Contribution Agreement
by and among
Palmetto MobileNet, L.P.,
PMN, Inc.,
CT Cellular, Inc.
and
Ellerbe Telephone Co.
Effective as of January 1, 1998
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS. . . . . . . . . . . . . . . . . . . . 2
ARTICLE II ISSUANCE OF PARTNERSHIP UNITS
Section 2.1 Contribution of CT Interests . . . . . . . 3
Section 2.2 Contribution of Ellerbe Interests . . . . 4
Section 2.3 Issuance of Partnership Units . . . . . . 4
Section 2.4 "True Up" Distributions. . . . . . . . . . 4
ARTICLE III ISSUANCE OF PMN SHARES
Section 3.1 Transfer of Partnership Units. . . . . . . 4
Section 3.2 Issuance of Stock. . . . . . . . . . . . . 4
ARTICLE IV CLOSING
Section 4.1 Time and Place of Closing. . . . . . . . . 5
Section 4.2 Deliveries by CT . . . . . . . . . . . . . 5
Section 4.3 Deliveries by Ellerbe. . . . . . . . . . . 6
Section 4.4 Deliveries by the Partnership. . . . . . . 6
Section 4.5 Deliveries by PMN. . . . . . . . . . . . . 7
Section 4.6 Additional Deliveries by PMN, CT and Ellerbe7
ARTICLE V REPRESENTATIONS AND WARRANTIES OF CT AND ELLERBE
Section 5.1 Representations and Warranties of CT
Regarding the CT Interests . . . . . . . . . . 7
(a) Title and Voting. . . . . . . . . . . 8
(b) Effect of Transfer of CT Interests. . 8
Section 5.2 Representations and Warranties of Ellerbe
Regarding the Ellerbe Interest . . . . . . . . 8
(a) Title and Voting. . . . . . . . . . . 8
(b) Effect of Transfer of Ellerbe Interest 8
Section 5.3 Representations and Warranties of CT . . . 8
(a) Title and Voting. . . . . . . . . . . 8
(b) Effect of Transfer . . . . . . . . . 8
(c) Organization . . . . . . . . . . . . 9
(d) Capitalization. . . . . . . . . . . . 9
(e) Company Subsidiaries. . . . . . . . . 9
(f) Banks and Financial Institutions. . . 9
(g) Financial Statements. . . . . . . . . 9
(h) Good Standing and Authority . . . . . 9
(i) Certain Contracts and Arrangements. . 10
(j) Employment Matters. . . . . . . . . . 10
(k) Accounts Receivable . . . . . . . . . 10
Page
Section 5.4 Representations and Warranties of CT and
Ellerbe Regarding Ellerbe-Concord
Company . . . . . . . . . . . . . . . . . 11
(a) Title and Voting. . . . . . . . . . . 11
(b) Effect of Transfer . . . . . . . . . 11
(c) Organization . . . . . . . . . . . . 11
(d) Capitalization. . . . . . . . . . . . 11
(e) Company Subsidiaries. . . . . . . . . 11
(f) Banks and Financial Institutions. . . 11
(g) Financial Statements. . . . . . . . . 12
(h) Good Standing and Authority . . . . . 12
(i) Certain Contracts and Arrangements. . 12
(j) Employment Matters. . . . . . . . . . 12
(k) Accounts Receivable . . . . . . . . . 13
Section 5.5 Additional Representations and Warranties of
CT and Ellerbe . . . . . . . . . . . . . . 13
(a) Consents and Approvals; No Violations 13
(b) Delivery of Documents . . . . . . . . 14
(c) Broker's or Finder's Fees . . . . . . 14
(d) Due Authorization . . . . . . . . . . 14
Section 5.6 Additional Representations of CT and Ellerbe
with Respect to CT 15 LLC, CT 4/5 LLC,
Ellerbe-Concord Company, NC RSA 15
Partnership, and NC RSA 4/5 Partnership. . 14
(a) No Undisclosed Liabilities . . . . . 14
(b) Absence of Certain Changes or Events. 15
(c) Books of Account. . . . . . . . . . . 15
(d) Title and Related Matters . . . . . . 16
(e) Legal Proceedings, etc. . . . . . . . 16
(f) Insurance . . . . . . . . . . . . . . 16
(g) Taxes . . . . . . . . . . . . . . . . 16
(h) All Accounts Paid . . . . . . . . . . 17
(i) Environmental Matters . . . . . . . . 17
(j) Regulatory Licensure or Other Violation 17
(k) Permits, Licenses and Other Legal
Requirements;
Compliance with Laws. . . . . . . . . 17
(l) Documents Delivered . . . . . . . . . 17
(m) Solvency. . . . . . . . . . . . . . . 17
(n) Full Disclosure . . . . . . . . . . . 17
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE ISSUERS
Section 6.1 Representations and Warranties of the
Partnership. . . . . . . . . . . . . . . . 18
(a) Organization . . . . . . . . . . . . 18
(b) Capitalization . . . . . . . . . . . 18
(c) Partnership Subsidiaries. . . . . . . 18
Page
Section 6.2 Representations and Warranties of PMN . . 18
(a) Organization. . . . . . . . . . . . . 18
(b) Capitalization . . . . . . . . . . . 19
(c) PMN Subsidiaries. . . . . . . . . . . 19
Section 6.3 Representations and Warranties of the
Partnership and PMN . . . . . . . . . . . 19
(a) Consents and Approvals; No Violations 19
(b) Financial Statements . . . . . . . . 20
(c) No Undisclosed Liabilities . . . . . 20
(d) Absence of Certain Changes or Events. 20
(e) Books of Account. . . . . . . . . . . 21
(f) Title and Related Matters . . . . . . 21
(g) Certain Contracts and Arrangements. 22
(h) Legal Proceedings, etc. . . . . . . . 22
(i) Insurance . . . . . . . . . . . . . . 22
(j) Taxes . . . . . . . . . . . . . . . . 23
(k) All Accounts Paid . . . . . . . . . . 23
(l) Broker's or Finder's Fees . . . . . . 23
(m) Employment Matters. . . . . . . . . . 23
(n) Accounts Receivable . . . . . . . . . 25
(o) OSHA . . . . . . . . . . . . . . . . 26
(p) Environmental Matters . . . . . . . . 26
(q) Regulatory Licensure or Other Violation 26
(r) Permits, Licenses and Other Legal
Requirements;
Compliance with Laws. . . . . . . . . 26
(s) Documents Delivered . . . . . . . . . 26
(t) Solvency. . . . . . . . . . . . . . . 26
(u) Full Disclosure . . . . . . . . . . . 26
Section 6.4 Representations of PMN and the Partnership
with Respect to the SC RSA Partnerships. . 27
