,
(viii) Original Certificates of Incorporation of Seller and
Certificate of Limited Partnership of FMT (certified by the
Delaware and Florida Secretaries of State, as the case may be,
within two (2) weeks prior to the Closing and by the Secretary of
such entities as of the Closing) and By-Laws of Seller and
Partnership Agreement of FMT (certified by the Secretaries or
General Partner, as the case may be, of such entities as of the
Closing),
(ix) good standing certificates of Seller and Certificate of
Existence of FMT dated as of the Closing,
(x) releases (including UCC-3 termination statements and
mortgage releases) executed by any and all lenders and other
secured parties having security interests in any of the Assets,
(xi) if necessary, an escrow agreement conveying all of the
deliveries required to be delivered by Seller to an escrow agent
(the "Closing Escrow ") pending receipt of all deliveries required
to be delivered to Seller by Buyer,
(xii) the Switch Sublease, Headquarters Sublease,
Headquarters Roof Lease and PBX Sublease (as such terms are
defined in Section 5.3 hereof), and
(xiii) all of the documents, instruments and opinions
required to be delivered by Seller pursuant to Article 6 hereof.
(b) Buyer's Deliveries. On the Closing Date, Buyer shall
deliver to Seller the following:
(i) the Purchase Price in accordance with the terms of
Section 1.5,
(ii) an assumption of the Assumed Liabilities,
(iii) the duly executed Holdback Escrow Agreement,
(iv) certificate of the General Partner of Buyer dated the
Closing Date: (i) as to the incumbency and signatures of the
officers or representatives executing this Agreement and each of
the ancillary agreements and any other certificate or other
document to be delivered pursuant hereto or thereto, together with
evidence of the incumbency of such General Partner; and (ii)
certifying attached resolutions of the Partners of such entity,
which authorize and approve the execution and delivery of this
Agreement and each of the ancillary agreements to which Buyer is a
party and the consummation of the transactions contemplated hereby
and thereby,
(v) Original Certificate of Limited Partnership of Buyer
(certified by the Delaware Secretary of State within two (2) weeks
prior to the Closing and by the General Partner of Buyer as of the
Closing) and Partnership Agreement of Buyer (certified by the
General Partner of Buyer as of the Closing),
(vi) Certificate of Existence of Buyer dated as of the
Closing,
(vii) if necessary, an escrow agreement conveying all of
the deliveries required to be delivered by Buyer to the Closing
Escrow pending receipt of all deliveries required to be delivered
to Buyer by Seller,
(viii) the Switch Sublease, Headquarters Sublease,
Headquarters Roof Lease and PBX Sublease (as such terms are
defined in Section 5.3 hereof), and
(ix) all of the documents, instruments and opinions required
to be delivered by Buyer pursuant to Article 7.
1.8 Further Assurances. It is believed and intended that FMT
currently owns and operates all of the assets used or useful in the conduct of
the System as it has been and is currently conducted. It is conceivable,
however, that certain Assets may, on or prior to the Closing, be owned or used
by Affiliates of FMT. Therefore, on the Closing Date, Seller shall (i) deliver
or cause to be delivered to Buyer such other bills of sale, endorsements,
assignments and other good and sufficient instruments of conveyance and
transfer, in form satisfactory to Buyer and its counsel, as Buyer may
reasonably request or as may be otherwise reasonably necessary to vest in
Buyer all the right, title and interest in, to or under any or all of the
Assets, (ii) take all steps as may be reasonably necessary to put Buyer in
actual possession and control of all the Assets and (iii) terminate all
agreements without penalty between FMT and Seller or its Affiliates. Further,
from time to time following the Closing, Seller shall execute and deliver, or
cause to be executed and delivered, to Buyer such other instruments of
conveyance and transfer as Buyer may reasonably request or as may be otherwise
necessary to more effectively convey and transfer to, and vest in, Buyer and
put Buyer in possession of, any part of the Assets, and, in the case of
licenses, certificates, approvals, authorizations, agreements, contracts,
leases, easements and other commitments included in the Assets which cannot be
transferred or assigned effectively without the consent of third parties which
consent has not been obtained prior to the Closing, to cooperate with Buyer at
its request in endeavoring to obtain such consent promptly.
ARTICLE 2
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF SELLER
As an inducement to Buyer to enter into this Agreement and to consummate
the transactions contemplated hereby, Seller hereby jointly and severally
represents, warrants and covenants to Buyer and agrees as follows:
2.1 Due Organization; Power and Authority. Each of Merger Sub and
Price is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, and is duly qualified to transact
business as a foreign corporation in each jurisdiction where the ownership of
its assets or the conduct of its operation requires such qualification. FMT
is currently, or as of the Closing will be, a duly organized and validly
existing limited partnership under the laws of the State of Florida and is
currently, or as of the Closing will be, qualified as a foreign limited
partnership in each jurisdiction where the ownership of its assets or the
conduct of its operation requires such qualification. FMT currently has, or as
of the Closing will have, full partnership power and authority, to own, lease
or otherwise hold the Assets, to operate and use the Assets, to carry on the
operation of the System as it is now and has been conducted and to consummate
the transactions contemplated hereby and to comply with the terms, conditions
and provisions hereof.
2.2 Authority. Seller has full power and authority to enter into this
Agreement, to consummate the transactions contemplated hereby and to comply
with the terms, conditions and provisions hereof.
The execution, delivery and performance of this Agreement by Seller
(and, if applicable by its Affiliates on and after the Closing), including,
without limitation, the deliveries and other agreements of Seller and its
Affiliates contemplated hereby, have been duly authorized and approved by the
boards of directors of each Seller and do not require any further
authorization or consent of any third party or of any governmental authority
except as may be expressly set forth herein. This Agreement is, and each
other agreement or instrument of Seller and Affiliates contemplated hereby
will be, the legal, valid and binding agreement of Seller and Affiliates,
enforceable in accordance with its terms.
Neither the execution nor the delivery of this Agreement nor the
consummation of the transactions contemplated hereby will conflict with or
result in any violation of or constitute a default under any term of (a) the
Certificates or Articles of Incorporation or By-Laws of Seller or Seller's
Affiliates or (b) except as set forth on Schedule 2.2, any agreement,
including, but not limited to, the Palmer Agreement, mortgage, debt
instrument, indenture, franchise, license, permit, authorization, lease or
other instrument, judgment, decree, order, law or regulation by which Seller
is bound, or result in the creation of any lien, security interest, charge or
encumbrance upon any of the Assets. As of the Closing Date, except as set
forth on Schedule 2.2, the sale of the Assets by FMT will not conflict with or
result in any violation of or constitute a default under any term of (i) the
Certificates of Limited Partnership of Limited Partnership Agreement of FMT or
(ii) to the best of Seller's knowledge on the date hereof and without any such
qualification as of the Closing Date, any agreement, mortgage, debt
instrument, indenture, franchise, license, permit, authorization, lease or
other instrument, judgment, decree, order, law or regulation by which FMT is
bound, or result in the creation of any lien, security interest, charge or
encumbrance upon any of the Assets.
2.3 No Material Adverse Change. The following is made (i) to the best
of Seller's knowledge on the date hereof and (ii) without such qualification
as of the Closing Date:
Since December 31, 1996, there has been (i) no material adverse change
in the Assets (individually or in the aggregate), or the assets and
operations of the System, and (ii) no damage, destruction, loss or
claim, whether or not covered by insurance, or pending or threatened
condemnation or other taking in excess of $100,000.00, individually or
otherwise, adversely affecting in any material respect the Assets or the
System.
2.4 file immaterial reports will not affect Licenses. The following
is made (i) to the best of Seller's knowledge on the date hereof and (ii)
without such qualification (unless contained in the text) as of the Closing
Date:
Seller, FMT, Palmer or their Affiliates, as the case may be, is, to the
best of Seller's knowledge, currently, and as of the Closing Date will
be (without such knowledge qualifier), the exclusive holder of all
authorizations, grants, permits and other licenses (collectively,
"Seller Licenses") necessary for the operation of the System, including,
without limitation, all licenses or construction permits from the FCC
and FAA, and all certificates in connection with the System and
otherwise, all of which are in full force and effect and are not subject
to any pending or threatened challenge, revocation, amendment or
forfeiture. No default or breach exists with respect to any of the
Seller Licenses and no event or condition exists which but for the lapse
of time or notice or both would constitute a default or breach with
respect to any of the Seller Licenses. True and correct copies of all
material reports relating to the Seller Licenses have been and will be
timely filed with the appropriate body (and the failure to timely the
transfer of the Licenses), and true and correct copies of such material
reports have been and will be delivered to Buyer. Schedule 1.1(d) lists
all Seller Licenses from the FCC, correct copies of which have
previously been delivered to Buyer (other than microwave licenses not in
writing).
2.5 Title to Property. The following is made (i) to the best of
Seller's knowledge on the date hereof and (ii) without such qualification
(unless contained in the text) as of the Closing Date:
Seller, FMT and their Affiliates have good and marketable title to all
of the Assets free and clear of all liens, claims, charges,
encumbrances, security interests, mortgages, easements, defects in
title, covenants and other restrictions of any kind, except, in the case
of Real Property, (a) for liens of taxes not yet due and payable, (b) as
shown on title insurance policies previously delivered to Buyer by
Seller or FMT and (c) for those liens, which cannot be discharged by the
payment of money, which do not and could not reasonably be expected to,
individually or in the aggregate, interfere in any material respect with
the intended use of such property or materially impair the value of such
property (collectively, the "Permitted Exceptions"). Delivery to Buyer
on the Closing Date of the instruments of transfer contemplated by
Section 1.7 will thereby transfer to Buyer good and marketable title to
the Assets, free and clear of and subject to no liens, claims, charges,
encumbrances, security interests, mortgages, easements, defects in
title, covenants or other restrictions of any kind except for the
Permitted Exceptions.
