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EXHIBIT 2(D)
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ASSET PURCHASE AGREEMENT
by and among
CROWN CASTLE INTERNATIONAL CORP.,
CCP INC.,
POWERTEL ATLANTA TOWERS, LLC,
POWERTEL BIRMINGHAM TOWERS, LLC,
POWERTEL JACKSONVILLE TOWERS, LLC,
POWERTEL KENTUCKY TOWERS, LLC,
POWERTEL MEMPHIS TOWERS, LLC
and POWERTEL, INC.
Dated: March 15, 1999
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ASSET PURCHASE AGREEMENT
Table of Contents
Page
ARTICLE 1 - DEFINITIONS...........................................................................................1
ARTICLE 2 - PURCHASE AND SALE OF ASSETS; ASSUMPTION OF LIABILITIES...............................................10
2.1 Assets..............................................................................................10
2.2 Excluded Assets.....................................................................................11
2.3 Assumption of Certain Liabilities; Retained Liabilities.............................................12
2.4 Assignment or Subcontracting of Purchased Contracts.................................................13
2.5 Consent of Third Parties............................................................................14
2.6 Bulk Transfer Laws..................................................................................14
2.7 Certain Apportionments..............................................................................14
2.8 Master Site Agreement...............................................................................15
2.9 [intentionally deleted].............................................................................15
2.10 Due Diligence.......................................................................................15
2.11 Rejected Sites......................................................................................17
2.12 Additional Sites....................................................................................18
ARTICLE 3 - PURCHASE PRICE, ESCROW DEPOSIT AND PURCHASE PRICE ADJUSTMENTS........................................20
3.1 Purchase Price......................................................................................20
3.2 Pre-Closing Adjustments to Purchase Price...........................................................21
3.3 Post-Closing Adjustments............................................................................22
3.4 Purchase Price Allocation...........................................................................22
3.5 Escrow Agreement....................................................................................22
ARTICLE 4 - AGREEMENTS PENDING CLOSING...........................................................................22
4.1 Agreements of Powertel and Sellers Pending the Closing..............................................22
4.2 Agreements of CCIC and Buyer Pending the Closing....................................................25
4.3 Agreements of the Parties Pending Closing...........................................................27
ARTICLE 5 - CONDITIONS PRECEDENT TO THE CLOSING..................................................................29
5.1 Conditions Precedent to the Obligations of CCIC and Buyer...........................................29
5.2 Conditions Precedent to the Obligations of Powertel and Sellers.....................................30
ARTICLE 6 - REPRESENTATIONS AND WARRANTIES.......................................................................31
6.1 Representations and Warranties of Powertel and Sellers..............................................31
6.2 Representations and Warranties of Powertel and Sellers as of the Closing Date.......................35
6.3 Representations and Warranties of CCIC and Buyer....................................................37
6.4 Assets in "As Is" Condition.........................................................................38
6.5 Survival............................................................................................39
6.6 Definitions of "Knowledge" and "Belief".............................................................39
6.7 ▇▇▇▇▇▇▇▇ and Notification...........................................................................39
ARTICLE 7 - CLOSING; DELIVERIES OF THE PARTIES AT CLOSING........................................................40
7.1 The Closing.........................................................................................40
7.2 Deliveries at the Closing by Powertel and Sellers...................................................40
7.3 Deliveries at the Closing by CCIC and Buyer.........................................................41
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7.4 Pre-Closing Deliveries..............................................................................41
7.5 Post-Closing Covenant...............................................................................41
7.6 Time is of the Essence..............................................................................42
ARTICLE 8 - INDEMNIFICATION......................................................................................42
8.1 Indemnification.....................................................................................42
8.2 Mitigation..........................................................................................44
8.3 Effect of Investigation or Knowledge................................................................44
8.4 Duration of Indemnification.........................................................................45
ARTICLE 9 - POST-CLOSING COVENANTS...............................................................................45
9.1 Post-Closing Covenants Related to Buyer.............................................................45
ARTICLE 10 - MISCELLANEOUS........................................................................................45
10.1 Remedies............................................................................................45
10.2 Dispute Resolution..................................................................................46
10.3 Transfer Taxes......................................................................................47
10.4 Termination.........................................................................................47
10.5 Expenses............................................................................................48
10.6 Entire Agreement....................................................................................49
10.7 Amendments..........................................................................................49
10.8 Waiver..............................................................................................49
10.9 Assignment and Binding Effect.......................................................................49
10.10 Notices.............................................................................................49
10.11 Georgia Law to Govern...............................................................................50
10.12 No Benefit to Others................................................................................50
10.13 Table of Contents; Headings.........................................................................50
10.14 Schedules and Exhibits..............................................................................50
10.15 Severability........................................................................................50
10.16 Counterparts and Facsimile Execution................................................................51
10.17 Confidentiality.....................................................................................51
10.18 Directly or Indirectly..............................................................................51
10.19 Interpretation......................................................................................51
10.20 Further Assurances..................................................................................51
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LIST OF SCHEDULES
Schedule 1.1......................................................................................................1
Schedule 1.2......................................................................................................3
Schedule 1.3......................................................................................................5
Schedule 1.4......................................................................................................6
Schedule 1.5......................................................................................................7
Schedule 1.6......................................................................................................8
Schedule 1.7......................................................................................................9
Schedule 1.8.....................................................................................................10
Schedule 2.4.....................................................................................................13
Schedule 2.11....................................................................................................18
Schedule 3.3.....................................................................................................22
Schedule 3.4.....................................................................................................22
Schedule 6.1(d)..................................................................................................32
Schedule 6.1(e)..................................................................................................32
Schedule 6.1(k)..................................................................................................34
Schedule 6.2(d)..................................................................................................36
Schedule 6.2(e)..................................................................................................36
Schedule 6.2(f)..................................................................................................37
Schedule 6.2(h)..................................................................................................37
LIST OF EXHIBITS
Exhibit "A" - Master Site Agreement
Exhibit "B" - CCIC Guaranty
Exhibit "C" - Powertel Guaranty
Exhibit "D" - Escrow Agreement
Exhibit "E" - FIRPTA Affidavit
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "Agreement") is dated effective as
of the 15th day of March, 1999, by and among Crown Castle International Corp., a
Delaware corporation ("CCIC"), CCP Inc., a Delaware corporation (the "Buyer"),
Powertel Atlanta Towers, LLC, Powertel Birmingham Towers, LLC, Powertel
Jacksonville Towers, LLC, Powertel Kentucky Towers, LLC, and Powertel Memphis
Towers, LLC, each a Delaware limited liability company (collectively the
"Sellers" and each individually a "Seller"), and Powertel, Inc., a Delaware
corporation ("Powertel").
RECITALS:
Buyer is a wholly owned subsidiary of Crown Communication Inc., a
Delaware corporation. Crown Communication Inc. is a wholly owned subsidiary of
CCIC. Buyer is a special purpose entity. Sellers are wholly owned subsidiaries
of Powertel. Powertel and Sellers are the owners of certain tower structures,
interests in real property related thereto, and related assets, property rights,
liabilities and obligations, as more particularly described herein. ▇▇▇▇▇ is
engaged in the business of owning, managing and operating assets similar to the
Assets (as hereinafter defined). Powertel and Sellers desire to sell, convey,
assign and transfer to Buyer, and Buyer desires to purchase and assume from
Powertel and Sellers, the Assets and certain liabilities, as more particularly
described herein, on the terms and subject to the conditions described in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound, the parties agree as follows:
ARTICLE 1
DEFINITIONS
For convenience, certain terms used in this Agreement and the Exhibits
and Schedules attached hereto are listed in alphabetical order and defined or
referred to below (such terms as well as any other terms defined elsewhere in
this Agreement shall be equally applicable to both the singular and plural forms
of the terms defined). The term "parties" shall refer to Powertel, Sellers, CCIC
and Buyer, collectively. The term "either party" shall, unless the context
otherwise requires, refer to Powertel and Sellers on the one hand, and CCIC and
Buyer on the other hand.
"AAA" is defined in Section 10.2(b).
"Acceptance" is defined in Section 4.2(a).
"Accepted Sites" means those Tower Sites set forth on Schedule 1.1, as
such Schedule may be modified or supplemented pursuant to the terms and
conditions of this Agreement.
"Accounting Firm" is defined in Section 2.7.
"Additional Sites" shall exclude any Rejected Sites, but shall have the
meaning contemplated by Section 2.10(a) and shall refer to sites, including
In-Progress Sites, which are
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generally comparable to Tower Sites to be conveyed pursuant to this Agreement in
the following respects: (i) type, height and structural capacity of the tower,
(ii) type and size of the site, (iii) third party revenues derived from the
lease of space to tenants, and (iv) available space for lease to third party
tenants, and as to which Powertel or the Sellers (or their Affiliates) propose
to lease tower and ground space pursuant to the Master Lease and the terms and
conditions contained therein, and on which telecommunications tower structures
are either (A) constructed and fully complete, or (B) in the case of In-Progress
Sites, being constructed and fully completed.
"Affiliates" means, when used with reference to a specific Person, any
Entity that, directly or indirectly, or through one or more intermediaries, owns
or controls, is owned or controlled by, or is under common ownership or common
control with, such specific Person. As used herein, "control" means the power to
direct the management or affairs of a Person, and "ownership" means the
ownership of more than 50% of the voting equity interests of the Person.
"Agreement" means this Agreement and the Exhibits and Schedules hereto,
as any of the foregoing may, from time to time, be amended, modified or restated
in accordance with the provisions hereof.
"Assets" is defined in Section 2.1.
"Assumed Liabilities" is defined in Section 2.3(a).
"CCIC" is defined above in the preamble.
"CCIC Guaranty" is defined in Section 2.8.
"Charter Documents" means an Entity's certificate or articles of
incorporation, certificate defining the rights and preferences of securities,
articles of organization, general or limited partnership agreement, certificate
of limited partnership, limited liability company agreement, joint venture
agreement or similar document governing the Entity.
"Circumstance" is defined in Section 2.11(c).
"Closing" is defined in Section 3.1(b).
"Closing Certificate" is defined in Section 6.2.
"Closing Date" is defined in Section 3.1(b).
"Completion Notice" is defined in Section 2.10(b).
"Construction Activities" shall include (i) all site engineering,
architectural and engineering drawings (as necessary) and geotechnical
investigations (if necessary); (ii) if necessary, construction of an access road
suitable for pedestrian and vehicular ingress and egress; (iii) the construction
of a communications tower complete with grounding systems and tower lighting (as
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necessary); (iv) all other reasonable and customary installations to complete
construction of the Tower Structures (along with ancillary tower equipment and
parts); (v) all customary installations to bring electrical power to the Tower
Site; (vi) all installations necessary to accommodate under the Master Lease
Powertel's and/or Sellers' (or their respective Affiliates') facilities and
equipment; and (vii) obtaining a certificate of occupancy or the equivalent
thereof, if required by applicable Laws.
"Contract" means any written contract, agreement, lease, license for
tower space, instrument or other commitment that is related to the Assets and is
binding on any Person or its property under applicable Law.
"Court Order" means any judgment, decree, injunction, order or ruling
of any federal, state, local or foreign court, Governmental Authority or any
arbitrator that is binding on any Person or its property under applicable Law.
"Cure Notice" is defined in Section 2.10(d).
"Default" means, with respect to this Agreement and any Contracts,
Court Orders, Governmental Permits or Laws related to the Assets, (a) a breach,
default or violation, (b) the occurrence of an event that with or without the
passage of time or the giving of notice, or both, would constitute a breach,
default or violation or (c) with respect to any Contract, the occurrence of an
event that with or without the passage of time or the giving of notice, or both,
would give rise to a right of termination, renegotiation or acceleration or a
right to receive damages or a payment of penalties.
"Defect" means the items identified as Defects on Schedule 1.2 and,
subject to the limitations set forth in this Agreement and Powertel's and
Sellers' right to dispute in good faith items identified as "Defects" with
respect to Missing Information furnished regarding Incomplete Sites and due
diligence materials furnished regarding Additional Sites, problems or defects
which CCIC and Buyer reasonably believe would or could be expected to adversely
affect Buyer's use, ownership or operation of a Tower Site in a material way.
"Defective Sites" means those sites set forth on Schedule 1.2, as such
Schedule may be modified or supplemented pursuant to the terms and conditions of
this Agreement.
"Early Termination Payment" is defined in Section 4.2(a).
"Encumbrance" means any lien, mortgage, security interest, pledge,
restriction on use or transferability, defect of title, option or other claim,
charge or encumbrance of any nature whatsoever on any property or property
interest.
"Entity" means any corporation, firm, unincorporated organization,
association, partnership, limited liability company, trust (inter vivos or
testamentary), estate of a deceased, insane or incompetent individual, business
trust, joint stock company, joint venture or other organization, entity or
business, whether acting on its own behalf or in a fiduciary or other capacity,
or any Governmental Authority.
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"Environmental Condition" means any condition or circumstance,
including the presence of Hazardous Substances, at any Tower Site that Powertel
or Sellers reasonably except to (a) require abatement or correction under an
Environmental Law in excess of $75,000, or (b) give rise to any civil or
criminal Liability in excess of $75,000 on the part of Powertel or Sellers under
any Environmental Law relating to the use or occupancy of the Tower Sites.
"Environmental Law" means all Laws and Court Orders relating to
Hazardous Substances, pollution or protection of the environment.
"Escrow Agent" is defined in Section 3.1(c).
"Escrow Agreement" is defined in Section 3.5.
"Escrow Deposit" is defined in Section 3.1(c).
"Event" means the occurrence of any act, action, activity, event,
failure to act, omission, incident or practice, or any set or combination of any
of the foregoing.
"Excluded Assets" is defined in Section 2.2.
"FAA" means the Federal Aviation Administration, or any successor
Governmental Authority.
"FCC" means the Federal Communications Commission, or any successor
Governmental Authority.
"Financing Assurance" is defined in Section 4.2(a).
"FIRPTA Affidavit" is defined in Section 7.2(j).
"Gap Period" means the period of time between (i) the time a Site Lease
was executed by the parties thereto and (ii) the time such Site Lease or a
memorandum thereof was filed of record in the county where the applicable Leased
Site is located.
"Governmental Authority" means any federal, state, territorial, county,
municipal, local or other government or governmental agency or body or any other
type of regulatory body, whether domestic or foreign, including without
limitation, the FCC and the FAA.
"Governmental Permits" means all governmental approvals, permits,
licenses, registrations, certifications, agreements and other governmental
authorizations required in connection with the use and operation of the Assets.
"Hazardous Substances" means all explosive or radioactive substances or
wastes, petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, and any of the following: (i) any
'hazardous substances,' as defined under the Comprehensive Environmental
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Response, Compensation, and Liability Act, 42 U.S.C. ▇▇.▇▇. 9601 et seq.; (ii)
any 'extremely hazardous substance,' 'hazardous chemical' or 'toxic chemical,'
each as defined under the Emergency Planning and Community Right-to-Know Act, 42
U.S.C. ▇▇.▇▇. 11001 et seq.; (iii) any 'hazardous waste,' as defined under the
Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery
Act, 42 U.S.C. ▇▇.▇▇. 6901 et seq.; (iv) any 'pollutant,' as defined under the
Clean Water Act, 33 U.S.C. ▇▇.▇▇. 1251 et seq.; and (v) any regulated substance
or waste under any Environmental Law.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended, and all regulations promulgated thereunder, as in effect from
time to time, and any reference to any such statutory or regulatory provision
shall be deemed to be a reference to any successor statutory or regulatory
provision.
"In-Progress Sites" shall exclude any Rejected Sites, but shall mean
and refer to Tower Sites on which telecommunications tower structures are in the
process of being constructed by Powertel and/or Sellers, and as to which at
least 15 days prior to Closing, Powertel and/or Sellers shall have obtained (and
delivered copies thereof to CCIC and Buyer) (i) a Site Lease which is reasonably
acceptable to CCIC and Buyer, (ii) all necessary zoning approvals and building
permits, (iii) all necessary FAA approvals or certifications, (iv) a phase I
environmental assessment, (v) a site survey, and (vi) a title commitment, search
or report.
"Incomplete Sites" means those sites set forth on Schedule 1.3, as such
Schedule may be modified or supplemented pursuant to the terms and conditions of
this Agreement.
"Indemnified Party" means the Person to whom an indemnity may be or is
provided pursuant to Sections 8.1(a) or 8.1(b), as the case may be.
"Indemnitor" is defined in Section 8.1.
"Intervening Encumbrance" shall mean, with respect to a Leased Site, an
Encumbrance which is filed, created or suffered and is filed of record or
otherwise obtains priority against a Leased Site during the Gap Period. An
Intervening Encumbrance shall not include an Encumbrance which by law would have
lien priority over a previously recorded Site Lease or memorandum thereof or an
Encumbrance which is created or suffered by CCIC or Buyer (or their Affiliates),
or which is filed of record or otherwise obtains priority against a Leased Site
prior to the time the applicable Site Lease was executed by the parties thereto
or after the time such Site Lease or memorandum thereof was filed of record in
the county where the Leased Site is located but shall include, without
limitation, such an Encumbrance (including an Encumbrance which is a Permitted
Encumbrance), created or suffered during such Gap Period by the lessor or
landlord who executed the applicable Site Lease, any subsequent or other owner
of the land which is the subject of the Leased Site, Powertel or Sellers (or
their Affiliates).
"Law" means any administrative, judicial, legislative or other statute,
law, ordinance, regulation, rule, order, decree, writ, award or decision
(including without limitation the common law
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and those of the FAA and FCC), including those covering environmental, energy,
safety, health, transportation, bribery, recordkeeping, zoning, and antitrust
matters.
"Leased Sites" means the sites indicated as Leased Sites in Schedule
1.4 hereto (excluding any Rejected Sites) for which Powertel or the Sellers hold
a leasehold interest in and to the real property associated therewith.
"Liability" means any direct or indirect liability, indebtedness,
obligation, cost, expense, claim, loss, damage, deficiency, guaranty or
endorsement of (other than endorsements for collection or deposits in the
ordinary course of business) or by any Person.
"Litigation" means any lawsuit, action, arbitration, administrative or
other proceeding, criminal prosecution, formal governmental investigation or
inquiry, or counterclaim, whether at law or in equity, in connection with the
ownership, use or operation of the Assets.
"Loss" means a loss, liability, claim, demand, cause of action,
judgment, damage or expense (including, with respect thereto, reasonable
attorneys', consultants' and other professional fees and disbursements of every
kind, nature and description).
"Master Lease" is defined in Section 2.8.
"Material Adverse Effect" means an adverse effect on (i) the Assets or
an increase in the Assumed Liabilities, in each case by more than $75,000 taken
on a per Tower Site basis, except any such effect resulting from or arising in
connection with (a) this Agreement or the transactions contemplated hereby, (b)
changes or conditions (including without limitation changes in technology, law,
or regulatory or market environment) affecting the industry in which the owners
or users of communications tower structures operate, or (c) changes in economic,
regulatory or political conditions generally, (ii) the validity or
enforceability of this Agreement or any of the Transaction Documents, or (iii)
the ability of a party to this Agreement or the Transaction Documents to perform
its obligations under this Agreement or any of the Transaction Documents.