(a) No Undisclosed Liabilities. . . . . . 27
(b) Absence of Certain Changes or Events. 27
(c) Books of Account. . . . . . . . . . . 28
(d) Title and Related Matters . . . . . . 28
(e) Legal Proceedings, etc. . . . . . . . 28
(f) Insurance . . . . . . . . . . . . . . 29
(g) Taxes . . . . . . . . . . . . . . . . 29
(h) All Accounts Paid . . . . . . . . . . 29
(i) Accounts Receivable . . . . . . . . . 29
(j) Environmental Matters . . . . . . . . 29
(k) Regulatory Licensure or Other Violations 30
Page
(l) Permits, Licenses, and Other Legal
Requirements; Compliance with Laws . 30
(m) Documents Delivered . . . . . . . . . 30
(n) Solvency. . . . . . . . . . . . . . . 30
(o) Full Disclosure . . . . . . . . . . . 30
ARTICLE VII COVENANTS OF THE PARTIES
Section 7.1 Amendment to the Limited Partnership
Agreement. . . . . . . . . . . . . . . . . 30
Section 7.2 Amendment to the Stockholders' Agreement . 31
Section 7.3 Expenses . . . . . . . . . . . . . . . . . 31
Section 7.4 Restatement of Partnership and Shareholder
Agreements . . . . . . . . . . . . . . . . 31
Section 7.5 Further Assurances . . . . . . . . . . . . 31
Section 7.6 Consents and Licenses. . . . . . . . . . . 32
Section 7.7 Public Announcements . . . . . . . . . . . 32
ARTICLE VIII CLOSING CONDITIONS
Section 8.1 Conditions to the Obligations of CT and
Ellerbe. . . . . . . . . . . . . . . . . . 32
Section 8.2 Conditions to the Obligations of the Issuers 33
ARTICLE IX TERMINATION
Section 9.1 Termination. . . . . . . . . . . . . . . . 34
Section 9.2 Procedure and Effect of Termination. . . . 34
ARTICLE X INDEMNIFICATION
Section 10.1 Definition of Indemnified Party. . . . . . 35
Section 10.2 Indemnification by Parties . . . . . . . . 35
Section 10.3 Defense of Action. . . . . . . . . . . . . 35
ARTICLE XI MISCELLANEOUS PROVISIONS
Section 11.1 Amendment and Modification . . . . . . . . 36
Section 11.2 Waiver of Compliance; Consents . . . . . . 36
Section 11.3 Investigations; Survival of Representations
and Warranties . . . . . . . . . . . . . . 36
Section 11.4 Notices. . . . . . . . . . . . . . . . . . 36
Section 11.5 Assignment . . . . . . . . . . . . . . . . 37
Section 11.6 Governing Law. . . . . . . . . . . . . . . 37
Section 11.7 Counterparts . . . . . . . . . . . . . . . 38
Section 11.8 Interpretation . . . . . . . . . . . . . . 38
Section 11.9 Entire Agreement . . . . . . . . . . . . . 38
Section 11.10 Severability . . . . . . . . . . . . . . . 38
EXHIBITS
2.1 CT Assignment Agreement
2.2 Ellerbe Assignment Agreement
2.4 Units Owned and Amount of Payment
4.2(c) Certification Signature Page (CT Cellular, Inc.)
4.2(g) Waiver and Release (CT Cellular, Inc.)
4.3(c) Certification Signature Page (▇▇▇▇▇▇▇ Telephone Company)
4.3(g) Waiver and Release (Ellerbe-Concord Company)
5.3(f) Names and Locations of all CT LLC Bank Accounts
and Safe Deposit Boxes and all Authorized Persons
5.3(g) Financial Statements for CT LLC
5.3(i) List of all CT LLC Material Contracts
5.4(f) Names and Locations of all Ellerbe-Concord Company
Bank Accounts and Safe Deposit Boxes and all Authorized
Persons
5.4(g) Financial Statements for Ellerbe-Concord Company
5.4(i) List of all Ellerbe-Concord Company Material Contracts
5.5(a) Approval of the Federal Communications Commission
5.6(a) Undisclosed Liabilities of CT LLC and Ellerbe
5.6(b) Absence of Certain Changes or Events (CT LLC and Ellerbe)
5.6(k) Permits, Licenses and Other Legal Requirements; Compliance
with Laws (CT/Ellerbe)
6.1(b) List of Partnership Units (MobileNet)
6.2(b) List of Shares (PMN)
6.3(a) Consents and Approvals; No Violations (PMN
and Palmetto MobileNet)
6.3(b) Financial Statements for PMN and Palmetto
MobileNet for the Years Ended Sept. 30, 1997,
Dec. 31, 1996 and 1995
6.3(c) Undisclosed Liabilities (Palmetto Mobile and PMN)
6.3(d) Absence of Certain Changes or Events
(Palmetto Mobilenet and PMN)
6.3(f) Title and Related Matters (Palmetto MobileNet)
6.3(g) List of Contracts and Arrangements (Palmetto
MobileNet and PMN)
6.3(i) List of Insurance Policies (Palmetto
MobileNet and PMN)
6.3(j) Taxes
6.3(m)(iii) List of all Employees of PMN
6.3(m)(iv) List of all Plans, Contracts, Agreements,
Practices, Policies or Arrangements that
Provide for any Stock Bonuses or Employee
Bonuses or Benefits (PMN)
6.3(r) Approvals, Authorizations, Licenses and
Permits (Palmetto MobileNet and PMN)
6.4(a) Undisclosed Liabilities of Palmetto MobileNet
and PMN Regarding the RSA Partnerships
6.4(b) Absence of Certain Changes or Events
(Palmetto MobileNet and PMN Regarding the RSA
Partnerships)
6.4(c) Book of Accounts
6.4(l) Permits, Licenses, and other Legal
Requirements; Compliance with Laws (Palmetto
MobileNet)
7.4 Special Committee Issues
8.1(d) Form of Officer's Certificate Regarding
Performance and Compliance
8.2(b) Resignations of CT LLC Managers
8.2(e) Form of Officer's Certificate Regarding
Representations and Warranties
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT, to be effective as of January
1, 1998 (the "Agreement"), is entered into by and among Palmetto
MobileNet, L. P. a South Carolina limited partnership (the
"Partnership"), PMN, Inc., a South Carolina corporation which is
the sole general partnership of the Partnership ("PMN"),
(collectively the Partnership and PMN are the "Issuers" or
individually, an "Issuer"), CT Cellular, Inc., a North Carolina
corporation ("CT"), and Ellerbe Telephone Co., a North Carolina
corporation ("Ellerbe").