2.6 To the best of Seller's knowledge:
(a) Financial Statements. Seller has heretofore provided to
Buyer unaudited balance sheets, statements of income and cash flows for
the System for the fiscal years ended December 31, 1994 through 1996,
and for each month period during calendar year 1997 (collectively, the
"Financial Statements"). The Financial Statements have been prepared in
conformity with generally accepted accounting principles consistently
applied and present fairly in all material respects the assets,
liabilities, financial position and results of operations of the System
for the respective periods covered thereby.
(b) Operations Since December 31, 1996. Since December 31, 1996,
the System has been conducted in the usual and ordinary course of
business.
(c) No Undisclosed Liabilities. The Assets and the System are
not subject to any material liability, commitment or obligation
(including, without limitation, unasserted claims whether known or
unknown), whether absolute, contingent, accrued or otherwise, except as
set forth in (a) Schedule 2.6(c), (b) the Financial Statements (with
respect to actual dollar amounts and not merely line items), (c)
pursuant to the Contracts or (d) incurred in the ordinary course of
business since the date of the Financial Statements.
(d) Real Property. Schedule 1.1(b) contains a brief description
of each parcel of Real Property (whether owned or leased) used in the
System and of each option held or given by Seller, Palmer, FMT or their
Affiliates to acquire any Real Property used in the System. True,
complete and correct copies of all existing policies of title insurance
in Seller's possession with respect to each such parcel have heretofore
been delivered to Buyer. The applicable member of Seller, FMT or their
Affiliates, as the case may be, has good and marketable title in fee
simple absolute to all such Real Property owned by it and to all
buildings, structures and other improvements thereon, in each case free
and clear of all liens, claims, charges, encumbrances, security
interests, mortgages, easements, defects in title, covenants and other
restrictions or encroachments of any kind, except for the Permitted
Exceptions. All such Real Property and its use conforms in all material
respects with all laws, regulations, rules, ordinances, codes, licenses,
deed restrictions and covenants of record, franchises and permits
(including, without limitation, electrical, building, zoning,
environmental and occupational safety and health requirements), and no
notice of any violation of such matters relating to such assets or their
use has been received by Palmer, Seller, FMT or their Affiliates, as the
case may be.
2.7 Completeness of Assets. The following is made (i) to the best of
Seller's knowledge on the date hereof and (ii) without such qualification as
of the Closing Date:
The Assets constitute all of the assets used in the operation of the
System as it is now conducted (other than Excluded Assets and normal
dispositions of property in the ordinary course, provided that such
dispositions are replaced with comparable or better replacement assets).
2.8 Palmer Representations. Sections 3.7, 3.8, 3.9, 3.10, 3.11, 3.12,
3.13, 3.14, 3.15, 3.16, 3.17, 3.18, 3.20 and 3.21 of the Palmer Agreement (the
"Palmer Reps") are hereby (a) incorporated herein by reference to the best of
Seller's knowledge as and to the extent such representations and warranties
relate to the System and the Assets and (b) deemed modified (as between Buyer
and Seller) so that, to the extent that any of the Palmer Reps are qualified
by (i) a "materiality" standard, "materiality" shall refer to the System and
the Assets and not in the context of Palmer and its Affiliates taken as a
whole and (ii) by a monetary standard, that standard shall be multiplied by
.19. Buyer shall be entitled to rely on the Palmer Reps as they relate to the
System and the Assets to the same extent that Seller is entitled to rely on
the Palmer Reps pursuant to the terms of the Palmer Agreement. The Palmer
Agreement is in full force and effect with no breaches or defaults thereon and
no notice of any such breaches has been received by Seller or sent to Palmer,
and no event has occurred and no condition or state of facts exists which,
with the passage of time or the giving of notice or both, would constitute
such a default or breach. Seller has delivered to Buyer a true and correct
copy of the Palmer Agreement.
2.9 Broker or Finder. Neither Seller nor any party acting on its
behalf has paid or become obligated to pay any fee or commission to any
broker, finder or intermediary for or on account of the transactions
contemplated by this Agreement.
2.10 Financing. Seller has delivered to Buyer letters from DLJ Capital
Funding, Inc. indicating such banker's commitment to obtain $500,000,000 in
bank financing and term sheets with respect to $250,000,000 of Notes to be
issued to finance the acquisition pursuant to the Palmer Agreement.
2.11 FCC Qualification. Seller is and will be on the Closing Date
legally, technically and financially (subject to section 2.10) qualified under
the Communications Act of 1934 and all material rules, regulations and
policies of the FCC to acquire, own and operate Palmer under the terms of the
Palmer Agreement. There are no facts or proceedings which would reasonably be
expected to disqualify Seller under the Communications Act of 1934 or
otherwise from acquiring or operating Palmer or would cause the FCC not to
grant a Final Approval (as defined in section 6.4). Seller has no knowledge of
any material fact or circumstance relating to it or any of its Affiliates
which would reasonably be expected to (a) cause the filing of any objection at
the FCC or (b) lead to a delay in the processing by the FCC of the transfer of
the Licenses. To its knowledge, no waiver of any FCC rule or policy as same
relates to Seller is necessary to be obtained for the Final Approval.
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER
As an inducement to Seller to enter into this Agreement and to
consummate the transactions contemplated hereby, Buyer hereby represents,
warrants and covenants to Seller and agrees as follows:
3.1 Organization of Buyer. Buyer is a limited partnership duly formed
and validly existing under the laws of the State of Delaware and has full
partnership power and authority to own, lease or otherwise hold its properties
and assets and to carry on its business as now conducted.
3.2 Authority of Buyer. Buyer has full power and authority to enter
into this Agreement, to consummate the transactions contemplated hereby and to
comply with the terms, conditions and provisions hereof.
The execution, delivery and performance of this Agreement by Buyer,
including, without limitation, the deliveries and other agreements of Buyer
contemplated hereby, have been duly authorized and approved by its partners
and do not require any further authorization or consent of any third party
(except for its senior secured lender) or of any governmental authority except
as expressly set forth herein. This Agreement is, and each other agreement or
instrument of Buyer contemplated hereby will be, the legal, valid and binding
agreement of Buyer, enforceable in accordance with its terms.
Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will conflict with or
result in any violation of or constitute a default under any term of the
Certificate of Limited Partnership or Partnership Agreement of Buyer, or any
agreement, mortgage, debt instrument, indenture, franchise, license, permit,
authorization, lease or other instrument, judgment, decree, order, law or
regulation by which Buyer is bound.
3.3 No Broker or Finder. Neither Buyer nor any party acting on its
behalf has paid or become obligated to pay any fee or commission to any
broker, finder or intermediary for or on account of the transactions
contemplated by this Agreement.
3.4 Financing. Buyer has delivered to Seller a letter from its
principal lender indicating such lender's high level of confidence that it
will obtain debt financing equal to the Purchase Price. Buyer believes that it
will have available on the Closing Date sufficient funds to pay the Purchase
Price. Seller understands that Buyer intends to obtain debt financing for the
entire Purchase Price.
3.5 FCC Qualification. Buyer is and will be on the Closing Date
legally, technically and financially (subject to section 3.4) qualified under
the Communications Act of 1934 and all material rules, regulations and
policies of the FCC to acquire, own and operate the Assets and the System.
There are no facts or proceedings which would reasonably be expected to
disqualify Buyer under the Communications Act of 1934 or otherwise from
acquiring or operating any of the Assets or the System or would cause the FCC
not to grant a Final Approval (as defined in section 6.4). Buyer has no
knowledge of any material fact or circumstance relating to it or any of its
Affiliates which would reasonably be expected to (a) cause the filing of any
objection at the FCC or (b) lead to a delay in the processing by the FCC of
the transfer of the Licenses. To its knowledge, no waiver of any FCC rule or
policy as same relates to Buyer is necessary to be obtained for the Final
Approval.
ARTICLE 4
ACTIONS PRIOR TO THE CLOSING DATE
The respective parties hereto covenant and agree to take the following
actions between the date hereof and the Closing Date:
4.1 Investigation of System by Buyer. Seller shall afford to, and use
reasonable efforts to, obtain Palmer's consent to allow the officers,
employees and authorized representatives (including, without limitation,
independent public accountants and attorneys) of Buyer and its financing
sources reasonable access and opportunity to review all books and records
relating to the System, contracts, income tax returns, physical inspection of
the Assets (including the Real Property and Leased Real Property for the
purpose of conducting the environmental reviews contemplated in section 4.6,
if desired by Buyer, and to inspect the Fixed Assets), and the right to
contact and communicate with key executive employees of Palmer. Seller shall
furnish, and shall use reasonable efforts to cause Palmer to furnish, to Buyer
and its authorized representatives such additional information in its
possession concerning the Assets and the System as shall be reasonably
requested, including, without limitation, all such information as shall be
necessary to enable Buyer and its representatives to verify the accuracy of
the representations and warranties contained in Article 2 and in the Palmer
Agreement with respect to the System, and to determine whether the conditions
set forth in Article 6 have been satisfied. It is understood that Buyer's
access to the information contemplated in the preceding two sentences is
material and should Palmer or Seller fail to permit Buyer such access, such
failure would provide Buyer the right to terminate this Agreement upon 10 days
notice (unless such access and future assurances of continued access was
provided within such period). Buyer shall be responsible for all of its costs
and expenses relative to its acquisition review. Buyer agrees that it will
keep and maintain any and all information obtained by it, its agents and
counsel confidential, and will not make use of any such information other than
for its evaluation of the transactions contemplated by this Agreement. Buyer
shall return all written information to Seller or Palmer, as the case may be,
in the event that the transactions contemplated by this Agreement do not
occur.
