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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
Date of Report (Date of earliest event reported) February 1, 1997
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PALMER WIRELESS, INC.
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(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 0-25588 65-0456627
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File No.) Identification No.)
12800 University Drive, Suite 500, Fort Myers, Florida 33907
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(Address of principal executive offices) (Zip Code)
</TABLE>
Registrant's telephone number, including area code:
(941) 433-4350
Not applicable
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(Former name or former address, if changed since last report)
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Item 5. Other Events.
On February 1, 1997, Cellular Dynamics Telephone Company of
Georgia, a wholly-owned subsidiary of Palmer Wireless, Inc. (the "Company"),
acquired the cellular telephone system serving the Georgia-13 Rural Service
Area (Market No. 383) from Mobile Communications Systems L.P. ("MCS") for a
total cash purchase price of $30 million, subject to certain adjustments (the
"Acquisition"). The Acquisition was made pursuant to a Sale and Purchase
Agreement dated January 21, 1997 (filed as Exhibit 5 hereto), which replaced
and superseded the Sale and Purchase Agreement between MCS and Palmer Wireless
Holdings, Inc. dated August 22, 1996 (filed as Exhibit 5 to the Company's
Current Report on Form 8-K dated August 22, 1996).
Item 7. Financial Statements, Pro Forma Financial Information and
Exhibits.
(c) Exhibits.
10 Sale and Purchase Agreement by and among Mobile Communications
Systems, L.P. and Cellular Dynamics Telephone Company of Georgia,
dated January 21, 1997
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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 thereunto duly authorized.
PALMER WIRELESS, INC.
Date: February 11, 1997 By: /s/ ROBERT G. ENGELHARDT
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Robert G. Engelhardt
Executive President and Secretary
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EXHIBIT INDEX
Exhibit No. Description Page
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10 Sale and Purchase Agreement by and among Mobile
Communications Systems, L.P. and Cellular Dynamics
Telephone Company of Georgia, dated January 21, 1997
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SALE AND PURCHASE AGREEMENT
THIS SALE AND PURCHASE AGREEMENT is entered into as of this 21st day
of January, 1997 by and among MOBILE COMMUNICATIONS SYSTEMS, L.P., a Georgia
limited partnership ("Seller"), and CELLULAR DYNAMICS TELEPHONE COMPANY OF
GEORGIA, successor in interest to Palmer Wireless Holdings, Inc., a Delaware
corporation ("Buyer").
WHEREAS, Seller and Buyer executed a previous Sale and Purchase
Agreement, dated August 22, 1996 ("Prior Agreement"), for the sale and purchase
of the Assets (as defined herein);
WHEREAS, this Sale and Purchase Agreement replaces and supersedes, in
its entirety, the Prior Agreement between the parties;
WHEREAS, Seller owns and operates a nonwireline cellular telephone
system, licensed by the Federal Communications Commission, serving the
Georgia-13 Early Rural Service Area--Market 383, together with certain
microwave and auxiliary facilities; and
WHEREAS, Buyer desires to purchase all the Assets (as hereinafter
defined) from Seller, and Seller desires to sell all the Assets to Buyer, all
in accordance with and subject to the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
1. Definitions and References. As used herein, the following
terms shall have the meanings set forth below, unless the context otherwise
requires:
"Accounts Receivable" means all accounts receivable with respect to
the System as of the end of the business day immediately preceding the Closing
Date.
"Assets" means the System and all real, personal and mixed assets,
both tangible and intangible (including the business of the System as a "going
concern") wherever located, owned or held by the Seller and which are used or
useful principally in connection with the business and operations of the
System, and all Accounts Receivable thereof, but not including any cash or cash
equivalents or any assets listed on Schedule 1.5 hereto. Subject to the
provisions of Section 7, Assets shall include all such assets existing on the
date of this Agreement and all such assets acquired between that date and the
Closing Date, and shall include, without limitation, all of Seller's right,
title and interest:
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(a) In all Accounts Receivable, deposits and prepaid
expenses.
(b) In that certain real property set forth and described
in Schedule 1.1, and in the leasehold interests in
that certain real property described in Schedule 1.2
(collectively, the "Property").
(c) In all buildings, structures, fixtures, and other
improvements now or hereafter actually or
constructively attached to the Property, and all
modifications, additions, restorations, or
replacements of the whole or any part thereof,
including, without limitation, those described in
Schedules 1.1 and 1.2 (the "Improvements").
(d) As landlord (whether named as such therein or by
assignment or otherwise) in all leases and subleases,
if any, of the Property and the Improvements now
existing or at any time hereafter made, and any and
all amendments, modifications, supplements, renewals
and extensions thereof, together with all rents,
royalties, security deposits, revenues, issues,
earnings, profits, income and other benefits of the
Property or the Improvements to become due as of the
end of the business day immediately preceding the
Closing Date with respect to the Property or the
Improvements or any part thereof.
(e) In and to all streets, roads and public places,
opened or proposed, and all easements and rights of
way, public and private, tenements, hereditaments,
rights and appurtenances, now or hereafter used in
connection with, or belonging, incident or
appertaining to, the Property or the Improvements.
(f) In all of the furniture, fixtures, furnishings,
machinery, equipment, inventory, cellular telephone
units, spare parts and accessories, supplies,
transmitters/receivers, antenna and towers and other
property maintained, owned or held by Seller and
which are used or useful principally in connection
with the business and operations of the System,
(including property held by customers on a leased or
rented basis) including, without limitation, those
described in Schedule 1.3.
(g) In all of the Licenses (as hereinafter defined) for
the System as more fully described in Schedule 1.4.
(h) In all of the contracts, agreements, leases, options,
manufacturer's warranties and other intangible assets
owned or held by Seller and used or useful
principally in connection with the business and
operations of the System, including, without
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limitation, those contracts, agreements and leases
described in Schedule 1.6.
(i) In all accounting data, trade secrets, customer
lists, supplier lists, customer account information
and related tangible and intangible assets owned or
held by Seller, including, without limitation, those
described in Schedule 1.7.
(j) In all engineering, business and other books, papers,
files and records pertaining to the operation of the
System and the Assets.
"Closing" means the closing of the purchase, assignment and sale of
the Assets contemplated hereunder.
"Closing Date" means the time and date on which the Closing takes
place, as established by Section 11.01.
"Encumbrances" mean any mortgages, pledges, liens, claims, security
interests, agreements, restrictions, defects in title, easements, encumbrances,
or charges.
"Environmental Laws" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, ("CERCLA") as amended by the Superfund
Amendments and Reauthorization Act of 1986 ("SARA"), 42 U.S.C. Section 9601 et
seq.; the Toxic Substances Control Act ("TSCA"), 15 U.S.C. Section 2601 et
seq.; the Hazardous Materials Transportation Act, 49 U.S.C. Section 1802 et
seq.; the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section
9601 et seq.; the Clean Water Act ("CWA"), 33 U.S.C. Section 1251 et seq.; the
Safe Drinking Water Act, 42 U.S.C. Section 300f et seq.; the Clean Air Act
("CAA"), 42 U.S.C. Section 7401 et seq.; the Emergency Planning and Community
Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.; or other applicable
federal, state, or local laws, including any plans, rules, regulations, orders,
or ordinances adopted, or other criteria and guidelines promulgated pursuant to
the preceding laws or other similar laws, regulations, rules, orders, or
ordinances now or hereafter in effect relating to the protection of human
health and the environment.
"Escrow Agent" shall mean Union Bank of California, N.A.
"Escrow Agreement" shall mean the Agreement between Buyer, Seller and
Escrow Agent, dated as of the date hereof, substantially in the form of Exhibit
A hereto.
"FCC" means the Federal Communications Commission.
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"FCC Order" means an order or orders of the FCC, or of the Chief,
Wireless Telecommunications Bureau, acting under delegated authority,
consenting to the assignment to Buyer of the FCC Licenses for the System, as
proposed in the applications therefor, without conditions which are adverse to
Buyer or which in any way diminish the operating rights with respect to the
Assets and the System, except any such conditions expressly accepted by Buyer
in writing.
"Final Order" means the FCC Order(s) as to which the time for filing a
request for administrative or judicial review, or for instituting
administrative review sua sponte, shall have expired without any such filing
having been made or notice of such review having been issued; or, in the event
of such filing or review sua sponte, as to which such filing or review shall
have been disposed of favorably to the grant and the time for seeking further
relief with respect thereto shall have expired without any request for such
further relief having been filed.
"Hazardous Materials" means any wastes, substances, or materials,
whether solids, liquids or gases, that are deemed hazardous, toxic, pollutants,
or contaminants, including but not limited to substances defined as "hazardous
wastes," "hazardous substances," "toxic substances," "radioactive materials,"
or other similar designations in, or otherwise subject to regulation under the
Environmental Laws.
"Indemnification Escrow" means the One Million Dollar ($1,000,000)
fund held by the Escrow Agent to fund any indemnification claims made by Buyer
as defined in Section 2.06 hereof.
"Independent Accountant" means Deloitte and Touche LLP in Washington,
DC.
"Licenses" means all of the licenses and other authorizations issued
by the FCC, Federal Aviation Administration ("FAA") and applicable state
regulatory commissions ("PUCs") in connection with the System, as set forth in
Schedule 1.4, and all applications and construction permits relating thereto.
"Net Working Capital" shall mean Accounts Receivable, net of allowance
for doubtful accounts, plus inventory (net of allowance for obsolete
inventory), and plus prepaid expenses (excluding prepaid insurance premiums and
prepaid interest), less trade payables, accrued expenses and other current
liabilities, except any Notes Payable or other debt or interest on any such
Notes or other debt, which shall be retained and paid by Seller, all such
amounts determined in accordance with GAAP and derived from the Seller's
Closing Balance Sheets.
"Seller Closing Balance Sheets" means the Preliminary Seller Closing
Balance Sheet referred to in Section 2.02(c) and the Final Seller Closing
Balance Sheet referred to in Section 2.02(d) and subject to the representations
and warranties recited in Section 3.04 hereof.