W I T N E S E T H :
WHEREAS, CT is the owner of all the issued and outstanding
membership interests (the "CT 15 LLC Interest") of CT Cellular
Holdings 15, L.L.C. ("CT 15 LLC"), a Delaware limited liability
company which owns, as its principal asset, a 50% general
partnership interest in a North Carolina general partnership
licensed to provide cellular telephone service in North Carolina
RSA 15 ("NC RSA 15 Partnership");
WHEREAS, CT is the owner of all the issued and outstanding
membership interests (the "CT 4/5 LLC Interest") of CT Cellular
Holdings 4/5, L.L.C. ("CT 4/5 LLC"), a Delaware limited liability
company which owns, as its principal asset, a 49% general
partnership interest in the Ellerbe-Concord Cellular Company (the
"Ellerbe-Concord Company"), which holds a 50% general partnership
interest in a general partnership licensed to provide cellular
telephone service in North Carolina RSA 4/5 ("NC RSA 4/5
Partnership");
WHEREAS, Ellerbe is the owner of a 51% general partnership
interest in the Ellerbe-Concord Company (the "Ellerbe Interest");
WHEREAS, the Partnership owns, among other assets, a 50%
general partnership interest in eight general partnerships, each
of which is licensed to provide cellular telephone service in a
separate rural services area in South Carolina ("SC RSA
Partnerships");
WHEREAS, the Partnership, Ellerbe and CT desire to combine
their interests in order to achieve better economies of scale and
to diversify their investments;
WHEREAS, pursuant to the terms of this Agreement, CT will
contribute the CT 15 LLC Interest and the CT 4/5 LLC Interest,
and Ellerbe will contribute the Ellerbe Interest, to the
Partnership in exchange for limited partner interests in the
Partnership and will transfer certain of those interests to PMN
in exchange for shares of the common stock of PMN, all upon the
terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants, representations, warranties, and agreements
herein contained, and intending to be legally bound, the parties
hereto agree as follows:
ARTICLE I DEFINITIONS
As used in this Agreement or any of the Exhibits, the
following terms shall have the following meanings (with terms
defined in the singular to include the plural and vice versa):
"Affiliate" of any Person shall mean any other Person who
controls, is controlled by, or is under common control with, such
Person.
"Associate" of a Person shall mean (1) a corporation or
organization (other than the Company) of which such Person is an
officer or partner or is, directly or indirectly, the beneficial
owner of 10 percent or more of any class of equity securities,
(2) any trust or other estate in which such Person has a
substantial beneficial interest or as to which such Person serves
as trustee or in a similar capacity, or (3) any relative or
spouse of such Person (or any relative of such spouse) who has
the same home as such Person.
"Balance Sheet" shall mean the balance sheet of any entity
as of September 30, 1997 (together with its notes and supporting
schedules).
"Basic Documents" shall mean this Agreement and each other
agreement, certificate, or instrument executed and delivered or
required to be executed and delivered pursuant to this Agreement.
"Business Day" shall mean any day that is not a Saturday, a
Sunday, or a day on which banks in Columbia, South Carolina are
authorized or required by law to close.
"Closing" shall mean the closing of the transactions
contemplated by this Agreement.
"Closing Date" shall mean the date on which the Closing
occurs.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, or any successor thereto.
"CT Interests" shall mean the CT 15 LLC Interest and the CT
4/5 LLC Interest.
"Encumbrances" shall mean all security interests, liens,
pledges, claims, charges, escrows, encumbrances, encroachments,
rights of first refusal, mortgages, indentures, easements,
licenses, restrictions or other covenants, agreements,
understandings, obligations, defects, or irregularities affecting
title to any assets, but excluding any rights or obligations
created or arising under the terms of the partnership agreements
and any amendments thereto identified on Exhibits 1(a), (b), or
(c).
"Environmental Laws" shall mean all federal, state, and
local laws and regulations relating to the protection of the
environment, including, without limitation, those respecting
hazardous materials.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended, or any successor thereto.
"Exhibits" shall mean the exhibits hereto, which are
incorporated into and made a part of this Agreement.
"Limited Partnership Agreement" shall mean the Limited
Partnership Agreement of the Partnership, as described in Section
6.1 hereof.
"Partnership Units" shall mean units representing a
partner's interest in the Partnership, including but not limited
to such partner's share of the Partnership's income, loss and
voting interest.
"Person" shall include an individual, a partnership, a
limited liability company, a joint venture, a professional
association, a corporation, a trust, an unincorporated
organization, a government or any department or agency thereof,
or any other entity.
"PMN Closing" shall mean the issuance of the shares by PMN
as contemplated by this Agreement which shall occur no later than
two days after the Closing.
"Stockholders' Agreement" shall mean the Stockholders'
Agreement of PMN, as described in Section 6.2 hereof.
"Taxes" shall mean all taxes, charges, fees, levies, or
other assessments, including, without limitation, income, excise,
property, sales, and franchise taxes, imposed by the United
States or any state, county, local, or foreign government or
subdivision or agency thereof, including any interest, penalties,
or additions attributable thereto.
ARTICLE II ISSUANCE OF PARTNERSHIP UNITS
Section 2.1 Contribution of CT Interests. At the
Closing, upon the terms and subject to the conditions of this
Agreement, in reliance upon the agreements, representations and
warranties of the Partnership and PMN contained herein, and in
consideration of the issuance and delivery of the Partnership
Units set forth herein, CT will assign, transfer and deliver to
the Partnership, free and clear of all Encumbrances, and the
Partnership will accept from CT, all of CT's right, title and
interest to the CT Interests, as a contribution to the capital of
the Partnership. The transfer, assignment, and conveyance of the
CT Interests shall be made by the delivery by CT at the Closing
of a duly executed Assignment Agreement in substantially the form
attached hereto as Exhibit 2.1 (the "CT Assignment Agreement"),
and such other documents of assignment, transfer, and conveyance
as the Partnership reasonably may request.
Section 2.2 Contribution of Ellerbe Interests. At the
Closing, upon the terms and subject to the conditions of this
Agreement, in reliance upon the agreements, representations and
warranties of the Partnership and PMN contained herein, and in
consideration of the issuance and delivery of the Partnership
Units set forth herein, Ellerbe will assign, transfer and deliver
to the Partnership, free and clear of all Encumbrances, and the
Partnership will accept from Ellerbe, all of ▇▇▇▇▇▇▇'▇ right,
title and interest to the Ellerbe Interest, as a contribution to
the capital of the Partnership. The transfer, assignment, and
conveyance of the Ellerbe Interest shall be made by the delivery
by Ellerbe at the Closing of a duly executed Assignment Agreement
in substantially the form attached hereto as Exhibit 2.2 (the
"Ellerbe Assignment Agreement") and such other documents of
assignment, transfer, and conveyance as the Partnership
reasonably may request.
Section 2.3 Issuance of Partnership Units. At the
Closing upon the terms and subject to the conditions contained in
this Agreement, in reliance upon the agreements, representations
and warranties of CT and Ellerbe contained herein, and in
consideration of the aforesaid contribution, of the CT Interests
and the Ellerbe Interest, the Partnership will issue 25,070
Partnership Units to CT and 3,260 Partnership Units to Ellerbe,
and CT and Ellerbe shall be admitted to the Partnership as
limited partners. The Partnership Units to be issued and
delivered pursuant to the terms of this Agreement, when issued as
contemplated hereby, shall be duly authorized, validly issued,
and fully paid.
Section 2.4 "True Up" Distributions. At the Closing, the
Partnership shall make cash contributions to CT and Ellerbe
representing the additional distributions the parties estimate CT
and Ellerbe would have received if the transactions contemplated
by this Agreement had occurred on January 1, 1997 (the date of
the appraisals on which these transactions are based) by
delivering to each of CT and Ellerbe a check in the amount set
forth opposite such person's name in the last column of Exhibit
2.4.