4.2 Preserve Accuracy of Representations and Warranties. Each of the
parties hereto shall refrain from knowingly taking any action which would
render any representation, warranty or covenant contained in Article 2 or 3 of
this Agreement inaccurate as of the Closing Date or from not fulfilling any
covenant set forth in Article 4. Seller shall refrain from knowingly taking
any action which would render any representation, warranty or covenant made by
it under the Palmer Agreement inaccurate or unfulfilled as of the Closing
Date. Each party shall promptly notify the other of any (a) event or
condition which would render any representation or warranty set forth in
Article 2 or 3 untrue or in breach or would cause any covenant in Article 2
or 3 to be unfulfilled, (b) any action, suit or proceeding that shall be
instituted or threatened against such party to restrain, prohibit or otherwise
challenge the legality of any transaction contemplated by this Agreement or
(c) any notice of or existence of any representation or warranty set forth in
Articles III, IV and V of the Palmer Agreement and any covenant contained in
Article VI of the Palmer Agreement being untrue or unfulfilled. Not in
limitation of the foregoing, between the date of execution of this Agreement
and the Closing Date, Seller shall not, without the prior written approval of
Buyer, (i) make, and shall not authorize Palmer, FMT or their Affiliates to
make, any material changes, individually or in the aggregate, in connection
with the System, (ii) take, approve or waive any of the actions in connection
with the System for which Seller's approval or consent is required under the
Palmer Agreement or (iii) amend the Palmer Agreement in any way which shall
impair or adversely affect, individually or in the aggregate, in any material
respect, the System or Assets or any right of Buyer or Seller hereunder.
Seller will also keep Buyer apprised of all actions or inactions of Palmer or
FMT, of which Seller has knowledge, with respect to the System or the Assets,
which may not be considered in the ordinary of business of the System.
4.3 Consents and Approvals. Promptly (and in any event within ten
(10) business days) after the execution hereof, Seller and Buyer shall use
their best efforts to prepare and file, and cooperate with each other and
Palmer in so doing, the necessary transfer and consent to assignment
applications with the FCC to transfer the Licenses from FMT to Buyer (with
perhaps the intermediate step of transferring the Licenses form FMT to Seller
and then to Buyer). Seller shall use its best efforts promptly to obtain all
other consents from parties to Contracts (without increasing any financial or
other burden on the assignee), and all consents, amendments or permits from
governmental authorities which are required by the terms thereof, this
Agreement or otherwise for the due and punctual consummation of the
transactions contemplated by this Agreement, including, without limitation,
the consents indicated on Schedules 2.2 and 4.3 as material consents (the
"Material Consents"). Seller shall also cooperate in all reasonable respects
with and assist Buyer and its authorized representatives in order to provide
an efficient transfer of the control and management of the System and to avoid
any undue interruption in the activities and operations of the System
following the Closing Date except for the transactions contemplated hereby.
If any of the Contracts require the consent of a third party, and if any such
consent has not been obtained by the Closing or if any attempted assignment
would be ineffective or would affect the Buyer's rights thereunder so that
Buyer would not in fact receive all such rights, Seller (i) shall use its best
efforts from and after Closing to promptly obtain and secure any and all
consents and approvals necessary to effect the valid transfer and assignment
of the same to Buyer without change in any of the material terms or material
conditions thereof, (ii) shall cooperate with Buyer in any reasonable
arrangement, which will provide for Buyer the immediate benefits under any
such Contract provided that Buyer pay the costs under such Contract, (iii)
shall continue to maintain its rights with respect to such Contract in full
force and effect, without any compromise or default thereof, for the benefit
of and in accordance with the best interest of Buyer and (iv) shall provide
Buyer with prompt notice and status of any and all transfers and any and all
consents which remain outstanding.
4.4 FCC Compliance. The parties agree that, notwithstanding any
provision of this Agreement, Buyer shall not, prior to the Closing Date,
directly or indirectly control, supervise, or direct the operation of the
System. The parties further agree to cooperate in good faith and shall take
all steps as may be necessary or proper to expeditiously and diligently
prosecute the assignment application filed with the FCC to a favorable
conclusion (subject to Section 9.1) including, but not limited to, the
following: (a) appealing or seeking reconsideration of any FCC denial of such
assignment application, or conditional grant; (b) satisfying any conditions
imposed upon such grant to the extent that such conditions require actions
which do not materially alter the benefits or burdens of either party under
this Agreement; and (c) taking all other actions necessary or appropriate to
bring about the transactions contemplated by this Agreement; provided,
however, such actions do not materially alter the benefits or burdens of
either party under this Agreement.
4.5 No Public Announcements. Neither of the parties hereto shall,
without the approval of the other party (which may not be unreasonably
withheld), make any press release or other public announcement concerning the
transactions contemplated by this Agreement, except as and to the extent that
such party shall be so obligated by law, in which case the other party shall
be advised and the parties shall use their best efforts to cause a mutually
agreeable release or announcement to be issued.
4.6 Environmental Surveys. Prior to Closing, Buyer may, at its sole
cost and expense, engage an environmental consulting firm of good reputation
in the industry and reasonably acceptable to Seller to conduct a phase I
environmental assessment of any parcel of Real Property and Leased Real
Property included in the Assets (the "Environmental Review") to determine what
remedial actions, if any, are necessary to cause any applicable entity to be
in compliance in all material respects with the Environmental Laws (as defined
in the Palmer Agreement) in the reasonable opinion of the person conducting
the Environmental Review. If such Environmental Review indicates in the
reasonable opinion of the person conducting the Environmental Review that a
phase II environmental assessment or any remedial actions are reasonably
necessary to comply in all material respects with the Environmental Laws,
Buyer shall notify Seller in writing of the actions required and the estimated
costs of such actions ("Remediation Costs"). Seller and Buyer shall promptly
mutually agree upon reputable and recognized environmental consultants and
engineers to cause FMT to be in compliance in all material respects with all
Environmental Laws and Seller shall pay all Remediation Costs (including the
costs, fees and expenses of such consultants and engineers) up to $50,000.00
and all Remediation Costs in excess of $50,000.00 shall be borne equally by
Seller (without any adjustment to the Purchase Price) on the one hand, and
Buyer on the other. If the total Remediation Costs exceed $2,000,000.00, then
either party shall have the option to terminate this Agreement and its
obligations hereunder without any liability, cost or penalty whatsoever unless
within ten (10) days of determination of the need for such expenditures either
Seller or Buyer agrees in writing to pay all additional Remediation Costs in
excess of such amount.
4.7 Hart-Scott-Rodino Act Filings. Seller and Buyer shall each
cooperate and use all reasonable efforts to prepare and file with the Federal
Trade Commission ("FTC") and the Antitrust Division of the United States
Department of Justice ("DOJ") and other regulatory authorities, within twenty
(20) days after the execution and delivery of this Agreement, all requisite
applications and amendments thereto, together with related information, data
and exhibits, necessary to satisfy the requirements of the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "Hart-Scott Act") with
respect to the transactions contemplated hereby. Seller and Buyer will keep
the other party apprised of the status of any inquiries made of such party by
the FTC, the DOJ or any other governmental agency with respect to this
Agreement or the transactions contemplated hereby. Any filing fees in
connection with such filing shall be split equally between the Seller and
Buyer.
4.8 Exclusive Dealing. Seller and its Affiliates shall deal
exclusively with Buyer with respect to the sale of the Assets and shall not
solicit, encourage or entertain offers or inquiries (nor shall Seller or any
of its affiliates authorize or permit any director, officer, employee,
attorney, accountant or other representative or agent to solicit, encourage or
entertain offers or inquiries) from other possible acquiring companies,
persons or entities, provide information to or participate in any discussions
or negotiations with any companies, persons or entities with a view to an
acquisition of all or a substantial portion of the Assets or partnership
interests of FMT. Until the Termination Date, Buyer shall not solicit,
encourage or make offers or inquiries (nor shall Buyer or any of its
affiliates authorize or permit any director, officer, employee, attorney,
accountant or other representative or agent to solicit, encourage or entertain
offers or inquiries) or provide information to or participate in any
discussions or negotiations in such regard, with Palmer or its Affiliates or
agents or with any third party interested in acquiring the stock or assets of
Palmer regarding the purchase of all or a substantial portion of the Assets,
the partnership interests of FMT or the stock of Palmer.
4.9 Title Insurance and Surveys. As soon as practicable after the
date hereof (to the extent not already done so and to the extent in Seller's
possession), Seller shall deliver to Buyer (a) all title insurance commitments
and policies insuring FMT or its Affiliates title to the Real Property and
leased real property and (b) plats of survey of each parcel of Real Property
and leased real property. To the extent that such policies, commitments and
surveys are not in Seller's possession, it will promptly contact Palmer and
request Palmer to deliver any such documents to Buyer. Buyer may obtain any
updated policies and surveys at its sole cost and expense.
4.10 Buyer Commitment Letter. Within forty-five (45) days following
the date hereof, Buyer shall use its reasonable efforts to deliver to Seller a
commitment letter (the "Commitment Letter") from a lender or lenders selected
by Buyer in its sole and absolute discretion on terms and conditions agreed to
by Buyer in its sole discretion which Commitment Letter will provide Buyer
with a binding commitment to provide financing to Buyer at Closing equal to
the Purchase Price, subject to usual and customary conditions of a transaction
of this nature (but not subject to any due diligence investigation by such
lenders).
ARTICLE 5
OTHER AGREEMENTS
5.1 Non-Competition Agreements. At the Closing, Seller shall enter
into a Non-Competition Agreement (the "Non-Competition Agreement") providing
that Seller and Robert Price and any Affiliate of them (including Palmer)
shall not own, conduct or have any interest in any business providing wireless
telecommunications services, including, without limitation, PCS, but excluding
basic wireline telephone service and paging service within the Fort Myers,
Florida Metropolitan Statistical Area for a period of two (2) years after
Closing, provided, however, that (i) for purposes of this Section 5.1 only,
the definition of "Affiliates" shall not include any current director or
executive officer of Palmer Communications, Inc. ("PCI") and (ii) Seller or
any affiliated assignee thereof may continue to use the wireless PBX (the
"PBX") on the 800 MHz frequency spectrum on the fifth and sixth floors of the
Headquarters provided that such use is limited to phone calls by Seller's
employees and does not cause interference with Buyer's use of the spectrum.
The Non-Competition Agreement shall contain such other terms and provisions as
are mutually acceptable to Buyer and Seller.