Notwithstanding the foregoing, when the phrase "Material Adverse Effect taken as
a whole" is used in this Agreement, it shall have the meaning set forth above,
but shall mean an adverse effect on the aggregate Assets or aggregate Assumed
Liabilities, taken as a whole (without considering any calculation derived from
the per Tower Site dollar amount referred to above), rather than on a per Tower
Site basis.
"Minor Contract" is defined in Section 6.1(e).
"Missing Information" is defined in Section 2.10(a).
"MOA" is defined in Section 4.1(h).
"Non-Assignable Contract" is defined in Section 2.5.
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"Ordinary course" or "ordinary course of business" means the ordinary
course of conducting the ownership, operation, use and leasing of the Tower
Structures by Powertel, Sellers and/or their respective Affiliates consistent
with past practice.
"Owned Sites" means the Tower Sites designated as Owned Sites in
Schedule 1.5 hereto (excluding any Rejected Sites) for which a fee ownership is
held by Powertel and/or the Sellers.
"Permitted Encumbrances" means, except as provided in the last sentence
of this definition, (i) liens for current real or personal property taxes not
yet due and payable, (ii) as to the Assets described in Schedule 1.1 and
Schedule 1.2, liens, encumbrances or other matters disclosed in the title
policies, commitments, searches and reports delivered by Powertel to Buyer in
CD-ROM format or any other format prior to the effective date of this Agreement,
(iii) as to the Assets described in Schedule 1.3, liens, encumbrances or other
matters disclosed in the title commitments, searches and reports obtained after
the effective date of this Agreement but prior to the Closing Date, (iv)
worker's, carrier's and materialman's liens not yet due and payable, (v) with
respect to Leased Sites, any liens, encumbrances or other matters placed upon
such real property by the owners thereof, other than to secure obligations or
liabilities of Powertel or Sellers, (vi) easements, rights of way or similar
grants of rights to a third party for access to or across any real property or
granted to any utility or similar entity in connection with the provision of
electric, water, sewage, telephone, gas or similar services, (vii) the Tower
Leases, (viii) any failure by Powertel, the Sellers, CCIC or Buyer to identify
or obtain any consents (other than Required Consents) from third parties as may
be deemed necessary or desirable in connection with the transfer and assignment
of Contracts, Site Leases, Tower Equipment Leases, Tower Leases and Tower
Service Contracts, (ix) terms and conditions of Site Leases, Tower Equipment
Leases, Tower Service Contracts, Swap Lease Agreements and Revenue Sharing Site
Leases affecting any of the Assets, (x) any other liens, encumbrances or other
matters affecting title to the Assets, or any of them, which with the exercise
by CCIC and Buyer of reasonable diligence would be disclosed by: (A) the
examination of the public records germane to the certification, abstracting or
issuance of opinions regarding record title to any Asset constituting an
interest in real property, including any fee simple, leasehold, easement,
license or other appurtenance, or (B) a current, accurate as-built boundary
survey of any Assets constituting an interest in real property including any
fee, leasehold, easement, license or other appurtenance, and (xi) any other
liens, encumbrances or other imperfections that are immaterial in character,
amount and extent and that do not detract from the value or interfere in any
material respect with the present use of the properties they affect or which do
not otherwise result in a Material Adverse Effect. Notwithstanding the
foregoing, except for the Site Leases, Tower Leases, Tower Equipment Leases,
Tower Service Contracts, Swap Lease Agreements and Revenue Sharing Site Leases
constituting a portion of the Assets, Permitted Encumbrances shall not otherwise
include (1) any Encumbrance which results in or evidences that the record owner
of an Owned Site is not Powertel, or any of the Sellers, or that the owner of
the leasehold interest in the Leased Sites is not Powertel or any of the
Sellers, or that the lessor or landlord who executed a Site Lease or memorandum
thereof was not, at the time such Site Lease or memorandum was executed, the
record owner of the land described in such Site Lease or memorandum, (2) any
Encumbrance created or incurred by Powertel or Sellers (or their Affiliates) and
not disclosed in the documents furnished or otherwise made available to CCIC and
Buyer, including, without limitation, the title policies, commitments, searches
and reports made available in CD-ROM format or otherwise, or (3) any Defect
identified in Schedule 1.2.
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"Person" means any individual, corporation, partnership, limited
liability company or other legal entity.
"Powertel" is defined above in the preamble.
"Powertel Guaranty" is defined in Section 2.8.
"Powertel PCS Credit Agreement" is defined in Section 2.2(b).
"Prepaid Expenses" means all prepaid items, unbilled costs and fees,
and accounts, notes and other receivables under the Tower Service Contracts,
Site Leases, Tower Leases and Tower Equipment Leases as of the Closing Date.
"Prime Rate" means the "Prime Rate" of interest, as published in the
"Money Rates" table of The Wall Street Journal, Eastern Edition, from time to
time.
"Proposed Offering" is defined in Section 4.2(a).
"Registration Statement" is defined in Section 4.2(a).
"Rejected Sites" is defined in Section 2.11(b).
"Rejection" is defined in Section 4.2(a).
"Required Consent" is defined in Section 2.4.
"Retained Liability" is defined in Section 2.3(b).
"Revenue Sharing Site Leases" is defined in Section 3.2(b).
"SEC" is defined in Section 4.2(a).
"Sellers" is defined above in the preamble.
"Site Leases" means the ground leases, licenses, easements, or other
agreements for use or occupancy of a Tower Site identified in Schedule 1.6
(except for ground leases, licenses, easements or other agreements with respect
to Rejected Sites) pursuant to which the leasehold interests of Powertel and/or
Sellers in the Leased Sites are derived.
"Swap Lease Agreement" is defined in Section 3.3.
"Taxes" means all taxes, duties, charges, fees, levies or other
assessments imposed by any taxing authority, whether domestic or foreign,
including, without limitation, income (net, gross or other including recapture
of any tax items such as investment tax credits), capital gains, gross receipts,
value-added, excise, withholding, personal property, real estate, sale, use, ad
valorem,
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license, lease, service, severance, documentary, stamp, transfer, payroll,
employment, customs, duties, alternative, add-on minimum, estimated and
franchise taxes (including any interest, levies, charges, penalties or additions
attributable to or imposed on or with respect to any such assessment).
"10 Day Period" is defined in Section 8.1(d).
"Termination Notice" is defined in Section 4.2(a).
"Third Party Claim" is defined in Section 8.1(d).
"Tower Equipment Leases" means any existing leases (or licenses or
other Contracts) of Powertel or the Sellers for equipment or other personal
property which are Tower Structures.
"Tower Leases" means the leases or other Contracts or rights to use
spaces on the Tower Structures located on Tower Sites that are identified in
Schedule 1.7 (except for leases or other Contracts or rights with respect to
Rejected Sites).
"Tower Related Assets" shall mean (i) the Tower Leases and security
deposits (if any) from tenants under the Tower Leases, (ii) the Site Leases,
(iii) all Tower Service Contracts, (iv) any Tower Equipment Leases, (v) all
rights to any casualty insurance proceeds payable after the effective date of
this Agreement with regard to the Assets (but only to the extent the casualty to
which the proceeds relate has not been repaired or restored by Powertel and
Sellers at their cost prior to the Closing), and all rights to any warranties
held by Powertel or the Sellers with respect to the Tower Structures or Tower
Related Assets to the extent such rights are assignable, including those
assignable with consent to the extent such consents are received, or, to the
extent not so received, all amounts received by Powertel or the Sellers with
respect to claims made after the Closing Date with respect to such unassigned
rights to any warranties, (vi) copies of, or extracts from, all current files
and records of Powertel or the Sellers to the extent that such files or records
contain information related to the design, construction, management, operation,
maintenance, ownership, occupancy or leasing of the Assets, and (vii) the
originals of the Tower Leases, Site Leases, Tower Service Contracts and Tower
Equipment Leases, and the originals of any files and records referred to in the
preceding subparagraph which relate solely to the information described in such
subparagraph, provided the originals of such information are in the possession
of Powertel or the Sellers or are under any of their control and are not needed
by Powertel or the Sellers in the operation of their businesses after the
Closing. To the extent the files and records described in subparagraph (vi) do
not relate solely to the design, construction, management, operation,
maintenance, ownership, occupancy or leasing of the Assets, Powertel and the
Sellers may retain the originals or copies of such files and records.
"Tower Service Contracts" means all Contracts with respect to the
management, operation, maintenance and servicing of the Tower Structures.
"Tower Sites" shall mean all real property interests of Powertel and/or
the Sellers in the up to 650 sites on or appurtenant to which the Tower
Structures (excluding any Rejected Sites) are located, including all fee, ground
leasehold interests, rights-of-way and easements (to the extent owned by
Powertel or the Sellers) pertaining to such tower sites, and shall include a fee
ownership in the
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Owned Sites, and the leasehold interest in and to the real
property associated with the Leased Sites pursuant to the terms of the Site
Leases.
"Tower Structures" shall mean communications tower structures situated
at the locations that are identified in Schedule 1.8 (excluding any Rejected
Sites), and owned by Powertel or the Sellers, and all of Powertel's and the
Sellers' right, title and interest therein or appurtenant thereto, including
rights to all power poles; equipment or other foundations (if any) that are not
used or occupied by Powertel or the Sellers; equipment platforms (if any) that
are not in use and that are located on towers at heights other than the heights
at which Powertel's and the Sellers' antennae or other equipment are located;
attached tower lighting equipment; alarm systems; grounding systems; and
physical improvements on each Tower Site, including without limitation fencing;
along with any tenant leases, easement rights necessary for access to the Tower
Structure and for location of the Tower Structure and guy wires, if any,
associated therewith; provided however, such term does not include any Excluded
Assets or any equipment, property or other assets placed upon the Tower
Structures or Tower Sites by third parties pursuant to Tower Leases or other
Contracts.
"Transaction Documents" means, collectively, this Agreement, the Master
Lease, the CCIC Guaranty, the Powertel Guaranty and the Escrow Agreement.
"Unavoidable Delay" means an act of God, fire, earthquake, flood,
explosion, action of the elements, war, invasion, insurrection, riot, mob
violence, sabotage, inability to procure or a general shortage of labor,
equipment, facilities, materials, or supplies in the open market, failure of
transportation, strike, lockout, action of labor unions, a taking by eminent
domain, requisition, laws, orders of government or courts, or civil or military
or naval authorities, or any other cause whether similar or dissimilar to the
foregoing, not within the reasonable control of Powertel or Sellers, including
delays caused by CCIC or Buyer and reasonable delays for adjustments of
insurance.
ARTICLE 2
PURCHASE AND SALE OF ASSETS; ASSUMPTION OF LIABILITIES
2.1 ASSETS. Subject to the terms and conditions of this Agreement,
Powertel and each of the Sellers shall grant, convey, sell, assign, transfer and
deliver to Buyer on the Closing Date, and Buyer shall purchase on the Closing
Date from Powertel and each of the Sellers, all right, title and interest of
Powertel or the respective Seller in and to all of the assets, properties and
rights of Powertel or the respective Seller specifically set forth below in this
Section 2.1 (collectively the "Assets"), subject to the Permitted Encumbrances:
(a) all Tower Structures;
(b) all of Powertel's and the respective Seller's rights to all
Tower Sites;
(c) all Tower Related Assets; and
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(d) all rights under any Governmental Permits (excluding FCC
licenses) held with respect to the ownership or use of the Tower Structures or
Tower Sites, except to the extent such Governmental Permits are not
transferrable to the Buyer and to the extent (and only to the extent) any such
Governmental Permits are needed by Powertel or the Sellers in the operation of
their businesses.
2.2 EXCLUDED ASSETS. All assets of Powertel, Sellers and their
respective Affiliates not set forth in Section 2.1 shall be excluded from the
Assets and retained by Powertel, Sellers and their respective Affiliates,
including, without limitation, the following (collectively, "Excluded Assets"):
(a) all equipment foundations used or occupied by Powertel or the
Sellers; existing equipment cabinets, shelters and buildings used or occupied by
Powertel or the Sellers; mounting platforms used or occupied by Powertel or the
Sellers; wiring; coaxial cabling; conduits; microwave dishes and other transport
related equipment and housings; cable; equipment generators; fuel tanks;
electrical panels; the single power pole at each Tower Site that serves as the
point of demarcation between Powertel and/or Sellers and the utility service
provider; the utility service entrance equipment (including conduits and wiring)
connecting such power pole to any of Powertel's and/or the Sellers' equipment;
power protection and connection boxes; antennas and antenna connection boxes;
communications and other radio equipment and amplifiers; waveguides and ice
bridges;
(b) all of Powertel's, the Sellers' and their respective
Affiliates' right, title and interest, whether now owned or hereafter acquired,
in and to all equipment purchased with advances under the Amended and Restated
Credit Agreement dated as of February 6, 1998 among Powertel PCS, Inc., as
borrower, the banks and other financial institutions listed on the signature
pages thereof as initial lenders, and GE Capital, as agent (the "Powertel PCS
Credit Agreement"), in all of its forms, wherever located, now or hereafter
existing, and all fixtures and all parts thereof and all accessions thereto and
all proceeds thereof (including, without limitation, proceeds that constitute
property of the types described in the foregoing) and, to the extent not
otherwise included, all payments under insurance, or any indemnity, warranty or
guaranty, payable by reason of loss or damage to or otherwise with respect to
any of the foregoing;
(c) the rights that accrue or will accrue to Powertel and the
Sellers under this Agreement or any of the other Transaction Documents,
including the consideration paid or to be paid to Powertel and the Sellers
hereunder and all accounts receivable, including rents and other amounts under
the Tower Leases, which accrue or are prorated prior to the Closing Date;
(d) any claims or rights against third parties except to the extent
that such claims or rights relate to Assumed Liabilities; and
(e) all assets, properties and rights related to Rejected Sites.
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2.3 ASSUMPTION OF CERTAIN LIABILITIES; RETAINED LIABILITIES.
(a) ASSUMPTION OF ASSUMED LIABILITIES. Subject to Section 2.3(b),
as of the Closing Date, Buyer shall acquire the Assets subject only to, and
Buyer and CCIC shall undertake, assume, perform and otherwise pay, satisfy and
discharge, and on the terms set forth in Article 8 hold Powertel and the Sellers
harmless from, the following Liabilities (collectively, the "Assumed
Liabilities"):
(i) all Liabilities of Powertel or the Sellers under all
Contracts included within the Assets (including the Site Leases, Tower
Leases, Tower Equipment Leases and Tower Service Contracts), but only
to the extent such Liabilities accrue or relate to the period from and
after the Closing Date;
(ii) the rents, revenues, Taxes, charges and payments that are
apportioned for the account of Buyer pursuant to Section 2.7 hereof;
and
(iii) all Liabilities of Powertel or the Sellers, whenever and
however incurred or accrued, which arise in connection with the
ownership, lease, use or occupancy of or under the Assets from and
after the Closing, except for the Retained Liabilities and except as
may be limited pursuant to the foregoing provisions of this Section
2.3(a).
Notwithstanding the assumption of the Assumed Liabilities as set forth above,
nothing herein shall be deemed or construed to relieve Powertel or the Sellers,
or to be an assumption by CCIC and Buyer, of any Liability arising from any
event, condition, occurrence or other matter which is the subject of a breach or
Default by Powertel or the Sellers of a representation, warranty or covenant
contained in this Agreement or in any Contract.
(b) LIMITATIONS ON ASSUMPTION OF LIABILITIES. Notwithstanding
Section 2.3(a), CCIC and Buyer are not assuming under this Agreement or any
Transaction Document any Liabilities that are not specifically described in
Section 2.3(a) as an Assumed Liability (each, a "Retained Liability"). On the
terms set forth in Article 8, Powertel and Sellers shall hold CCIC and Buyer
harmless from the Retained Liabilities. By way of example and not limitation,
each of the following represents a Retained Liability: (i) any Liabilities
arising out of any actual or alleged breach or nonperformance by Powertel or any
of the Sellers (or their respective Affiliates) prior to the Closing of any
provision of any Contract; (ii) any product liability or similar claim for
injury to any Person or property, regardless of when made or asserted, that
arises out of or is based upon any express or implied representation, warranty,
agreement or guarantee made by Powertel or any of the Sellers (or their
respective Affiliates), or alleged to have been made by Powertel or any of the
Sellers (or their respective Affiliates), or which is imposed or asserted to be
imposed by operation of Law in connection with any service performed or product
sold or leased by or on behalf of Powertel or any of the Sellers (or their
respective Affiliates) prior to the Closing; (iii) any federal, state, local or
foreign income or other Tax payable with respect to the Assets or other
properties or operations of Powertel or Sellers or any member of any affiliated
group of which Powertel or Sellers are a member for any period, in each case
prior to the Closing; (iv) any Liabilities arising prior to, after or as a
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result of the Closing to or with respect to any employees, agents or independent
contractors of Powertel or any of the Sellers or their respective Affiliates or
commitments to any of their respective Affiliates; (v) any Liabilities of
Powertel or any of the Sellers arising from or incurred in connection with the
preparation, negotiation, execution and performance of this Agreement or the
other Transaction Documents except as otherwise provided herein and therein;
(vi) any Liabilities, whether known or unknown, arising from or related to (A)
any violation by Powertel, the Sellers or their respective Affiliates prior to
the Closing of any Environmental Laws relating to the ownership, use or
occupancy of the Assets, or (B) any Environmental Condition existing prior to
the Closing which Powertel, the Sellers or their respective Affiliates caused,
(vii) any Liabilities caused by or attributable to the ownership, possession,
occupancy, use or operation of the Assets by Powertel or any of the Sellers (or
their respective Affiliates) prior to the Closing, (viii) the rents, revenues,
Taxes, charges and payments that are apportioned for the account of Powertel or
Sellers pursuant to Section 2.7 hereof, (ix) any free or below market wireless
or related phone services required by any Contracts to be provided to any
Person, including the lessors under any Site Leases, whether such obligation
accrues before or after the Closing, (x) any Liability arising out of the
matters disclosed on Schedule 6.1(d) or any Liability of Powertel or the Sellers
(or their respective Affiliates) arising out of any Litigation that is pending
or threatened in writing to Powertel or the Sellers as of the Closing Date or
any actual or alleged violation by Powertel or any of the Sellers (or their
respective Affiliates) of any applicable Law prior to the Closing, (xi) any
Liability of Powertel or the Sellers (or their respective Affiliates) that
relates primarily to, or that arises primarily out of, any Excluded Asset, or
that arises out of the ownership by Powertel, the Sellers or their respective
Affiliates of the Excluded Assets or realization of the benefits of any Excluded
Asset, and (xii) all other obligations or liabilities of Powertel or any of the
Sellers, or any of their respective Affiliates, of any nature whatsoever
(whether express or implied, fixed or contingent, known or unknown) other than
the Assumed Liabilities.