ARTICLE III ISSUANCE OF PMN SHARES
Section 3.1 Transfer of Partnership Units . Immediately
after the Closing, CT and Ellerbe will sell, assign, transfer and
deliver to PMN and PMN will accept and purchase from CT and
Ellerbe twenty Partnership Units from CT and ten Partnership
Units from Ellerbe. The sale, transfer, assignment, and
conveyance of the Units shall be made by the delivery by CT and
Ellerbe at the PMN Closing of certificates representing the
Partnership Units duly endorsed for transfer or accompanied by
duly executed documents of assignment, transfer, and conveyance
as PMN may request.
Section 3.2 Issuance of Stock. In consideration of the
aforesaid sale, assignment, transfer and delivery of the
Partnership Units, PMN will cause to be issued and delivered to
CT as payment for the Partnership Units 25,200 shares of PMN
common stock, par value $1.00 per share (the "CT Shares"). In
consideration of the aforesaid sale, assignment, transfer and
delivery of the Partnership Units, PMN will cause to be issued
and delivered to Ellerbe as payment for the Partnership Units
3,285 shares of PMN common stock, par value $1.00 per share (the
"Ellerbe Shares" and, together with the CT Shares, the "PMN
Shares"). The PMN Shares to be issued and delivered pursuant to
the terms of this Agreement, when issued as contemplated hereby
shall be duly authorized, validly issued, fully paid and
nonassessable. The sale, transfer, assignment, and conveyance of
the PMN Shares shall be made by the delivery to CT and Ellerbe at
the Closing of certificates representing the PMN Shares.
ARTICLE IV CLOSING
Section 4.1 Time and Place of Closing. Upon the terms
and subject to the conditions contained in this Agreement, the
Closing shall take place at the Columbia, South Carolina offices
of ▇▇▇▇▇▇ Law Firm, P.A., at 10:00 a.m. (local time) within two
days after the satisfaction of the conditions set forth in
Article VIII, or at such other place or later time as the parties
may agree. All actions taken and documents delivered at the
Closing shall be deemed to have been taken and executed
simultaneously, and no action shall be deemed taken or any
document delivered until all have been taken and delivered.
Section 4.2 Deliveries by CT. At the Closing, CT shall
deliver the following to the Partnership (unless waived by the
Partnership);
(a) a legal opinion of CT's attorney as may be
reasonably required by the Partnership and its counsel;
(b) the CT Assignment of Interest (the "CT
Assignment") duly executed by CT and any other documents that are
necessary to transfer to the Partnership good title to the CT
Interests;
(c) the Certification Signature Page to the Limited
Partnership Agreement substantially in the form of Exhibit
4.2(c);
(d) [reserved]
(e) any and all ledgers, minute books, and records of
CT 15 LLC and CT 4/5 LLC;
(f) the certificates contemplated by Section 8.2(e);
(g) a waiver and release substantially in the form of
Exhibit 4.2(g);
(h) the Balance Sheets of CT 15 LLC, CT 4/5 LLC, and
NC RSA 15 Partnership; and
(i) such certificates and other documents as the
Partnership and its counsel may reasonably require to evidence
the receipt by CT of all necessary consents, authorizations, and
approvals for the consummation of the transactions contemplated
hereby.
Section 4.3 Deliveries by Ellerbe. At the Closing,
Ellerbe shall deliver the following to the Partnership (unless
waived by the Partnership);
(a) a legal opinion of the ▇▇▇▇▇▇▇'▇ attorney as may
be reasonably required by the Partnership or its counsel;
(b) the Ellerbe of Interest (the "Ellerbe Assignment")
Agreement duly executed by Ellerbe and any other documents that
are necessary to transfer to the Partnership good title to the
Ellerbe Interest;
(c) the Certification Signature Page to the Limited
Partnership Agreement substantially in the form of Exhibit
4.3(c);
(d) [reserved]
(e) any and all ledgers, minute books, and records of
the Ellerbe Partnership;
(f) the certificates contemplated by Section 8.2(e);
(g) a waiver and release substantially in the form of
Exhibit 4.3(g);
(h) the Balance Sheet of Ellerbe-Concord Company and
NC RSA 4/5 Partnership; and
(i) such certificates and other documents as the
Partnership and its counsel may reasonably require to evidence
the receipt by Ellerbe of all necessary consents, authorizations,
and approvals for the consummation of the transactions
contemplated hereby.
Section 4.4 Deliveries by the Partnership. At the
Closing, the Partnership shall deliver the following to each of
CT and Ellerbe (unless waived by them);
(a) a legal opinion of the Partnership's attorney as
may be reasonably required by CT, Ellerbe, or their counsel;
(b) a certificate representing the number of
Partnership Units to be issued to each of them at the Closing
pursuant to Section 2.3 and accompanied by any other documents
that are necessary to transfer to each of them good title to the
Partnership Units it is acquiring hereunder;
(c) a check payable to it as provided in Section 2.4;
(d) the certificate contemplated by Section 8.1(c);
(e) certified copies of (i) the Second Amendment of
the Limited Partnership Agreement of the Partnership, (ii) the
Third Amendment of the Limited Partnership Agreement, (iii) a
resolution of the board of directors of PMN, in its capacity as
the General Partner of the Partnership, approving the
transactions contemplated hereby and (iv) the written consent of
the Partners approving the transaction contemplated hereby;
(f) the Balance Sheets of the Partnership and each of
the SC RSA Partnerships; and
(g) such certificates and other documents as CT and
Ellerbe and their counsel may reasonably require to evidence the
receipt by the Partnership of all necessary consents,
authorizations, and approvals for the consummation of the
transactions contemplated hereby.
Section 4.5 Deliveries by PMN . At the PMN Closing, PMN
shall deliver the following to each of CT and Ellerbe (unless
waived by them);
(a) a legal opinion of PMN's attorney as may be
reasonably required by the Partnership or its counsel;
(b) the certificate contemplated by Section 8.1(c);
(c) certified copies of (i) the Second Amendment of
the Stockholders' Agreement of PMN, and (ii) a resolution of the
board of directors of PMN approving the transactions contemplated
hereby;
(d) the Balance Sheet of PMN; and
(e) such certificates and other documents as CT and
Ellerbe and their counsel may reasonably require to evidence the
receipt by PMN of all necessary consents, authorizations, and
approvals for the consummation of the transactions contemplated
hereby.
Section 4.6 Deliveries by PMN, CT and Ellerbe. At the
PMN Closing, PMN shall deliver to each of CT and Ellerbe (a) a
certificate representing the number of PMN Shares to be issued to
CT or Ellerbe (as the case may be) pursuant to Section 3.2 and
accompanied by any other documents that are necessary to transfer
to it good title to the PMN Shares; and (b) each of CT and
Ellerbe shall deliver to PMN (unless waived by PMN) (i) the
certificates representing the Partnership Units to be transferred
to PMN pursuant to Section 3.1 duly endorsed for transfer or
accompanied by any other documents that are necessary to transfer
to the PMN good title to such Partnership Units; and (ii) the
Signature Page to the Stockholders' Agreement substantially in
the form of Exhibit 4.6;
ARTICLE V REPRESENTATIONS AND WARRANTIES OF CT AND ELLERBE
Section 5.1 Representations and Warranties of CT
Regarding the CT Interests. CT individually represents and
warrants to the Partnership that:
(a) Title and Voting.