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"Survey" means the surveys for all parcels of real property described
on Schedule 1.1, each of which shall be prepared by a registered land surveyor
licensed in the state where such real property is located (the "Surveyor"),
certified by the Surveyor to Buyer and Buyer's lender, and showing (a) the
location of all lot and street lines, (b) the location of encroachments,
overhangs or projections by buildings or improvements erected on adjacent lands
or on such real property, (c) means of ingress and egress to public roads, (d)
the location of all utility and other easements, rights of way, set-back lines
and other matters of record affecting such real property; (e) a description and
the location of all existing improvements (including parking areas), and (f)
such other facts and information as Buyer may require.
"System" means the nonwireline cellular telephone system, licensed by
the Federal Communications Commission with the authority to provide cellular
telephone service to the Georgia -13- Early Rural Service Area - Market 383
which includes within its licensed geographic area the entirety of the
following counties in the State of Georgia: Calhoun, Early, Baker, Mitchell,
Miller, Seminole, Decatur, Grady and Thomas and also including all microwave
and auxiliary facilities currently required to operate the GA-13 nonwireline
cellular system as it is currently being operated.
"Title Insurance Commitment" means a title insurance commitment issued
by a title insurance company in the State of Georgia acceptable to Buyer with
respect to the real property described in Schedule 1.1 for (i) an owner's
policy of title insurance showing fee simple title to the real property
described in Schedule 1.1 in Buyer, with no exception as to survey matters. The
dollar amount of the policy shall be equal to the amount of consideration
allocated to the real property pursuant to Section 16.
Various other terms are defined as part of the definition of "Assets"
above and shall have the meanings set forth in such definition, unless the
context otherwise requires. Other terms concerning the purchase price,
environmental and other matters shall have the meanings set forth in the
Agreement.
All references to Sections, Exhibits and Schedules are to Sections of
and Exhibits and Schedules to this Agreement.
2. Sale and Purchase of Assets; Purchase Price; Payment of Purchase
Price; Assumption of Liabilities.
2.01 Asset Sale. On the basis of the representations, warranties and
agreements contained herein, and subject to the terms and conditions hereof,
Seller agrees to sell, assign, transfer, convey and deliver to Buyer, and Buyer
agrees to purchase from Seller, the Assets at the Closing.
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2.02 Purchase Price. (a) For and in consideration of the
conveyances and assignments described herein, Buyer agrees to pay to Seller,
and Seller agrees to accept from Buyer, a purchase price equal to (i) Thirty
Million Dollars ($30,000,000) ("Preliminary Purchase Price").
(b) The Preliminary Purchase Price shall be adjusted as follows
(as so adjusted "Final Purchase Price"): increased or decreased by the dollar
amount (positive or negative) of the Net Working Capital of Seller on the
Closing Date ("Working Capital Adjustment").
(c) The Working Capital Adjustment to the Preliminary Purchase
Price, described in 2.02 (b) (i) above, will be made at the Closing based upon
a good faith estimate by the Seller of the dollar amount of such adjustment,
such estimates to be based upon a Preliminary Seller Closing Balance Sheet, to
be delivered to Buyer at least ten (10) business days prior to the Closing
Date, along with a statement detailing the Working Capital Adjustment (the
Working Capital Adjustment at Closing hereinafter shall mean "Initial
Adjustment Amount").
(d) As promptly as practicable after the Closing Date (but in
no event later than thirty (30) days thereafter) Seller shall prepare and
deliver to Buyer for its review and comment (i) the Final Seller Closing
Balance Sheet and Income Statement as of the Closing Date; and (ii) the
"Closing Statement", reasonably detailing as of the opening of business on the
Closing Date (or other time period contemplated by this Agreement) Seller's
determination of the Working Capital Adjustment. If Buyer objects to any
amounts reflected on the Final Seller Closing Balance Sheet and Income
Statement, as of the Closing Date, or the Closing Statement, Buyer must, within
fifteen (15) business days after Buyer's receipt of the Final Seller Closing
Balance Sheet, Income Statement and Closing Statement, give written notice (the
"Notice") to Seller specifying in reasonable detail its objections, or Seller's
determination of the Purchase Price Adjustments shall be final, binding and
conclusive on the parties. With respect to any disputed amounts, the parties
shall meet in person and negotiate in good faith during the fifteen (15)
business day period (the "Resolution Period") after the date of Seller's
receipt of the Notice to resolve any such disputes. If the parties are unable
to resolve all such disputes within the Resolution Period, then within five (5)
business days after the expiration of the Resolution Period, all disputes shall
be submitted to the Independent Accountant who shall be engaged to provide a
final and conclusive resolution of all unresolved disputes within forty-five
(45) days after such engagement. The determination of the Independent
Accountant shall be final, binding and conclusive on the parties hereto, and
the fees and expenses of the Independent Accountant shall be borne by the party
who, in the Independent Accountant's determination, submitted a disputed amount
that differs more significantly from the amount finally determined by the
Independent Accountant. From and after the Closing Date, Buyer will provide
Seller with access to the books,
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records and personnel of Buyer that Seller reasonably determines is necessary
to prepare the Closing Date Balance Sheet and the Closing Statement.
(e) If the Purchase Price Adjustments (as finally determined in
accordance with the provisions as set forth in 2.02 (e)) less the Initial
Adjustment Amount is a positive (negative) amount, then within five (5)
business days after such final determination, Buyer (Seller) shall pay by wire
transfer to Seller (Buyer) such amount in immediately available funds.
2.03 Manner of Payment Subject to adjustment as provided in the
Agreement, at Closing Buyer shall pay to Seller (or to any other person as
Seller may direct in writing) by wire transfer of immediately available funds
to such banks and accounts as shall be specified by Seller, the Preliminary
Purchase Price plus or minus the Initial Adjustment Amount and minus the
Indemnification Escrow (the "Closing Cash Payment").
2.04 Assumption of Liabilities. At the Closing, Buyer shall assume
only the following liabilities and obligations of Seller: (a) all current
liabilities associated with the Assets, to the extent reflected on the Seller
Closing Balance Sheets; (b) the liabilities and obligations of Seller to be
performed after the Closing Date under the contracts, agreements and leases set
forth and described in Schedules 1.2, 1.6 and 7 and (c) the liabilities and
obligations of Seller to be performed after the Closing Date under any
contracts, agreements and leases which are entered into after the date hereof
(in compliance with Section 7) and which are identified in the certificate
referred to in Section 11.02(c). Buyer shall not assume or be deemed to assume
any debts, liabilities or obligations of Seller including any current portions
of long term debt or any other liabilities, except those specified in this
Section 2.04. All such assumptions pursuant to this Section 2.04 shall be
subject to Buyer's confirmation with creditors of existing unperformed
obligations.
2.05 Apportionment of Certain Expenses. As promptly as practicable
after the Closing Date (but in no event later than forty-five (45) days
thereafter), each of Seller and Buyer shall present a statement to the other
setting forth the amount of reimbursement to which each is entitled under this
Section 2.05 together with reasonable supporting documentation. The
apportioned amount shall be paid by the party owing it to the other within 10
days after delivery of such statement. The following items shall be
apportioned as of the Closing Date with respect to the System: (1) rents and
other charges and fees payable or being assumed by Buyer; (ii) real estate and
personal property taxes, sewer rents and charges and other state, county and
municipal taxes and charges affecting the Licenses and the Assets or any
portion thereof, on the basis of the fiscal year for which the same are levied,
imposed or assessed; (iii) charges for water, electricity, gas, oil, steam,
telephone and all other utilities; (iv) such other items as are customarily
apportioned in connection with the sale of similar property in the location of
the property being transferred.
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2.06 Indemnification Escrow. As security for the indemnification
covenants of Seller contained in this Agreement, on the Closing Date, the Buyer
shall transfer to the Escrow Agent One Million Dollars ($1,000,000), which
amount (including any interest thereon, the "Indemnification Escrow") shall be
held by the Escrow Agent for one year, pursuant to the terms of the Escrow
Agreement. Buyer shall be entitled to draw upon the Indemnification Escrow for
payment of all indemnification claims made by Buyer pursuant to Section 14
hereof.
3. Representations and Warranties by Seller. Seller represents and
warrants to Buyer as follows:
3.01 Organization and Standing. Seller is a limited partnership duly
organized, validly existing and in good standing under the laws of the State of
Georgia. Neither the nature of the business conducted by Seller, nor the
character of the properties owned, leased or otherwise held by Seller makes any
such qualification necessary in any other state, country, territory or
jurisdiction. Seller has the full and unrestricted power and authority to own,
lease and operate the Assets, to carry on its businesses as now conducted, and
to enter into and perform the terms of this Agreement, the agreements, and
instruments referred to herein, and the transactions contemplated hereby and
thereby.
3.02 Authorization. The execution, delivery and performance of this
Agreement and of the agreements and instruments to be executed by Seller
hereunder, and the consummation of the transactions contemplated hereby and by
such agreements and instruments have been duly and validly authorized by all
necessary actions of Seller (none of which actions has been modified or
rescinded and all of which actions are in full force and effect). This
Agreement constitutes, and upon execution and delivery each other agreement and
instrument to be executed by Seller hereunder will constitute, a valid and
binding agreement and obligation of Seller, enforceable in accordance with its
respective terms. Except as specified in Section 3.05, the execution, delivery
and performance by Seller of this Agreement and the agreements and instruments
to be executed by Seller hereunder will not require the consent, approval or
authorization of any person, entity or governmental authority.
3.03 Litigation; Compliance with Law. There is no action, suit,
investigation, claim, arbitration or litigation pending or, so far as Seller
knows, threatened against or involving Seller, the Assets, the System or the
System's business and operations, at law or in equity, or before or by any
court, arbitrator or governmental authority, and neither Seller nor the System
is operating under or subject to any order, judgment, decree or injunction of
any court, arbitrator or governmental authority, except for those listed in
Schedule 2. So far as Seller knows, Seller has complied and is in compliance
in all material respects with all laws, ordinances, regulations, awards,
orders, judgments, decrees and injunctions applicable to Seller, to the Assets,
to the System and to its businesses and
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operations, including all federal, state and local laws, ordinances,
regulations and orders pertaining to employment or labor, safety, health,
environmental protection, zoning and other matters. Seller has obtained all
permits, licenses and approvals (none of which has been modified or rescinded
and all of which are in full force and effect) from all governmental
authorities necessary in order to conduct the operations of the System as
presently conducted and to own, use and maintain the Assets.