5.2 System Employees. Within thirty (30) days after the execution of
this Agreement, Seller shall deliver to Buyer a list ("Available Employee
List") of System employees. Buyer shall have the right to contact employees
of the System identified on the Available Employee List for the purpose of
interviewing and evaluating such personnel, provided that such contact shall
not unreasonably interfere with operations of the System and, if requested by
Palmer, Palmer may schedule such contact at reasonable times and intervals. On
and as of the Closing Date, Seller will take all action necessary to terminate
the employees of the System identified on the Available Employee List and
shall pay such employees all payroll sums, including, without limitation,
vacation pay, "golden parachute", retiree medical, COBRA, severance pay or
other benefits due to them through the close of business on the Closing Date
or arising thereafter and shall indemnify, defend and hold harmless Buyer from
and against all Indemnifiable Damages (as defined in Section 8.1) resulting or
arising from such sums or from the termination of employment. Buyer may, in
its sole discretion and without obligation, commencing within sixty (60) days
prior to the Closing, offer employment to employees of the System identified
on the Available Employee List on terms and conditions unilaterally proposed
by Buyer effective on the Closing Date. Not less than ten (10) days prior to
Closing, Buyer shall provide a list to Palmer of such employees of the System
to whom employment offers have been or will be made.
5.3 Transition Services Agreements. Promptly after execution of this
Agreement, Seller and Buyer shall jointly determine in good faith the
post-closing services that will be required of Buyer, for Seller's benefit, or
Seller, for Buyer's benefit, and will use their reasonable efforts to agree on
the terms and provisions of agreements embodying such services (or to procure
agreements from third parties, as the case may be), including, without
limitation, (a) an interim billing services agreement for the benefit of
Buyer, (b) a sublease for the North Ft. Myers switch for the benefit of Seller
("Switch Sublease"), (c) a sublease (subject to landlord consent) for the cell
site currently located on the fifth floor of the Headquarters ("Headquarters
Sublease") and a lease from the landlord for the Headquarters for the cell
site located on the rooftop of the Headquarters ("Headquarters Roof Lease")
and (d) the non-transferable use of Buyer's cellular frequencies for the
System for a wireless PBX operation at the Headquarters for a period not to
exceed 10 years, provided, however, that such use shall not interfere with
Buyer's use of such frequencies, all pursuant to a sublease to be entered into
between Buyer and Seller (the "PBX Sublease"), such Switch Sublease,
Headquarters Sublease and Headquarters Roof Lease to have terms of at least
one year. Buyer will also provide to certain employees located at the
Headquarters designated by Seller with the use of "demo" phones for a period
of one (1) year following the Closing provided that (i) the number of demo
phones will not exceed 50, (ii) the demo phones will be for local calls and
not long distance or roaming and (iii) the rates will be at a discount
determined by Buyer prior to Closing. It is intended generally that the
compensation aspect of the subleases and other transition service arrangements
contemplated in this section 5.3 shall reimburse the service-providing party
for its reasonable expenses but is not intended to generate a profit, provided
that to the extent such agreements extend beyond a term of six (6) months
after the Closing Date, the party providing such services shall be entitled to
a reasonable profit beginning after such date.
5.4 Financial Statements/Notices. Between the date hereof and the
Closing Date, to the extent Seller receives the same from Palmer, Seller shall
provide Buyer within thirty (30) days following the end of each calendar month
unaudited balance sheets and related statements (for the month ended and
year-to-date) of income for the System prepared in accordance with GAAP (other
than normal year-end and other adjustments and accruals which will not be
included in such statements). In addition, between the date hereof and the
Closing Date, Seller shall provide to Buyer copies of all notices,
correspondence and other information and data received by Seller from Palmer
or any other source in any way relating to or affecting the System.
ARTICLE 6
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
The obligations of Buyer under this Agreement shall be subject to the
satisfaction, on or prior to the Closing Date, of the conditions set forth
below.
6.1 No Misrepresentation or Breach of Covenants and Warranties. All
of Seller's covenants and agreements contained herein shall have been
performed and fulfilled in all material respects; each of the representations
and warranties of Seller contained or referred to herein shall be true and
correct in all material respects on the Closing Date as though made on the
Closing Date, except for changes therein specifically permitted by this
Agreement or resulting from any transaction expressly consented to in writing
by Buyer, and except that where a covenant or a representation or warranty is
already qualified by "materiality" or words of similar import, the covenant,
representation or warranty shall be fulfilled, true and correct in all
respects; and there shall have been delivered to Buyer a certificate or
certificates to that effect, dated the Closing Date, signed on behalf of
Seller, by its President or any duly authorized officer.
6.2 Corporate/Partnership Action. Seller, FMT and their Affiliates
shall have taken all corporate or partnership, as the case may be, action
necessary to approve the transactions contemplated by this Agreement prior to
the execution of this Agreement, and, upon execution of this Agreement,
Seller, FMT and their Affiliates shall have furnished Buyer with certified
copies of the resolutions adopted by the Board of Directors or Partners, as
the case may be, of such applicable entity, in form and substance satisfactory
to counsel for Buyer, in connection with such transactions.
6.3 No Restraint or Litigation. No action, suit, investigation or
proceeding shall have been instituted or threatened by any governmental or
regulatory agency to restrain, prohibit or otherwise challenge the legality or
validity of the transactions contemplated hereby and no order, decree,
judgment or injunction shall have been entered by any court, governmental or
regulatory agency to restrain or prohibit the consummation of the transactions
contemplated hereby.
6.4 Necessary Consents and Permits. At the Closing, (i) Seller shall
have obtained all Material Consents together with any required consents of
third parties to material Contracts which were entered into between the date
hereof and the Closing, (ii) the expiration of all waiting periods under the
Hart-Scott-Rodino Act (the "HSR Termination") shall have occurred, (iii) the
Final Approval (as defined below) of the FCC and the State Commissions for the
transfer and assignment of the Licenses and Shares shall have been received
and (iv) the agreements contemplated in section 5.3 shall be delivered. For
purposes hereof, "Final Approval" means that such consents shall no longer be
subject to administrative or judicial appeal, review or reconsideration by the
FCC or any State Commission and shall not be qualified by any conditions which
are or are reasonably likely to be material and adverse to Buyer.
6.5 No Material Adverse Change. There shall have been (i) no material
adverse change in the Assets (individually or in the aggregate), or the assets
and operations of the System and (ii) no damage, destruction, loss or claim,
whether or not covered by insurance, or condemnation or other taking in excess
of $100,000.00, individually or in the aggregate, adversely affecting in any
material respect the Assets or the System.
6.6 Palmer Agreement. The Merger contemplated by the Palmer Agreement
shall have been consummated.
6.7 Legal Opinion. Buyer shall have received a satisfactory opinion
from (a) Proskauer Rose LLP, counsel to Seller, in form and substance
satisfactory to counsel to Buyer, as to the accuracy of the representations
and warranties made by Seller in Sections 2.1 and 2.2 (except that counsel
will not opine regarding the need for or receipt of any consents to any
agreements of Seller) and (b) FCC counsel for Seller to the effect that all
consents, approvals, authorizations or orders of the FCC and other
governmental authorities required to assign the Licenses and Assets to Buyer
have been obtained, are valid and effective and are not subject to appeal,
review or reconsideration and constitute the Final Approval of the FCC.
6.8 Other Documentation. Buyer shall have received all of the
documents and showings required to be delivered by Seller at the Closing
pursuant to Section 1.7(a) hereof or otherwise contained herein, and such
other documentation reasonably requested by counsel to Buyer and necessary and
appropriate to complete the transactions contemplated hereby.
ARTICLE 7
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
The obligations of Seller under this Agreement shall be subject to the
satisfaction, on or prior to the Closing Date, of the conditions set forth
below.
7.1 No Misrepresentation or Breach of Covenants and Warranties. All
of Buyer's covenants and agreements contained herein shall have been performed
and fulfilled in all material respects; each of the representations and
warranties of Buyer contained or referred to herein shall be true and correct
on the Closing Date as though made on the Closing Date except for changes
therein specifically permitted by this Agreement or resulting from any
transaction expressly consented to in writing by Seller or any transaction
contemplated by this Agreement, and except that where a covenants or a
representation or warranty is already qualified by "materiality" or words of
similar import, the covenant, representation or warranty shall be fulfilled,
true and correct in all respects; and there shall have been delivered to
Seller a certificate or certificates to such effect, dated the Closing Date,
and signed on behalf of Buyer by its General Partner.
7.2 Partnership Action. Buyer shall have taken all partnership action
necessary to approve the transactions contemplated by this Agreement, and
Buyer shall have furnished Seller with certified copies of resolutions
adopted by the General Partner of Buyer, in form and substance satisfactory to
counsel for Seller, in connection with such transactions.
7.3 No Restraint or Litigation. No action, suit, investigation or
proceeding shall have been instituted or threatened by any governmental or
regulatory agency to restrain, prohibit or otherwise challenge the legality or
validity of the transactions contemplated hereby and no order, decree,
judgment or injunction shall have been entered by any court, governmental or
regulatory agency to restrain or prohibit the consummation of the transactions
contemplated hereby.
7.4 Legal Opinion. Seller shall have received a satisfactory opinion
from Gould & Ratner, counsel to Buyer, in form and substance satisfactory to
counsel to Seller opining to the representations and warranties made by Buyer
in Sections 3.1 and 3.2 (except that counsel will not opine regarding the need
for or receipt of any consents to any agreements of Buyer).
7.5 Palmer Agreement. The Merger contemplated by the Palmer Agreement
shall have been consummated.
7.6 Necessary Consents and Permits. At the Closing, the HSR
Termination and Final Approval of FCC and State Commissions shall have been
obtained.
7.7 Other Documentation. Seller shall have received the payment of
the Purchase Price as set forth in Section 1.5 hereof and all of the documents
and showings required to be delivered by Buyer at the Closing pursuant to
Section 1.7(b) hereof or otherwise contained herein, and such other
documentation reasonably requested by counsel to Seller and necessary and
appropriate to complete the transactions contemplated hereby.