2.4 ASSIGNMENT OR SUBCONTRACTING OF PURCHASED CONTRACTS. Buyer has
undertaken to furnish Powertel and Sellers with a listing, attached to this
Agreement as Schedule 2.4 and made a part hereof by this reference, of all of
the third party consents it reasonably believes are necessary and desirable in
connection with the transfer and assignment of Contracts, including Site Leases,
Tower Equipment Leases, Tower Leases and Tower Service Contracts (each a
"Required Consent"). Nothing herein shall be deemed to constitute a warranty or
representation on the part of Powertel or Sellers that other third party
consents are not necessary or desirable in connection with the transfer and
assignment of such Assets, and failure to obtain a Required Consent (or other
third party consent) shall not constitute a Default under this Agreement or a
failure of a condition precedent to the Closing. Powertel and Sellers will use
commercially reasonable efforts to obtain the Required Consents prior to the
Closing Date. To the extent that any such Required Consent is not obtained,
Powertel and Sellers will subcontract to Buyer the performance of all
obligations and the right to receive all benefits thereunder. To the extent the
consent of the counterparty to such subcontracting is required under the terms
of any such Contract, Powertel and Sellers will use commercially reasonable
efforts to obtain such consent; and Powertel and Sellers will only subcontract
as described in the immediately preceding sentence in those cases, if any, in
which subcontracting is permitted by the Contract or applicable Law. If (and
only if) such Contract is a Site Lease or Tower Lease, then the failure to
obtain a Required Consent with respect to such Contract prior to May 15, 1999
shall be deemed to be a Defect and the Tower Site in question shall be deemed to
be a Defective Site, and
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such Defect and Defective Site shall be governed by the applicable provisions of
Sections 2.10 and 2.11.
2.5 CONSENT OF THIRD PARTIES. Nothing in this Agreement shall be
construed as an attempt by Powertel and Sellers to assign to Buyer pursuant to
this Agreement any Contract, Governmental Permit, franchise, claim or asset
included in the Assets that is by its terms or by Law nonassignable without the
consent of any other party or parties, unless such consent or approval shall
have been given, or as to which all the remedies for the enforcement thereof
available to Powertel and Sellers would not by Law pass to Buyer as an incident
of the assignments provided for by this Agreement (a "Non-Assignable Contract").
To the extent that any consent in respect of, or a novation of, a Non-Assignable
Contract has not been obtained, Powertel and Sellers shall continue to use
commercially reasonable efforts to obtain any such consent or novation until
such time as it shall have been obtained (but in no event longer than 180 days
following the Closing), and Powertel and Sellers shall use commercially
reasonable efforts to cooperate with Buyer to provide that Buyer shall receive
the interest of Powertel and Sellers in the benefits under such Non-Assignable
Contract, including performance by Powertel and Sellers as agent if commercially
reasonable, provided that Buyer shall undertake to pay or satisfy the
corresponding Liabilities under the terms of such Non-Assignable Contract to the
extent that Buyer would have been responsible therefor if such consent or
approval had been obtained.
2.6 BULK TRANSFER LAWS. CCIC and Buyer hereby waive compliance by
Powertel and the Sellers with the provisions of any and all Laws relating to
bulk transfer in connection with the sale of the Assets. Powertel and Sellers
shall indemnify CCIC and Buyer from and against any and all Liabilities
(including reasonable attorneys' fees) arising out of noncompliance with such
bulk transfer Laws.
2.7 CERTAIN APPORTIONMENTS. Notwithstanding any provision to the
contrary in this Section 2.7 or elsewhere in this Agreement, at the Closing the
following items shall be apportioned between Powertel and the Sellers, on the
one hand, and CCIC and Buyer, on the other hand, with such adjustments to be
made as of the Closing Date by the party that on a net basis owes money to the
other party under this Section 2.7 by wire transfer of immediately available
funds to such accounts as such other party shall specify in writing: (a) rents
and revenues under all Contracts included in the Assets; (b) Prepaid Expenses;
(c) federal, state, local or foreign Taxes (other than income taxes) paid or
payable with respect to the Assets; and (d) charges and payments under all
Contracts included in the Assets. Such apportionments shall be made pro rata on
a per diem basis as of the Closing Date so that all such rents, revenues, Taxes,
charges and payments attributable to the period prior to the Closing Date are
for the account of Powertel and Sellers; and all such rents, revenues, Taxes,
charges and payments attributable to the period from and after the Closing Date
are for the account of Buyer. If any of the aforesaid apportionments cannot be
calculated accurately on the Closing Date, then the same shall be calculated and
adjusted once by Powertel, Sellers, CCIC and Buyer after the Closing Date in
accordance with the following procedures. Within five business days after the
last day of the third full calendar month following the Closing Date, Powertel,
Sellers, CCIC and Buyer shall exchange their respective post-Closing
calculations of such apportionments. Powertel, Sellers, CCIC and Buyer shall in
good faith attempt to agree upon the post-Closing
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apportionments on or before the last day of the fourth full calendar month
following the Closing Date. If at the end of such period, Powertel, Sellers,
CCIC and Buyer cannot agree on the post-Closing apportionments, Powertel,
Sellers, CCIC and Buyer shall submit to an independent accounting firm (the
"Accounting Firm") for review and resolution any and all matters which remain in
dispute. The Accounting Firm shall be Ernst & Young LLP or, if such firm is
unable or unwilling to act, such other nationally recognized independent public
accounting firm as shall be agreed upon by Powertel, Sellers, CCIC and Buyer in
writing. The Accounting Firm shall be instructed to, within thirty (30) days
after the submission of any disputed matters, review and resolve all such
disputed matters and to report its resolution thereof to Powertel, Sellers, CCIC
and Buyer, and such report shall be final, binding and conclusive on Powertel,
Sellers, CCIC and Buyer with respect to all such disputed matters. The fees and
expenses of the Accounting Firm incurred pursuant to this Section 2.7 shall be
borne fifty percent (50%) by Powertel and Sellers on the one hand, and fifty
percent (50%) by CCIC and Buyer, on the other hand. No other post-Closing
apportionments shall be made by the parties. Either party owing the other party
a sum of money based on the agreed-upon post-Closing apportionments shall pay
said sum to the other party on or before the last day of the fifth full calendar
month following the Closing Date. If payment of any such amount is not paid when
due, interest shall accrue on the past due amount at a rate equal to the Prime
Rate plus two percent (2%) per annum from the due date to the date of payment.
The aforesaid post-Closing adjustment shall be the only post-Closing adjustment
of the items to be apportioned under this Section 2.7. The provisions of this
Section 2.7 shall not affect the obligations of Powertel, Sellers, CCIC and
Buyer under this Agreement with respect to the Retained Liabilities and the
Assumed Liabilities, respectively.
2.8 MASTER SITE AGREEMENT. At the Closing, Powertel and Sellers shall
assign and Buyer shall assume the Master Site Agreements in the form attached
hereto as Exhibit "A" (collectively, the "Master Lease") pursuant to which Buyer
shall lease to certain Affiliates of Powertel and the Sellers space on the Tower
Structures, with the exception of the ▇▇▇▇ ▇▇▇▇, Lafayette and Senoia Tower
Sites, and at the Tower Sites. CCIC shall guarantee the payment and performance
of all of Buyer's obligations under the Master Lease including, without
limitation, all of Buyer's obligations in respect of the Site Leases, and shall
execute upon the Closing, a Guaranty (the "CCIC Guaranty") in the form of
Exhibit "B." Powertel shall guaranty the payment and performance of all of the
obligations of such Affiliates of Powertel and the Sellers under the Master
Lease, and shall execute upon the Closing, a Guaranty (the "Powertel Guaranty")
in the form of Exhibit "C."
2.9 [intentionally deleted]
2.10 DUE DILIGENCE.
(a) Set forth on Schedule 1.1 to this Agreement is a list of
Accepted Sites. As of the effective date of this Agreement, CCIC and Buyer have
completed their due diligence review with respect to the Assets included in and
related to the Accepted Sites and are prepared, subject to the terms and
conditions of this Agreement, to acquire such Assets at Closing subject to the
Permitted Encumbrances. Set forth on Schedule 1.3 to this Agreement is a list of
Incomplete Sites. CCIC and Buyer have completed their due diligence review of
such sites in all respects, except that, as indicated on Schedule 1.3, certain
information regarding title and environmental matters has not yet been
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provided to or reviewed by Buyer or CCIC (the "Missing Information"). Set forth
on Schedule 1.2 is a list of Defective Sites. CCIC and Buyer have completed
their due diligence review of such sites in all respects except as indicated on
Schedule 1.2. Described in reasonable detail on Schedule 1.2 are certain Defects
which CCIC and Buyer have identified with respect to such Defective Sites. As of
the effective date of this Agreement, such Defects do not include the failure to
obtain Required Consents, but such failure shall be deemed to be a Defect
pursuant to Section 2.4 to the extent Required Consents are not obtained prior
to May 15, 1999. Schedule 1.2 also includes, with respect to each such Defect, a
description in reasonable detail of the curative action that CCIC and Buyer
recommend Powertel and/or Sellers to take with respect to such Defect.
(b) From and after the effective date of this Agreement, Powertel
and Sellers shall use their commercially reasonable efforts to locate all
Missing Information and to provide all Missing Information to CCIC and Buyer.
With respect to each Incomplete Site, Powertel and Sellers shall provide CCIC
and Buyer with written notice when, in Powertel's and Sellers' good faith
belief, Powertel and Sellers have provided all Missing Information to CCIC and
Buyer with respect to each such Incomplete Site (a "Completion Notice"). CCIC
and Buyer shall use commercially reasonable efforts to complete their due
diligence investigation with respect to Missing Information as soon as
reasonably practicable following the receipt of such information.
(c) Following the receipt and review by CCIC and Buyer of Missing
Information with respect to each Incomplete Site, but in all events within 15
days of receipt of a Completion Notice with respect to an Incomplete Site, CCIC
and Buyer shall: (i) provide Powertel and Sellers with written notice that CCIC
and Buyer have satisfactorily completed their due diligence investigation with
respect to such Incomplete Site and are prepared, subject to the terms and
conditions of this Agreement, to acquire such Assets at Closing subject to the
Permitted Encumbrances, in which case such Incomplete Site shall be and become
an Accepted Site, and such site shall be deemed to be removed from Schedule 1.3
and placed on Schedule 1.1; (ii) provide Powertel and Sellers with written
notice (A) that states that CCIC and Buyer have determined in good faith that
the Missing Information is incomplete in a material way for the purpose of CCIC
and Buyer satisfactorily completing their due diligence investigation and (B)
that describes in reasonable detail the manner in which the Missing Information
remains incomplete, in which event the incomplete information shall continue to
constitute Missing Information; or (iii) if, and only if, such Missing
Information reveals a Defect in the reasonable opinion of CCIC and Buyer, such
Incomplete Site shall be a Defective Site, and such site shall be deemed to be
removed from Schedule 1.3 and added to Schedule 1.2 and the provisions of
Section 2.10(d) shall apply; provided, however, that Powertel and Sellers shall
have the right to dispute in good faith whether a problem or defect constitutes
a Defect (as defined herein) and to invoke the procedures described in Section
10.2 of this Agreement. (For purposes of this subparagraph (c), a Defect may
only include (1) a Defect of the nature and type set out in Schedule 1.2, or (2)
an Encumbrance which is not a Permitted Encumbrance and (x) would not reasonably
be expected to result in a Material Adverse Effect or (y) was not created or
incurred by Powertel, any of the Sellers or their respective Affiliates.) CCIC
and Buyer shall be precluded from designating any Accepted Site as either an
Incomplete Site or Defective Site, except pursuant to Section 2.4 and Section
2.11(c) and may only designate any Incomplete Site as a Defective Site based
upon their review of Missing Information or upon notice from Powertel and
Sellers that such Missing Information does not exist or is not in the possession
or custody of Powertel or the Sellers and, therefore, cannot be delivered.
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(d) Powertel and Sellers shall have the right, prior to the date
of Closing, to cure Defects that exist with respect to the Defective Sites.
Powertel and Sellers shall provide CCIC and Buyer with notice of any cure
effected with respect to a Defective Site (a "Cure Notice"), and shall request
CCIC's and Buyer's consent to remove such Defective Site from Schedule 1.2 to
Schedule 1.1. The Cure Notice shall describe in reasonable detail the cure which
Powertel and the Sellers reasonably believe in good faith should cause the
Defective Site to be removed from Schedule 1.2, and shall include a copy of any
instrument, document or other writing which evidences the curative action taken.
Within 15 days of receipt of a Cure Notice with respect to a Defective Site,
CCIC and Buyer shall: (i) provide Powertel with written notice that CCIC and
Buyer have satisfactorily completed their due diligence investigation of the
curative action taken with respect to such Defective Site and are prepared,
subject to the terms and conditions of this Agreement, to acquire such Assets at
Closing subject to the Permitted Encumbrances, in which case such Defective Site
shall be and become an Accepted Site, and such site shall be deemed to be
removed from Schedule 1.2 and placed on Schedule 1.1; or (ii) provide Powertel
with written notice (A) that states that CCIC and Buyer have determined in good
faith that the curative action taken is incomplete in a material way for the
purpose of curing the Defect in question and (B) that describes in reasonable
detail the manner in which the Defect remains uncured and describes the curative
action that would cure such Defect, in which event the Defect shall continue as
such and the site in question shall remain a Defective Site. A Defect that
exists solely by reason of a Required Consent that needs to be obtained shall be
deemed to have been cured by Powertel or Sellers obtaining such Required Consent
prior to Closing or by entering into a subcontracting or similar arrangement
pursuant to Section 2.4. Other Defects set forth on Schedule 1.2 shall be deemed
to have been cured by Powertel or Sellers completing the curative actions set
forth on Schedule 1.2; provided, however, that CCIC and Buyer shall not
unreasonably withhold their consent to removing a Defective Site from Schedule
1.2 upon Powertel or Sellers effecting any other reasonable cure to or of such
Defect.
2.11 REJECTED SITES.
(a) At least 15 days prior to Closing, CCIC and Buyer shall
provide notice to Powertel and Sellers as to whether Buyer desires to purchase
any Assets that are Defective Sites or Incomplete Sites; any such sites which
Buyer desires to purchase shall be deemed to be Accepted Sites and shall be
deemed to be removed from Schedule 1.2 or 1.3, as the case may be, and added to
Schedule 1.1, and the Closing Certificate may be modified by Powertel and
Sellers to qualify or omit the representations and warranties of Powertel and
the Sellers with respect to the applicable Defect with no adjustment to the
Purchase Price. Such sites shall be transferred and conveyed at the Closing
subject to both the Defect and the Permitted Encumbrances. (Notwithstanding any
notice to Powertel and Sellers that Buyer desires to purchase any Assets that
are Defective Sites or Incomplete Sites, for a period of five days after its
receipt of such notice, Powertel and Sellers shall have the right to notify CCIC
and Buyer that they have elected to not sell a site (i) which contains, or which
Powertel and Sellers reasonably believe may contain, an Environmental Condition
that Powertel and Sellers desire to correct at their cost, or (ii) in the case
of a failure to obtain a Required Consent or other material consent or otherwise
if in Powertel's and Sellers' reasonable judgment such Defect would adversely
affect under the Master Lease Powertel's or Sellers' use, occupancy or operation
of the Defective Site in any material way; any such site not sold shall be
deemed to be a Rejected Site. CCIC and Buyer
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shall have the right to dispute in good faith an election by Powertel and
Sellers to not sell a site for one of such reasons and to invoke the procedures
described in Section 10.2 of this Agreement.)
(b) Immediately prior to Closing, all Defective Sites and
Incomplete Sites which are not being sold to Buyer pursuant to Section 2.11(a)
shall be designated as rejected sites (the "Rejected Sites") and shall be
removed from Schedules 1.2 and 1.3 and placed on Schedule 2.11, and the Purchase
Price shall be adjusted as provided in Section 3.2.
(c) At least 15 days prior to the Closing Date, Powertel and
Sellers shall deliver to CCIC and Buyer, a list of those Assets (identified by
Tower Site) set forth on Schedules 1.1, 1.2 or 1.3 with respect to which
Powertel and Sellers are unable to make one or more of the representations and
warranties set forth in Section 6.2 or are unable to obtain a Required Consent.
Such notice shall identify (i) such Assets, (ii) the representations and
warranties which cannot be given (identified by reference to the appropriate
subsection of this Agreement) or that a Required Consent cannot be obtained, and
(iii) the specific circumstance ("Circumstance") which, in the opinion of
Powertel and Sellers, prevents them from making such representations and
warranties. With respect to the Assets (identified by Tower Site) identified in
such notice, CCIC and Buyer shall have the right to either (A) designate each
such Asset (identified by Tower Site) to be a Rejected Site and adjust the
Purchase Price as provided in Section 3.2, or (B) acquire such Asset at the
Closing without an adjustment to the Purchase Price, in which event all such
sites shall be deemed to be Accepted Sites and shall be deemed to be removed
from Schedule 1.2 or 1.3, if applicable, and added to Schedule 1.1, and the
Closing Certificate may be modified by Powertel and Sellers to qualify or omit
the representations and warranties with respect to such Assets based upon the
Circumstance applicable to such Asset. (Notwithstanding any notice to Powertel
and Sellers that Buyer desires to purchase any Assets for which a Circumstance
prevents Powertel and Sellers from making certain representations and
warranties, for a period of five days after its receipt of such notice, Powertel
and Sellers shall have the right to notify CCIC and Buyer that they have elected
to not sell a site which is the subject of one of the following Circumstances,
in the event (i) the site contains, or Powertel and Sellers reasonably believe
it may contain, an Environmental Condition that Powertel and Sellers desire to
correct at their cost, or (ii) in the case of a failure to obtain a Required
Consent or other material consent or otherwise if in Powertel's and Sellers'
reasonable judgment such Defect would adversely affect under the Master Lease
Powertel's or Sellers' use, occupancy or operation of the site in any material
way; any such site not sold shall be deemed to be a Rejected Site. CCIC and
▇▇▇▇▇ shall have the right to dispute in good faith an election by Powertel and
Sellers to not sell a site for one of such reasons and to invoke the procedures
described in Section 10.2 of this Agreement.) Other than as set forth in this
Section 2.11(c), no Accepted Site may become a Rejected Site pursuant to this
Agreement.