3.04 Financial Statements and Condition; Liabilities.
(a) The unaudited balance sheets, statements of assets and
liabilities, and statements of revenues and expenses, and each and every other
financial statement depicting the operations of the System and the business of
Seller, and the notes thereto, for the period commencing January 1, 1996 and
ending June 30, 1996 have or will be delivered to Buyer, as specified on
Schedule 3, (collectively with the Seller Closing Balance Sheets referred to as
"Unaudited Financials"). The Unaudited Financials have been prepared in
accordance with the books and records of Seller and with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved, and have presented and will present fairly in all material respects
the financial positions, incomes, expenses, assets, liabilities, shareholders'
equity and results of operations of the System and Seller as of the dates and
for the periods indicated; and each and every financial statement to be
delivered to Buyer pursuant to Section 7.02(l) will be prepared by Seller in
accordance with its books and records and with generally accepted accounting
principles applied on a consistent basis throughout the periods involved and as
compared with prior periods, and, subject to year-end adjustments where
applicable, will present fairly the financial positions, incomes, expenses,
assets, liabilities, shareholders' equity and results of operations of Seller
and the System as of the dates and for the periods indicated.
(b) Except as reflected in the balance sheets as of December
31, 1995, including the notes thereto and except as disclosed in Schedule 3.04
hereto, there exist no liabilities of Seller relating to the Assets or the
System, contingent or absolute, matured or unmatured, known or unknown. Since
December 31, 1995, (i) Seller has not made or terminated any material contract,
agreement or commitment or incurred any material obligation or liability
(contingent or otherwise) relating to the Assets or the System, (ii) there has
not been any discharge or satisfaction of any obligation or liability owed to
Seller, which is not in the ordinary course of business or which is
inconsistent with past business practices, (iii) there has not occurred any
loss or material injury to the Assets as the result of any fire, accident, act
of God or the public enemy, or other casualty, or any adverse material change
in the Assets or in the condition (financial or otherwise) of the System or of
the business of Seller; and (iv) Seller has conducted the business of the
System diligently and substantially in the manner heretofore conducted and only
in the ordinary course.
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3.05 Assets; Consents.
(a) Except as otherwise set forth in Schedule 1.5, the Assets
to be acquired at the Closing as listed in the schedules hereto constitute all
of the real, personal, and mixed assets, both tangible and intangible, that are
used, held for use or necessary for the business and operations of the System.
(b) Seller is the sole and exclusive legal and equitable owner
of all right, title and interest in and has insurable, fee simple title to the
Assets, free and clear of any Encumbrances, except for and subject only to (i)
liens for real estate taxes not yet due and payable, (ii) existing easements
restrictions and encumbrances of record on real property which do not
materially impair the use of such property for the purposes contemplated
hereunder, and (iii) those encumbrances set forth in Schedule 1.1, which shall
be removed prior to or contemporaneously with the Closing Date.
(c) On the Closing Date, Buyer shall acquire insurable, fee
simple title to, and all right, title and interest in, the Assets, free and
clear of all Encumbrances, except for and subject only to liens for real estate
taxes not yet due and payable, existing easements restrictions and encumbrances
of record on real property which do not materially impair the use of such
property for the purposes contemplated hereunder, and liens imposed by law,
such as materialmen's, mechanics' carriers', vendors', warehousemen's and
similar liens arising in the ordinary course of business in respect of
obligations that are not yet due and payable and that do not, individually or
in the aggregate, materially detract from the value or use of the Assets.
(d) All of the Assets to be transferred hereunder are
transferable by Seller by Seller's sole act and deed, and no consent on the
part of any other person is necessary to validate the transfer to Buyer, except
(i) certain of the Licenses described in the Schedule 1.4 are not assignable
without the consent of the FCC, FAA or PUCs as provided by law; (ii) certain of
the agreements described in the schedules hereto, as specified in Schedule 1.2
and 1.6 by an asterisk, may be assigned only with the consent of third parties.
(e) The Property and all of the Improvements have direct and
unrestricted access (i) to all public utilities necessary for the uses to which
the Property and all of the Improvements are presently devoted by Seller, and
(ii) to a public street. All Improvements lie entirely within the boundaries
of the Property, and no structure of any kind encroaches on the Property. No
portion of the Property or any Improvements is the subject of, or affected by,
any condemnation or eminent domain proceedings currently instituted or pending,
and so far as Seller knows, no such proceedings are threatened. The Property
and the Improvements are not subject to any covenant or other restriction
preventing or limiting Seller's right to convey Seller's right, title and
interest in the Property and the Improvements or to
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use the Property and the Improvements for the various purposes for which the
Property and the Improvements are being used.
(f) The Accounts Receivable shown on the balance sheets
referred to in Sections 3.04 and 7.02(l), including the Seller Closing Balance
Sheets, with respect to the System have been collected or are collectible in
amounts not less than the amounts thereof carried on the books of Seller,
without right of recourse, defense, deduction, counterclaim, offset, or setoff
on the part of the obligor, and reasonably can be expected to be collected
within a reasonable time from the date incurred, except to the extent of the
allowance for doubtful accounts shown on such balance sheets. Seller
previously has delivered to Buyer a complete and accurate list, dated as of
June 30, 1996, of all accounts receivable (whether billed or unbilled) with
respect to the System as of such date. All deposits and prepaid expenses, if
any, included as assets of Seller represent bona fide deposits or payments
theretofore made by Seller, the benefit and advantage of which will be obtained
and enjoyed by Seller and, after the Closing Date, by Buyer.
3.06 Condition of Tangible Assets. To Seller's knowledge, (i) all
tangible Assets (including the Improvements) are in good operating condition
and repair (ordinary wear and tear excepted), free of material defects, latent
or patent, and are suitable, adequate and fit for the uses for which they are
intended or are being used; (ii) the present use of such Assets does not
violate in any material respect any applicable licenses, statutes, or building,
fire, zoning, health and safety or any other laws or regulations; and (iii) all
cellular phones included in the Assets are in good operating condition and
contain a valid manufacturer's warranty excluding those phones in the hands of
customers on which the warranty has expired.
3.07 Trademarks Infringement. Seller does not have any knowledge nor
has Seller received any notice to the effect that any service rendered by
Seller relating to the business of the System may infringe on any trademark,
service mark, trade name, copyright, patent, trade secret or legally
protectable right of another.
3.08 Licenses. The Licenses for the System are valid through the
respective dates indicated in Schedule 1.4 and there are no orders, complaints,
proceedings or investigations, pending or, so far as Seller knows, threatened,
which would affect the validity of the Licenses. There is no material
violation relating to the Licenses or by the System of any rules and
regulations of the FCC. The Licenses represent all licenses required by the FCC
for operation of the System.
3.09 Reports and Records. All returns, reports and statements
relating to the System currently required to be filed by Seller with the FCC or
any other governmental instrumentality have been filed and complied with and
are true, correct and complete in all material respects. All such reports,
returns and statements shall continue to be filed on a current basis until the
Closing Date, and will be true, correct, and complete in all material respects.
All documents required
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by the FCC's rules to be placed in the System's public files have been placed
and are being held in such files. All logs and business records of every type
and nature relating to the business and operations of the System, including but
not limited to political and public record files, program, operating and
maintenance logs, equipment performance measurements, policies or evidence of
insurance, licenses, payroll, social security and withholding tax returns,
operator agreements and other records pertaining to the business and operations
of the System have been maintained in all material respects in accordance with
good business practices and the rules of the FCC.
3.10 Contracts. The contracts, agreements, leases and commitments
set forth and described in Schedules 1.2, 1.6 and 7 are all of the contracts,
agreements, leases and commitments (both written and oral) relating to the
Assets, to the System or to the business and operations thereof, other than
contracts or commitments, (a) contracts for amounts less than $750 for the term
of the contract individually or $5,000 in the aggregate, (b) entered into
subsequent to the date of this Agreement and with Buyer's written approval, (c)
not relating exclusively to the Assets or not to be assumed by Buyer pursuant
to Section 2.04 hereof, or (d) entered into in the ordinary course of business.
Seller has delivered true and complete copies or descriptions of all such
contracts, agreements, leases and commitments (and all amendments and
modifications thereto) to Buyer prior to the execution of this Agreement. The
unperformed obligations ascertainable from the terms on the face of such
contracts, agreements, leases and commitments (and any amendments or
modifications thereto), are the existing unperformed obligations thereunder.
Each contract, agreement, lease and commitment listed on the foregoing
Schedules is in full force and effect, and constitutes a valid and binding
obligation of, and is legally enforceable in accordance with its terms against,
the parties thereto. Seller has complied with all of the provisions of such
contracts, agreements, leases and commitments and is not in default thereunder,
and there has not occurred any event which, to the Seller's knowledge, (whether
with or without notice, lapse of time, or the happening or occurrence of any
other event) would constitute such a default. So far as Seller knows, there has
not been (i) any failure of any party to any such contract, agreement, lease or
commitment to comply with all provisions thereof, (ii) any default by any party
thereunder, (iii) any threatened cancellation thereof, (iv) any outstanding
dispute thereunder, or (v) any basis for any claim of breach or default
thereunder.
3.11 Conflicts. Except as set forth in Schedule 4, the execution and
delivery of this Agreement and the agreements and instruments called for
hereunder, the fulfillment of and the compliance with the respective terms and
provisions of each, and the consummation of the transactions described in each,
do not and will not conflict with or violate any law, ordinance, regulation,
order, award, judgment, injunction or decree applicable to Seller, to the
Assets or to the System, or conflict with or result in a breach of or
constitute a default under any of the terms, conditions or provisions of
Seller's Articles of Incorporation, Bylaws or other
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organizational documents, or any contract, agreement, lease, commitment, or
understanding to which Seller is a party or by which Seller is bound or to
which any of the Assets or the System is subject, or result in the acceleration
of any indebtedness or in the creation of any Encumbrance upon the Assets.
3.12 Related Parties. Seller nor any partner of Seller or
shareholder, officer or director of any general partner of Seller has any
interest whatsoever in any corporation, firm, partnership or other business
enterprise which has had any business transactions with Seller relating to the
Assets or the system, and no shareholders of Seller have entered into any
transactions with Seller relating to the Assets or the System.