CT is the sole record and beneficial owner of all
of the outstanding CT Interests free and clear of all (i) voting
trust and other arrangements that require or permit any of the CT
Interests to be voted by or at the discretion of anyone other
than CT and (ii) Encumbrances.
(b) Effect of Transfer of CT Interests.
Upon consummation of the transactions contemplated
hereby, CT will have transferred to the Partnership all of the
outstanding CT Interests, free and clear of all Encumbrances
other than such Encumbrances as have been or may be created
pursuant to this Agreement.
Section 5.2 Representations and Warranties of Ellerbe
Regarding the Ellerbe Interest. Ellerbe represents and warrants
to the Partnership that:
(a) Title and Voting.
Ellerbe is the sole record and beneficial owner of
the Ellerbe Interest free and clear of all (i) voting trust and
other arrangements that require or permit any of the interests in
the Ellerbe-Concord Company owned by Ellerbe to be voted by or at
the discretion of anyone other than Ellerbe and (ii)
Encumbrances.
(b) Effect of Transfer of Ellerbe Interest.
Upon consummation of the transactions contemplated
hereby, Ellerbe will have transferred to the Partnership all of
▇▇▇▇▇▇▇'▇ interest in the Ellerbe-Concord Company, free and clear
of all Encumbrances other than such Encumbrances as have been or
may be created pursuant to this Agreement.
Section 5.3 Representations and Warranties of CT. CT
represents and warrants to the Partnership that:
(a) Title and Voting.
CT 15 LLC is the sole record and beneficial owner
of the 50% general partnership interest in NC RSA 15 Partnership
held by it and CT 4/5 LLC is the sole record and beneficial owner
of the 49% interest in the Ellerbe-Concord Company held by it,
free and clear of all (i) voting trust and other arrangements
that require or permit any of the partnership interests owned by
it to be voted by or at the discretion of anyone other than it
and (ii) Encumbrances.
(b) Effect of Transfer.
Upon consummation of the transactions contemplated
hereby, the interest of CT 15 LLC in the NC RSA 15 Partnership
and the interest of CT 4/5 LLC in the Ellerbe-Concord Company
will be free and clear of all Encumbrances other than such
Encumbrances as have been or may be created pursuant to this
Agreement.
(c) Organization.
Each of CT 15 LLC and CT 4/5 LLC is a limited
liability company duly organized, validly existing, and in good
standing under the laws of the State of Delaware. Complete and
correct copies of the Operating Agreement, as currently in
effect, of each of CT 15 LLC and CT 4/5 LLC have been delivered
to the Partnership. All actions and transactions requiring
approval or other action by their respective managers or members
have been duly authorized or ratified as necessary.
(d) Capitalization.
CT is the owner of all the outstanding membership interests
of CT 15 LLC and CT 4/5 LLC, and all such interests have been
duly authorized and are validly issued, fully paid and
nonassessable. There are not, and at the Closing Date there will
not be, outstanding (i) any options, warrants, or other rights
with respect to the membership interests of CT 15 LLC or CT 4/5
LLC, (ii) any securities convertible into or exchangeable for
shares of such membership interests, or (iii) any other
commitments of any kind for the issuance of additional membership
interests or options, warrants, or other securities of CT 15 LLC
or CT 4/5 LLC.
(e) Company Subsidiaries.
CT 15 LLC and CT 4/5 LLC have no subsidiaries.
(f) Banks and Financial Institutions.
The names and locations of all banks and other
financial institutions at which the CT 15 LLC and CT 4/5 LLC have
any accounts or safe deposit boxes, the numbers of such accounts,
and the names of all persons authorized to draw thereon or have
access thereto are set forth on Exhibit 5.3(f).
(g) Financial Statements.
Attached as Exhibit 5.3(g) are the balance sheets
of CT 15 LLC and CT 4/5 LLC for the nine months ended September
30, 1997. The balance sheets referred to in this Section
presents, and any financial statements of either the CT 15 LLC or
CT 4/5 LLC delivered to the Issuers will present, fairly in all
material respects the financial position of such entities as of
their respective dates and the results of its operations and its
cash flows for the periods then ended, all in conformity with
generally accepted accounting principles applied on a consistent
basis, and do not and will not include or omit to state any fact
which renders such financial statements misleading.
(h) Good Standing and Authority.
Neither CT 15 LLC nor CT 4/5 LLC (i) has any
offices in any state other than Delaware and North Carolina, (ii)
owns or leases any property in any state other than Delaware and
North Carolina, or (iii) is required to qualify to do business in
any state other than Delaware and North Carolina. Each of CT 15
LLC and CT 4/5 LLC has full power and authority to carry on its
business as it is now conducted and as it was conducted in the
past and is entitled to own, lease, or operate all of its
properties and assets in all places where such properties and
assets are now or have been owned, leased, or operated. Each of
CT 15 LLC and CT 4/5 LLC has full power and authority to carry on
its business as it is now conducted and as it was conducted in
the past and is entitled to own, lease, or operate all of its
properties and assets in all places where such properties and
assets are now or have been owned, leased, or operated.
(i) Certain Contracts and Arrangements.
Exhibit 5.3(i) sets forth a list of all material
contracts of CT 15 LLC and CT 4/5 LLC. Except as set forth in
Exhibit 5.3(i), CT 15 LLC and CT 4/5 LLC are not parties to any
(i) power of attorney (whether revocable or irrevocable) given to
any person for any purpose whatsoever, (ii) agreement to lease
real or personal property, whether as lessor or lessee, or (iii)
guarantee or indemnity or other contract, agreement, undertaking,
or arrangement, whether oral, written, or implied, that involves
payments by or to CT 15 LLC or CT 4/5 LLC of more than $1,000 in
the aggregate or that is not terminable by CT 15 LLC or CT 4/5
LLC on 30 or fewer days' notice at any time without penalty.
There is not, under any of the agreements or instruments listed
on Exhibit 5.3(i), any existing default, event of default, or
other event that would constitute (with or without notice or
lapse of time or otherwise) a default or event of default on the
part of CT 15 LLC or CT 4/5 LLC; no default, event of default, or
other event that would constitute (with or without notice or
lapse of time or otherwise) a default or event of default by any
other party thereto is known or claimed by CT 15 LLC or CT 4/5
LLC to exist; and consummation of the transactions contemplated
hereby will not violate or otherwise constitute a breach of any
such agreements.
(j) Employment Matters.
(i) CT 15 LLC and CT 4/5 LLC have no employees
now and never have had any employees. CT 15 LLC and CT 4/5 LLC
are not now, and never have been, parties to any union contract
or collective bargaining agreement with any labor union or other
association of employees.