2.12 ADDITIONAL SITES.
(a) From time to time prior to Closing, but in all events at
least 15 days prior to Closing, Powertel and Sellers shall provide notice to
CCIC and Buyer as to whether they desire to sell any Additional Sites. Such
notice shall identify the Additional Sites and shall include due diligence
materials with respect to such site. Within 5 business days of receipt of such
notice and due diligence materials, CCIC and Buyer shall inform Powertel and
Sellers in writing as to whether in
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their reasonable judgment there are any Defects or Missing Information which may
affect adversely the value, ownership, operation or use of the Additional Sites
by CCIC and Buyer in a material way. Missing Information as to the Additional
Sites shall generally be consistent with, and conform to, the kinds and
materiality of the Missing Information otherwise contained on Schedule 1.3;
Defects as to the Additional Sites shall generally be consistent with, and
conform to, the kinds and materiality of the Defects described in the
penultimate sentence of Section 2.10(c). If CCIC and Buyer fail to provide
written notice of any Defects or Missing Information as to any Additional Site
within such 5 business day period, then such Additional Site shall be deemed to
be an Accepted Site and shall accordingly be added to Schedule 1.1; and the
Purchase Price shall be increased by $423,077 for each of such additional
Accepted Sites. In the event that CCIC and Buyer furnish written notice of a
Defect or Missing Information as to any of the Additional Sites, then such
Additional Sites shall be deemed a Defective Site (as to any Site for which a
Defect(s) is identified) or an Incomplete Site (as to any Site for which Missing
Information is indicated) and handled in accordance with Sections 2.10 and 2.11
hereof; provided, however, that Powertel and Sellers shall have the right to
dispute in good faith whether a problem or defect constitutes a Defect (as
defined herein) and to invoke the procedures described in Section 10.2 of this
Agreement. (Such Additional Sites may become Rejected Sites pursuant to the
provisions of Section 2.11(b).) CCIC and Buyer acknowledge that Powertel and
Sellers shall have the right, but not the obligation, to include such Additional
Sites for purchase by CCIC and Buyer, but only up to and until the total number
of Tower Sites to be purchased hereunder by CCIC and Buyer shall equal 650 Tower
Sites. (All In-Progress Sites are also Additional Sites under this Agreement;
accordingly, the provisions of this Agreement (including this Section 2.12(a))
that apply to Additional Sites shall also apply to In-Progress Sites.)
(b) In the event CCIC and Buyer become obligated as set forth
above to purchase Additional Sites which are In-Progress Sites, CCIC and Buyer
shall have the right at Closing to elect from among the following modes of
purchase: (i) to accept a conveyance of the In-Progress Sites at Closing subject
to the provisions of this Agreement, including Section 2.12(c), but subject also
to the execution of a mutually acceptable form of construction or other
agreement between and among the parties, which agreement includes insurance,
indemnification and other customary provisions which adequately protect CCIC and
Buyer during the completion of construction; (ii) to escrow the portion of the
Purchase Price allocable to the In-Progress Sites with an escrow agent and
pursuant to an escrow agreement mutually acceptable to Powertel and Sellers, on
the one hand, and CCIC and Buyer, on the other hand, with disbursement of such
escrowed amounts to be conditioned upon timely completion of the Construction
Activities and the conveyance, free and clear of any Encumbrance other than
Permitted Encumbrances, of the In-Progress Sites with completed Tower Structures
built thereon; or (iii) to enter into an agreement mutually acceptable to
Powertel and Sellers, on the one hand, and CCIC and Buyer, on the other hand,
providing for a separate Closing to occur upon timely completion of the
Construction Activities. (For purposes of this Section 2.12(b), the term
"Permitted Encumbrances" shall not include liens, encumbrances or other matters
affecting title to the In-Progress Sites, which with the exercise by CCIC and
Buyer of reasonable diligence would be disclosed by: (1) an examination of a
current title commitment, search or report or the examination of public records,
or (2) a current, accurate as-built boundary survey, but with regard to the
foregoing matters shall only refer to those matters disclosed by: (x) the title
commitment, search or report actually delivered by Powertel and Sellers to CCIC
and Buyer for review, and (y) the actual survey delivered by Powertel and
Sellers to CCIC and Buyer for review.)
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(c) In the event (and only in the event) that CCIC and Buyer
elect to accept a conveyance of an In-Progress Site at Closing and thereby
forego the escrow and deferred closing alternatives described above, then
beginning on the Closing Date and until such time as both the In-Progress Site
is completed and delivered to CCIC and Buyer as completed and the Initial SLA
Term (as defined in the Master Lease) commences, Powertel and/or Sellers shall
be obligated pursuant to the Master Lease to pay to CCIC and Buyer monthly rent
at a rate of $1800.00 per month or the appropriate pro-rated portion thereof for
any partial months.
(d) Powertel and/or Sellers shall perform or cause to be
performed all Construction Activities for such In-Progress Sites and shall use
commercially reasonable efforts to deliver a completed Tower Structure no later
than 120 days after the Closing Date subject to Unavoidable Delays; provided,
however, that Unavoidable Delays shall not cause delivery of such Tower
Structure to be delayed beyond 180 days after the Closing Date. Upon completion
of the Construction Activities, Powertel or Sellers shall obtain and deliver to
CCIC or Buyer all Governmental Permits necessary for the ownership, use or
occupancy of the Tower Structure (except FCC licenses, and except to the extent
and only to the extent such Governmental Permits are needed by Powertel or the
Sellers in the operation of their businesses). In addition, upon completion of
the Construction Activities, the parties shall enter into a Site Lease Agreement
(as defined in the Master Lease) but which shall provide that the Initial SLA
Term shall commence upon the 31st day following the last to occur of the
following: conveyance of the In-Progress Site to Buyer and the completion and
delivery of the Tower Structure to Buyer. Upon the commencement of the Initial
SLA Term, the parties shall enter into a written commencement of term agreement
in recordable form which shall incorporate and refer to the Master Lease and the
Site Lease Agreement and which either party may file of record as an
acknowledgment of the date on which the Initial SLA Term shall be deemed or
stipulated to have commenced and the date on which it (and renewal terms) shall
expire.
(e) In the event Powertel and/or Sellers fail to complete
construction of an In-Progress Site within the 120-day period set forth above in
Section 2.12(d), as such period may be extended for any Unavoidable Delays, then
CCIC and Buyer's sole and exclusive remedy shall be to recover from Powertel
and/or Sellers the sum per diem of $500.00 (not to exceed $423,077 in the
aggregate) for each In-Progress Site that is not completed on or before the
required completion date. Notwithstanding the foregoing, Powertel and/or Sellers
shall be obligated to complete such site and deliver to CCIC and Buyers as soon
as commercially practicable the applicable Assets with respect thereto not
previously conveyed and delivered.
ARTICLE 3
PURCHASE PRICE, ESCROW DEPOSIT AND PURCHASE PRICE ADJUSTMENTS
3.1 PURCHASE PRICE.
(a) The Purchase Price for the Assets shall be an amount equal to
$423,077 multiplied by the number of sites listed on Schedule 1.8 (exclusive of
the ▇▇▇▇ ▇▇▇▇ site,
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identified on such Schedule by identification number I-GA-000-1000), as adjusted
pursuant to the provisions of Section 3.2.
(b) The Purchase Price shall be paid to Powertel and Sellers at
Closing in immediately available funds by wire transfer pursuant to instructions
provided by Powertel and Sellers. For purposes of this Agreement, "Closing"
shall mean the closing of the transactions contemplated hereby. "Closing Date"
shall mean the earlier of: (i) June 4, 1999; or (ii) such earlier date, if any,
as shall be mutually agreeable to the parties after CCIC has completed the sale
of certain securities pursuant to the Proposed Offering (or has otherwise
secured adequate financing) and all other conditions precedent to Closing have
been satisfied. Notwithstanding the foregoing, with respect to In-Progress
Sites, for purposes of this Agreement, "Closing Date" shall mean the date
Powertel and Sellers' fee or leasehold interest in the In-Progress Sites (and
Assets related thereto) is transferred, assigned, and/or conveyed (whether
directly or out of escrow) by Powertel and Sellers to Buyer; and "Closing" shall
mean the closing with respect thereto, and the closing procedures shall be
governed by the terms and provisions of Article 7.
(c) As of the effective date of this Agreement, CCIC and Buyer
shall deposit with SunTrust Bank, Atlanta ("Escrow Agent"), in Atlanta Georgia,
the sum of Fifty Million Dollars ($50,000,000) (such sum, together with interest
to accrue thereon and any additional amounts which may be deposited by CCIC and
Buyer pursuant to Section 4.2(a), being the "Escrow Deposit") in cash to be held
in escrow by the Escrow Agent in accordance with this Agreement and the Escrow
Agreement. The Escrow Agent shall hold and invest the Escrow Deposit as provided
in the Escrow Agreement. Upon the Closing, the Escrow Deposit shall be delivered
by the Escrow Agent to Powertel and Sellers and shall be credited against the
Purchase Price, with any balance thereof delivered to CCIC and Buyer. If the
Closing contemplated by this Agreement does not occur, the Escrow Deposit shall
be delivered by the Escrow Agent as provided in this Agreement and the Escrow
Agreement.
3.2 PRE-CLOSING ADJUSTMENTS TO PURCHASE PRICE.
(a) At the Closing, for each Rejected Site, the Purchase Price
for the Assets shall be reduced by an amount equal to $423,077, and for each
Additional Site (that does not become a Rejected Site), the Purchase Price shall
be increased by an amount equal to $423,077.
(b) CCIC and Buyer acknowledge that a number of the Site Leases
contain provisions whereby the lessors thereunder may have a right to share in
certain revenues received by the lessees thereunder in connection with Tower
Leases ("Revenue Sharing Site Leases"). With respect to such Revenue Sharing
Site Leases, Powertel and Sellers shall pay to CCIC and Buyer, at Closing, as a
credit against the Purchase Price the sum of Three Hundred Eighty-Three Thousand
and No/100 Dollars ($383,000.00). Such payment shall constitute additional
consideration and compensation for the acceptance by CCIC and Buyer of the sites
affected by such Revenue Sharing Site Leases without requiring additional
reimbursement in any amount from Powertel and Sellers for any revenue sharing
payments by CCIC or Buyer to the lessors thereunder.
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3.3 POST-CLOSING ADJUSTMENTS. Schedule 3.3 contains a list of certain
third party leases or licenses covering the Tower Structures which were entered
into by Powertel or Sellers (or their respective Affiliates) as lessors pursuant
to a swap or other arrangement where the monthly rental rate for such agreement
is less than $1,500 per month (each, a "Swap Lease Agreement"). With respect to
each Swap Lease Agreement covering any of the Tower Structures, on or before the
tenth day of each calendar month from and after the Closing Date until the time
specified in the last sentence of this Section 3.3, Sellers and Powertel shall
pay to Buyer an amount equal to the difference, if any, between (i) the monthly
rent that Buyer would have received under the Swap Lease Agreement if the rents
payable by the third party lessee thereunder were set at rental rates which
would result in an average of $1,500 per month under all of the Tower Leases
existing immediately prior to Closing for no more than a 12-panel antenna array,
and (ii) the monthly rent receivable by Buyer under the Swap Lease Agreement. To
the extent that it is determined that a payment shall be due from Powertel or
Sellers to Buyer under this Section 3.3, the parties shall prepare an amended
Schedule 3.3 as of the Closing Date which shall allocate to each such Swap Lease
Agreement included thereon an equitable portion of the total amount due under
this Section 3.3. Such amended Schedule 3.3 shall be mutually agreed upon by the
parties hereto. The payment obligation of Powertel or the applicable Seller
under the preceding sentence with respect to a particular Swap Lease Agreement
shall terminate on the date that the third party lessee no longer has lease
rights under the Swap Lease Agreement with respect to the subject Tower
Structure.
3.4 PURCHASE PRICE ALLOCATION. The Purchase Price shall be allocated
among the Assets in accordance with Schedule 3.4. Such allocation shall be used
for federal income tax reporting purposes pursuant to Section 1060 of the
Internal Revenue Code of 1986, as amended.
3.5 ESCROW AGREEMENT. On or before March 16, 1999, the parties
hereto, together with the Escrow Agent, shall execute and deliver the Escrow
Agreement in the form attached hereto as Exhibit "D" (the "Escrow Agreement")
pursuant to which the Escrow Deposit or portions thereof shall be held, invested
and disbursed.
ARTICLE 4
AGREEMENTS PENDING CLOSING
4.1 AGREEMENTS OF POWERTEL AND SELLERS PENDING THE CLOSING. Powertel
and Sellers covenant and agree that, pending the Closing, except as otherwise
agreed to in writing by CCIC and Buyer, and except in connection with the
performance of the transactions contemplated hereby:
(a) BUSINESS IN THE ORDINARY COURSE. Powertel and Sellers shall
operate, repair, maintain and service the Assets and the Assumed Liabilities in
the ordinary course consistent with past practice and in compliance in all
material respects with all applicable Laws and Governmental Permits and, to the
extent consistent therewith, use all reasonable efforts to preserve the
relationships with lessors, lessees and others having business dealings with the
business of the Assets, provided that Powertel and Sellers may enter into
amendments and modifications of Site Leases and Tower Leases to the extent
authorized by this Agreement and may enter into new Tower Leases (and term
sheets and binding and non-binding letters of intent
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regarding Tower Leases) with respect to the Tower Structures in the ordinary
course consistent with past practice, subject, however, to the provisions of
Section 4.1(g). Powertel and Sellers will insure the Assets and their operations
from casualty consistent with past practice.
(b) UPDATE SCHEDULES. Subject to the right set out in this
Section 4.1(b) to update Schedules, on or before April 30, 1999, Powertel and
Sellers shall deliver to CCIC and Buyer the Schedules which are contemplated by
Section 6.2, using commercially reasonable efforts to provide as complete
information on such Schedules as is available to Powertel and Sellers at the
time the Schedules are prepared. Until the Closing Date, Powertel and Sellers
shall from time to time, as necessary, disclose in writing to CCIC and Buyer any
information contained in their representations and warranties or any of the
Schedules hereto which is incomplete or is no longer correct after the date
hereof. To the extent any such disclosure necessitates a modification to any
Schedule hereto to make the information provided in such Schedule true and
correct, the parties shall execute an amendment or other writing which evidences
the necessary modification to such Schedule; provided, however, that if such
disclosure constitutes an Encumbrance that does not constitute a Permitted
Encumbrance or, in the reasonable opinion of CCIC and Buyer has or is reasonably
likely to have a Material Adverse Effect, CCIC and Buyer shall have the right to
designate in a modified Schedule, at the time of such modification, that the
Tower Site in question is a Defective Site and such new disclosure which has or
is reasonably likely to have a Material Adverse Effect or which constitutes an
Encumbrance that does not constitute a Permitted Encumbrance is a Defect (but
only if and to the extent such Defect would qualify as such based on the
standards required by the penultimate sentence of Section 2.10(c)), and such
Defective Site and Defect shall be governed by the applicable provisions of
Sections 2.10 and 2.11. Any disclosures made by Powertel and Sellers in
accordance with the provisions of this Section 4.1(b) shall be deemed to modify,
amend or supplement the representations and warranties of Powertel and Sellers
and the Schedules hereto for the purposes of this Agreement, including without
limitation, Article 8 hereof.
(c) CONDUCT OF BUSINESS. Powertel and Sellers shall cooperate
with CCIC and Buyer and use their reasonable efforts to cause all of the
conditions to the obligations of CCIC, Buyer, Powertel and Sellers under this
Agreement to be satisfied on or prior to the Closing Date.
(d) SALE OF ASSETS. Without limiting the generality of Section
4.1(c) and except for conveyances to Buyer contemplated hereby or interim
conveyances from any Affiliates of Powertel or the Sellers to Powertel or the
Sellers, Powertel and the Sellers shall not, directly or indirectly, sell or
encumber all or any part of the Assets or initiate or participate in any
discussions or negotiations or enter into any agreement to do any of the
foregoing. Notwithstanding the foregoing, but subject to the provisions of
Section 4.1(f), Powertel and Sellers shall have the right to enter into Site
Leases, Tower Leases, term sheets and binding and non-binding letters of intent
(or terminations, modifications, amendments, renewals or extensions of any of
the foregoing) in the ordinary course of business prior to the Closing, subject
to the terms and provisions of this Agreement, including Section 4.1(g).
(e) ACCESS. Powertel and Sellers shall give to CCIC's and ▇▇▇▇▇'s
officers, employees, counsel, accountants and other representatives free and
full access to and the right to inspect, during normal business hours, all of
the premises, properties, assets, records, contracts
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and other documents relating to the Assets or the Assumed Liabilities and shall
permit them to consult with the officers, employees, accountants, counsel and
agents of Powertel and Sellers for the purpose of making such investigation of
the Assets or the Assumed Liabilities, as CCIC and Buyer shall desire to make,
provided that such investigation shall not unreasonably interfere with the
business operations of Powertel and Sellers. Furthermore, Powertel and Sellers
shall furnish to CCIC and Buyer or provide CCIC and Buyer access to all such
documents and copies of documents and records and information with respect to
the Assets or the Assumed Liabilities and copies of any working papers relating
thereto as CCIC and Buyer shall from time to time reasonably request and shall
permit CCIC and Buyer and their agents to make such physical inventories and
inspections of the Assets or of Powertel and the Sellers as CCIC and Buyer may
reasonably request from time to time. Notwithstanding the foregoing provisions
of this Section 4.1(e), Powertel and Sellers shall not be required to provide
any such information to CCIC and Buyer if, in the reasonable determination of
the general counsel of Powertel, access to such information by CCIC and Buyer is
prohibited by the provisions of any confidentiality agreements binding upon
Powertel or any of the Sellers or by applicable Law.
(f) NO SOLICITATION. With respect to the Assets, Powertel and
Sellers shall not, nor shall any of them authorize or permit any officer,
director or employee of or any investment banker, attorney, accountant or other
representative retained by any of them to: (i) solicit, initiate or encourage
the submission of any "other bid," (ii) enter into any agreement (including,
without limitation, any term sheet or binding or non-binding letter of intent)
with respect to any other bid or (iii) participate in any discussions or
negotiations regarding, or furnish to any person any non-public information with
respect to, or take any other action to facilitate any inquiries or the making
of any proposal that constitutes, or may reasonably be expected to lead to, any
other bid. Without limiting the foregoing, it is understood that any violation
of the restrictions set forth in the preceding sentence by any executive officer
of Powertel or Sellers or any investment banker, attorney or other advisor or
representative of Powertel or Sellers shall be deemed to be a breach of this
Section 4.1(f) by Powertel and Sellers. Powertel and Sellers promptly shall
advise CCIC and Buyer orally and in writing of any other bid or any inquiry with
respect to or which could lead to any other bid and the identity of the person
making any such other bid or inquiry. As used in this Section, "other bid" shall
mean any proposal to acquire in any manner any of the Assets, other than (A) the
transactions with CCIC and Buyer contemplated by this Agreement and (B) any
Excluded Asset.
(g) MARKETING AGREEMENT. Powertel and Sellers shall allow CCIC
and/or Buyer to act as Powertel's and Sellers' sole third party agent for
purposes of marketing for rental to others available space on the Tower Sites
and Tower Structures for the installation, operation and maintenance of wireless
communications antennas and equipment on terms and conditions as may be mutually
agreed upon by all parties, including CCIC and Buyer. Notwithstanding the
foregoing, Powertel and/or Sellers shall have the right to continue to market
all such Tower Sites and Tower Structures on its or their own behalf, provided
that Powertel and Sellers shall provide CCIC and Buyer the right to review and
approve any prospective Tower Lease (or term sheets or binding or non-binding
letters of intent regarding the same); provided, however, such approval by CCIC
and Buyer shall not be unreasonably withheld or delayed. Failure by CCIC and
Buyer to approve any Tower Lease (or term sheets or binding or non-binding
letters of intent regarding the same) proposed by Powertel and/or Sellers within
5 business days after submittal of the terms thereof to CCIC and Buyer shall be
deemed approval. Any Tower Lease entered into by
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Powertel and/or Sellers in accordance with this Section 4.1(g) shall, upon such
execution, be included in Schedule 1.7 hereto. Powertel and/or Sellers shall
have the right to terminate, modify, amend, renew or extend Site Leases and
Tower Leases in the ordinary course of business prior to the Closing, provided
that Powertel and Sellers shall provide CCIC and Buyer the right to review and
approve any such prospective action; provided, however, such approval by CCIC
and Buyer shall not be unreasonably withheld or delayed; and provided further
that approval by CCIC and Buyer shall not be required for renewal or extension
of any Site Leases or Tower Leases to the extent deemed reasonably necessary by
Powertel or Sellers to avoid expiration or termination thereof. Failure by CCIC
and Buyer to approve any such prospective action proposed by Powertel and/or
Sellers within 5 business days after submittal of the terms thereof to CCIC and
Buyer shall be deemed approval.