3.13 Taxes. Seller has filed all tax returns and forms required to be
filed, and has paid in full all taxes, estimated taxes, interest, penalties,
assessments and deficiencies which have become due pursuant to such returns or
without returns or pursuant to any assessments received by Seller. Such
returns and forms are true and correct in all material respects, and Seller is
not required to pay any other taxes except as shown on such returns. The
amounts set up as a liability for income and other taxes on the balance sheets
of Seller described in Section 3.04 and 7.02(l) are (or will be) sufficient for
all accrued and unpaid taxes of Seller whether or not disputed, during or
applicable to the periods ended on the dates of such balance sheets and all
years and periods prior thereto for which Seller may be liable, and Seller will
continue to make adequate provision for such taxes on Seller's books and
records prior to the Closing Date; provided, however, that with respect to real
estate taxes, such representation is made to the best of Seller's knowledge.
Seller is not a party to any pending action or proceeding, and, so far as
Seller knows, there is no action or proceeding threatened by any government or
authority against Seller, for assessment or collection of taxes; and no
unresolved claim for assessment or collection of taxes has been asserted
against Seller. Prior to the Closing Date, Seller shall pay all tax
assessments or other tax liabilities when due with respect to the ownership,
business or operations of the Assets. There are no outstanding agreements or
waivers extending the statutory period of limitations applicable to any tax
return of Seller for any period.
3.14 Employee Benefit Plans.
(a) Seller does not sponsor, maintain or contribute to, on
behalf of any employees of the System, (1) any "employee pension benefit plan"
(as defined in Section 3(2) of the Employee Retirement Income Security Act of
1974, as amended, and regulations thereunder ("ERISA")) ("Pension Plan"); (ii)
any "employee welfare benefit plan" (as defined in Section 3(1) of ERISA)
("Welfare Plan"); or (iii) any deferred compensation, bonus, stock option,
stock purchase, or other employee benefit plan, agreement, commitment, or
arrangement ("Other Plan"). To the best of its knowledge, Seller has no
obligations or liabilities (whether accrued, absolute, contingent, or
unliquidated and whether due or to become due) on behalf of any
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employees of the System with respect to any "employee benefit plan" (as defined
in Section 3(3) of ERISA) or Other Plan that is not listed in Schedule 6.
3.15 Environmental Matters.
(a) Seller's Environmental Representations and Warranties.
Seller hereby represents and warrants that, to Seller's knowledge, and except
as disclosed on Schedule 3.15:
(i) There are no pending or threatened actions,
suits, claims, orders, legal proceedings or any other proceedings based on
Hazardous Materials or the Environmental Laws at the Property, or any part
thereof, or otherwise arising from Seller's activities at the Property
involving Hazardous Materials;
(ii) There are no conditions, facilities, procedures
or any other facts or circumstances which could give rise to material claims,
expenses, losses, liabilities, or governmental action against Buyer in
connection with any Hazardous Materials present at or disposed of from the
Property, including without limitation the following conditions arising out of,
resulting from, or attributable to, the assets, business, or operations of
Seller at the Property, or of Sellers predecessors in interest in the Property:
(A) the presence of any Hazardous Materials on the Property or the release or
threatened release of any Hazardous Materials into the environment from the
Property; (B) the off-site disposal of Hazardous Materials originating on or
from the Property or the business or operations of Seller; (C) the release or
threatened release of any Hazardous Materials into any storm drain, sewer,
septic system or publicly owned treatment works; (D) any material noncompliance
with federal, state or local requirements governing occupational safety and
health; or (5) any facility operations, procedures or designs, which do not
conform to the statutory or regulatory requirements of any Environmental Laws.
(iii) Neither polychlorinated biphenyls nor
asbestos-containing materials are present on or in the Property.
(iv) The Property contains no underground storage
tanks, or underground piping associated with tanks, used currently or in the
past for the management of Hazardous Materials.
(b) Environmental Indemnification by Seller. Seller agrees
to indemnify, defend by counsel acceptable to Buyer, and hold harmless Buyer,
its subsidiaries, affiliates, successors and assigns and their respective
directors, officers, employees, shareholders, representatives and agents
(hereinafter referred to collectively as "Buyer") from and against and in
respect of any and all claims, damages (including, without limitation,
diminution in value), losses, liabilities and expenses, orders, lawsuits,
deficiencies, interest, penalties, attorneys' fees and all amounts paid in
defense or settlement of the foregoing whether or not arising out of
third-party claims, which may be imposed upon or incurred by Buyer or asserted
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against Buyer by any other party or parties (including governmental entities),
arising out of the matters addressed in the Seller's environmental
representations and warranties. Such indemnification shall include without
limitation any claims, expenses, losses, or liabilities resulting from the
alleged exposure of any person to Hazardous Materials, regardless of whether
such exposure resulted from activities of Seller or of the predecessors in
interest of Seller.
(c) Environmental Investigation. Seller and Buyer will
cause to be conducted preliminary environmental site assessments (Phase Ones)
and if recommended by the environmental consultant, environmental testing and
laboratory evaluation (Phase Twos), of each parcel of its Property. Phase Ones
and Phase Twos (if required) shall be (i) conducted in accordance with current
ASTM standards; (ii) certified to both Seller and Buyer, (iii) performed by
licensed environmental professionals mutually acceptable to both parties and
(iv) conducted at the sole expense of Buyer. Copies of the reports of each
Phase One conducted will be provided to Buyer within forty -five (45) days
after execution of this Agreement, but in no event less than thirty (30) days
prior to Closing.
(d) Confidentiality. Buyer agrees to keep and hold
confidential any and all reports, summaries, studies or results that are the
product of its investigations of the Property, and not to disclose such reports
without the written consent of Seller or unless required to do so by applicable
law.
3.16 Labor Relations. There are no strikes, work stoppages,
grievance proceedings, union organization efforts, or other controversies
pending or threatened between Seller and any of its respective employees or
agents or any union or collective bargaining unit. Seller has complied and is
in compliance in all material respects with all laws and regulations relating
to the employment of labor, including without limitation provisions relating to
wages, hours, collective bargaining, occupational safety and health, equal
employment opportunity, and the withholding of income taxes and social security
contributions. Except as set forth in Schedule 7 hereto, there are no
collective bargaining agreements or employment agreements between Seller and
any of its respective employees. The consummation of the transactions
contemplated hereby will not cause Buyer to incur or suffer any liability
relating to, or obligation to pay, severance, termination, or other payments to
any person or entity. Except as set forth in Schedule 7 hereto, no employee of
Seller has any contractual right to continued employment by Seller following
consummation of the transactions contemplated by this Agreement. Seller has
previously delivered to Buyer an accurate and complete list, dated as of
January 1, 1996 of all employees of Seller and the rate of compensation
(including salary, bonuses and commissions) of each such employee.
3.17 Insurance. Schedule 8 contains a list and brief description of
all policies of title, property, fire, casualty, liability, life, workmen's
compensation, and other forms of insurance of any kind relating to the Assets
or the business and operations
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of the System and owned or held by Seller. All such policies: (i) are in full
force and effect; (ii) are sufficient for compliance in all material respects
by Seller with all requirements of law and of all agreements to which Seller is
a party; (iii) are valid, outstanding, and enforceable policies; and (iv)
insure against risks of the kind customarily insured against and in amounts
customarily carried by corporations similarly situated and provide adequate
insurance coverage for the Assets and the System (including the business and
operations thereof).
3.18 Customers. Other than customer turnover in the ordinary course
of business, Seller is not aware of any actual or threatened termination or
cancellation or any material adverse change in the business relationships of
Seller with customers that individually or in the aggregate accounted for five
percent (5%) or more of the revenues of the System for the period from January
1, 1996 through June 30, 1996.
3.19 Disclosure. All facts of material importance to the Assets, to
the System and to the business of Seller have been fully and truthfully
disclosed to Buyer in this Agreement. No representation or warranty by Seller
and no document, statement, certificate, opinion letter, schedule or exhibit to
be furnished or delivered to Buyer pursuant to or in connection with this
Agreement contains or will contain any material untrue or misleading statement
of fact or omits or will omit any fact necessary to make the statements
contained herein or therein not materially misleading.
4. Representations and Warranties by Buyer. Buyer represents,
warrants and covenants to Seller as follows:
4.01 Organization and Standing. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Buyer has the full and unrestricted power and authority, corporate or
otherwise, to enter into and perform the terms of this Agreement, the
agreements and instruments referred to herein, and the transactions
contemplated hereby and thereby.
4.02 Authorization. The execution, delivery and performance of this
Agreement and of the agreements and instruments to be executed by Buyer
hereunder, and the consummation of the transactions contemplated hereby and
thereby, have been duly and validly authorized by all necessary actions of
Buyer (none of which actions has been modified or rescinded and all of which
actions are in full force and effect). This Agreement constitutes, and upon
execution and delivery each other agreement and instrument to be executed by
Buyer hereunder will constitute, a valid and binding agreement and obligation
of Buyer, enforceable in accordance with its respective terms. Except for the
consent of the FCC to the assignment to Buyer of the licenses described in
Schedule 1.4, the execution, delivery and performance by Buyer of this
Agreement and the agreements and
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instruments to be executed by Buyer hereunder will not require the consent,
approval or authorization of any person, entity or governmental authority.
4.03 Qualification as Licensee. Buyer knows of no reason why it
should not be found by the FCC to be qualified under the Communications Act of
1934, as amended, and the FCC's rules and regulations to become the licensee of
the System.
4.04 Governmental Authorization. The execution, delivery and
performance by Buyer of this Agreement and of the agreements and instruments to
be executed by Buyer hereunder, requires no action by or in respect of, or
filing with, any governmental body, agency or official other than (a) the
filings with and approval of the FCC necessary to consummate the transactions
contemplated hereby, and (b) compliance with the disclosure requirements of the
Securities Exchange Act of 1934, as amended.