ARTICLE 8
INDEMNIFICATION
8.1 Indemnification by Seller. Subject to Section 8.3, Seller and
FMT, jointly and severally, together with its respective successors and
assigns, shall indemnify and hold Buyer and its successors and assigns
harmless from, against or in respect of the aggregate of all Indemnifiable
Damages of Buyer. For this purpose "Seller" includes Palmer by virtue of
Merger Sub's merger into Palmer. For this purpose, the term "Indemnifiable
Damages" of Buyer means the aggregate of any and all damage, loss, deficiency,
liability, expense (including, but not limited to, any reasonable attorney's
fees, expert witness fees, court costs and expenses), action, suit,
proceedings, demand, settlement, assessment or judgment to or against Buyer
arising out of or in connection with:
(a) Any debt, obligation, or liability of Seller, FMT or their
Affiliates which is not expressly assumed by Buyer herein, including,
without limitation, the Excluded Liabilities, whether arising prior to,
on or after the Closing;
(b) Any breach or violation of or non-performance by Seller of
any of its respective representations, warranties, covenants or
agreements contained in this Agreement or in any document, certificate
or schedule required to be furnished pursuant to this Agreement; and
(c) Notwithstanding the provisions of Section 10.10, any
violation of the Bulk Sales Laws or other similar laws requiring notice
to governmental and non-governmental creditors caused by consummation of
the transactions contemplated by this Agreement, but only to the extent
such violation relates to debts, obligations and liabilities which are
not Assumed Liabilities.
8.2 Indemnification by Buyer. Buyer and its successors and assigns
shall indemnify and hold harmless Seller from and with respect to all
Indemnifiable Damages (as defined in Section 8.1 above but as it relates to
section 8.2) suffered by Seller, together with their successors and assigns,
arising out of or in connection with:
(a) Any debt, obligation, liability or commitment of Seller
which is expressly assumed by Buyer herein;
(b) Any breach or violation of, or non-performance by, Buyer of
any of its representations, warranties, covenants or agreements
contained in this Agreement or in any document, certificate or schedule
required to be furnished pursuant to this Agreement;
(c) Any violation of the Bulk Sales Laws caused by consummation
of the transactions contemplated by this Agreement, but only to the
extent such violation relates to debts, obligations and liabilities
expressly assumed by Buyer herein; and
(d) Any breach by Seller under the Palmer Agreement caused by a
breach by Buyer under this Agreement.
8.3 Limitation of Damages. The foregoing obligations described in
Sections 8.1 and 8.2 shall be subject to and limited by the following
principles and limitations:
(a) All representations, warranties and covenants and
obligations contained in Article 2 of this Agreement, except for those
contained in Section 2.8 which shall terminate on the Closing Date,
shall survive the consummation of the transactions contemplated by this
Agreement from the Closing Date through the date that is eighteen (18)
months following the Closing Date and shall thereafter terminate,
provided, however, that notwithstanding the foregoing, the
representations and warranties contained in Sections 2.1, 2.2, 2.5, 2.7
and 2.9 shall be of unlimited duration. Claims first asserted within
the period referred to above shall not be barred and shall survive
indefinitely until such claims are resolved. All other covenants and
agreements set forth in this Agreement shall survive indefinitely unless
otherwise expressly provided herein.
(b) Seller shall not be responsible to Buyer under Section
8.1(b) unless and until the aggregate of all Indemnifiable Damages
suffered by Buyer exceeds $750,000.00 and then Seller shall be
responsible to fully indemnify Buyer for all Indemnifiable Damages in
excess of $750,000.00, provided, however, that this provision shall not
apply to breaches of the representations and warranties contained in
Sections 2.1, 2.2, 2.5, 2.7 and 2.9 which shall be fully indemnifiable
notwithstanding the amount of Indemnifiable Damages.
(c) Notwithstanding anything contained herein to the contrary,
from and after the Closing Date, this Article 8, together with Section
9.2, sets forth the sole and exclusive remedies of Seller and Buyer in
the event of a breach of this Agreement. Buyer shall not be entitled to
reimbursement for any Indemnifiable Damages under Section 8.1(b)
incurred in excess of Three Million Dollars ($3,000,000.00) except that
no such limits or exclusiveness of remedies shall apply either (i) due
to Seller's fraud, (ii) for Indemnifiable Damages contained in Sections
2.1, 2.2, 2.5, 2.7 and 2.9 or (iii) in the event that Seller does not
proceed to Closing as a result of Palmer's termination of the Palmer
Agreement due to Seller's breach or default. Seller shall not be
entitled to reimbursement for any Indemnifiable Damages under this
Agreement in excess of the Purchase Price.
8.4 Notice of Claims. If any claim is made against a party which, if
sustained, would give rise to a liability of the other hereunder, the party
seeking indemnification (the "claiming party") shall promptly cause notice of
the claim to be delivered to the other party (the "non-claiming party") and
shall afford the non-claiming party and its counsel, at its sole expense, the
opportunity to defend or settle the claim (provided that the claiming party
and its counsel may participate at their sole cost and expense). Any notice
of a claim shall state specifically the representation, warranty, covenant or
agreement with the alleged basis for the claim, and the amount of liability
asserted against the other party by reason of the claim (if such amount can be
reasonably estimated). If such notice and opportunity are not given, or if
any claim is compromised or settled without notice to and consent of the
non-claiming party, no liability shall be imposed on the non-claiming party by
reason of such claim, but if notice is given and the non-claiming party
receiving the notice fails to assume the defense of the claim or fails to
admit in writing its obligation to indemnify the claiming party with respect
to such claim (subject to the terms and conditions of this Agreement), the
claim may be defended, compromised or settled by the claiming party without
the non-claiming party's consent and the non-claiming party shall remain
liable under this Article 8. Notwithstanding anything contained in this
Section 8.4 to the contrary, the non-claiming party may retain control over
the defense of any claim hereunder if such claim is non-monetary or is for
injunctive or other equitable relief which would have a material adverse
effect on the claiming party.
ARTICLE 9
TERMINATION
9.1 Termination. Anything contained in this Agreement to the contrary
notwithstanding, this Agreement may be terminated at any time prior to the
Closing Date:
(a) By the mutual written consent of Buyer and Seller;
(b) By Buyer upon the continuing breach or non-fulfillment by
Seller of any of its covenants or agreements or representations or
warranties contained in Article 2 or Article 4 after thirty (30) days'
written notice and opportunity to cure, other than a breach in
connection with defects with the Seller Licenses which shall be cured
within the applicable time periods proscribed by the FCC but in no event
later than the Closing Date;
(c) By Seller upon the continuing breach or non-fulfillment by
Buyer of any of its covenants or agreements or representations or
warranties contained in Article 3 or Article 4 after thirty (30) days'
written notice and opportunity to cure;
(d) By Buyer, if any of the conditions set forth in Article 6 of
this Agreement have not been satisfied on or before December 31, 1997
(or December 31, 1997 or, at Buyer's election, such other outside date
in the event that the Termination Date (as defined in the Palmer
Agreement) is extended); provided, however, that the right to terminate
this Agreement under this section 9.1(d) shall not be available to Buyer
if Buyer's failure to fulfill any of its obligations under this
Agreement has been the cause of, or resulted in, the failure of the
Closing to occur on or before the Closing Date;
(e) By Seller, if any of the conditions set forth in Article 7
of this Agreement have not been satisfied on or before December 31, 1997
(or December 31, 1997 or such other outside date in the event that the
Termination Date (as defined in the Palmer Agreement) is extended);
provided, however, that Seller's right to terminate this Agreement under
this section 9.1(e) shall not be available to Seller if Seller's failure
to fulfill any of its obligations under this Agreement has been the
cause of, or resulted in, the failure of the Closing to occur on or
before the Closing Date;
(f) By Seller, if the Commitment Letter is not delivered by
Buyer to Seller within forty-eight (48) days from the date hereof,
provided that Seller has furnished to Buyer written notice of Seller's
intent to terminate the Agreement by 5:00 p.m. eastern time on or before
fifty-five (55) days after the date hereof;
(g) In the event of a failure of the condition set forth in
Section 6.6 or 7.5, the following shall apply:
(i) in the event of such failure due to a breach or
default by Palmer under the Palmer Agreement, which breach or
default does not substantially relate to the System, this
Agreement shall automatically terminate if Seller chooses, in its
sole discretion, to and does terminate the Palmer Agreement. In
the event of the applicability of this clause (i) or clause (ii)
below, then (x) in the event the Palmer Agreement is terminated,
but then Seller and Palmer (or Affiliates of either) enter into
another or similar transaction contemplated by the Palmer
Agreement within three (3) months following such termination, then
this Agreement shall, at Buyer's option, be re-instated, with
appropriate changes for the timing of the Closing (provided that
if the Palmer Agreement is reinstated and the price paid per share
under the reinstated agreement is different than $17.50, then the
Purchase Price will be adjusted, upward or downward, by the
percentage that the price per share has changed from $17.50)
and/or (y) in the event that Seller receives any proceeds under
Section 9.3(b) of the Palmer Agreement or under any Option
Agreement between Seller and PCI to acquire the stock of Palmer
owned by PCI, or any other agreement entered into between Seller
and palmer (or Affiliates thereof) in connection with the Palmer
Agreement, Buyer shall be entitled to 19% of the fees and other
amounts to which Seller is entitled thereunder;
(ii) In the event of such failure due to a breach or
default by Palmer under the Palmer Agreement which relates
substantially to the System, Buyer shall have the right, in its
sole discretion, to either (a) cause Seller to waive any such
default and waive the corresponding breach of representation or
warranty under this Agreement caused thereby and require Seller to
keep the Palmer Agreement in full force and effect in accordance
with its terms (provided that this clause (a) will only be
applicable if an existing uncured breach or default by Palmer
under the Palmer Agreement relating to the balance of Palmer
unrelated to the System or Assets does not exist and does not have
a material adverse effect on Palmer or Seller under the Palmer
Agreement) or (b) terminate this Agreement and, if Seller
terminates the Palmer Agreement, retain the right to (I) receive a
percentage of fees as set forth in section 9.1(e)(i)(y) above and
(II) reinstate this Agreement as provided in section 9.1(g)(i)(x)
in the event that Seller chooses to terminate the Palmer
Agreement; and
(iii) In the event of such failure due to a breach or
default by Seller under the Palmer Agreement, such failure shall
be deemed a breach of this Agreement by Seller and Buyer shall be
entitled to pursue all available legal and equitable remedies as a
result of such breach or reinstate this Agreement as provided in
section 9.1(g)(i)(x) in the event that Seller or Palmer chooses to
terminate the Palmer Agreement.