(h) MEMORANDA OF AGREEMENT. From and after the effective date of
this Agreement, Powertel and Sellers shall use commercially reasonable efforts
to obtain and record a memorandum of lease or memorandum of agreement with
respect to each Leased Site for which a Site Lease or memorandum thereof is not
already recorded; such efforts shall continue until the earlier of (i) one year
after the Closing Date or (ii) when all but 30 or fewer Site Leases or memoranda
thereof have been duly recorded. Each such memorandum (a "MOA") shall be
executed by each of the parties to the Site Lease and recorded in the
appropriate records of the county where the Leased Site is located. A Site Lease
executed in recordable form may be recorded in lieu of recording a MOA. At the
Closing, Powertel, ▇▇▇▇▇▇▇ and ▇▇▇▇▇ shall execute and record forms of memoranda
of assignment and other mutually acceptable documents evidencing the assignment,
transfer and conveyance of Powertel's and Sellers' interests in the Site Leases
to Buyer; upon the request of Buyer, such memoranda and instruments may also or
alternatively be executed and recorded at the time any MOA may be recorded
subsequent to the Closing Date.
Powertel and Sellers jointly and severally shall indemnify, defend and
hold and save CCIC and Buyer and their respective officers, directors, employees
and agents harmless from and against any, Loss arising from a Third Party Claim
seeking or threatening judicial or non-judicial foreclosure of an Intervening
Encumbrance; provided, however, that (i) any claim for indemnification hereunder
must be made by the indemnified party (evidenced by written notice to Powertel
and Sellers) within two years of (A) the Closing Date in the case of each Site
Lease or MOA recorded prior thereto, or (B) the date the Site Lease or MOA is
recorded in the case of recordation taking place after the Closing Date (but in
no event later than three years after the Closing Date), and (ii) Powertel and
Sellers shall only be liable under the provisions of this Section 4.1(h) for an
aggregate amount up to $1,000,000. The provisions of Article 8 of this Agreement
shall otherwise apply and govern claims for indemnification under this Section
4.1(h).
4.2 AGREEMENTS OF CCIC AND BUYER PENDING THE CLOSING.
(a) COMMENCEMENT OF SECURITIES OFFERING; EVIDENCE OF FINANCING
ALTERNATIVE. On or before March 19, 1999, CCIC shall file a registration
statement (the "Registration Statement") with the Securities and Exchange
Commission ("SEC") seeking to register at least $225,000,000 of debt and/or
equity securities (such amount to be determined by
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reference to the "Proceeds to Company" column on the first page of the
prospectus that is part of the Registration Statement). The registration
statement for the offering (the "Proposed Offering") shall indicate that the
Proposed Offering is to be firmly underwritten by the managing underwriter (or
one of the co-managing underwriters) of CCIC's initial public offering of common
stock, or by another investment banking firm of national stature and reputation.
The Registration Statement shall indicate that at least $225,000,000 of the
proceeds from such Proposed Offering shall be dedicated to the payment of the
Purchase Price. CCIC shall use its reasonable best efforts to cause such
Registration Statement to be declared effective by the SEC as expeditiously as
possible following filing of the Registration Statement.
CCIC shall be required to provide Powertel with a Financing Assurance
(as defined below) within five days (but in no event later than June 4, 1999) of
the occurrence of any of the following: (i) on March 19, 1999, if CCIC has not
previously filed its Registration Statement on or before such date; (ii) the
Registration Statement, as filed or amended, indicates that less than
$225,000,000 of the proceeds from the Proposed Offering shall be dedicated to
the payment of the Purchase Price; (iii) the date that CCIC withdraws or
abandons the Registration Statement or otherwise determines not to proceed with
the offering contemplated by the Registration Statement; or (iv) on May 15, 1999
if CCIC has not commenced presentations to institutional investors using the
preliminary prospectus that is part of the Registration Statement by such date
or, after commencement of such presentations, the date that either CCIC or the
managing underwriters of the Proposed Offering terminates or abandons such
presentations and does not proceed to the pricing of the Proposed Offering. CCIC
shall promptly provide Powertel with written notice upon the occurrence of any
of the events set out in the preceding sentence. The term "Financing Assurance"
shall mean adequate written assurance, as determined by Powertel and the Sellers
in their sole but reasonable discretion acting in good faith, of the existence
of at least one alternative financing source which in Powertel's reasonable
judgment provides it adequate assurance that CCIC will have on hand a minimum of
$225,000,000 (not including amounts held in escrow pursuant to this Agreement)
in cash in the aggregate to apply to the Purchase Price at the Closing.
Powertel and Sellers shall have five days after delivery of such
Financing Assurance to, in writing, accept (an "Acceptance") or reject (a
"Rejection") such Financing Assurance (with such Acceptance or Rejection to be
determined in Powertel and Sellers' sole and reasonable discretion). Failure by
Powertel and Sellers to timely deliver an Acceptance or Rejection shall be
deemed to constitute their Acceptance of such Financing Assurance. In the event
Powertel and Sellers timely deliver to CCIC a Rejection of such Financing
Assurance, CCIC shall have ten days from the date of its receipt of the
Rejection (but in no event beyond June 4, 1999) to deliver the additional sum of
$225,000,000 to the Escrow Agent to be held in escrow pursuant to the terms of
the Escrow Agreement; at the Closing, the Escrow Agent shall deliver the
Purchase Price (as adjusted pursuant to the terms of this Agreement) to Powertel
and the Sellers, provided CCIC and Buyer close the transaction contemplated by
this Agreement. In the event CCIC fails to deliver such additional sum into
escrow as provided in the preceding sentence, Powertel and Sellers shall have
the right, by delivery of a written notice ("Termination Notice") delivered to
CCIC and Buyer upon the earlier of (i) June 4, 1999 (or the Closing Date, if
later); or (ii) within 5 business days following the last day of the ten day
period referred to in the preceding sentence, to terminate this Agreement with
no liability to Powertel or the Sellers. In the event Powertel and Sellers
terminate this Agreement pursuant to the preceding sentence: (i) on or prior to
May
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15, 1999, the Escrow Agent shall pay $10,000,000 to Powertel and Sellers as
liquidated damages hereunder and not as a penalty; (ii) after May 15, 1999 but
before June 4, 1999, the Escrow Agent shall pay $25,000,000 to Powertel and
Sellers as liquidated damages hereunder and not as a penalty (either payment, an
"Early Termination Payment"); and the balance of the Escrow Deposit shall be
delivered by the Escrow Agent to CCIC and Buyer. Any such termination of this
Agreement and the right to receive such applicable liquidated damages amount
described in the preceding sentence shall constitute the sole and exclusive
remedies of Powertel and Sellers under this Agreement, notwithstanding any other
provision of this Agreement (including Section 10.1(c)) to the contrary. If, on
June 4, 1999, or if later, the Closing Date, Powertel and Sellers have fulfilled
all of their obligations and conditions precedent to Closing in all material
respects and have not defaulted or breached their obligations hereunder, and
CCIC and Buyer are unable or unwilling to acquire the Assets upon the terms set
forth in this Agreement, including, without limitation, to make the deliveries
set forth in Section 7.3 and to deliver the Purchase Price (as adjusted pursuant
to the terms of this Agreement), then the Escrow Agent shall pay $50,000,000 of
the Escrow Deposit as liquidated damages to Powertel and Sellers (as provided in
Section 10.1(c)).
Notwithstanding Section 10.10 hereof, all notices to be delivered
pursuant to this Section 4.2(a) shall be in writing and must be given (and shall
be effective upon the date transmitted when given) by facsimile if confirmed
within twenty-four (24) hours thereafter by a signed original sent by nationally
recognized express courier service for next day delivery.
(b) CONDUCT OF BUSINESS. CCIC and Buyer shall cooperate with
Powertel and Sellers and use their reasonable efforts to cause all conditions to
the obligations of CCIC and Buyer under this Agreement to be satisfied on or
prior to the Closing Date.
(c) QUALIFICATION TO DO BUSINESS. Prior to the Closing Date,
Buyer shall qualify to do business in any jurisdiction where the ownership, use
or occupancy of the Assets would require Buyer to be so qualified, except where
the failure to be so qualified would not reasonably be expected to have a
Material Adverse Effect taken as a whole.
4.3 AGREEMENTS OF THE PARTIES PENDING CLOSING.
(a) APPROVALS AND CONSENTS AND REGULATORY FILINGS.
(i) Each party hereto agrees to use commercially reasonable
efforts to comply with all legal requirements which may be imposed on
such party with respect to the transactions contemplated by this
Agreement and the Transaction Documents and to obtain all consents,
orders and approvals of Governmental Authorities that may be or become
necessary for the consummation of the transactions contemplated by this
Agreement and the Transaction Documents, and each party will cooperate
fully with the other parties in promptly seeking to obtain all such
authorizations, consents, orders and approvals. Without limitation, if
required by applicable Law, CCIC, Buyer, Powertel and Sellers shall
each use commercially reasonable efforts to make an appropriate filing
of a Notification and Report Form pursuant to the HSR Act no later than
twenty (20) days after the date hereof and shall promptly respond to
any request for additional information with respect thereto. Each such
filing shall request early termination of the waiting
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period imposed by the HSR Act. Each of the parties shall furnish to the
others such necessary information and reasonable assistance as such
other party may request in connection with its preparation of any
filing or submission required under the HSR Act. The parties shall keep
each other apprised of the status of any communications with, and any
inquires or requests for additional information from, the Federal Trade
Commission and the Department of Justice and shall comply with any such
inquiry or request. The parties hereto shall use their reasonable
efforts to obtain any clearance required under the HSR Act for the
consummation of the transactions contemplated by this Agreement. For
purposes of this Section 4.3(a)(i) reasonable efforts shall not include
CCIC's or Buyer's agreement to hold separate and divest any of the
Assets or CCIC's or Buyer's other properties or operations or those of
its Affiliates. In the event approval under the HSR Act is conditioned
upon CCIC or Buyer or their respective Affiliates divesting all or any
part of the Assets or other properties or operations, CCIC and Buyer
shall have the right to terminate this Agreement (and receive the
return of the Escrow Deposit) by providing written notice of such
election to Powertel and Sellers. Should CCIC and Buyer terminate the
Agreement pursuant to this Section, no party shall have any further
obligations or commitments under this Agreement.
(ii) Notwithstanding anything else to the contrary contained
in this Agreement, none of the parties to this Agreement shall have any
obligation to oppose, challenge or appeal any suit, action or
proceeding by any Governmental Authority before any court or
Governmental Authority, agency or tribunal, domestic or foreign or any
order or ruling by any such body (A) seeking to restrain or prohibit or
restraining or prohibiting the consummation of the transactions
contemplated by this Agreement and the Transaction Documents, or (B)
seeking to compel or compelling CCIC, Buyer, Powertel or Sellers, or
any of their respective Affiliates, to dispose of, grant rights in
respect of, or hold separate any portion of the business or assets of
CCIC, Buyer, Powertel or Sellers or any of their respective Affiliates.
(b) SEC RULES. In connection with CCIC's Proposed Offering of
securities referred to in Section 4.2, the parties acknowledge that CCIC and/or
Buyer will need to comply with certain SEC rules, including Rule S-X.
Accordingly, Powertel and Sellers agree to provide CCIC's and ▇▇▇▇▇'s auditors
access to books and records related to such historical operations, and to
provide assistance to such auditors in the completion at CCIC's or Buyer's
expense of their examination and audit, including customary representation
letters as prescribed by the American Institute of Certified Public Accountants
related to the financial statements. Notwithstanding any provision of this
Agreement to the contrary (including Section 10.17), each party to this
Agreement shall have the right to disclose such information regarding this
Agreement and the transactions contemplated hereby as may be required by
applicable Law, including federal securities law and stock exchange rules;
provided, however, that Powertel shall have the right to review and approve of
any disclosure regarding Powertel or the transaction contemplated hereby at
least one business day prior to the filing of any documents with the SEC or the
distribution of offering materials to private investors (such approval not to be
unreasonably withheld).
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(c) PRESS RELEASES. At the time this Agreement is executed by
the parties, or immediately thereafter, notice to third parties of the
transactions contemplated by this Agreement shall be given to the public
pursuant to a mutually agreeable form of press release.
ARTICLE 5
CONDITIONS PRECEDENT TO THE CLOSING
5.1 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF CCIC AND BUYER. All
obligations of CCIC and Buyer under this Agreement are subject to the
fulfillment or satisfaction, prior to or at the Closing, of each of the
following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES TRUE AS OF THE CLOSING DATE.
The representations and warranties of Powertel and/or Sellers contained in this
Agreement or in any Schedule, certificate or document delivered by Powertel or
Sellers to Buyer pursuant to the provisions hereof shall have been true in all
material respects on the date hereof to the extent required by the terms hereof
and shall be true in all material respects on the Closing Date with the same
effect as though such representations and warranties were made as of such date,
in each case taking into account any Schedule updates after the date hereof
contemplated by Section 4.1(b).
(b) COMPLIANCE WITH THIS AGREEMENT. Powertel and Sellers shall
have performed and complied in all material respects with all agreements and
conditions required by this Agreement to be performed or complied with by them
prior to or at the Closing, except for non-performances or non-compliances which
result in an adjustment pursuant to Section 3.2 hereof.
(c) CLOSING CERTIFICATES. CCIC and Buyer shall have received the
Closing Certificate, and other certificates from Powertel and Sellers dated the
Closing Date certifying in such detail as CCIC and Buyer may reasonably request
that the conditions specified in Sections 5.1(a) and (b) hereof have been
fulfilled.
(d) NO THREATENED OR PENDING LITIGATION. On the Closing Date, no
suit, action or other proceeding, or injunction or final judgment relating
thereto, shall be threatened in writing or be pending before any court or
governmental or regulatory official, body or authority in which a Person (other
than a party hereto or their respective Affiliates) seeks to restrain, enjoin or
prohibit the closing of the transactions contemplated hereby or otherwise seeks
to obtain damages or other relief as a result of or in respect of the
transactions contemplated hereby.
(e) CONSENTS AND APPROVALS. The waiting period required under the
HSR Act for the transactions contemplated hereby shall have expired or been
terminated; and each governmental, judicial or regulatory official, body or
authority having jurisdiction over the parties hereto to the extent that their
consent or approval is required or necessary under applicable Court Orders or
Laws for the consummation of the transactions contemplated hereby in the manner
herein provided, shall have granted such consent or approval.
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(f) MATERIAL ADVERSE CHANGES. No Event shall have occurred which
has or had a Material Adverse Effect taken as a whole on the Assets or the
Assumed Liabilities.
If one or more of the foregoing conditions precedent is not fulfilled or
satisfied prior to or at the Closing, provided CCIC and Buyer have not otherwise
defaulted in or breached their obligations under this Agreement and have
fulfilled their obligations and conditions precedent to Closing in all material
respects, then CCIC and Buyer shall have the right to (i) proceed to Closing, in
which case the unfulfilled or unsatisfied condition precedent shall be waived or
deemed waived by CCIC and Buyer, (ii) terminate this Agreement, in which event
(except as provided in the next subparagraph) this Agreement shall be null and
void and of no further force or effect (except for Sections 6.1(i), 6.3(d),
4.3(c), 10.5 and 10.17 which shall continue) and the Escrow Deposit shall be
returned to CCIC and Buyer, or (iii) exercise any other rights or remedies
otherwise set out in this Agreement.
5.2 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF POWERTEL AND SELLERS.
All obligations of Powertel and Sellers under this Agreement are subject to the
fulfillment or satisfaction, prior to or at the Closing, of each of the
following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES TRUE AS OF THE CLOSING DATE.
The representations and warranties of CCIC and Buyer contained in this Agreement
or in any Schedule, certificate or document delivered by CCIC or Buyer to
Powertel and Sellers pursuant to the provisions hereof shall have been true in
all material respects on the date hereof and shall be true in all material
respects on the Closing Date with the same effect as though such representations
and warranties were made as of such date.
(b) COMPLIANCE WITH THIS AGREEMENT. CCIC and Buyer shall have
performed and complied in all material respects with all agreements and
conditions required by this Agreement to be performed or complied with by them
prior to or at the Closing.
(c) CLOSING CERTIFICATES. Powertel and Sellers shall have received
certificates from CCIC and Buyer, dated the Closing Date, certifying in such
detail as Powertel and Sellers may reasonably request that the conditions
specified in Sections 5.2(a) and (b) hereof have been fulfilled.
(d) NO THREATENED OR PENDING LITIGATION. On the Closing Date, no
suit, action or other proceeding, or injunction or final judgment relating
thereto, shall be threatened in writing or be pending before any court or
governmental or regulatory official, body or authority in which a Person (other
than a party hereto or their respective Affiliates) seeks to restrain, enjoin or
prohibit the closing of the transactions contemplated hereby or otherwise seeks
to obtain damages or other relief as a result of or in respect of the
transactions contemplated hereby.
(e) CONSENTS AND APPROVALS. The waiting period required under the
HSR Act for the transactions contemplated hereby shall have expired or been
terminated; and each governmental, judicial or regulatory official, body or
authority having jurisdiction over the parties hereto to the extent that their
consent or approval is required or necessary under applicable Court Orders or
Laws for the consummation of the transactions contemplated hereby in the manner
herein provided, shall have granted such consent or approval.