4.05 Non-Contravention. The execution, delivery and performance by
Buyer of this Agreement and of the agreements and instruments to be executed by
Buyer hereunder do not and will not (a) violate the certificate of
incorporation or Bylaws of Buyer or (b) assuming compliance with the matters
referred to in Section 4.04 hereof, violate any applicable law, rule,
regulation, judgment, injunction, order or decree. Buyer is not a party to or
bound by any contract prohibiting the consummation of the transactions
contemplated hereby, nor any contract or contracts that either separately or in
the aggregate materially and adversely affect Buyer's ability to consummate the
transactions contemplated by this Agreement.
4.06 Financing. Buyer has, or will have prior to the Closing,
sufficient cash, available lines of credit or other sources of immediately
available funds to enable it to purchase the Assets.
4.07 Litigation. There is no action, suit, investigation or
proceeding pending against, or to Buyer's knowledge, threatened against or
affecting Buyer, before any court or arbitrator or any governmental body,
agency or official which in any manner challenges or seeks to prevent, enjoin,
alter or materially delay the transactions contemplated hereby.
5. Application for Regulatory Consents. The parties will, within
fifteen (15) days of execution of this Agreement, file applications with the
FCC requesting its written consent to the assignment of all FCC Licenses for
the System (and any extensions and renewals thereof) from Seller to Buyer.
Seller and Buyer will diligently take, or fully cooperate in the taking of, all
necessary and proper steps, provide any additional information reasonably
requested, and otherwise use their reasonable efforts in order to obtain
promptly the requested consent and approval of the applications by the FCC
without significant conditions; provided that none of the parties hereto shall
have any obligation to take any unreasonable steps to satisfy complainants, if
any. Seller and Buyer shall use their reasonable efforts to obtain any other
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consents and approvals required to be obtained from any other person or entity
in connection with the assignment of the Licenses and the consummation of the
transactions required by this Agreement, including any consents or approvals
from the FAA or PUCs.
6. Hart-Scott-Rodino. As promptly as practicable and no later than
ten (10) days following the execution of this Agreement, Seller and Buyers
shall complete any filing that may be required pursuant to the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, or shall
mutually agree that no such filing is required. Seller and Buyer shall
diligently take, or fully cooperate in the taking of, all necessary and proper
steps, and provide any additional information reasonably requested in order to
comply with, the requirements of such Act.
7. Covenants and Agreements of Seller. Seller covenants and agrees
with Buyer as follows:
7.01 Negative Covenants. Pending and prior to the Closing, Seller
will not, without the prior written approval of Buyer, do or agree to do any of
the following:
(a) Dispositions; Mergers. Sell, assign, lease or otherwise
transfer or dispose of any of the Assets; or merge or consolidate with or into
any other entity or enter into any agreements relating thereto; provided,
however, Seller may sell, assign, lease or otherwise transfer or dispose of any
asset described in Schedule 1.3 if such asset is expended in the ordinary
course of business, consistent with Seller's past business practices and with
customary practices in the cellular communications industry, and property or
equipment of like kind and equivalent value is substituted therefor.
(b) Accounting Principles and Practices. Change or modify any
of Seller's accounting principles or practices or any method of applying such
principles or practices.
(c) Subscriber/Roaming Agreements. Enter into any subscriber
agreement, roaming agreement, contract, commitment or understanding with
subscribers or other carriers, except those that are consistent with Seller's
rate plans and roaming rates used by Seller's subscribers and carriers as of
the date hereof.
(d) Additional Agreements. Materially modify or amend any of
the agreements listed in Schedule 1.6 or enter into any roaming or other
agreements, contracts, leases, commitments, understandings, or licenses
(collectively, "Additional Agreements") or incur any obligation or liability
(contingent or absolute); provided, however, that Seller may enter into such
Additional Agreements (other than Additional Agreements with Seller's
Affiliates) in the ordinary course of business consistent with Seller's past
business practices and with customary practices in the cellular communications
industry, so long as such
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<PAGE> 19
Additional Agreements do not involve payments or obligations in excess of Two
Thousand Dollars ($2,000) for each such Additional Agreement in any month, or
Ten Thousand Dollars ($10,000) for all such Additional Agreements in any month
in the aggregate, and each such Additional Agreement is terminable on not more
than thirty (30) days' prior written notice.
(e) Breaches; Employment Contracts. Do or omit to do any act
(or permit such action or omission) which will cause a material breach of any
contract, understanding, commitment, obligation, lease, license or other
agreement to which Seller is a party or by which Seller is bound; or enter into
or become subject to any employment, labor or union contract, any professional
service contract not terminable at will, or any bonus, pension, insurance,
profit sharing, deferred compensation, severance pay, retirement,
hospitalization, employee benefit, or other similar plan; or increase the
compensation payable or to become payable to any employee, or pay or arrange to
pay any bonus payment to any employee.
(f) Actions Affecting Licenses or Contracts. Take any action
which may jeopardize the validity or enforceability of or rights under the
Licenses or any other material lease or contract.
(g) Solicitation. Take any action, either directly or
indirectly, through its affiliates, any agent or otherwise, to solicit,
initiate, encourage or entertain proposals, offers or inquiries from, provide
information to or participate in negotiations with, any person or entity with
respect to any acquisition, purchase, merger or joint venture involving the
System or the Assets.
7.02 Affirmative Covenants. Pending and prior to the Closing Date,
Seller will:
(a) Preserve Existence. Preserve its corporate existence and
business organization intact, maintain its existing franchises and licenses,
use its best efforts to preserve for Buyer its relationships with suppliers,
customers, employees and others having business relations with it, and keep all
Assets in their present condition, ordinary wear and tear excepted.
(b) Normal Operations. Subject to the terms and conditions of
this Agreement (including, without limitation, Section 7.01), (i) carry on the
businesses and activities of the System, entering into roaming arrangements,
entering into other agreements, leases, commitments or understandings in the
usual and ordinary course of business consistent with Seller's past business
practices and with customary practices in the cellular communications industry;
(ii) pay or otherwise satisfy all obligations of the System as they come due
and payable; (iii) maintain all of its properties in customary repair, order
and condition; (iv) maintain good relations with all employees without any
increase in compensation; and (v) maintain its books of account, records, and
files in substantially the same manner as heretofore.
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(c) Preserve Accuracy of Representations and Warranties. Use
its reasonable best efforts to ensure that all representations and warranties
of Seller in this Agreement remain true and correct and all covenants and
agreements of Seller in this Agreement are fulfilled, and refrain from taking
any action which would cause any such representation or warranty to fail to be
true and correct or any such covenant or agreement to be unfulfilled; and
notify Buyer promptly of any failure of any such representation or warranty to
be true and correct or any failure of any covenant or agreement to be fulfilled
as of the date it is required to be fulfilled hereunder (or if no date is
specified, by the Closing Date).
(d) Maintain Licenses. Maintain the validity of the Licenses
and comply with all rules and regulations of the FCC, FAA and PUCs. If notice
of any such violation is received or if Seller hereafter becomes aware of any
such violation, Seller shall notify Buyer and, pursuant to Section 7.02(k),
Seller at Seller's own expense shall cure all such violations prior to the
Closing.
(e) Taxes. Pay or discharge when due and payable all tax
liabilities and obligations, including without limitation those for federal,
state or local income, property, unemployment, withholding, sales, transfer,
stamp, documentary, use and other taxes.
(f) Partnership Action. Take all partnership action under the
law of any state having jurisdiction over Seller necessary to effectuate the
transactions contemplated by this Agreement and by the agreements and
instruments called for hereunder.
(g) Transfer Tax; Bulk Sales. Take all necessary action to pay
(or, where necessary, provide for the payment of) all applicable state sales,
transfer or use taxes, and to comply with all applicable bulk transfer and
similar laws, in connection with the transactions contemplated by this
Agreement and the agreements and instruments called for hereunder.
(h) Access. Give to Buyer and Buyer's authorized
representatives full and complete access upon reasonable notice during normal
business hours to Seller's properties, books, records, contracts, commitments,
facilities, premises, and equipment and to Seller's officers, employees and
vendors.
(i) Transition. Take all actions necessary to accomplish an
orderly and successful conversion of the switch traffic, billing data and
subscriber information to Buyer's System at Closing.
(j) Other Information. Provide to Buyer all such other
information and copies of documents concerning Seller, the operation of the
System and the Assets and Seller's customers and suppliers as Buyer may
reasonably request.
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<PAGE> 21
(k) Insurance. Maintain in full force and effect all of its
existing casualty, liability, and other insurance through the Closing Date in
amounts not less than those in effect on the date hereof.
(l) Violations. Upon receiving notice or otherwise becoming
aware of any violation relating to the Licenses, any violation by the Seller or
the System of any rules and regulations of the FCC, or any material violations
under any other applicable statutes, rules, regulations, or laws, promptly
notify Buyer and, at Seller's expense, cure all such violations prior to the
Closing Date.
(m) Financial Statements. Provide Buyer with (i) unaudited
monthly balance sheets, and statements of revenues and expenses reflecting the
results of business and operations of the System and of Seller for July, 1996
and for each month thereafter, within twenty (20) days of the end of each such
month; (ii) audited statements of assets and liabilities and statements of
revenues and expenses reflecting the results of the business and operations of
the System for calendar year 1995, within thirty (30) days of the date hereof;
and (iii) the Seller Closing Balance Sheets. All of the foregoing financial
statements shall comply with the requirements concerning financial statements
set forth in Section 3.04
(n) Interruption in Operations. Promptly notify Buyer in
writing of any interruption in the operation of the System or any cell site for
more than 24 consecutive hours.
(o) Consents. Use its reasonable best efforts to obtain third
party consents necessary to assign to Buyer those agreements on Schedule 1.6.
(p) Bulk Sales Law. Seller hereby assumes all liability
related to any Bulk Sale, if applicable.
7.03 Removal of Materials. Any building materials or other items
which Seller leaves located in or around the Property which qualify as
Hazardous Wastes or Toxic Substances or which are otherwise reasonably
unacceptable to the Buyer shall immediately be removed from the Property upon
written demand by Buyer at Seller's cost and expense.
7.04 Confidentiality. Seller will maintain strict confidentiality
with respect to all documents and information furnished to Seller by or on
behalf of Buyer. In the event this Agreement is terminated, Seller will return
to Buyer all documents, drafts, workpapers, and other material prepared or
furnished by Buyer relating to the transactions contemplated hereunder, whether
obtained before or after the execution of this Agreement.