(ii) CT 15 LLC and CT 4/5 LLC are not, and as of
the Closing will not be, obligated or liable, pursuant to any
plan, contract, agreement, arrangement, understanding, applicable
law or judgment, or otherwise, for the payment of any benefits
pursuant to any employee benefit plan as defined in Section 3(3)
of ERISA.
(iii) CT 15 LLC and CT 4/5 LLC do not
contribute, and have not contributed and are not obligated to
contribute, to any multiemployer plan within the meaning of
Section 3(37) of ERISA.
(iv) CT 15 LLC and CT 4/5 LLC have no current
plans that provide, and no projected liability in respect of,
post-retirement health and medical benefits.
(k) Accounts Receivable.
Any accounts receivable as shown on the Balance
Sheet of CT 15 LLC or CT 4/5 LLC represent valid obligations
arising in the ordinary course of business. As of the Closing
Date, the accounts receivable net of applicable reserves will be
collectible in the ordinary course of business. There is no
contest, claim, or right of set-off contained in any agreement
with any maker of an account receivable relating to the amount or
validity of such account receivable.
Section 5.4 Representations and Warranties of CT and
Ellerbe Regarding Ellerbe-Concord Company. CT and Ellerbe
represent and warrant to the Partnership that:
(a) Title and Voting.
Ellerbe-Concord Company is the sole record and
beneficial owner of the 50% general partnership interests in NC
RSA 4/5 Partnership held by it, free and clear of all (i) voting
trust and other arrangements that require or permit such
interests to be voted by or at the discretion of anyone other
than Ellerbe-Concord Company and (ii) Encumbrances.
(b) Effect of Transfer.
Upon consummation of the transactions contemplated
hereby, Ellerbe-Concord Company's interest in the NC RSA 4/5
Partnership will be free and clear of all Encumbrances other than
such Encumbrances as have been or may be created pursuant to this
Agreement.
(c) Organization.
Ellerbe-Concord Company is a general partnership
duly organized, validly existing, and in good standing under the
laws of the State of North Carolina. Complete and correct copies
of the Partnership Agreement, as currently in effect, of Ellerbe-Concord
Company have been delivered to the Partnership. All
actions and transactions requiring approval or other action by
the partners of Ellerbe-Concord Company have been duly authorized
or ratified as necessary.
(d) Capitalization.
Ellerbe-Concord Company has two partners, CT 4/5
LLC and Ellerbe. There are not, and at the Closing Date there
will not be, outstanding (i) any options, warrants, or other
rights with respect to Ellerbe-Concord Company (ii) any
securities convertible into or exchangeable for interests in such
partnership, or (iii) any other commitments of any kind for the
issuance of additional interests or options, warrants, or other
securities of Ellerbe Partnership.
(e) Company Subsidiaries.
Ellerbe-Concord Company has no subsidiaries.
(f) Banks and Financial Institutions.
The names and locations of all banks and other
financial institutions at which Ellerbe-Concord Company has any
accounts or safe deposit boxes, the numbers of such accounts, and
the names of all persons authorized to draw thereon or have
access thereto are set forth on Exhibit 5.4(f).
(g) Financial Statements.
Attached as Exhibit 5.4(g) is the balance sheet of
Ellerbe-Concord Company for nine months ended September 30, 1997.
The balance sheet referred to in this Section presents, and any
financial statements of Ellerbe-Concord Company delivered to the
Partnership will present, fairly in all material respects the
financial position of Ellerbe-Concord Company as of their
respective dates and the results of Ellerbe-Concord Company's
operations and its cash flows for the periods then ended, all in
conformity with generally accepted accounting principles applied
on a consistent basis, and do not and will not include or omit to
state any fact which renders such financial statements
misleading.
(h) Good Standing and Authority .
Ellerbe-Concord Company (i) has no employees and no
offices in any state other than North Carolina, (ii) does not own
or lease any property in any state other than North Carolina, and
(iii) is not required to qualify to do business in any state
other than North Carolina. Ellerbe-Concord Company has full
power and authority to carry on its business as it is now
conducted and as it was conducted in the past and is entitled to
own, lease, or operate all of its properties and assets in all
places where such properties and assets are now or have been
owned, leased, or operated.
(i) Certain Contracts and Arrangements.
Exhibit 5.4(i) sets forth a list of all material
contracts of Ellerbe-Concord Company. Except as set forth in
Exhibit 5.4(i), Ellerbe-Concord Company is not a party to any (i)
power of attorney (whether revocable or irrevocable) given to any
person for any purpose whatsoever, (ii) agreement to lease real
or personal property, whether as lessor or lessee, or (iii)
guarantee or indemnity or other contract, agreement, undertaking,
or arrangement, whether oral, written, or implied, that involves
payments by or to Ellerbe-Concord Company of more than $1,000 in
the aggregate or that is not terminable by Ellerbe-Concord
Company on 30 or fewer days' notice at any time without penalty.
There is not, under any of the agreements or instruments listed
on Exhibit 5.4(i), any existing default, event of default, or
other event that would constitute (with or without notice or
lapse of time or otherwise) a default or event of default on the
part of Ellerbe-Concord Company; no default, event of default, or
event that would constitute (with or without notice or lapse of
time or otherwise) a default or event of default by any other
party thereto is known or claimed by Ellerbe-Concord Company to
exist; and consummation of the transactions contemplated hereby
will not violate or otherwise constitute a breach of any such
agreements.
(j) Employment Matters.
(i) Ellerbe-Concord Company has no employees now
and never has had an employee. Ellerbe-Concord Company is not
now, and never has been, a party to any union contract or
collective bargaining agreement with any labor union or other
association of employees.
(ii) Ellerbe-Concord Company is not, and as of the
Closing will not be, obligated or liable, pursuant to any plan,
contract, agreement, arrangement, understanding, applicable law
or judgment, or otherwise, for the payment of any benefits
pursuant to any employee benefit plan as defined in Section 3(3)
of ERISA.
(iii) Ellerbe-Concord Company does not
contribute, and has not contributed and is not obligated to
contribute, to any multiemployer plan within the meaning of
Section 3(37) of ERISA.
(iv) Ellerbe-Concord Company has no current plans
that provide, and no projected liability in respect of, post-retirement
health and medical benefits.
(k) Accounts Receivable.
Any accounts receivable as shown on the balance
sheet of the Ellerbe-Concord Company represent valid obligations
arising in the ordinary course of business. As of the Closing
Date, the accounts receivable net of applicable reserves will be
collectible in the ordinary course of business. There is no
contest, claim, or right of set-off contained in any agreement
with any maker of an account receivable relating to the amount or
validity of such account receivable.
Section 5.5 Additional Representations and Warranties of
CT and Ellerbe. Each of CT and Ellerbe individually and
severally (but not jointly) represents and warrants to each
Issuer that:
(a) Consents and Approvals; No Violations.