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If notwithstanding the fact that one or more of the foregoing conditions
precedent may not have been fulfilled or satisfied prior to or at the Closing,
and CCIC and Buyer are nevertheless ready, willing and able at the Closing to
acquire the Assets upon the terms set forth in this Agreement, to make the
deliveries set forth in Section 7.3 and to pay the Purchase Price (as adjusted
as provided in this Agreement), then at the option of Powertel and Sellers
either (i) the Closing shall occur and the unfulfilled or unsatisfied conditions
precedent shall be waived or deemed waived by Powertel and Sellers, or (ii)
Powertel and Sellers may elect to terminate this Agreement, in which event this
Agreement shall be null and void and of no further force or effect and the
Escrow Deposit shall be refunded to CCIC and Buyer. If, however, CCIC and Buyer
are unable or unwilling to deliver the Purchase Price (as adjusted in this
Agreement) on the Closing Date, and (i) prior to such date Powertel and Sellers
have failed to exercise any remedy available to them pursuant to Section
10.1(b), and (ii) Powertel and Sellers have fulfilled all of their obligations
and conditions precedent to Closing in all material respects and have not
defaulted or breached their obligations hereunder, then, as provided in Section
10.1(c), the Escrow Agent shall pay Powertel and Sellers $50,000,000 from the
Escrow Deposit as liquidated damages and not as a penalty.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES OF POWERTEL AND SELLERS. Except as
disclosed to CCIC and Buyer in (i) the Schedules to this Agreement (with each
disclosure made in the Schedules in response to any Section of these
representations and warranties being deemed to be disclosed in response to, and
to qualify, each other Section of these representations and warranties), (ii)
the documents and other materials furnished or otherwise made available to CCIC
and Buyer prior to the effective date of this Agreement, including, without
limitation, the title policies, commitments, searches, reports, environmental
assessments, NEPA checklists and inspection reports, made available in CD-ROM
format or otherwise, and (iii) the Missing Information or executed agreements,
documents, reports or instruments enclosed for review by CCIC and Buyer in Cure
Notices delivered to CCIC and Buyer prior to the Closing Date, and subject in
all respects to any rights or obligations under this Agreement of Powertel and
Sellers to update and supplement any such Schedules prior to Closing, Powertel
and Sellers jointly and severally hereby represent and warrant to CCIC and Buyer
as of both the effective date of this Agreement and the Closing Date, as
follows:
(a) CORPORATE. Powertel is a corporation, and the Sellers are
limited liability companies, duly organized, validly existing and in good
standing under the laws of the State of Delaware. Powertel and Sellers are duly
qualified to do business in any jurisdiction where the ownership, use or
occupancy of the Assets would require them to be so qualified, except where the
failure to be so qualified would not reasonably be expected to have a Material
Adverse Effect taken as a whole. Powertel and Sellers have the requisite
corporate and limited liability company, as the case may be, power and authority
to own, lease, use and occupy the Assets as they are now being owned, leased,
used and occupied.
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(b) AUTHORIZATION. Powertel and Sellers have the requisite
corporate and limited liability company, as the case may be, power and authority
to execute and deliver this Agreement and the Transaction Documents to which
they are a party and to perform the transactions performed or to be performed by
them hereunder and thereunder. Such execution, delivery and performance by
Powertel and Sellers have been duly authorized by all necessary corporate and
limited liability company action, as the case may be. This Agreement, and the
Transaction Documents (when entered into), constitute valid and binding
obligations of Powertel and Sellers, enforceable against Powertel and Sellers in
accordance with their respective terms.
(c) CONSENTS AND APPROVALS. Except for compliance with the HSR
Act, neither the execution and delivery by Powertel and Sellers of this
Agreement and the Transaction Documents to which they are a party, nor the
performance of the transactions performed or to be performed by Powertel and/or
Sellers, will require any filing, consent or approval or constitute a Default
under (i) any Law or Court Order to which Powertel and/or Sellers or any of the
Assets is subject, or (ii) the Charter Documents or bylaws of Powertel or
Sellers.
(d) LEGAL PROCEEDINGS AND COMPLIANCE WITH LAWS. Except as set
forth in Schedule 6.1(d), there is no Litigation that is pending or, to the
knowledge of Powertel and Sellers threatened, against Powertel or Sellers (or
any of their Affiliates), with respect to, or involving, any of the Assets that
has had, or could reasonably be expected to have, a Material Adverse Effect.
Except as set forth in Schedule 6.1(d), neither Powertel nor Sellers (nor any of
their Affiliates who have previously owned any of the Assets), with respect to
the Assets, are presently subject to the provisions of any Court Order and, to
the knowledge of Powertel and Sellers, there has been no Default with respect to
any Court Order applicable to Powertel and Sellers with respect to the Assets,
except for any such Default that has not had, or could not reasonably be
expected to have, a Material Adverse Effect. Except as set forth in Schedule
6.1(d), neither Powertel nor Sellers (nor any of their Affiliates who have
previously owned any of the Assets) have received any notices from any
Governmental Authority regarding any alleged Defaults relating to the ownership,
use or occupancy of the Assets under any applicable Laws, and, to the knowledge
of Powertel and Sellers, their ownership, use and occupancy of the Assets are in
material compliance with applicable Laws, except for such failure of compliance
that has not resulted in, or could not reasonably be expected to result in, a
Material Adverse Effect.
(e) CONTRACTS. Schedule 6.1(e) identifies all Contracts of the
following types to which Powertel and/or Sellers are a party, or by which any of
them are bound, with respect to the Assets (other than any Contract that is
terminable by a party on not more than sixty (60) days' notice without any
Liability or any Contract under which the obligation of a party (fulfilled and
to be fulfilled) involves an amount of less than $50,000 (a "Minor Contract")):
(i) Contracts which are Site Leases, disclosing for each the
location of the related Tower Site, the identity of the lessor,
identification of the related Tower Site by name and number, and the
amount of the rental paid to the lessor by Powertel or the Sellers
thereunder for the month ended not more than forty-five (45) days prior
to the date of this Agreement;
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(ii) Contracts which are Tower Leases, disclosing for each
the location of the related Tower Site, the identity of the lessee,
identification of the related Tower Site by name and number, and the
amount of the rental paid by the lessee to Powertel or the Sellers
thereunder for the month ended not more than forty-five (45) days prior
to the date of this Agreement;
(iii) To the knowledge of Powertel and Sellers, all Contracts
which are Tower Equipment Leases, disclosing for each the location of
the related Tower Site, the type of equipment leased, the identity of
the lessor, and the amount of the rental paid to the lessor by Powertel
or the Sellers thereunder for the month ended not more than forty-five
(45) days prior to the date of this Agreement; and
(iv) To the knowledge of Powertel and Sellers, all Contracts
which are Tower Service Contracts, disclosing for each the location of
the related Tower Site, the identity of the service provider, the type
of service provided, and the amount of the fees paid by Powertel or the
Sellers to the service provider thereunder for the month ended not more
than forty-five (45) days prior to the date of this Agreement.
Except for interim assignments from Powertel or its Affiliates to Sellers and
except as identified in Schedule 6.1(e), and subject to any rights of Powertel
and Sellers to amend, modify, renew and extend Site Leases and Tower Leases
pursuant to this Agreement prior to Closing, the Contracts (including the Sites
Leases and Tower Leases) have not been assigned, modified or amended.
(f) AVAILABILITY OF DOCUMENTS. To the knowledge of Powertel
and Sellers, and except for the Missing Information with respect to the
Incomplete Sites (but including any such Missing Information which after the
effective date of this Agreement is delivered to CCIC and Buyer), Powertel and
Sellers have made available to CCIC and Buyer copies of all documents relating
to the Assets to the extent in the possession or under the custody or control of
Powertel or the Sellers, including without limitation all of the Contracts
identified in the Schedules to this Section 6.1. To the knowledge of Powertel
and Sellers, such copies are true and complete in all material respects and
include all amendments, supplements and modifications thereto or waivers
currently in effect thereunder.
(g) NO UNDISCLOSED LIABILITIES. There have been no liabilities
or obligations (whether pursuant to Contracts or otherwise) of any kind
whatsoever (whether accrued, contingent, absolute, determined, determinable or
otherwise) incurred by Powertel or Sellers with respect to the Assets since
December 31, 1998 and which have had or could reasonably be expected to have a
Material Adverse Effect taken as a whole, other than (i) liabilities or
obligations disclosed or provided for in Powertel's or Sellers' balance sheets
or in the notes thereto delivered to CCIC and Buyer, (ii) non-material
liabilities or obligations incurred or that have arisen in the ordinary course
of business consistent with past practice, or (iii) liabilities or obligations
under this Agreement or incurred in connection with the transactions
contemplated hereby.
(h) TAXES. Powertel and Sellers have paid, or will pay as of the
Closing, any and all Taxes which may be due, or which may have been assessed but
are not yet due (subject to
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provision and apportionment in accordance with Section 2.7 hereof), with respect
to the Assets. All returns have been filed and there does not exist, and to the
knowledge of Powertel or Sellers will not exist as of the Closing, any tax
Liability (except for sales or transfer taxes which may be due as a result of
the transactions contemplated by this Agreement) which may be asserted by any
Governmental Authority against CCIC and Buyer or the Assets.
(i) BROKER OR FINDER. No Person assisted in or brought about
the negotiation of this Agreement in the capacity of investment banker, broker,
agent or finder or in any similar capacity on behalf of Powertel or Sellers.
(j) BOOKS AND RECORDS. Copies of the books and records of
Powertel and Sellers provided to CCIC and Buyer prior to the effective date of
this Agreement, including those in CD-ROM format, are true and correct copies of
Powertel's and Sellers' books and records as regards the Assets, including all
environmental and title (and title exception) information in the possession, or
under the custody and control, of Powertel and Sellers. Although Powertel and
Sellers have used commercially reasonable efforts to locate and furnish to CCIC
and Buyer for inspection all of their books and records relating to the Assets,
Powertel and Sellers make no warranty or representation that the books and
records made available to CCIC and Buyer constitute all of such books and
records relating to the Assets. Powertel and Sellers agree to continue using
commercially reasonable efforts to locate any Missing Information and other
books and records of Powertel and Sellers and deliver the foregoing to CCIC and
Buyer for review prior to Closing. Powertel and Sellers agree to supplement the
books and records of Powertel and Sellers prior to Closing with any additional
documents relating to the Assets which may come into the possession or under the
custody or control of Powertel or Sellers, or of which Powertel or Sellers have
knowledge.
(k) ABSENCE OF CERTAIN CHANGES OR EVENTS. Since December 31,
1998, Powertel and Sellers have made reasonable efforts consistent with past
practice to preserve relationships with lessors, licensors, tenants, licensees,
lessees and others with whom Powertel and/or Sellers have a business or
financial relationship with respect to the Assets. Except as set forth on
Schedule 6.1(k), Powertel and Sellers have conducted their operations regarding
the Assets in the ordinary course of business consistent with past practice
(including with respect to the collection of receivables, payment of payables
and other liabilities and capital expenditures).
(l) POWERTEL CREDIT FACILITY. None of the Assets were purchased
with advances under the Powertel PCS Credit Agreement, and none of the Assets
are subject to any Encumbrance created by or arising out of the Powertel PCS
Credit Agreement.
(m) IN-PROGRESS SITES. As of the effective date of this
Agreement, none of the Tower Sites set forth in Schedules 1.1, 1.2 or 1.3 are
In-Progress Sites.
References made in Section 6.1 to various specific Schedules are for the purpose
of reference only and are not in limitation of the other qualifications set
forth in Section 6.1, including the right of Powertel and Sellers to update and
supplement the Schedules as provided in Section 4.1(b).
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6.2 REPRESENTATIONS AND WARRANTIES OF POWERTEL AND SELLERS AS OF THE
CLOSING DATE. Subject to the terms of Section 2.11(b), at the Closing, Powertel
and Sellers shall execute and deliver to CCIC and Buyer a closing certificate
(the "Closing Certificate"), whereby Powertel and Sellers make certain
representations and warranties to CCIC and Buyer as of the Closing Date. Except
as disclosed to CCIC and Buyer in (i) the Schedules to this Agreement (with each
disclosure made in the Schedules in response to any Section of these
representations and warranties being deemed to be disclosed in response to, and
to qualify, each other Section of these representations and warranties), as such
Schedules have been updated and supplemented prior to Closing pursuant to the
terms of this Agreement, and (ii) the documents furnished or otherwise made
available to CCIC and Buyer prior to the Closing, including, without limitation,
the title policies, commitments, searches, reports, environmental assessments,
NEPA checklists and inspection reports, made available in CD-ROM format or
otherwise, in the Closing Certificate Powertel and Sellers shall jointly and
severally represent and warrant to CCIC and Buyer as of the Closing Date as
follows:
(a) REAFFIRMATION. Powertel and Sellers shall reaffirm and
restate each of their representations and warranties set forth in Section 6.1.
(b) TITLE TO ASSETS; CONDITION OF ASSETS. Powertel and Sellers
own and will transfer to Buyer at the Closing good and marketable title to the
Owned Sites, subject to the Permitted Encumbrances. Powertel and Sellers own and
will transfer to Buyer at the Closing a valid leasehold interest in the Leased
Sites, subject to the Permitted Encumbrances. Powertel and Sellers own and shall
also transfer at Closing (with special warranty) the other Assets described in
this Agreement. Except as may be provided in the Site Leases and other Permitted
Encumbrances, Powertel's and Sellers' ownership of the Assets includes the right
to lease or sublease to third parties space on the Tower Sites and Tower
Structures. Powertel and Sellers make no representation or warranty as to the
effect of the Permitted Encumbrances on Buyer's use, ownership or operation of
the Assets; provided, however, that absent a default by Buyer or CCIC in the
payment or performance of any Assumed Liabilities which arise from Permitted
Encumbrances adversely affecting any of the Assets, neither Powertel nor Sellers
(or their respective Affiliates) shall have any claim against CCIC or Buyer for
breach of any warranty or representation contained in the Master Lease regarding
CCIC's or Buyer's ownership and right to lease any of the Assets, or for breach
of any covenant of quiet enjoyment contained in the Master Lease, to the extent
such breach arises from the existence or exercise of Permitted Encumbrances as
of the Closing adversely affecting the use or occupancy of the subject Assets
pursuant to the terms of the Master Lease. The structural integrity, operating
condition and repair of the Tower Structures as of the Closing Date will be
satisfactory to Powertel and Sellers in all respects for the purpose of
supporting and operating their antennae equipment and facilities pursuant to the
terms of the Master Lease; provided, however, the foregoing is not intended to
limit any subsequent repair and maintenance obligations of CCIC or Buyer
pursuant to the terms of the Master Lease.
(c) REAL PROPERTY.
(i) ZONING. None of Powertel, Sellers or their respective
Affiliates who may have previously owned any of the Assets has received
any written notice of non-compliance with any applicable zoning or
other land use requirements.
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(ii) UTILITY SERVICES. The water, electric, gas and sewer
utility services and the septic tank and storm drainage facilities
currently available to the Tower Sites are adequate for the present use
of such Tower Sites by Powertel and Sellers, are not being
misappropriated by Powertel or Sellers but rather are being supplied to
Powertel and Sellers by utility companies or municipalities pursuant to
valid and enforceable contracts or tariffs. To the knowledge of
Powertel and Sellers, there is no current condition which will result
in the termination of the present access from the Tower Sites to such
utility services and other facilities.
(iii) ACCESS. To the knowledge of Powertel and Sellers, no
action is pending or threatened which would have the effect of
terminating or limiting Governmental Permits (where required),
easements and rights-of-way which are necessary to provide vehicular
and pedestrian ingress and egress to and from the Tower Sites for the
purposes used by Powertel and Sellers in the ordinary course. None of
Powertel, Sellers or their respective Affiliates who may have
previously owned the Assets has received written notice from any
Governmental Authority or any other Person of any such pending or
threatened action.
(iv) EMINENT DOMAIN. None of Powertel, Sellers or their
respective Affiliates who may have previously owned any of the Assets
has received written notice that any Governmental Authority having the
power of eminent domain over any of the real property included in the
Assets has commenced or intends to exercise the power of eminent domain
or a similar power with respect to all or any part of such real
property.
(v) PUBLIC IMPROVEMENTS. To the knowledge of Powertel and
Sellers, no work for municipal improvements has been commenced on or in
connection with the Owned Sites included in the Assets (for which
general, special or other assessments will be made). None of Powertel,
Sellers or their respective Affiliates who may have previously owned
any of the Assets has received any written notice that any assessment
for public improvements has been made against any such real property
which remains unpaid.
(d) GOVERNMENTAL PERMITS. To the knowledge of Powertel and
Sellers, except as set forth on Schedule 6.2(d), Powertel and Sellers have
obtained all Governmental Permits that are required for the ownership, use or
occupancy of the Assets as now being conducted, all of which are in full force
and effect; Powertel and Sellers have complied with all such Governmental
Permits and applicable Laws; and the Governmental Permits do not restrict or
preclude use of the Tower Sites (and related Assets) for purposes of co-location
or subleasing to third party tenants. None of Powertel, Sellers or any of their
respective Affiliates who may have previously owned any of the Assets has
received any written notice from any Governmental Authority or any other Person
that there exists any Default with respect to any Governmental Permits.
(e) DEFAULTS UNDER CONTRACTS. Except as identified in Schedule
6.2(e), neither Powertel nor Sellers (nor any of their Affiliates who may be a
party to any Contract) have received any written communication from, or given
any written communication to, any other
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party, indicating that Powertel or Sellers (or such Affiliates) or such other
party, as the case may be, is in Default under any Contract. Except as
identified in Schedule 6.2(e), to the knowledge of Powertel and Sellers, neither
Powertel nor Sellers (nor any of their Affiliates who may be a party to any
Contract) nor any of the other parties to any such Contract is in Default
thereunder. Except as identified in Schedule 6.2(e), each such Contract,
including, without limitation, each Site Lease, is in full force and effect and
is enforceable against the other parties thereto in accordance with its terms,
except to the extent that such enforcement may be limited by applicable
bankruptcy, reorganization, insolvency and other Laws of general application
affecting enforcement of creditors' rights generally. No written communication
has been received from or given to Powertel, Sellers or any party to or assignee
of the Site Leases, indicating that Powertel or Sellers or any other party to or
assignee of the Site Leases is in Default thereunder, and to the knowledge of
Powertel and Sellers, no Default exists thereunder except as identified in such
Schedule.
(f) ENVIRONMENTAL MATTERS. Except as set forth on Schedule
6.2(f), there is no pending Litigation, or to the knowledge of Powertel or the
Sellers, threatened Litigation against Powertel, Sellers or their respective
Affiliates, relating to the ownership, use or occupancy of the Assets under any
Environmental Law. Except as set forth on Schedule 6.2(f) and except as may be
reasonably necessary to remedy any Defective Sites or supply any Missing
Information, none of Powertel, the Sellers or their respective Affiliates is
currently investigating or remediating any Environmental Condition in connection
with any of the Assets.
(g) CONSTRUCTION COMPLETED. Except with respect to In-Progress
Sites, all Tower Structures have been delivered to the Tower Sites, and all
installation and construction with respect thereto is complete and, to the
knowledge of Powertel and Sellers, performed in accordance with applicable Laws
and Governmental Permits. As of any Closing of the In-Progress Sites, unless
CCIC and Buyer elect to close prior to completion, all Tower Structures will
have been delivered to the Tower Sites and all installation and construction
with respect thereto will be complete and, to the knowledge of Powertel and
Sellers, performed in accordance with applicable Laws and Governmental Permits.
(h) WETLANDS AND FLOOD PLAIN. Except as identified in Schedule
6.2(h), to the knowledge of Powertel and Sellers, no Tower Structures are
located in wetlands or flood plain areas except in conformity with applicable
Laws and Governmental Permits.
References made in Section 6.2 to various specific Schedules are for the purpose
of reference only and are not in limitation of the other qualifications set
forth in Section 6.2, including the right of Powertel and Sellers to update and
supplement the Schedules as provided in Section 4.1(b).