7.05 Employees. As of the Closing Date, Seller will take all action
necessary to terminate the employees of or engaged in the operation of the
System. Seller shall pay such employees all amounts due to them through the
Closing Date and
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<PAGE> 22
shall indemnify, defend and hold harmless Buyer against all liabilities,
damages, obligations and claims resulting from such amounts being due or such
termination of employment. Buyer may, in its sole discretion, offer employment
to employees of or engaged in the operation of the System on terms and
conditions satisfactory to Buyer. Buyer will provide Seller, ten (10) business
days prior to the Closing Date, with a list of the employees, to whom Buyer
intends to offer employment. For those employees that Buyer chooses to hire,
the Buyer will assume any vacation liability and receive a corresponding
purchase price reduction.
8. Covenants and Agreements of Buyer. Buyer covenants and agrees
with Seller as follows:
8.01 Capital Expenditures. Buyer will fund all capital expenditures
of Seller ("Capital Expenditures") from the date hereof through the Closing
Date or termination of this Agreement pursuant to Section 15 or Section 17.02
(ii) hereof, provided however, that (i) all capital expenditures must be
acceptable to Buyer and (ii) that in the event of termination of this Agreement
by Buyer pursuant to Section 15 or Section 17.02 (ii) hereof, Seller shall
immediately repay Buyer all Capital Expenditures plus interest at a rate equal
to the "Prime Rate" of interest published in the Wall Street Journal on the
date of termination of the Agreement.
8.02 Confidentiality. Buyer will maintain strict confidentiality
with respect to all documents and information furnished to Buyer by or on
behalf of Seller. In the event this Agreement is terminated, Buyer will return
to Seller all documents, drafts, workpapers, and other material prepared or
furnished by Seller relating to the transactions contemplated hereunder,
whether obtained before or after the execution of this Agreement.
8.03 Corporate Action. Prior to the Closing, Buyer shall take all
corporate action under the law of the State of Delaware necessary to effectuate
the transactions contemplated by this Agreement and by the agreements and
instruments called for hereunder.
8.04 Access. On and after the Closing Date, Buyer will afford
promptly to the Seller and their agents reasonable access to its properties,
books, records, employees and auditors to the extent necessary to permit the
Seller to determine any matter relating to their rights and obligations
hereunder or to any period ending on or before the Closing Date; provided that
any such access by the Seller shall not unreasonably interfere with the conduct
of the business of Buyer.
8.05 No Change in Representations and Warranties. From the date
hereof until the Closing Date, except with the prior written consent of Seller,
Buyer shall not, if it would either separately or in the aggregate materially
and adversely affect Buyer's ability to consummate the transactions
contemplated by this Agreement, (a) take or agree or commit to take any action
that would make any representation or warranty of Buyer hereunder inaccurate in
any material respect at, or as of any
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<PAGE> 23
time prior to, the Closing Date or (b) omit or agree or commit to omit to take
any action necessary to prevent any such representation or warranty from being
inaccurate in any material respect at any such time.
9. Conditions Precedent to Buyer's Obligation to Close. The
obligations of Buyer to purchase the Assets and to proceed with the Closing are
subject to the satisfaction (or waiver by Buyer) at or prior to the Closing of
each of the following conditions:
9.01 Representations and Covenants. The representations and
warranties of Seller made herein or in any agreement, instrument or document
called for hereunder shall have been true and correct in all material respects
when made, and shall be true and correct in all material respects on the
Closing Date as though such representations and warranties were made on and as
of the Closing Date; and Seller shall have performed and complied in all
material respects with all covenants and agreements required by this Agreement
to be performed or complied with by Seller prior to the Closing Date. The use
of the term "material" in this Section and in Sections 10.01, 11.02(f),
11.03(c), 19.01 and 19.02 shall not modify or apply to any of the
representations, warranties or covenants in this Agreement which are already
modified by "material."
9.02 Consents. Seller shall have obtained prior to the Closing Date
all consents necessary to effect valid assignments to Buyer of all of the
contracts specified in Schedule 1.6 by an asterisk and all other consents
necessary to consummate the transactions contemplated hereby, except to the
extent the absence of such consents does not materially affect the operation of
the System (except for the FCC Order which shall be governed by Section 9.04).
9.03 Delivery of Documents. The Seller shall have delivered to Buyer
all agreements, instruments and documents required to be delivered by Seller to
Buyer pursuant to Section 11.02.
9.04 FCC Order. The FCC Order shall have become a Final Order.
9.05 Survey. Buyer shall have received the Survey.
9.06 Environmental Assessments. Buyer shall have received and be
reasonably satisfied with the Phase One's and, if necessary, the Phase Two's on
all Seller's Property. Buyer shall provide Seller with written notice of
satisfaction of this condition precedent or written notice of the details of
any environmental issue that may deter satisfaction of the condition precedent.
Either written notice shall be presented to Seller prior to December 31, 1996.
In the event there is no notice provided Seller, the condition precedent
described in this Section 9.06 shall be deemed satisfied.
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<PAGE> 24
9.07 Title Insurance Commitment and Survey. Buyer shall have
received the Title Insurance Commitment and Survey referred to in Section 1 for
the real property described in Schedule 1.1, in form and substance reasonably
satisfactory to Buyer.
9.08 Legal Proceedings. No action or proceeding by or before any
governmental authority shall have been instituted or threatened (and not
subsequently dismissed, settled or otherwise terminated) which might restrain,
prohibit or invalidate the transactions contemplated by this Agreement (but not
including an action or proceeding instituted or threatened by Buyer).
9.09 Hart-Scott-Rodino. All applicable waiting periods under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, shall have
expired.
9.10 Absence of Material Change. Neither the System nor the Assets
shall have suffered a material adverse change since December 31, 1995, and
there shall have been no changes since December 31, 1995 in the business,
operations, prospects, condition (financial or otherwise), properties, assets
or liabilities of Seller, of the System or of the Assets (regardless of whether
or not such events or changes are consistent with the representations and
warranties given herein by Seller), except changes contemplated by this
Agreement, changes in the ordinary course of business which are not (either
individually or in the aggregate) materially adverse, or changes that result
from actions or events affecting the telecommunications industry or the
wireless portion thereof in general.
9.11 Financial Statements. Seller shall have provided Buyer with the
financial statements referred to in Section 7.02(l) hereof, including the
Preliminary Seller Closing Balance Sheet and Income Statement.
10. Conditions Precedent to Seller's Obligation to Close. The
obligations of Seller to sell, transfer, convey and deliver the Assets and to
proceed with the Closing are subject to the satisfaction (or waiver by Seller)
at or prior to the Closing of each of the following conditions:
10.01 Representations and Covenants. The representations and
warranties of Buyer made in this Agreement or in any agreement, instrument or
document called for hereunder shall have been true and correct in all material
respects when made, and shall be true and correct in all material respects on
the Closing Date as though such representations and warranties were made on and
as of the Closing Date; and Buyer shall have performed and complied in all
material respects with all covenants and agreements required to be performed or
complied with by Buyer prior to the Closing Date.
10.02 Delivery of Documents. Buyer shall have delivered to Seller
the Closing Cash Payment and all agreements, instruments and documents required
to be delivered by Buyer to Seller pursuant to Section 11.03.
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<PAGE> 25
10.03 FCC Order. The FCC Order shall have become a Final Order.
10.04 Legal Proceedings. No action or proceeding by or before any
governmental authority shall have been instituted or threatened (and not
subsequently dismissed, settled, or otherwise terminated) that might restrain,
prohibit, or invalidate the transactions contemplated by this Agreement, other
than an action or proceeding instituted or threatened by Seller.
10.05 Hart-Scott-Rodino. All applicable waiting periods under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, shall have
expired.
11. The Closing.
11.01 Closing. Unless otherwise agreed by the parties hereto, the
Closing hereunder shall be held on the later of (i) February 1, 1997, or (ii) a
date specified by Buyer within five (5) business days following the date the
FCC Order becomes a Final Order. The Closing shall be held at a time and place
as the parties may agree. The Closing shall be effective at 12:01 a.m. on the
Closing Date.
11.02 Deliveries by Seller. At or before the Closing, the Seller
shall deliver to Buyer:
(a) Agreements and Instruments. The following bills of sale,
statements, assignments and other instruments of transfer, dated as of the
Closing Date and executed by Seller, in form sufficient to transfer and convey
to Buyer title (of the quality provided for in this Agreement) to the Assets
and satisfactory to counsel to Buyer:
(i) Assignment of Assets substantially in
the form attached hereto as Exhibit A-1;
(ii) General Warranty Deed in form attached
hereto as Exhibit B; and
(iii) Such other instruments or documents as
Buyer or Buyer's senior lender may reasonably request.
(b) Consents. Copies of all consents necessary to effect valid
assignments to Buyer of all of the agreements listed on Schedule 1.6.
(c) Certificate Concerning Interim Agreements. A certificate
of Seller describing all agreements with subscribers, roaming agreements and
all other contracts, agreements and leases entered into by Seller between the
date hereof and the Closing Date (the "Interim Agreements"), and certifying
that such Interim Agreements were entered into in accordance with Section 7.01.
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<PAGE> 26
(d) UCC Report. A report of the appropriate filing officers in
the jurisdictions specified in Schedule 9 regarding absence of filings with
their respective offices under the Uniform Commercial Code of financing
statements naming Seller as debtor with respect to any of the Assets, except
for those financing statements relating to the encumbrances listed on Schedule
5 which will be terminated simultaneously with the Closing. Such report shall
be dated not more than ten (10) days prior to the Closing Date.
(e) Partnership Actions. Copies of the documents reflecting
action by the Seller and its corporate general partner (including, to the
extent applicable, resolutions of the general partner of the Seller), certified
as being correct and complete and then in full force and effect, authorizing
the execution, delivery and performance of this Agreement, and of the
agreements and instruments called for hereunder, and the consummation of the
transactions contemplated hereby and by such agreements and instruments.
(f) Officers' Certificate. A certificate of Seller signed by
the President of the general partner of the Seller certifying that the
representations and warranties of Seller made herein were true and correct in
all material respects as of the date of this Agreement and are true and correct
in all material respects as of the Closing Date, and that Seller has performed
and complied with all covenants and agreements required to be performed or
complied with by Seller on or prior to the Closing Date.