(iv) In the event of a breach or default by Palmer under
the Palmer Agreement, Seller will pursue, within its reasonable
discretion and judgment, all available remedies at law or in
equity, including the remedy set forth in section 9.3(b) of the
Palmer Agreement.
9.2 Remedies for Termination.
(a) By Seller. In the event of the existence of Seller's right
to terminate pursuant to Section 9.1(c) hereof, Seller may at its sole
election (i) waive such right and close (without waiving its rights to
recover damages pursuant to Article 8) or (ii) terminate the Agreement
and seek all remedies entitled by law (subject to section 8.3(c)). In
the event of Seller's termination pursuant to Section 9.1(e) hereof due
to Buyer's failure to deliver the Purchase Price, Seller's remedy is
limited to that set forth in section 8.3(c). In the event of Seller's
termination pursuant to Section 9.1(f) hereof, this Agreement will
terminate without any liability to any party.
(b) By Buyer. If Buyer has the right to terminate this
Agreement pursuant to section 9.1(b), Buyer may at its sole election
either (i) waive such right and close (without waiving its rights to
recover damages pursuant to Article 8) or (ii) terminate the Agreement
and seek all remedies entitled by law including the remedy of specific
performance, it being acknowledged that the Assets and the System are
unique and monetary damages would not be wholly adequate.
(c) Generally. A termination of this Agreement will not release
either party from breach of this Agreement which occurs prior to such
termination, except to the extent that such party's liability is limited
or released as expressly set forth in Section 8.3(c) or 9.2.
9.3 Risk of Loss. The risk of any loss to the Assets and all
liability with respect to injury and damage occurring in connection therewith
shall be the sole responsibility of Seller, Palmer, FMT and their Affiliates,
as the case may be, until the completion of the Closing. If any material part
of such properties shall be damaged by fire or other casualty (and not
repaired or replaced by comparable or better assets) prior to the completion
of the Closing hereunder, Buyer shall have the right and option:
(a) to terminate this Agreement, without liability to Seller;
(b) to proceed with Closing hereunder, in which event such
casualty shall not constitute a breach by Seller of any representation,
warranty or covenant in this Agreement or a breach by Palmer of any
representation, warranty or covenant under the Palmer Agreement, and, at
Buyer's election, receive a credit against the Purchase Price for the
value of the property so damaged, or be entitled to receive and retain
the insurance proceeds arising from such casualty; or
(c) to delay Closing (up to 30 days) until the damaged or
destroyed Asset is repaired or replaced.
ARTICLE 10
GENERAL PROVISIONS
10.1 Confidential Nature of Information. Each party hereto agrees that
it will treat in confidence all documents, materials and other information
which it shall have obtained regarding any other party during the course of
the negotiations leading to the consummation of the transactions contemplated
hereby, the investigation provided for herein and the preparation of this
Agreement and other related documents, and, in the event the transactions
contemplated hereby shall not be consummated, all copies of nonpublic
documents and material which have been furnished in connection therewith shall
be promptly returned to the party furnishing the same, shall continue to be
treated as confidential information and shall not be used for the benefit of
the party who returned such confidential information.
10.2 Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of Florida and the
applicable rules and regulations of the FCC without giving effect to the
provisions, policies or principles of the State of Florida relating to choice
or conflict of laws. This Agreement has been fully negotiated by parties of
equal bargaining power and no inference or construction should be made against
the drafting party.
10.3 Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be deemed given or delivered
when delivered personally, or when sent by registered or certified mail or
prepaid overnight courier or by legible facsimile addressed as follows:
If to Buyer, to:
Wireless One Network, L.P.
James A. Dwyer, Jr.
2100 Electronics Lane
Fort Myers, FL 33912
Facsimile: (941) 489-1928
with a copy to:
Gould & Ratner
222 North LaSalle Street, Suite 800
Chicago, IL 60601-1086
Attn: Fredric D. Tannenbaum, Esq.
Facsimile: (312) 236-3241
If to Seller, to:
Price Communications Corporation
45 Rockefeller Plaza
Suite 3200
New York, New York 10020
Attn: Robert Price
Facsimile: (212) 397-3755
with a copy to:
Proskauer Rose LLP
1585 Broadway
New York, NY 10036-8299
Attn: Peter G. Samuels, Esq.
Facsimile: (212) 969-2900
or to such address as such party may indicate by a notice delivered to the
other parties hereto. Notice is deemed received the same day (in the case of
personal delivery), three (3) days after mailing (in the case of registered
mail) and the next business day (in the case of overnight courier or facsimile
transmission).
10.4 Successors and Assigns.
(a) The rights of the parties under this Agreement shall not be
assignable, except that Buyer may assign its rights hereunder to (i) an
affiliated entity or entities in which it or its affiliates owns a
controlling interest or (ii) to a lender for collateral purposes,
provided that any such assignment shall not cause a material delay of
the receipt of a Final Approval or delay the Closing beyond the
Termination Date.
(b) This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their successors and permitted
assigns. Nothing in this Agreement, expressed or implied, is intended
or shall be construed to confer upon any person other than the parties
and successors and assigns permitted by this Section 10.4 any right,
remedy or claim under or by reason of this Agreement.
10.5 Entire Agreement; Amendments. This Agreement and the Schedules
and Exhibits referred to herein and the documents delivered pursuant hereto,
contain the entire understanding of the parties hereto with regard to the
subject matter contained herein or therein, and supersede all prior
agreements, understandings or intents between or among any of the parties
hereto. The parties hereto, by mutual agreement in writing, may amend, modify
and supplement this Agreement.
10.6 Waivers. Any term or provision of this Agreement may be waived,
or the time for its performance may be extended, by the party or parties
entitled to the benefit thereof. The failure of any party hereto to enforce
at any time any provision of this Agreement shall not be construed to be a
waiver of such provision, nor in any way to affect the validity of this
Agreement or any part hereof or the right of any party thereafter to enforce
each and every such provision. No waiver of any breach of this Agreement
shall be held to constitute a waiver of any other or subsequent breach.
10.7 Expenses. Each party hereto will pay all costs and expenses
incident to its negotiation and preparation of this Agreement and to its
performance and compliance with all agreements and conditions contained herein
on its part to be performed or complied with, including, without limitation,
the fees, expenses and disbursements of its counsel and accountants.
10.8 Sales and Transfer Taxes. Any sales and transfer taxes imposed in
connection with the transactions contemplated by this Agreement shall be
equally split between Buyer and Seller. Payment of such sales and transfer
taxes shall be made to the party required under applicable law to collect
and/or pay such taxes.
10.9 Execution of Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be considered an original
instrument, but all of which shall be considered one and the same agreement,
and shall become binding when one or more counterparts have been agreed upon
by each of the parties and delivered to Seller and Buyer.
10.10 Bulk Sales Compliance and Other Agreements. As an inducement to
Buyer, the parties hereto hereby waive compliance with the procedures of
Article 6 of the Florida Uniform Commercial Codes or other bulk sales laws.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
BUYER:
WIRELESS ONE NETWORK, L.P.
By: WON, INC., its General Partner
By: James A. Dwyer
Its: President
SELLER:
PRICE COMMUNICATIONS CORPORATION
By: /s/ Robert Price
Its: President
PRICE COMMUNICATIONS CELLULAR MERGER
CORP.
By: /s/ Robert Price
Its: President
EXHIBIT 1.5(a)(i)
HOLDBACK ESCROW AGREEMENT
This Holdback Escrow Agreement ("Escrow Agreement") dated as of
1997, by and among PRICE COMMUNICATIONS CORPORATION, a New York corporation
("Price"), PRICE COMMUNICATIONS CELLULAR MERGER CORP., a Delaware corporation
("Merger Sub" and together with Price, the "Seller"), and WIRELESS ONE
NETWORK, L.P., a Delaware limited partnership ("Buyer") and [THE FIRST
NATIONAL BANK OF CHICAGO/NBD], as escrow agent (the "Escrow Agent").
RECITALS
A. Seller and Buyer have entered into an Asset Purchase Agreement
dated as of June 13, 1997 (the "Purchase Agreement") which, subject to the
satisfaction of certain terms and conditions, provides for the execution,
delivery and performance of this Escrow Agreement. All capitalized undefined
terms used herein shall have the same meanings ascribed to them in the
Purchase Agreement;
B. The Purchase Agreement contemplates the delivery of Three Million
Dollars ($3,000,000.00) of the Purchase Price on the Closing Date to the
Escrow Agent by Buyer to be held by the Escrow Agent as security for
Indemnifiable Damages, and otherwise in accordance with the terms hereof and
thereof.
NOW, THEREFORE, the parties hereto agree as follows:
1. Appointment of Escrow Agent. Seller and Buyer hereby designate
and appoint [The First National Bank of Chicago/NBD] to act as Escrow Agent
hereunder, and Escrow Agent hereby accepts such appointment on the terms and
conditions hereinafter set forth.
2. Receipt of Collateral. The Escrow Agent hereby acknowledges the
receipt of Three Million Dollars ($3,000,000.00) plus Dollars
($ ) from Buyer (such cash, together with the proceeds of any
investment thereof ("Interest"), being hereinafter sometimes collectively
referred to as the "Deposit"), and represents and warrants that such funds
promptly shall be deposited in Account Number of the Escrow Agent at
[The First National Bank of Chicago/NBD], such escrow account (the "Escrow
Account") being designated the "Price/Wireless One Holdback Escrow Account".