6.3 REPRESENTATIONS AND WARRANTIES OF CCIC AND BUYER. CCIC and Buyer
hereby jointly and severally represent and warrant to Powertel and Sellers as
follows:
(a) CORPORATE. CCIC and Buyer are corporations duly organized,
validly existing and in good standing under the laws of the State of Delaware.
CCIC and Buyer have all requisite corporate power and authority to carry on
their respective businesses as they have been and are now being conducted and to
own, lease and operate the properties and assets used in
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connection therewith. Buyer is a wholly owned subsidiary of Crown Communication
Inc. Buyer is a single purpose entity being used for the purpose of owning,
maintaining and operating the Assets, and other purposes contemplated by this
Agreement or ancillary thereto.
(b) AUTHORIZATION. As of the effective date of this Agreement,
Buyer is only qualified to do business in the state of Delaware. Subject to the
qualification in the preceding sentence, CCIC and Buyer have the requisite
corporate power and authority to execute and deliver this Agreement and the
Transaction Documents to which they are a party and to perform the transactions
performed or to be performed by them hereunder and thereunder. Such execution,
delivery and performance by CCIC and Buyer have been duly authorized by all
necessary corporate action. This Agreement, and the Transaction Documents (when
entered into), constitute valid and binding obligations of CCIC and Buyer,
enforceable against CCIC and Buyer in accordance with their respective terms.
(c) CONSENTS AND APPROVALS. Except for compliance with the HSR
Act and qualification of the Buyer in the States of Georgia, Alabama, Florida,
Kentucky and Tennessee by the Closing Date, neither the execution and delivery
by CCIC and Buyer of this Agreement and the Transaction Documents to which they
are a party, nor the performance of the transactions performed or to be
performed by CCIC and/or Buyer, will require any filing, consent or approval or
constitute a Default under (i) any Law or Court Order to which CCIC and/or Buyer
or any of their respective properties and assets are subject, or (ii) the
Charter Documents or bylaws of CCIC or Buyer.
(d) BROKER OR FINDER. No Person assisted in or brought about the
negotiation of this Agreement in the capacity of investment banker, broker,
agent or finder or in any similar capacity on behalf of Buyer.
(e) NO OTHER REPRESENTATIONS OR WARRANTIES. Except for the
representations and warranties expressly set forth in Section 6.3, the Master
Lease, the CCIC Guaranty and the Escrow Agreement, neither CCIC nor Buyer is
making any representations or warranties to Powertel or Sellers, express or
implied, in connection with the transactions contemplated by this Agreement.
6.4 ASSETS IN "AS IS" CONDITION. SUBJECT TO THE REPRESENTATIONS AND
WARRANTIES OF POWERTEL AND THE SELLERS SET FORTH IN THIS AGREEMENT, CCIC AND
BUYER JOINTLY AND SEVERALLY ACKNOWLEDGE AND AGREE THAT THE ASSETS ARE BEING
SOLD, ASSIGNED AND CONVEYED HEREUNDER ON AN "AS IS" AND "WHERE IS" BASIS AS OF
THE CLOSING DATE. WITHOUT LIMITING THE FOREGOING, EXCEPT FOR THE REPRESENTATIONS
AND WARRANTIES OF POWERTEL AND THE SELLERS SET FORTH IN THIS AGREEMENT, CCIC AND
BUYER EACH ACKNOWLEDGE AND AGREE THAT NEITHER POWERTEL NOR ANY SELLER HAS MADE,
IS MAKING OR IS DEEMED TO HAVE MADE OR BE MAKING ANY REPRESENTATION OR WARRANTY
WITH RESPECT TO THE ASSETS (EXCEPT WITH RESPECT TO THE LIMITED TITLE WARRANTY TO
BE GIVEN BY POWERTEL AND SELLERS AS REGARDS THE ASSETS), INCLUDING, WORKMANSHIP,
CONDITION, DESIGN, STRUCTURAL INTEGRITY, OPERATION OR FITNESS FOR USE OR A
PARTICULAR PURPOSE OF THE ASSETS OR ANY PORTION THEREOF, AS TO
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THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, AS TO THE
ABSENCE OF ANY CONDITION OR OTHER CHARACTERISTIC RELATING TO ENVIRONMENTAL OR
SAFETY MATTERS, AS TO THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK,
COPYRIGHT OR OTHER PROPERTY RIGHT, WHETHER TANGIBLE OR INTANGIBLE OR REAL OR
PERSONAL, AS TO ANY EASEMENTS, COVENANTS, CONDITIONS OR RESTRICTIONS AFFECTING
THE ASSETS, AS TO ANY AUTHORIZATIONS OR CONSENTS OF THIRD PARTIES TO ANY
TRANSFER OR ASSIGNMENTS OF ANY OF THE ASSETS, INCLUDING, WITHOUT LIMITATION, ANY
CONTRACTS, SITE LEASES, TOWER LEASES, TOWER EQUIPMENT LEASES, AND TOWER SERVICE
CONTRACTS INCLUDED IN THE ASSETS, OR AS TO THE ABSENCE OF OBLIGATIONS BASED ON
STRICT LIABILITY IN TORT, OR ANY OTHER REPRESENTATIONS AND WARRANTIES.
6.5 SURVIVAL. All representations and warranties contained in this
Agreement or in any Schedule, Exhibit, certificate, agreement, document or
statement delivered pursuant hereto shall survive the Closing Date for a period
of two years.
6.6 DEFINITIONS OF "KNOWLEDGE" AND "BELIEF". When reference is made
in this Agreement to Powertel's or Sellers' or any one of their "knowledge" or
"belief," such terms mean the actual knowledge of a fact or constructive
knowledge, if a reasonably prudent person in a like position would have known or
should have known the fact, of ▇▇▇▇▇ ▇▇▇▇▇, President and CEO of Powertel; ▇▇▇▇
▇▇▇▇▇, Executive Vice President and Chief Financial Officer of Powertel; ▇▇▇▇
▇▇▇▇▇▇, Vice President and General Counsel of Powertel; ▇▇▇▇▇▇ ▇▇▇▇, Vice
President Operations, Powertel/Birmingham, Inc.; ▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
Operations, Powertel/Jacksonville, Inc.; ▇▇▇ ▇▇▇▇▇▇▇, former Vice President
Operations, Powertel/Atlanta, Inc.; ▇▇▇▇ ▇▇▇▇▇, Vice President Operations,
Powertel/Memphis, Inc.; and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, Vice President Operations,
Powertel/Atlanta, Inc.; provided, however, that neither Powertel nor Sellers
shall have any greater duty to investigate or acquire knowledge because of the
existence of this Agreement than would apply if this Agreement had never been
executed and delivered, except that when such term is used to qualify the
matters set forth on the Schedules to this Agreement, Powertel and Sellers must
make such investigation in preparing or modifying such Schedules as is
reasonable under the circumstances, giving due consideration to the size and
nature of the transaction contemplated herein. Powertel and Sellers represent
that the officers named above are the officers which they believe in good faith
to be the officers who are most likely, in the performance of their duties, to
have knowledge.
6.7 RELIANCE AND NOTIFICATION. Each party to this Agreement
acknowledges that the other parties have relied and will rely on the
representations and warranties set forth in this Agreement in executing this
Agreement and in closing the transactions contemplated by this Agreement, and
during the term of this Agreement agree to notify the other parties promptly in
the event of any change affecting any of such representations and warranties.
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ARTICLE 7
CLOSING; DELIVERIES OF THE PARTIES AT CLOSING
7.1 THE CLOSING. The consummation of the transactions provided for in
this Agreement shall occur on the Closing Date, or any other date upon which all
parties may agree in writing, at a mutually agreeable time at the offices of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, L.L.P. in Atlanta, Georgia.
7.2 DELIVERIES AT THE CLOSING BY POWERTEL AND SELLERS. At the
Closing, Powertel and Sellers shall deliver to CCIC and Buyer the following:
(a) the Assets;
(b) the Required Consents to the extent actually received by
Powertel and/or the Sellers as of the Closing Date;
(c) special warranty deeds and assignments, bills of sale,
endorsements, and other good and sufficient instruments of sale, conveyance,
transfer and assignment in form and substance reasonably satisfactory to CCIC
and Buyer and their counsel sufficient to sell, convey, transfer and assign to
Buyer title to the Assets, subject only to the Permitted Encumbrances;
(d) the Master Lease, in the form attached hereto as Exhibit "A";
(e) the Powertel Guaranty, in the form attached hereto as Exhibit
"C";
(f) the Closing Certificate;
(g) certified copies of resolutions, duly adopted by the Board of
Directors of Powertel and the Boards of Managers and Members of each of the
Sellers, which shall be in full force and effect at the time of the Closing,
authorizing the execution, delivery and performance by Powertel and Sellers of
this Agreement and the consummation of the transactions contemplated hereby and
any other authorization required to transfer the Assets;
(h) a certificate from Powertel and Sellers signed by the
respective executive officers of Powertel and Sellers, as applicable, to the
effect set forth in clauses (a) and (b) of Section 5.1;
(i) an opinion dated as of the Closing Date of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, L.L.P., counsel to Powertel and Sellers, with respect to
such matters as CCIC and Buyer may reasonably request, in form and substance
reasonably satisfactory to CCIC and Buyer;
(j) a FIRPTA Affidavit ("FIRPTA Affidavit") in the form of
Exhibit "E" attached hereto and made a part hereof for all purposes; and
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(k) such other documents or instruments as CCIC and Buyer or
their counsel may reasonably request to demonstrate satisfaction of the
conditions to Closing set forth in Article 5 and compliance by Powertel and
Sellers with the agreements set forth in this Agreement.
7.3 DELIVERIES AT THE CLOSING BY CCIC AND BUYER. At the Closing, CCIC
and Buyer, as applicable, shall deliver to Powertel and Sellers the following:
(a) the Purchase Price for the Assets, as described in Section
3.1 hereof;
(b) an instrument or instruments of assumption of the Assumed
Liabilities, in form and substance reasonably satisfactory to Powertel, Sellers
and their counsel;
(c) the Master Lease, in the form attached hereto as Exhibit "A";
(d) the CCIC Guaranty, in the form attached hereto as Exhibit "B";
(e) certified copies of resolutions, duly adopted by the Boards of
Directors of CCIC and Buyer which shall be in full force and effect at the time
of the Closing, authorizing the execution, delivery and performance by CCIC and
Buyer of this Agreement and the consummation of the transactions contemplated
hereby;
(f) a certificate from CCIC and Buyer signed by the respective
executive officers of CCIC and Buyer, as applicable, to the effect set forth in
clauses (a) and (b) of Section 5.2;
(g) an opinion dated as of the Closing Date of ▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇, LLP, counsel to CCIC and Buyer, or other outside counsel to CCIC and
Buyer acceptable to Powertel and Sellers, with respect to such matters as
Powertel and Sellers may reasonably request, in form and substance reasonably
satisfactory to Powertel and Sellers; and
(h) such other documents, instruments and other writings as
Powertel and the Sellers or their counsel may reasonably request to demonstrate
satisfaction of the conditions to Closing as set forth in Article 5 and
compliance by CCIC and Buyer with the agreements set forth in this Agreement.
7.4 PRE-CLOSING DELIVERIES. As stated in Section 4.1(b) and subject to
the provisions thereof, on or before April 30, 1999, Powertel and Sellers shall
deliver to CCIC and Buyer the Schedules which are contemplated by Section 6.2.
Prior to the Closing Date, Powertel and Sellers shall have furnished to CCIC and
Buyer draft forms of all documents to be delivered by Powertel or Sellers in
accordance with Section 7.2, and CCIC and Buyer shall have furnished to Powertel
and Sellers draft forms of all documents to be delivered by CCIC or Buyer in
accordance with Section 7.3, in each case with a view to providing a reasonable
period of time for reviewing, approving and completing all such documents and
instruments prior to the scheduled Closing Date.
7.5 POST-CLOSING COVENANT. The parties hereto acknowledge that the
time between the execution of this Agreement and the Closing Date will likely
not permit assignments,
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consents and other agreements and arrangements for the transfer of the Assets to
be completed, including, but not limited to, to the extent contemplated by this
Agreement, transfer of operating agreements and other associated contracts and
arrangements for operation of the Assets. Accordingly, Powertel and Sellers
agree for a reasonable period of time after the Closing to attempt to complete
all such closing related matters not completed at Closing. Powertel, Sellers,
CCIC and Buyer covenant and agree to reasonably cooperate with each other after
Closing to attempt to complete such matters within a reasonable period of time.
7.6 TIME IS OF THE ESSENCE. With regard to all dates and time periods
set forth or referred to in this Agreement, time is of the essence.
ARTICLE 8
INDEMNIFICATION
8.1 INDEMNIFICATION. From and after the Closing Date, for the periods
of time described in Section 8.4, the parties hereto shall provide the
indemnities as hereinafter set forth. (The party paying an indemnity as provided
herein or against which a claim for indemnity is made hereunder is hereafter
referred to as "Indemnitor.")
(a) INDEMNIFICATION BY POWERTEL AND ▇▇▇▇▇▇▇. Powertel and Sellers
jointly and severally shall indemnify, defend and hold and save CCIC and Buyer
and their respective officers, directors, employees, agents and Affiliates
harmless from and against any Loss suffered or incurred by or that are the legal
responsibility of any such Indemnified Party, arising from, relating to or
otherwise in respect of, (i) any breach of any representation, warranty,
covenant or agreement of Powertel or Sellers contained in this Agreement or any
Transaction Document to which they are a party, (ii) all Retained Liabilities,
or (iii) the Litigation described in Schedule 6.1(d).
(b) INDEMNIFICATION BY CCIC AND BUYER. CCIC and Buyer jointly and
severally shall indemnify, defend and hold and save Powertel, Sellers and their
respective officers, directors, employees, agents and Affiliates harmless from
and against any Loss suffered or incurred by or that are the legal
responsibility of any such Indemnified Party, arising from, relating to or
otherwise in respect of, (i) any breach of any representation, warranty,
covenant or agreement of CCIC or Buyer contained in this Agreement or any
Transaction Document to which they are a party, or (ii) all Assumed Liabilities.
(c) LOSSES NET OF INSURANCE, ETC. The amount of any Loss for which
indemnification is provided under this Agreement shall be net of (i) any tax
benefit (such as a deduction, credit or deferral) actually realized from any
such Loss, (ii) any amounts recovered by the Indemnified Party pursuant to any
indemnification by or indemnification agreement with any third party, and (iii)
any insurance proceeds or other cash receipts or sources of reimbursements
received as an offset against such Loss. Each party to this Agreement shall make
any claims for indemnification from a third party or insurance proceeds
available to offset against such Loss for which an indemnity is provided
hereunder, and will pursue such claims in good faith. If the amount to be netted
hereunder from any Loss is determined after payment by Indemnitor of any amount
otherwise required to be paid to an Indemnified Party pursuant to this Section
8.1, the
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Indemnified Party shall repay to Indemnitor, promptly after such determination,
any amount that would not have been paid had such determination been made at the
time of such payment.
(d) PROCEDURES RELATING TO INDEMNIFICATION. In order for the
Indemnified Party to be entitled to any indemnity provided for under this
Agreement in respect of, arising out of or involving a claim or demand made by
any Person (other than Indemnitor) against the Indemnified Party (a "Third Party
Claim"), such Indemnified Party must notify Indemnitor in writing, and in
reasonable detail, of the Third Party Claim within ten (10) business days after
receipt by such Indemnified Party of written notice of the Third Party Claim
(the "10 Day Period"); provided, however, that failure to give such notification
shall not affect the indemnity provided hereunder except to the extent
Indemnitor shall have been actually prejudiced as a result of such failure
(except that Indemnitor shall not be liable for any expenses incurred during the
period subsequent to the 10 Day Period in which the Indemnified Party failed to
give such notice). Thereafter, the Indemnified Party shall deliver to
Indemnitor, within five (5) business days after the Indemnified Party's receipt
thereof, copies of all notices and documents (including court papers) received
by the Indemnified Party relating to the Third Party Claim.
If a Third Party Claim is made against an Indemnified Party,
Indemnitor shall be entitled to participate in the defense thereof and, if it so
chooses and acknowledges its obligation to indemnify the Indemnified Party
therefor, to assume the defense thereof with counsel selected by Indemnitor;
provided that such counsel is not reasonably objected to by the Indemnified
Party. Should Indemnitor so elect to assume the defense of a Third Party Claim,
Indemnitor shall not be liable to the Indemnified Party for legal expenses
subsequently incurred by the Indemnified Party in connection with the defense
thereof. If Indemnitor assumes such defense, the Indemnified Party shall have
the right to separate counsel (not reasonably objected to by Indemnitor), at its
own expense, separate from the counsel employed by Indemnitor, it being
understood that Indemnitor shall control such defense. Indemnitor shall be
liable for the fees and expenses of counsel employed by the Indemnified Party
for any period during which Indemnitor has failed to assume the defense of the
Third Party Claim (other than during the period prior to the time the
Indemnified Party shall have given notice of the Third Party Claim as provided
above).
If Indemnitor so elects to assume the defense of any Third
Party Claim, each Indemnified Party shall cooperate with Indemnitor in the
defense or prosecution thereof. Such cooperation shall include the retention and
(upon Indemnitor's request) the provision to Indemnitor of records and
information which are reasonably relevant to such Third Party Claim, and making
employees available on a mutually convenient basis to provide additional
information and explanation of any material provided hereunder. Whether or not
Indemnitor shall have assumed the defense of a Third Party Claim, Indemnified
Party shall not admit any liability with respect to, or settle, compromise or
discharge, such Third Party Claim without the Indemnitor's prior written consent
(which consent shall not be unreasonably withheld). If Indemnitor shall have
assumed the defense of a Third Party Claim, Indemnified Party shall agree to any
settlement, compromise or discharge of such Third Party Claim which Indemnitor
may recommend and which by its terms obligates Indemnitor to pay the full amount
of the liability in connection with such Third Party Claim, and which releases
such Indemnified Party completely
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in connection with such Third Party Claim and which does not otherwise adversely
affect such Indemnified Party.
Notwithstanding the foregoing, Indemnitor shall not be
entitled to assume the defense of any Third Party Claim (and shall be liable for
the reasonable fees and expenses of counsel incurred by Indemnified Party in
defending such Third Party Claim) if the Third Party Claim seeks an order,
injunction or other equitable relief or relief for other than money damages
against an Indemnified Party which such Indemnified Party reasonably determines,
after conferring with its outside counsel, cannot be separated from any related
claim for money damages. If such equitable relief or other relief portion of the
Third Party Claim can be so separated from that for money damages, Indemnitor
shall be entitled to assume the defense of the portion relating to money
damages.