(g) Opinion of Counsel. An opinion of counsel for Seller,
dated the Closing Date, addressed to Buyer and to Buyer's lender, substantially
in the form attached hereto as Exhibit C.
(h) Opinion of FCC Counsel. An opinion of FCC counsel for
Seller, dated the Closing Date, addressed to Buyer and to Buyer's lender,
substantially in the form attached hereto as Exhibit D .
11.03 Deliveries by Buyer. At or before the Closing, Buyer shall
deliver to Seller:
(a) Payments, Agreements and Instruments. The following
payments, agreements and instruments:
(i) The Closing Cash Payment in manner set
forth in Section 2; and
(ii) Assumption Agreement substantially in the
form attached hereto as Exhibit E;
(b) Corporate Actions. Copies of the documents reflecting
action by the Buyer (including, to the extent applicable, resolutions of the
Buyer), certified as
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<PAGE> 27
being correct and complete and then in full force and effect, authorizing the
execution, delivery and performance of this Agreement, and of the agreements
and instruments called for hereunder, and the consummation of the transactions
contemplated hereby and by such agreements and instruments.
(c) Officers' Certificate. A certificate of Buyer signed by
the President and the Secretary of the Buyer certifying that the
representations and warranties of Buyer made herein were true and correct in
all material respects as of the date of this Agreement and are true and correct
in all material respects as of the Closing Date, and that Buyer has performed
and complied with all covenants and agreements required to be performed or
complied with by Buyer prior to the Closing Date.
(d) Opinion. An opinion of counsel for Buyer, dated the
Closing Date and addressed to Seller, substantially in the form attached hereto
as Exhibit F.
12. Possession and Control. Between the date hereof and the Closing
Date, Buyer shall not directly or indirectly control, supervise or direct, or
attempt to control, supervise or direct, the business and operations of the
System, and such operation, including complete control and supervision of all
programs, shall be the sole responsibility of Seller; provided, however, Buyer
shall be entitled to inspect the Assets as provided in Section 7.02(i) so that
an uninterrupted and efficient transfer of ownership may be effected. On and
after the Closing Date, Seller shall have no control over, or right to
intervene or participate in, the business and operations of the System.
13. Risk of Loss. The risk of loss or damage by fire or other
casualty or cause to the Assets until the Closing Date shall be upon Seller.
In the event of such loss or damage prior to the Closing Date, Seller shall
promptly restore, replace or repair the damaged Assets to their previous
condition at Seller's sole cost and expense. In the event such loss or damage
shall not be restored, replaced, or repaired as of the Closing Date, Buyer
shall, at its option, either (a) proceed with the Closing and receive all
insurance proceeds to which Seller would be entitled as a result of such loss
or damage (provided, however, if such proceeds do not equal the loss, Seller
shall pay the deficiency to Buyer), or (b) defer the Closing Date until such
restorations, replacements or repairs are made (provided that no such deferral
shall affect the rights of the parties hereto to terminate this Agreement
pursuant to the provisions of Section 15).
14. Survival; Indemnification.
14.01 Survival of Seller's Representations. The representations and
warranties made by Seller in this Agreement or pursuant hereto shall survive
the Closing Date and shall also survive and shall be unaffected by (and shall
not be deemed waived by) any investigation, audit, appraisal, or inspection at
any time
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<PAGE> 28
made by or on behalf of Buyer, but shall, in any event, terminate on the first
anniversary of the Closing Date.
14.02 Indemnification by Seller. Subject to the conditions and
provisions of Section 14.06, Seller agrees to indemnify, defend and hold
harmless Buyer from and against any and all demands, claims, complaints,
actions or causes of action, suits, proceedings, investigations, arbitrations,
assessments, losses, damages, liabilities, costs and expenses, including, but
not limited to, interest, penalties and reasonable attorneys' fees and
disbursements, asserted against, imposed upon or incurred by Buyer, directly or
indirectly, by reason of or resulting from (a) any liability, obligation, or
claim (whether absolute, accrued, contingent or otherwise and whether a
contractual, tax or any other type of liability or obligation or claim) not
expressly assumed by Buyer pursuant to Section 2.04, arising out of, relating
to or resulting from the businesses of Seller, or relating to or resulting from
the Assets or the business and operations of the System during the period prior
to the Closing Date; (b) any misrepresentation or breach of the representations
and warranties of Seller contained in or made pursuant to this Agreement; or
(c) any noncompliance by Seller with any covenants, agreements or undertakings
of Seller contained in or made pursuant to this Agreement; provided, however,
that Buyer shall be entitled to indemnification pursuant to the provisions of
this Section 14 only if the aggregate amount of all claims for which
indemnification is otherwise available hereunder exceeds $100,000, except in
connection with claims arising out of the representations and warranties set
forth in Sections 3.05(b), 3.05(c), 3.15(b), 7.02(e) and 7.02(g), as to which
no limitation shall apply.
14.03 Survival of Buyer's Representations. The representations and
warranties made by Buyer in this Agreement or pursuant hereto shall survive the
Closing Date, and shall also survive and shall be unaffected by (and shall not
be deemed waived by) any investigation, audit, appraisal or inspection at any
time made by or on behalf of Seller, but shall, in any event, terminate on the
first anniversary of the Closing Date.
14.04 Indemnification by Buyer. Subject to the conditions and
provisions of Section 14.05, Buyer hereby agrees to indemnify, defend and hold
harmless Seller from and against all demands, claims, actions or causes of
action, assessments, losses, damages, liabilities, costs and expenses,
including, but not limited to, interest, penalties and reasonable attorneys'
fees and disbursements, asserted against, imposed upon or incurred by Seller,
directly or indirectly, by reason of or resulting from (a) any liability,
obligation, or claims (whether absolute, accrued, contingent or otherwise and
whether contractual, tax or any other type of liability or obligation or claim)
expressly assumed by Buyer hereunder; (b) any misrepresentation or breach of
the representations and warranties of Buyer contained in or made pursuant to
this Agreement; or (c) any noncompliance by Buyer with any covenants,
agreements or undertakings of Buyer contained in or made pursuant to this
Agreement; provided, however, that Seller shall be entitled
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<PAGE> 29
to indemnification pursuant to the provisions of this Section 14 only if the
aggregate amount of all claims for which indemnification is otherwise available
hereunder exceeds $100,000.
14.05 Conditions of Indemnification. The obligations and liabilities
of Seller and of Buyer hereunder with respect to their respective indemnities
pursuant to this Section 14, resulting from any claim or other assertion of
liability by third parties (hereinafter called collectively, "Claims"), shall
be subject to the following terms and conditions:
(a) The party seeking indemnification (the "Indemnified Party")
must give the other party or parties, as the case may be (the "Indemnifying
Party"), notice of any such Claim promptly after the Indemnified Party receives
notice thereof.
(b) The Indemnifying Party shall have the right to undertake,
by counsel or other representatives of its own choosing, the defense of such
claim.
(c) In the event that the Indemnifying Party shall elect not to
undertake such defense, or within a reasonable time after notice of any such
Claim from the Indemnified Party shall fail to defend, the Indemnified Party
(upon further written notice to the Indemnifying Party) shall have the right to
undertake the defense, compromise or settlement of such Claim, by counsel or
other representatives of its own choosing, on behalf of and for the account and
risk of the Indemnifying Party (subject to the right of the Indemnifying Party
to assume defense of such Claim at any time prior to settlement, compromise or
final determination thereof).
(d) Anything in this Section 14.06 to the contrary
notwithstanding, (i) if there is a reasonable probability that a Claim may
materially and adversely affect the Indemnified Party other than as a result of
money damages or other money payments, the Indemnified Party shall have the
right, at its own cost and expense, to participate in the defense, compromise
or settlement of the Claim, (ii) the Indemnifying Party shall not, without the
Indemnified Party's written consent, settle or compromise any Claim or consent
to entry of any judgment which does not include as an unconditional term
thereof the giving by the claimant or the plaintiff to the Indemnified Party of
a release from all liability in respect of such Claim, and (iii) in the event
that the Indemnifying Party undertakes defense of any Claim, the Indemnified
Party, by counsel or other representative of its own choosing and at its sole
cost and expense, shall have the right to consult with the Indemnifying Party
and its counsel or other representatives concerning such Claim and the
Indemnifying Party and the Indemnified Party and their respective counsel or
other representatives shall cooperate with respect to such Claim.
15. Termination. If (i) an FCC Order has not become a Final Order
and/or the Closing has not occurred on or before September 1, 1997, (ii) the
FCC designates
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<PAGE> 30
the application contemplated by Section 5 for an evidentiary hearing, or (iii)
the FCC issues an order in connection with such application with conditions
which are adverse to Buyer and which materially diminish the operating rights
with respect to the Assets and the System (except any such conditions expressly
accepted by Buyer in writing), then in any such event Buyer or, in the event of
(i) or (ii) above, Seller may, upon written notice to the other parties hereto,
terminate this Agreement without any further obligation to the other hereunder,
provided, that such notice of termination is given prior to the date on which
such FCC Order shall have become a Final Order; and provided, further, that the
party seeking to terminate this Agreement under this Section shall not be in
default under this Agreement. Upon termination of this Agreement, this
Agreement shall be deemed null, void, and of no further force and effect
(except for the provisions of Sections 7.04, 8.01, and 19, which shall survive
such termination).
16. Allocation of Acquisition Price. On the Closing Date, Buyer and
Seller shall mutually agree in writing upon the allocation of the purchase
price among the Assets, provided however, that the parties agree that Three
Million Two Hundred Thousand Dollars ($3,200,000) shall be allocated to the
tangible assets purchased hereunder. Such allocation, except the tangible
assets, shall be adjusted as necessary in connection with the final
determination of the Final Purchase Price. The parties agree that such
allocation shall be made based upon the relative fair market values of the
Assets as of the Closing Date conforming with the requirements of Section 1060
of the Internal Revenue Code of 1986, as amended (the "Code"). If the parties
are unable to reach agreement on such allocations, they shall participate in
good faith negotiations in an attempt to resolve the dispute. If the parties
fail to resolve the dispute within fifteen (15) business days after the Closing
Date, the parties shall engage the accounting firm of Deloitte & Touche LLP in
Washington, D.C., whose determination in allocation of the purchase price among
the Assets shall be final and binding on the parties. The parties shall share
equally in the expense of the appraisal firm. The parties agree to file with
their respective federal income tax returns for the tax year in which the
Closing occurs IRS Form 8594 containing the information agreed upon by the
parties pursuant to this Section 16. Seller and Buyer agree not to assert for
income tax purposes (including in connection with any tax return, tax audit or
similar proceeding) any allocation of the purchase price that differs from that
determined pursuant to this section and contained in IRS Form 8594.