3. Investment of Deposit. The Escrow Agent is hereby authorized and
directed to hold the Deposit and to deliver such Deposit in accordance with
the terms of this Escrow Agreement. The Escrow Agent is hereby authorized and
directed to invest and reinvest the Deposit in either, or any combination of,
(a) certificates of deposit, which mature in ninety (90) days or less from the
date of purchase by the Escrow Agent, with a bank or trust company organized
as a corporation under the laws of the United States or any state thereof
whose long-term debt securities have either of the two highest ratings for
long-term securities assigned by S&P or Moody's, (b) securities, which mature
in ninety (90) days or less from the date of purchase by the Escrow Agent,
issued and guaranteed by the United States government or agencies or
instrumentalities thereof, (c) bank deposits immediately convertible into
cash, or (d) money market funds authorized to invest solely in short-term
securities issued or guaranteed as to principal by the U.S. Government and
repurchase agreements with respect to such securities.
4. Disbursement of Holdback Deposit.
(a) On the first year anniversary of the date hereof Seller and Buyer
shall execute a joint written direction authorizing Escrow Agent to disburse
to Seller an amount equal to the quotient of (X) Two Million Dollars
($2,000,000.00), minus (Y) the sum of (i) 110% of the estimated amount of
Buyer's claims for any Indemnifiable Damages as described in Section 4(b)
below plus (ii) amounts previously disbursed from the Deposit. For example, if
the original Deposit were $3 million and a claim for Indemnifiable Damages by
Buyer of $100,000 were pending during the first 1 year after Closing, and
$50,000 had already been distributed to Buyer under the terms hereof, the
Escrow Agent would distribute to Seller $1,840,000 (which is ($2 million,
minus the product of $100,000 and 110%, and minus $50,000)).
(b) For purposes of this Section 4(b), the following terms have the
meanings set forth below:
(X) "Breach" means any event pursuant to which indemnity
may be sought pursuant to Section 8.1 of the Purchase Agreement.
(Y) "Disbursement Date" means , 1998. [1 1/2
years from this date]
(Z) "Indemnifiable Damages" has the same meaning as set
forth in Section 8.1 of the Purchase Agreement.
(i) If Buyer believes that a Breach exists or has occurred and
that Buyer has incurred or suffered, or may incur or suffer,
Indemnifiable Damages from or by virtue of such Breach, Buyer shall so
notify the Escrow Agent and Seller on or prior to the Disbursement Date
in writing (any such notice being referred to herein as a "Notice of
Breach") describing such Breach or Indemnifiable Damages with reasonable
particularity, and, if known, (x) the amount of such Indemnifiable
Damages or (y) the basis for calculating the amount of such
Indemnifiable Damages. If, within twenty (20) days after Buyer has
given any such Notice of Breach, Seller has not objected to the
existence of the Breach or the amount of the Indemnifiable Damages, if
any, stated therein by written notice given to the Escrow Agent and to
Buyer, the existence of the Breach and the amount of any Indemnifiable
Damages described in such Notice of Breach shall be deemed to have been
agreed to by Seller and finally determined as of the last day of such
twenty (20) day period. If Seller objects to the existence of any
Breach or the amount of any Indemnifiable Damages set forth in the
Notice of Breach or if the Notice of Breach does not set forth the
amount of any Indemnifiable Damages, the existence of such Breach or the
amount of such Indemnifiable Damages to which objection is made (or the
amount of the Indemnifiable Damages if not set forth in the Notice of
Breach), shall be finally determined by: (a) the subsequent written
agreement of Seller and Buyer, (b) a judgment or decree which becomes
final and for which any appeal period shall have elapsed without any
appeal having been filed and not disposed of, or (c) a final award made
under an arbitration proceeding if the matter is submitted to
arbitration pursuant to an agreement of Seller and Buyer as of the date
such award becomes final. The Escrow Agent shall promptly pay to Buyer
(or its successors and assigns as designated by Buyer) from the Deposit
the amount of all Indemnifiable Damages which have been finally
determined in accordance with this Agreement.
(ii) If on the Disbursement Date (a) there have been no Notices
of Breach or (b) the existence of every Breach and the amount of all
Indemnifiable Damages claimed in every Notice of Breach delivered to the
Escrow Agent on or prior to such Disbursement Date shall have been
finally determined and all amounts owing to Buyer have been paid to
Buyer, the Escrow Agent shall promptly deliver the Deposit to Seller.
(iii) If on the Disbursement Date the existence of every Breach
and the amount of all Indemnifiable Damages claimed in every Notice of
Breach delivered to the Escrow Agent on or prior to the Disbursement
Date shall not have been finally determined, Buyer shall deliver to the
Escrow Agent and Seller a certificate setting forth Buyer's estimate of
the maximum amount of Indemnifiable Damages which Buyer has incurred or
suffered or may incur or suffer by reason of all Breaches made the
subject of all Notices of Breach which Indemnifiable Damages have not
been finally determined as of the Disbursement Date (the "Estimated
Remaining Damages"). Upon receipt of such certificate, the Escrow Agent
shall deliver the excess of (A) 95% of the remaining Deposit, over (B)
the Estimated Remaining Damages, to Seller and shall retain the balance
pending final determination of all such Indemnifiable Damages. Promptly
after the existence of every Breach and the amount of all Indemnifiable
Damages related thereto claimed in every Notice of Breach delivered to
the Escrow Agent on or prior to the Disbursement Date shall have been
finally determined, the Escrow Agent shall (after paying any amounts due
Buyer) promptly deliver the Deposit to Seller.
5. Advice of Counsel. The Escrow Agent may apply for advice to
counsel of its choice, and may rely upon such advice as it thereupon receives
in writing; or it may act or refrain from acting in accordance with its best
judgment and shall not, as a result thereof, be answerable to any other person
except for willful misconduct or gross negligence.
6. Responsibility and Exoneration of Escrow Agent. (a) The Escrow
Agent, as such, shall not be responsible or liable to any person, whether or
not a party to this Agreement, for any act or omission of any kind so long as
it has acted in good faith upon the instructions herein contained or upon the
instructions hereafter delivered to it as contemplated by this Agreement or
upon advice of counsel as provided in this Agreement or upon advice of counsel
as provided in Section 5. The Escrow Agent may rely and act upon any
certificate or other document conforming to the applicable provision hereof
and believed by it to be genuine and to have been signed by the proper party.
All persons shall be conclusively bound as against the Escrow Agent by any
payment pursuant to, and in conformity with, the terms of this Agreement.
(b) It is agreed that Escrow Agent shall incur no liability, except
for gross negligence and willful misconduct, in respect of (i) any action
taken or suffered by Escrow Agent in reliance upon any notice, direction,
instruction, consent, statement or other paper or document believed by Escrow
Agent to be genuine and duly authorized or (ii) any action taken or omitted
hereunder in good faith and the exercise of Escrow Agent's own best judgment.
Escrow Agent shall not be responsible for the validity or sufficiency of this
Escrow Agreement or for the validity or sufficiency of any document which may
be delivered to Escrow Agent. Escrow Agent shall not be required to take any
action hereunder involving any expense unless the payment of such expense
shall be made or provided for in a manner satisfactory to Escrow Agent.
(c) Seller and Buyer agree, jointly and severally, to indemnify and
hold Escrow Agent harmless from and against all costs, damages, judgments,
attorney's fees (whether such attorneys shall be regularly retained or
specially employed), expenses, obligations, and liabilities of every kind and
nature which Escrow Agent may incur, sustain, or be required to pay in
connection with or arising out of this Escrow Agreement, and to pay Escrow
Agent on demand the amount of all such costs, damages, judgments, attorney's
fees, expenses, obligations and liabilities.
(d) If Escrow Agent should receive or become aware of any conflicting
demands or claims with respect to the Deposit, this Escrow Agreement, or the
rights of any of the parties hereto, or affected hereby, Escrow Agent shall
have the right in Escrow Agent's sole discretion, without liability for
interest or damages, to discontinue any or all further acts on Escrow Agent's
part until such conflict is resolved to Escrow Agent's satisfaction and/or to
commence or defend any action or proceeding for the determination of such
conflict.
7. Amendments. This Agreement may be amended or compliance with its
terms waived only by a document in writing executed by Seller and Buyer and
the Escrow Agent.
8. Fees. The Escrow Agent shall charge fees to Seller and Buyer for
the services rendered by Escrow Agent under this Agreement as follows: ,
and such fee shall be equally split between Seller and Buyer on the other.
9. Notices. Any notices or other communications required or
permitted hereunder shall be in writing and shall be deemed given or delivered
if delivered personally or if sent by registered or certified mail addressed
as follows:
If to Buyer, to:
Wireless One Network, L.P.
James A. Dwyer, Jr.
2100 Electronics Lane
Fort Myers, FL 33912
Facsimile: (813) 489-1622
with a copy to:
Gould & Ratner
222 North LaSalle Street, Suite 800
Chicago, IL 60601-1086
Attn: Fredric D. Tannenbaum, Esq.
Facsimile: (312) 236-3241
If to Seller, to:
Price Communications Corporation
45 Rockefeller Plaza
Suite 3200
New York, New York 10020
Attn: Robert Price
Facsimile: (212) 397-3755
with a copy to:
Proskauer Rose LLP
1585 Broadway
New York, NY 10036-8299
Attn: Peter G. Samuels, Esq.
Facsimile: (212) 969-2900
If to the Escrow Agent to:
Attn:
or to such other address or to such other person as such party may indicate by
a notice delivered to the other parties hereto. Notice is deemed given and
received the same day (in the case of personal or facsimile delivery provided
that confirmation of transmission is received on a business day between the
hours of 9:00 a.m. and 5:00 p.m. EST) and three (3) days after mailing (in the
case of mail).
10. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and to their respective successors
and assigns and this Agreement is not personal to any party. Nothing
contained herein is intended to confer upon any person other than the parties
hereto and their respective successors and assigns as aforesaid, any rights or
remedies under or by reason of this Agreement.