Except as disclosed on Exhibit 5.5(a), neither the
execution or delivery by it of this Agreement or any of the other
Basic Documents nor the performance by it of the terms hereof or
thereof nor the consummation of the transactions contemplated
hereby or thereby (i) requires any notice, consent, or approval
under, or has resulted or will result (with or without notice,
lapse of time, or otherwise) in a breach of the terms or
conditions of, a default under, a conflict with, or the
acceleration of (or the creation in any Person of any right to
cause the acceleration of) any performance or any increase in any
payment required by, or the termination, suspension,
modification, impairment, or forfeiture (or the creation in any
Person of any right to cause the termination, suspension,
modification, impairment, or forfeiture) of any rights or
privileges of it under, any material agreement, instrument,
undertaking, judgment, award, regulatory or other restriction, or
obligation to which it, any of its ownership interests, or any of
its properties, assets, or business may be bound or affected;
(ii) has resulted or will result (with or without notice, lapse
of time, or otherwise) in the creation, imposition or foreclosure
of, or right to exercise or foreclose any Encumbrance of any
nature whatsoever upon or in any of its ownership interests;
(iii) conflicts or will conflict with any requirement of law
applicable to it or by which it or any of such its ownership
interests may be bound or affected; or (iv) requires it to make
any filing with, give any notice to, or obtain any permit,
authorization, consent, or approval of, any Person which will not
have been obtained by the Closing.
(b) Delivery of Documents.
(1) This Agreement has been, and at or prior to
the Closing each of the other Basic Documents to which it is a
party will have been, duly executed and delivered by it.
(2) This Agreement constitutes, and each of the
other Basic Documents to which it is a party when executed and
delivered by it will constitute, a legal, valid, and binding
obligation of it, enforceable against it in accordance with its
terms.
(c) Broker's or Finder's Fees.
No agent, broker, or other Person acting on its
behalf is or will be entitled to any commission or broker's or
finder's fees from any of the parties hereto, or from any
Affiliate of any of the parties hereto, in connection with any of
the transactions contemplated hereby.
(d) Due Authorization.
It has full legal capacity, right, power, and
authority to enter into, deliver, and perform this Agreement and
each of the other Basic Documents to which it is or is intended
to be a party or which it has or is required to deliver pursuant
hereto and to consummate the transactions contemplated hereby or
thereby.
Section 5.6 Additional Representations of CT and Ellerbe
with Respect to CT 15 LLC, CT 4/5 LLC, Ellerbe-Concord Company,
NC RSA 15 Partnership, and NC RSA 4/5 Partnership.
For purposes of the representations and warranties of CT in
this Section 5.6 references to the Company shall be deemed to
refer to CT 15 LLC, CT 4/5 LLC, NC RSA 15 Partnership and NC RSA
4/5 Partnership. For purposes of the representations and
warranties of Ellerbe in this Section 5.6 references to the
Company shall be deemed to refer to Ellerbe-Concord Company and
NC RSA 4/5 Partnership. In addition, the representations and
warranties by both CT and Ellerbe with respect to NC RSA 15
Partnership and NC RSA 4/5 Partnership shall be limited to their
actual knowledge with respect to such partnerships. Subject to
the foregoing, each of CT and Ellerbe severally, but not jointly,
represents and warrants to each Issuer as follows:
(a) No Undisclosed Liabilities.
Except as set forth in Exhibit 5.6(a), the Company
has no liability or obligation of any nature whatsoever (whether
secured or unsecured, absolute, accrued, contingent, or
otherwise, and whether due or to become due), except (i) as and
to the extent accrued or reserved against in the Balance Sheet of
such Company or disclosed in the notes thereto or (ii) debts,
liabilities, and obligations arising after the date of the
Balance Sheet of such Company in the ordinary course of business.
(b) Absence of Certain Changes or Events.
Except as set forth in Exhibit 5.6(b), since the
date of the Balance Sheet of such Company there has not been (i)
any change in the business, operations, condition (financial or
other), properties or assets, liabilities, results of operations,
or prospects of the Company or in the value of its ownership
interests other than changes in the ordinary course of business,
none of which, individually or in the aggregate, has had or is
reasonably likely to have a material adverse effect on the
business, operations, condition (financial or other), properties
or assets, liabilities, results of operations, or prospects of
the Company or in the value of such interests; (ii) any issuance
or authorization of any issuance of any security of the Company
or any declaration, setting aside, or payment of any dividend or
other distribution (whether in cash, stock, property, or any
combination thereof) in respect of or any other security of the
Company, or any redemption or other acquisition by the Company of
or any other security of the Company; (iii) any material damage,
destruction, or casualty loss of any of the Company's properties
or assets, whether covered by insurance or not; (iv) any increase
in the amount or rate or change in the terms of compensation
payable or to become payable by the Company to any of its
directors, officers, agents, or employees or any increase in the
amount or rate or change in the terms of any bonus, insurance,
pension, or other employee benefit plan, payment, or arrangement
made to, for, or with any of such directors, officers, or
employees, or the adoption or establishment of any such plan or
arrangement; (v) any change by the Company in accounting or
auditing methods, principles, or practices; (vi) any discharge or
satisfaction of any Encumbrance or payment, cancellation,
compromise, or other satisfaction of any material obligation,
indebtedness, or liability (absolute or contingent) other than
the payment in the ordinary course of business of current
liabilities shown on the Company's Balance Sheet or incurred
since the date thereof in the ordinary course of business
consistent with past practice; (vii) any mortgage, pledge,
subjection to, or suffering to exist of any Encumbrance upon any
of the Company's properties or assets; (viii) any sale, transfer,
or other disposition of any of the Company's properties or assets
except in the ordinary course of business; (ix) any (A) purchase,
lease, or acquisition by the Company of any additional assets
except in the ordinary course of the business and consistent with
past practice or (B) extraordinary capital or operating
expenditure, capital addition, or improvement; (x) any loan or
advance or any other payment by the Company to or any other
transaction with any of the Company's directors, officers, or
employees or any of their respective Affiliates or Associates;
(xi) any modification, amendment, or termination of any material
agreement to which the Company is a party or by which it or any
of its properties or assets is bound, or any waiver or release of
any rights under any such agreement; (xii) except for routine
operating expenses incurred in the ordinary course of business
consistent with past practice, any incurrence of any debt,
obligation, or liability of any nature, whether accrued,
absolute, contingent, or otherwise; (xiii) any strike or work
stoppage that adversely affects the Company's business; (xiv) any
merger, consolidation, share exchange, or other material
transaction involving the Company; or (xv) any authorization of
or agreement to do any of the foregoing.
(c) Books of Account.
The books of account of the Company are true and
complete in all material respects, have been maintained in
accordance with good business and accounting practices, and
accurately and fairly reflect all of the properties, assets,
liabilities, and transactions of the Company in accordance with
generally accepted accounting principles consistently applied.
Since December 31, 1996, there have not been any disagreements
between the Company and its accountants or former accountants, or
any change by the Company in its accounting methods, principles,
or practices except as required by generally accepted accounting
principles and consented to by the Company's accountants.
(d) Title and Related Matters.
The Company owns and possesses and has good and
merchantable or marketable title to all of its properties and
assets, free and clear of Encumbrances. All of such properties
and assets are in good operating condition and repair, ordinary
wear and tear excepted, and are free and clear of any material
defects. The properties and assets of the Company have been
properly maintained and have been repaired or replaced when
necessary. The assets and properties owned or leased by the
Company constitute all of the assets and properties necessary or
appropriate for the continued operation of the Company's business
in the same fashion as it has been conducted.