(e) OTHER CLAIMS. In the event any Indemnified Party should have
a claim against any Indemnitor under Section 8.1(a) or 8.1(b) that does not
involve a Third Party Claim being asserted against or sought to be collected
from such Indemnified Party, Indemnified Party shall deliver notice of such
claim with reasonable promptness to Indemnitor. The failure by any Indemnified
Party so to notify Indemnitor shall not relieve Indemnitor from any liability
which it may have to such Indemnified Party under Section 8.1(a) or 8.1(b),
except to the extent that Indemnitor demonstrates that it has been materially
prejudiced by such failure. If Indemnitor disputes its liability with respect to
such claim, as provided above, Indemnitor and Indemnified Party shall proceed in
good faith to negotiate a resolution of such Dispute (as defined in Section
10.2), and, if not resolved through negotiations, such Dispute shall be settled
by arbitration in accordance with the provisions of Section 10.2.
8.2 MITIGATION. The parties hereto shall cooperate with each other
with respect to resolving any claim or liability with respect to which one or
more party or parties are obligated to indemnify a party hereunder, including by
making commercially reasonable efforts to mitigate or resolve any such claim or
liability; provided that such party shall not be required to make such efforts
if they would be detrimental in any material respect to such party. In the event
that CCIC, Buyer, Powertel or Sellers shall fail to make such commercially
reasonable efforts to mitigate or resolve any claim or liability, then (unless
the proviso to the foregoing covenant shall be applicable) notwithstanding
anything else to the contrary contained herein, the other party shall not be
required to indemnify any Person for any loss, liability, claim, damage or
expense that could reasonably be expected to have been avoided if CCIC, Buyer,
Powertel or Sellers, as the case may be, had made such efforts.
8.3 EFFECT OF INVESTIGATION OR KNOWLEDGE. No claim for a breach of
representation or warranty shall be made by an Indemnified Party if such claim
is based on an event occurring prior to the Closing Date and such event was
either (i) disclosed by Powertel, Sellers, CCIC or Buyer, as the case may be,
prior to the Closing Date in a writing which describes such event or facts
giving rise to such event in reasonable detail or (ii) the Indemnified Party had
actual knowledge of such event or such misrepresentation or breach of warranty
prior to the Closing Date, and (iii) the Closing thereafter occurs.
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8.4 DURATION OF INDEMNIFICATION. The indemnities provided by the
parties hereto in Section 8.1 shall, except as provided below, be provided for a
period of two years after the Closing Date. Notwithstanding the foregoing, the
indemnities provided by Powertel and Sellers with respect to (i) the Retained
Liabilities and (ii) the Litigation described in Schedule 6.1(d), shall not be
limited in duration and shall continue to be provided to CCIC and Buyer from and
after the Closing Date.
ARTICLE 9
POST-CLOSING COVENANTS
9.1 POST-CLOSING COVENANTS RELATED TO BUYER. From and after the
Closing Date, Buyer shall, and CCIC will cause Buyer to, comply with each of the
following covenants:
(a) Buyer shall not voluntarily dissolve or liquidate, shall not
make a voluntary assignment for the benefit of creditors, shall not file a
petition in bankruptcy, shall not petition or apply to any tribunal for any
receiver or trustee, shall not commence any proceeding relating to itself under
any bankruptcy, reorganization, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction, shall not indicate its consent to, approval
of or acquiescence in any such proceeding and shall use its best efforts to have
discharged the appointment of any receiver of or trustee for Buyer or any
substantial part of its property.
(b) From time to time upon the reasonable request of Powertel,
Buyer shall cause its senior credit facility lender in favor of whom an
Encumbrance has been created against any of the Assets which are the subject of
the Master Lease to enter into a subordination, non-disturbance and attornment
agreement with Powertel, in form and substance reasonably satisfactory to all
parties to such agreement, whereby such lender will agree to provide Powertel
with notices of Buyer defaults under the credit facility, give Powertel a
reasonable opportunity to cure such defaults, and agree not to disturb
Powertel's or Sellers' tenancy under the Master Lease provided they are not in
default thereunder.
ARTICLE 10
MISCELLANEOUS
10.1 REMEDIES.
(a) In the event Powertel or Sellers fail to close the
transactions contemplated by this Agreement, or otherwise default in or breach
its or their obligations hereunder, and CCIC and Buyer have fulfilled all of
their obligations and conditions precedent to Closing in all material respects
and have not defaulted or breached their obligations hereunder, then CCIC and
Buyer (acting jointly) shall be entitled to seek specific performance of this
Agreement or such obligations, and/or pursue such other remedies as may be
available hereunder or otherwise at law or in equity; provided, however, that in
no event shall Powertel be liable for an amount that exceeds the Purchase Price,
as adjusted pursuant to this Agreement.
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(b) In the event of CCIC's breach of and failure to perform its
obligations under Section 4.2(a) of this Agreement, Powertel and Sellers may
terminate this Agreement and be paid by the Escrow Agent out of the Escrow
Deposit an Early Termination Payment as provided in the Escrow Agreement and in
such Section 4.2(a), and such remedy, if exercised by Powertel or any Seller,
shall constitute the sole remedy of Powertel and Sellers under this Agreement
and Powertel and Sellers shall have no further rights or remedies against CCIC
or Buyer.
(c) In the event Powertel and Sellers have fulfilled all of their
obligations and conditions precedent to Closing in all material respects and
have not defaulted or breached their obligations hereunder, and ▇▇▇▇▇ is
unwilling or unable to acquire the Assets upon the terms set forth in this
Agreement, including, without limitation, to make the deliveries set forth in
Section 7.3 and to deliver the Purchase Price (as adjusted pursuant to the terms
of this Agreement) at the Closing to Powertel and Sellers, and provided further
that Powertel and Sellers have not terminated this Agreement pursuant to a
Termination Notice under Section 4.2(a), Powertel and Sellers shall be entitled
to terminate this Agreement pursuant to this Section 10.1(c) and the Escrow
Agent shall pay to Powertel and Sellers the sum of $50,000,000 out of the Escrow
Deposit as liquidated damages hereunder and not as a penalty. Such remedy, if
exercised by Powertel or any Seller, shall constitute the sole remedy of
Powertel and Sellers under this Agreement and Powertel and Sellers shall have no
further rights or remedies against CCIC or Buyer. Upon delivery of such
liquidated damages amount to Powertel and Sellers, the remainder of the Escrow
Deposit shall be delivered by the Escrow Agent to CCIC and Buyer.
(d) CCIC, Buyer, Powertel and Sellers each acknowledge that it is
otherwise difficult or impossible to determine Powertel's and Sellers' actual
damages because of CCIC's and Buyer's failure to consummate the transaction
contemplated hereby, but that the liquidated damages provided in Section 10.1(c)
(and in the alternative an Early Termination Payment described in Section
4.2(a)) represent a reasonable pre-estimate of such damages, taking into
consideration that Powertel and Sellers have received other offers to purchase
the Assets which are the subject of this Agreement. CCIC and Buyer and Powertel
and Sellers therefore intend that such agreed upon liquidated damages are not
punitive or penalties, and are just, fair and reasonable, all in accordance with
O.C.G.A. ss. 13-6-7.
(e) The prevailing party in any legal proceeding involving this
Agreement or the exercise of the remedies set forth in this Agreement shall be
entitled to recover its court costs and reasonable attorneys' fees.
10.2 DISPUTE RESOLUTION.
(a) In the case of any dispute, controversy or claim between or
among the parties hereto related to this Agreement or the transactions
contemplated hereby or the other documents referred to herein, except for
disputes related to obtaining the equitable remedies of specific performance, an
injunction or a restraining order (a "Dispute"), the parties will use the
procedures set forth in this Section 10.2, in lieu of any party pursuing other
available remedies and as the sole remedy, to resolve the Dispute.
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(b) Any Dispute will be settled by arbitration before three
arbitrators in accordance with the Rules of the American Arbitration Association
("AAA") then in effect and as modified by this Section 10.2 or by further
agreement of the parties. In addition to what is allowed by the Rules of the
AAA, discovery may be conducted according to the Federal Rules of Civil
Procedure, to be enforced by the AAA, and if necessary, by a court having
jurisdiction. Any such arbitration will be conducted in Chicago, Illinois,
unless otherwise agreed by CCIC and Powertel. The arbitrators will be selected
from a panel of persons (such as retired jurists, distinguished legal or
business professionals, and similar persons) knowledgeable in the specific areas
which may be relevant to the claim, who have had more than ten (10) years of
relevant experience in such areas, who have previously acted as arbitrators, and
who are generally held in the highest regard among professionals in fields or
businesses related or pertinent to such area. Judgment upon the award rendered
by the arbitrators may be entered pursuant to applicable arbitration statutes.
(c) The arbitrators will have no authority to award punitive
damages nor any other damages not measured by the prevailing party's actual
damages, and may not, in any event, make any ruling, finding or award that does
not conform to the terms and conditions of this Agreement.
(d) Neither the parties hereto nor the arbitrators may disclose
the existence or results of any arbitration under this Agreement or any evidence
presented during the course of the arbitration without the prior written consent
of the parties, other than by entry of a judgment upon any arbitration award.
(e) The arbitrators will have the authority to award to the
prevailing party its attorneys' fees and costs incurred in any arbitration.
Absent any such award, each party will bear its own costs incurred in the
arbitration. If any party hereto refuses to submit to arbitration any Dispute
required to be submitted to arbitration pursuant to this Section 10.2, and
instead commences any other proceeding, including, without limitation,
litigation (except to the extent otherwise expressly provided in this
Agreement), then the party who seeks enforcement of the obligation to arbitrate
will be entitled to its attorneys' fees and costs incurred in any such
proceeding.
10.3 TRANSFER TAXES. Sellers and Buyer shall each pay one-half of all
state and local sales, documentary and other transfer Taxes, if any, due as a
result of the sale of Assets hereunder.
10.4 TERMINATION.
(a) Anything herein or elsewhere to the contrary notwithstanding,
this Agreement may be terminated by written notice of termination at any time
before the Closing Date only as follows:
(i) by unanimous consent of the parties hereto;
(ii) on June 4, 1999, or if later, the Closing Date, by CCIC
and Buyer, upon written notice to Powertel and Sellers if all of the
conditions precedent set forth in Section 5.1 hereof have not been met
as of such date;
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(iii) by CCIC and Buyer as of the Closing Date if Powertel or
Sellers shall have breached any of their covenants, agreements,
representations, warranties or other obligations under this Agreement
in any respect which would have a Material Adverse Effect taken as a
whole on any of (A) the Assets, (B) the Assumed Liabilities, or (C) the
ability of Powertel and Sellers to consummate the transactions
contemplated hereby and such breach will not have been cured prior to
the earlier to occur of (1) thirty days after notice of such breach, or
(2) June 4, 1999, or if later, the Closing Date;
(iv) on June 4, 1999, or if later, the Closing Date, by
Powertel and Sellers, upon written notice to CCIC and Buyer if all of
the conditions precedent set forth in Section 5.2 hereof have not been
met as of such date;
(v) by Powertel and Sellers in connection with a Termination
Notice pursuant to Section 4.2(a) or a termination pursuant to Section
10.1(c); and
(vi) by Powertel and Sellers at any time prior to the Closing
if CCIC and Buyer shall have breached any of their covenants,
agreements, representations, warranties or other obligations under this
Agreement (other than any breach pursuant to which Powertel and Sellers
deliver a Termination Notice pursuant to Section 4.2(a)) in any
material respect and such breach shall not have been cured and such
breach will not have been cured prior to the earlier to occur of (1)
thirty days after notice of such breach, or (2) June 4, 1999, or if
later, the Closing Date.
(b) In the event of the termination of this Agreement pursuant to
the provisions of this Section 10.4, this Agreement (except for Sections 6.1(i),
6.3(d), 4.3(c), 10.5 and 10.17 which shall continue) shall become void and have
no effect, without any liability on the part of any of the parties or their
directors, officers, stockholders, partners or representatives in respect of
this Agreement, unless the termination was the result of the representations and
warranties of a party being materially incorrect when made or the material
breach by such party of an agreement or covenant hereunder in which event the
party whose representations and warranties were incorrect or who breached such
agreement or covenant shall be liable to the other party for all costs and
expenses of the other party in connection with the preparation, negotiation,
execution and performance of this Agreement; provided, however, in the event
Powertel and Sellers receive an Early Termination Payment pursuant to Section
4.2(a) or liquidated damages pursuant to Section 10.1(c), they shall not be
entitled to receive any such costs and expenses.
(c) In the event of the termination of this Agreement, the Escrow
Deposit shall be delivered to CCIC and Buyer, except as expressly provided in
Sections 4.2(a) and 10.1(c), upon the terms set forth in the Escrow Agreement.
10.5 EXPENSES. Except as otherwise provided in this Agreement, each
party hereto shall pay its own expenses incidental to the preparation of this
Agreement, the carrying out of the provisions of this Agreement and the
consummation of the transactions contemplated hereby.
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10.6 ENTIRE AGREEMENT. This Agreement and the Transaction Documents set
forth the entire understanding of the parties hereto with respect to the
transactions contemplated hereby. Any and all previous agreements and
understandings between or among the parties regarding the subject matter hereof,
whether written or oral, are superseded by this Agreement and the Transaction
Documents.
10.7 AMENDMENTS. This Agreement shall not be amended or modified
except by a written instrument duly executed by each of the parties hereto.
10.8 WAIVER. Any term or provision of this Agreement, or any breach
thereof, may be waived at any time by the party entitled to the benefit thereof
by a written instrument duly executed by such party; provided, however, that any
waiver by any party of a breach of any term or provision of this Agreement shall
not operate or be construed as a waiver of any subsequent breach, whether or not
similar, unless such waiver specifically states that it is to be construed as a
continuing waiver.
10.9 ASSIGNMENT AND BINDING EFFECT. This Agreement may not be assigned
by any party hereto without the prior written consent of the other parties,
provided that Buyer may assign any of its rights hereunder to any wholly-owned
(direct or indirect) subsidiary of Buyer. Subject to the foregoing, all of the
terms and provisions of this Agreement shall be binding upon and inure to the
benefit of and be enforceable by the permitted successors and assigns of the
parties. All references herein to any party shall be deemed to include any
successor to such party, including any corporate successor.
10.10 NOTICES. All notices, consents or other communications required
or permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given when delivered personally, delivery charges
prepaid, or three (3) business days after being sent by registered or certified
mail (return receipt requested), postage prepaid, or one (1) business day after
being sent by a nationally recognized express courier service for next day
delivery, postage or delivery charges prepaid, to the parties at their
respective addresses stated below. Notices may also be given by prepaid telegram
or facsimile and shall be effective on the date transmitted if confirmed within
twenty-four (24) hours thereafter by a signed original sent in the manner
provided in the preceding sentence. Any party may change its address for notice
and the address to which copies must be sent by giving notice of the new address
to the other parties in accordance with this Section 10.10, except that any
notice of such change of address shall not be effective unless and until
received.
(a) If to CCIC or Buyer:
Crown Castle International Corp.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer and General Counsel
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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with required copies to:
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to Powertel or Sellers:
Powertel, Inc.
1233 ▇. ▇. ▇▇▇▇▇▇▇ Drive
West Point, Georgia 31833
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
with required copies to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, Esq.
Fax. No.: (▇▇▇) ▇▇▇-▇▇▇▇
10.11 GEORGIA LAW TO GOVERN. This Agreement shall be governed by and
interpreted and enforced in accordance with the laws of the State of Georgia,
without regard to the principles of conflict of law thereof.
10.12 NO BENEFIT TO OTHERS. Except as expressly provided herein, the
representations, warranties, covenants and agreements contained in this
Agreement are for the sole benefit of the parties hereto and they shall not be
construed as conferring any rights or benefits on any other persons.
10.13 TABLE OF CONTENTS; HEADINGS. The table of contents and all
Section headings contained in this Agreement are for convenience of reference
only, do not form a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
10.14 SCHEDULES AND EXHIBITS. All Exhibits and Schedules referred to
herein are intended to be and hereby are specifically made a part of this
Agreement.
10.15 SEVERABILITY. Any provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall be ineffective to the extent of such
invalidity or unenforceability without invalidating or rendering unenforceable
the remaining provisions hereof, and any such invalidity
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or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.16 COUNTERPARTS AND FACSIMILE EXECUTION. This Agreement may be
executed in any number of counterparts and any party hereto may execute any such
counterpart, each of which when executed and delivered shall be deemed to be an
original and all of which counterparts taken together shall constitute but one
and the same instrument. This Agreement shall become binding when one or more
counterparts taken together shall have been executed and delivered by the
parties. It shall not be necessary in making proof of this Agreement or any
counterpart hereof to produce or account for any of the other counterparts. Any
party to this Agreement may evidence its execution of this Agreement by
facsimile transmission. This Agreement shall become binding on all parties when
it has become executed by all parties, whether evidenced by original or
facsimile signatures, or by a combination thereof. It shall not be necessary in
making proof of this Agreement or any counterpart hereof to produce or account
for all original signatures.
10.17 CONFIDENTIALITY. The parties acknowledge the continuing
applicability of the terms and provisions of that certain Agreement for Use and
Non-Disclosure of Proprietary Information dated October 23, 1998.
10.18 DIRECTLY OR INDIRECTLY. Any provision in this Agreement referring
to action to be taken by any Person, or that such Person is prohibited from
taking, shall be applicable whether such action is taken directly or indirectly
by such Person.
10.19 INTERPRETATION. When a reference is made in this Agreement to an
Article or Section, such reference shall be to an Article or Section of this
Agreement unless otherwise indicated. Whenever the words "include," "includes"
or "including" are used in this Agreement, they shall be deemed to be followed
by the words "without limitation." The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement. Any
agreement, instrument or statute defined or referred to herein or in any
agreement or instrument that is referred to herein means such agreement,
instrument or statute as from time to time amended, modified or supplemented,
including (in the case of agreements or instruments) by waiver or consent and
(in the case of statutes) by succession of comparable successor statutes and
references to all attachments thereto and instruments incorporated therein.
References to a Person are also to its permitted successors and assigns.
10.20 FURTHER ASSURANCES. Each of the parties hereto, from time to time
after the Closing, will execute, acknowledge and deliver such other instruments
of conveyance and transfer and will take such other actions and execute and
deliver such other documents, certifications and further assurances as any party
hereto may reasonably require to carry out, evidence and confirm the intended
purposes of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first written.
CCIC:
CROWN CASTLE INTERNATIONAL CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Title: Executive Vice President
-----------------------------------------
BUYER:
CCP INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Title: Executive Vice President
-----------------------------------------
SELLERS:
POWERTEL ATLANTA TOWERS, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------------------
Title: Vice President, Treasurer & Secretary
-----------------------------------------
POWERTEL BIRMINGHAM TOWERS, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------------------
Title: Vice President, Treasurer & Secretary
-----------------------------------------
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POWERTEL JACKSONVILLE TOWERS, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------------------
Title: Vice President, Treasurer & Secretary
-----------------------------------------
POWERTEL KENTUCKY TOWERS, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------------------
Title: Vice President, Treasurer & Secretary
-----------------------------------------
POWERTEL MEMPHIS TOWERS, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------------------
Title: Vice President, Treasurer & Secretary
-----------------------------------------
POWERTEL:
POWERTEL, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------------------
Title: Vice President, Treasurer & Secretary
-----------------------------------------
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