11. Controlling Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of Illinois without regard to
conflict of law principles thereof.
12. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be considered an original agreement but all
of which shall be considered one and the same agreement.
13. Interpretation. Titles and headings to Sections herein are
inserted for convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
14. Resignation. The Escrow Agent may resign at any time hereunder upon
written notice to Buyer and Seller. The Escrow Agent shall deliver the Deposit
to the successor escrow agent designated in writing by Buyer and Seller, or,
if no such designation has been received by the Escrow Agent, to a court of
competent jurisdiction in Chicago, Illinois.
--Balance of page intentionally left blank.--
IN WITNESS WHEREOF, the parties hereto have executed this instrument as
of the day first above written.
BUYER:
WIRELESS ONE NETWORK, L.P.
By: WON, INC., its General Partner
By:
Its:
SELLER:
PRICE COMMUNICATIONS CORPORATION
By:
Its:
PRICE COMMUNICATIONS CELLULAR MERGER
CORP.
By:
Its:
ESCROW AGENT:
THE FIRST NATIONAL BANK OF CHICAGO
By:
Its:
EXHIBIT 1.7(a)(i)
GENERAL ASSIGNMENT AND WARRANTY BILL OF SALE
THIS GENERAL ASSIGNMENT AND WARRANTY BILL OF SALE (the "Assignment") is
executed and delivered pursuant to, and for the consideration provided in, a
Purchase Agreement ("Purchase Agreement") dated as of June , 1997 by and
among PRICE COMMUNICATIONS CORPORATION, a New York corporation ("Price"),
PRICE COMMUNICATIONS CELLULAR MERGER CORP., a Delaware corporation ("Merger
Sub"), and WIRELESS ONE NETWORK, L.P., a Delaware limited partnership
("Buyer"). All capitalized undefined terms used herein shall have the same
meanings ascribed to them in the Purchase Agreement.
KNOW ALL MEN BY THERE PRESENTS, that FMT, Ltd., a Florida limited
partnership ("FMT") (FMT, Merger Sub and Price are collectively, the
"Seller"), hereby assigns and transfers to Buyer as of the date of this
instrument, all of its right, title and interest in and to the Assets and the
System.
Seller warrants to Buyer that Seller has good and marketable title to
the Assets free and clear of all mortgages, security interests, pledges,
liens, charges and encumbrances.
Terms not otherwise defined in this General Assignment and Warranty Bill
of Sale have the meanings assigned to them in the Purchase Agreement.
If there is any conflict between this General Assignment and Warranty
Bill of Sale and the Purchase Agreement, the terms and conditions of the
Purchase Agreement shall control.
IN WITNESS WHEREOF, this General Agreement and Warranty Bill of Sale has
been executed on behalf of Seller as of the day of , 1997.
PRICE COMMUNICATIONS CORPORATION
By:
Its:
PRICE COMMUNICATIONS CELLULAR MERGER CORP.
By:
Its:
FMT, LTD.,
By: PALMER WIRELESS HOLDINGS, INC.,
Its General Partner
By:
Title:
TABLE OF CONTENTS
ARTICLE 1 PURCHASE AND SALE OF ASSETS. . . . . . . . . . . . .-1-
1.1 Sale and Purchase of Assets . . . . . . . . . . . . . . .-1-
1.2 Excluded Assets . . . . . . . . . . . . . . . . . . . . .-3-
1.3 Assumed Liabilities . . . . . . . . . . . . . . . . . . .-3-
1.4 Excluded Liabilities. . . . . . . . . . . . . . . . . . .-4-
1.5 Purchase Price Computation and Payment. . . . . . . . . .-5-
1.6 Closing Date. . . . . . . . . . . . . . . . . . . . . . .-8-
1.7 Closing Date Deliveries . . . . . . . . . . . . . . . . .-8-
1.8 Further Assurances. . . . . . . . . . . . . . . . . . . -11-
ARTICLE 2 REPRESENTATIONS, WARRANTIES ANDCOVENANTS OF SELLER -11-
2.1 Due Organization; Power and Authority . . . . . . . . . -11-
2.2 Authority . . . . . . . . . . . . . . . . . . . . . . . -12-
2.3 No Material Adverse Change. . . . . . . . . . . . . . . -12-
2.4 Licenses. . . . . . . . . . . . . . . . . . . . . . . . -13-
2.5 Title to Property . . . . . . . . . . . . . . . . . . . -13-
2.6 To the best of Seller's knowledge . . . . . . . . . . . -13-
2.7 Completeness of Assets. . . . . . . . . . . . . . . . . -14-
2.8 Palmer Representations. . . . . . . . . . . . . . . . . -14-
2.9 Broker or Finder. . . . . . . . . . . . . . . . . . . . -15-
2.10 Financing . . . . . . . . . . . . . . . . . . . . . . . -15-
2.11 FCC Qualification . . . . . . . . . . . . . . . . . . . -15-
ARTICLE 3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER -15-
3.1 Organization of Buyer . . . . . . . . . . . . . . . . . -15-
3.2 Authority of Buyer. . . . . . . . . . . . . . . . . . . -16-
3.3 No Broker or Finder . . . . . . . . . . . . . . . . . . -16-
3.4 Financing . . . . . . . . . . . . . . . . . . . . . . . -16-
3.5 FCC Qualification . . . . . . . . . . . . . . . . . . . -16-
ARTICLE 4 ACTIONS PRIOR TO THE CLOSING DATE . . . . . . . . -16-
4.1 Investigation of System by Buyer. . . . . . . . . . . . -17-
4.2 Preserve Accuracy of Representations and Warranties . . -17-
4.3 Consents and Approvals. . . . . . . . . . . . . . . . . -18-
4.4 FCC Compliance. . . . . . . . . . . . . . . . . . . . . -18-
4.5 No Public Announcements . . . . . . . . . . . . . . . . -18-
4.6 Environmental Surveys . . . . . . . . . . . . . . . . . -19-
4.7 Hart-Scott-Rodino Act Filings . . . . . . . . . . . . . -19-
4.8 Exclusive Dealing . . . . . . . . . . . . . . . . . . . -19-
4.9 Title Insurance and Surveys . . . . . . . . . . . . . . -20-
4.10 Buyer Commitment Letter . . . . . . . . . . . . . . . . -20-
ARTICLE 5 OTHER AGREEMENTS. . . . . . . . . . . . . . . . . -20-
5.1 Non-Competition Agreements. . . . . . . . . . . . . . . -20-
5.2 System Employees. . . . . . . . . . . . . . . . . . . . -20-
5.3 Transition Services Agreements. . . . . . . . . . . . . -21-
5.4 Financial Statement . . . . . . . . . . . . . . . . . . -21-
ARTICLE 6 CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER. . . -22-
6.1 No Misrepresentation or Breach of Covenants and Warranties-22-
6.2 Corporate/Partnership Action. . . . . . . . . . . . . . -22-
6.3 No Restraint or Litigation. . . . . . . . . . . . . . . -22-
6.4 Necessary Consents and Permits. . . . . . . . . . . . . -22-
6.5 No Material Adverse Change. . . . . . . . . . . . . . . -23-
6.6 Palmer Agreement. . . . . . . . . . . . . . . . . . . . -23-
6.7 Legal Opinion . . . . . . . . . . . . . . . . . . . . . -23-
6.8 Other Documentation . . . . . . . . . . . . . . . . . . -23-
ARTICLE 7 CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER . . -23-
7.1 No Misrepresentation or Breach of Covenants and Warranties-23-
7.2 Partnership Action. . . . . . . . . . . . . . . . . . . -23-
7.3 No Restraint or Litigation. . . . . . . . . . . . . . . -24-
7.4 Legal Opinion . . . . . . . . . . . . . . . . . . . . . -24-
7.5 Palmer Agreement. . . . . . . . . . . . . . . . . . . . -24-
7.6 Necessary Consents and Permits. . . . . . . . . . . . . -24-
7.7 Other Documentation . . . . . . . . . . . . . . . . . . -24-
ARTICLE 8 INDEMNIFICATION. . . . . . . . . . . . . . . . . . -24-
8.1 Indemnification by Seller . . . . . . . . . . . . . . . -24-
8.2 Indemnification by Buyer. . . . . . . . . . . . . . . . -25-
8.3 Limitation of Damages . . . . . . . . . . . . . . . . . -25-
ARTICLE 9 TERMINATION. . . . . . . . . . . . . . . . . . . . -26-
9.1 Termination . . . . . . . . . . . . . . . . . . . . . . -26-
9.2 Remedies for Termination. . . . . . . . . . . . . . . . -28-
9.3 Risk of Loss. . . . . . . . . . . . . . . . . . . . . . -29-
ARTICLE 10 GENERAL PROVISIONS. . . . . . . . . . . . . . -29-
10.1 Confidential Nature of Information. . . . . . . . . . . -29-
10.2 Governing Law . . . . . . . . . . . . . . . . . . . . . -30-
10.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . -30-
10.4 Successors and Assigns. . . . . . . . . . . . . . . . . -31-
10.5 Entire Agreement; Amendments. . . . . . . . . . . . . . -31-
10.6 Waivers . . . . . . . . . . . . . . . . . . . . . . . . -31-
10.7 Expenses . . . . . . . . . . . . . . . . . . . . . . . -31-
10.8 Sales and Transfer Taxes. . . . . . . . . . . . . . . . -31-
10.9 Execution of Counterparts . . . . . . . . . . . . . . . -31-
10.10 Bulk Sales Compliance and Other Agreements . . . . -32-
SCHEDULES
1.1(a) Fixed Assets
1.1(b) Real Property
1.1(c) Contracts
1.1(d) Licenses
1.1(f) Cellular Telephone Units
1.2 Excluded Assets
2.2 Conflicts/Violations
2.6(c) Undisclosed Liabilities
4.3 Consents
EXHIBITS
1.5(a)(i) Holdback Escrow Agreement
1.7(a)(i) General Assignment and
Warranty Bill of Sale