17. Remedies.
17.01 Default by Buyer. If Buyer shall default in the performance of
its obligations under this Agreement in any material respect or if, as a result
of Buyer's action or failure to act, the conditions precedent to Seller's
obligation to close specified in Section 10 are not satisfied, and for such
reason or reasons this Agreement is not consummated, and provided that Seller
shall not then be in default in the performance of Seller's obligations
hereunder, Seller shall be entitled,
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<PAGE> 31
by written notice to Buyer, to terminate this Agreement and Seller shall have
all available remedies at law.
17.02 Default by Seller. If Seller shall default in the performance
of Seller's obligations under this Agreement in any material respect, or if, as
a result of Seller's action or failure to act, the conditions precedent to
Buyer's obligation to close specified in Section 9 are not satisfied and for
such reason or reasons this Agreement is not consummated, and provided that
Buyer shall not then be in default in any material respect in the performance
of Buyer's obligations hereunder, Buyer shall be entitled, at Buyer's sole
option:
(i) To require Seller to consummate and specifically
perform the sale in accordance with the terms of this Agreement,
if necessary through injunction or other court order or process;
or
(ii) By written notice to Seller, to terminate this
Agreement and to pursue any other remedies Buyer has at law or
in equity or otherwise.
17.03 Specific Performance. Seller acknowledges that the Assets to
be sold and delivered to Buyer pursuant to this Agreement are unique and that
Buyer has no adequate remedy at law if Seller shall fail to perform any of its
obligations hereunder, and Seller therefore confirms and agrees that Buyer's
right to specific performance is essential to protect the rights and interests
of Buyer. Accordingly, in addition to any other remedies which Buyer may have
hereunder or at law or in equity or otherwise, Seller hereby agrees that Buyer
shall have the right to have all obligations, undertakings, agreements and
other provisions of this Agreement specifically performed by Seller and that
Buyer shall have the right to obtain an order or decree of such specific
performance in any of the courts of the United States or of any state or other
political subdivision thereof.
18. Additional Actions and Documents. Each of the parties hereto
agrees that it will, at any time, prior to, at or after the Closing Date, take
or cause to be taken such further actions, and execute, deliver and file or
cause to be executed, delivered and filed such further documents and
instruments, and obtain such consents, as may be necessary or reasonably
requested in connection with the consummation of the purchase and sale
contemplated by this Agreement or in order to fully effectuate the purposes,
terms and conditions of this Agreement.
19. Brokers. Seller represents to Buyer that, Seller has not
engaged, or incurred any unpaid liability (for any brokerage fees, finders'
fees, commissions or otherwise) to, any broker, finder or agent in connection
with the transactions contemplated by this Agreement; Buyer represents to
Seller that, except for Columbia Capital for which Buyer is solely responsible,
Buyer has not engaged, or incurred any unpaid liability (for any brokerage
fees, finders' fees, commissions or otherwise) to, any broker, finder or agent
in connection with the transactions
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<PAGE> 32
contemplated by this Agreement; and Seller agrees to indemnify Buyer, and Buyer
agrees to indemnify Seller, against any claims asserted against the other
parties for any such fees or commissions by any person purporting to act or to
have acted for or on behalf of the indemnifying party. Notwithstanding any
other provision of this Agreement, this representation and warranty shall
survive the Closing Date without limitation as to time.
20. Expenses. Each party hereto shall pay its own expenses incurred
in connection with this Agreement and in the preparation for and consummation
of the transactions provided for herein. Notwithstanding the foregoing, Buyer
shall pay all costs of conveyances, all notary fees, all fees and expenses for
the Phase Ones and Phase Twos (if necessary), filing fees for the FCC, the
Survey, all sales, stamp, documentary, transfer, and recording taxes and fees
applicable to the transactions contemplated by this Agreement and the
instruments and documents called for hereunder.
21. Notices. All notices, demands, requests, or other communications
which may be or are required to be given or made by any party to any other
party pursuant to this Agreement shall be in writing and shall be hand
delivered (including delivery by courier), mailed by first-class registered or
certified mail, return receipt requested, postage prepaid, or transmitted by
telegram, telex, or facsimile transmission addressed as follows:
(i) If to Buyer:
Palmer Wireless Holdings, Inc.
12800 University Drive, Suite 500
Fort Myers, FL 33907-5333
Attn: Mr. William Ryan
with a copy (which shall not constitute notice) to:
Palmer Wireless Holdings, Inc.
12800 University Drive, Suite 500
Fort Myers, FL 33907-5333
Attn: Patrick Meehan, Esq.
(ii) If to Seller:
Mobile Communications Systems L.P.
604 W. Pinon Street
Farmington, NM 87401
Attn: Mr. David C. Turner
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<PAGE> 33
with a copy (which shall not constitute notice) to:
Anderson & Anderson
315 S. Beverly Drive
Suite 315
Beverly Hills, CA 90212
or such other address as the addressee may indicate by written notice.
Each notice, demand, request, or communication which shall be given or
made in the manner described above shall be deemed sufficiently given or made
for all purposes at such time as it is delivered to the addressee (with the
return receipt, the delivery receipt, the affidavit of messenger or (with
respect to a telex) the answerback being deemed conclusive but not exclusive
evidence of such delivery) or at such time as delivery is refused by the
addressee upon presentation.
22. Waiver. No delay or failure on the part of any party hereto in
exercising any right, power or privilege under this Agreement or under any
other instrument or document given in connection with or pursuant to this
Agreement shall impair any such right, power or privilege or be construed as a
waiver of any default or any acquiescence therein. No single or partial
exercise of any such right, power or privilege shall preclude the further
exercise of such right, power or privilege, or the exercise of any other right,
power or privilege. No waiver shall be valid against any party hereto unless
made in writing and signed by the party against whom enforcement of such waiver
is sought and then only to the extent expressly specified therein.
23. Benefit and Assignment. Except as hereinafter specifically
provided in this Section 23, no party hereto shall assign this Agreement, in
whole or in part, whether by operation of law or otherwise, without the prior
written consent of Seller (if the assignor is Buyer) or Buyer (if the assignor
is Seller); and any purported assignment contrary to the terms hereof shall be
null, void and of no force and effect. In no event shall any assignment by
Seller of its rights and obligations under this Agreement, whether before or
after the Closing, release Seller from its liabilities hereunder.
Notwithstanding the foregoing, Buyer or any permitted assignee of Buyer may
assign this Agreement and any and all rights hereunder without the consent of
Seller, if such assignment is, to any subsidiary of Buyer. No such assignment,
however, shall release Buyer from its obligations hereunder.
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns as permitted
hereunder. No person or entity other than the parties hereto is or shall be
entitled to bring any action to enforce any provision of this Agreement against
any of the parties hereto, and the covenants and agreements set forth in this
Agreement shall be solely for
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<PAGE> 34
the benefit of, and shall be enforceable only by, the parties hereto or their
respective successors and assigns as permitted hereunder.
24. Remedies Cumulative. Except as specifically provided herein, the
remedies provided herein shall be cumulative and shall not preclude the
assertion by Seller or by Buyer of any other rights or the seeking of any other
remedies against the other, or its successors or assigns. Nothing contained
herein shall preclude a party from seeking equitable relief, where appropriate.
25. Entire Agreement; Amendment. This Agreement, including the
Schedules and Exhibits hereto and other instruments and documents referred to
herein or delivered pursuant hereto, contains the entire agreement among the
parties with respect to the subject matter hereof and supersedes all prior oral
or written agreements, commitments or understandings with respect to such
matters. No amendment, modification or discharge of this Agreement shall be
valid or binding unless set forth in writing and duly executed by the party
against whom enforcement of the amendment, modification or discharge is sought.
26. Severability. If any part of any provision of this Agreement or
any other agreement, document or writing given pursuant to or in connection
with this Agreement shall be invalid or unenforceable under applicable law,
such part shall be ineffective to the extent of such invalidity or
unenforceability only, without in any way affecting the remaining parts of such
provisions or the remaining provisions hereof or of said agreement, document or
writing.
27. Headings. The headings of the sections and subsections contained
in this Agreement are inserted for convenience only and do not form a part or
affect the meaning, construction or scope thereof.
28. Governing Law. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed under and in accordance with the laws of the State of Georgia,
including the choice of law rules thereof.
29. Signature in Counterparts. This Agreement may be executed in
separate counterparts, none of which need contain the signatures of all
parties, each of which shall be deemed to be an original, and all of which
taken together constitute one and the same instrument. It shall not be
necessary in making proof of this Agreement to produce or account for more than
the number of counterparts containing the respective signatures of, or on
behalf of, all of the parties hereto.
30. Transition Matters. Seller and Buyer shall cooperate in good
faith in the orderly transition of operations of the System.
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<PAGE> 35
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or has caused this Agreement to be duly executed and delivered in
its name on its behalf, all as of the day and year first above written.
SELLER
------
[Seal] MOBILE COMMUNICATIONS
SYSTEMS, L.P.
BY MOBILE COMMUNICATIONS
SYSTEMS, INC.
ATTEST: ITS GENERAL PARTNER
By: By: /s/ David C. Turner
------------------------- -------------------------------------
David C. Turner, President
BUYER
-----
[Seal] CELLULAR DYNAMICS TELEPHONE
COMPANY OF GEORGIA
ATTEST:
By: By: /s/ Robert G. Engelhardt
------------------------- ----------------------------------------
Robert G. Engelhardt, President
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<PAGE> 36
The exhibits and schedules to the Sale and Purchase Agreement are not
included with this Current Report on Form 8-K. The Company will provide those
exhibits and schedules upon the request of the Securities and Exchange
Commission.