(e) Legal Proceedings, etc.
There is no claim, suit, action, arbitration,
governmental inquiry, injunction, consent decree, or legal,
administrative, or other proceeding existing, pending, or
threatened against or relating to the Company or any of its
properties or assets, nor is there any basis for any such claim,
suit, action, arbitration, governmental inquiry, injunction,
consent decree, or legal, administrative, or other proceeding.
There are no judgments outstanding against the Company or to or
by which the Company or any of its properties or assets are
subject or bound.
(f) Insurance.
The Company maintains insurance in such amounts
and in respect of such risks as are customary for entities such
as the Company. The Company has not received any notice or other
communication from any such insurance company canceling or
materially amending or materially increasing the annual or other
premiums payable under any of said insurance policies, and no
such cancellation, amendment, or increase of premiums is
threatened. The Company is not in material default with respect
to any provision contained in any such policy or has failed to
give any notice or present any claim under any such policy in due
and timely fashion.
(g) Taxes.
The Company has duly filed all reports and returns
of Taxes required to be filed by the Company prior to the date
hereof (each such return or report being true, correct, and
complete) and has timely withheld, collected, and paid or
provided for the payment of all Taxes and other charges due or
claimed to be due from or with respect to the Company by federal,
state, and local taxing authorities, including, without
limitation, those due in respect of the properties, income,
franchises, licenses, sales, or payrolls of the Company. There
are no tax liens upon any properties or assets of the Company, or
any special charges or levies, liens, taxes, unemployment
compensation contributions, penalties, or interest that form or
might form an Encumbrance on any of the Company's properties or
assets or that could become payable by the Company or the Issuer
following the Closing. There is no agreement for extension of
time of assessment or payment of any Taxes relating to the
Company's business, and no waiver or any statute of limitations
has been executed by the Company for any tax year that remains
open or unsettled.
(h) All Accounts Paid.
The Company is not in default with respect to the
payment of any material liability.
(i) Environmental Matters.
The Company is in compliance in all material
respects with all applicable Environmental Laws.
(j) Regulatory Licensure or Other Violation.
The Company has not violated any regulatory
agreements or licensing regulations or inspections for which a
fine or penalty may be levied.
(k) Permits, Licenses, and Other Legal Requirements;
Compliance with Laws.
Except as described on Exhibit 5.6(k), the Company
has obtained all approvals, authorizations, licenses, and permits
required by all federal, state, and local governmental agencies
for the conduct of the Company's business. All such approvals,
authorizations, licenses, and permits are in full force and
effect, and the Company is in compliance with all thereof. The
Company has complied in all material respects with all applicable
requirements of law in respect of the conduct of the Company's
business and the ownership, possession, maintenance, and
operation of its properties and assets, and no claims or
investigations alleging any violation by the Company of any such
requirements of law have at any time been made or settled.
(l) Documents Delivered.
All documents that have been or that shall be
delivered to the Issuer by or on behalf of the Company pursuant
to this Agreement or any of the other Basic Documents, or in
connection with the transactions contemplated hereby or thereby,
are, or when so delivered shall be, true and complete copies of
the originals thereof.
(m) Solvency.
The Company is, and at the Closing Date will be,
solvent. No event of bankruptcy with respect to the Company has
occurred or is planned or proposed.
(n) Full Disclosure.
None of the representations and warranties with
respect to the Company herein, or in any document, schedule, or
certificate furnished or to be furnished pursuant hereto,
contains, or will contain when so furnished, any false statement
of a material fact or omits or will omit to state any material
fact the omission of which would be misleading.
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE ISSUERS
Section 6.1 Representations and Warranties of the
Partnership. The Partnership represents and warrants to each of
CT and Ellerbe that:
(a) Organization.
The Partnership is a limited partnership duly
organized and validly existing under the laws of the State of
South Carolina. The Partnership (i) has no offices or employees
in any state other than South Carolina, (ii) does not own or
lease any property in any state other than South Carolina, and
(iii) is not required to qualify to do business in any state
other than South Carolina. The Partnership has full power and
authority to carry on its business as it is now conducted and as
it was conducted in the past and is entitled to own, lease, or
operate all of its properties and assets in all places where such
properties and assets are now or have been owned, leased, or
operated. Complete and correct copies of the Certificate of
Limited Partnership and Limited Partnership Agreement, as
currently in effect, of the Partnership have been delivered to CT
and Ellerbe. The minute books of the Partnership, as made
available to CT and Ellerbe, accurately and fairly reflect all
meetings of, and contain true and complete originals of all
written consents in lieu of meetings executed by, the general
partner and partners of the Partnership, and all actions and
transactions requiring approval or other action by the
Partnership's general partner or partners have been duly
authorized or ratified as necessary and are evidenced in such
minute books. The ownership records of the Partnership, as made
available to CT and Ellerbe, are true and complete.
(b) Capitalization.
All of the Partnership Units issued and outstanding
are listed on Exhibit 6.1(b). The Partnership Units to be issued
to CT and Ellerbe on the Closing date will be duly authorized and
validly issued and fully paid. There are not, and at the
Closing Date there will not be, outstanding (i) any Partnership
Units other than those listed on Exhibit 6.1(b) or any options,
warrants, or other rights with respect to Partnership Units, (ii)
any securities convertible into or exchangeable for Partnership
Units, or (iii) any other commitments of any kind for the
issuance of additional Partnership Units or other securities of
the Partnership other than to CT and Ellerbe in accordance with
this Agreement.
(c) Partnership Subsidiaries.
The Partnership has no subsidiaries.
Section 6.2 Representations and Warranties of PMN . PMN
represents and warrants to each of CT and Ellerbe that:
(a) Organization.
PMN is a corporation duly organized and validly
existing under the laws of the State of South Carolina. PMN (i)
has no offices or employees in any state other than South
Carolina, (ii) does not own or lease any property in any state
other than South Carolina, and (iii) is not required to qualify
to do business in any state other than South Carolina. PMN has
full power and authority to carry on its business as it is now
conducted and as it was conducted in the past and is entitled to
own, lease, or operate all of its properties and assets in all
places where such properties and assets are now or have been
owned, leased, or operated. Complete and correct copies of the
articles of incorporation, the bylaws, and the Stockholders'
Agreement, as currently in effect, of PMN have been delivered to
the CT and ▇▇▇▇▇▇▇. The minute books of PMN, as made available
to CT and ▇▇▇▇▇▇▇, accurately and fairly reflect all meetings of,
and contain true and complete originals of all written consents
in lieu of meetings executed by, the board of directors and
shareholders of PMN, and all actions and transactions requiring
approval or other action by PMN board of directors or
shareholders have been duly authorized or ratified as necessary
and are evidenced in such minute books. The ownership records of
PMN, as made available to CT and ▇▇▇▇▇▇▇, are true and complete.
(b) Capitalization.
All of the Shares of PMN common stock issued and
outstanding are listed on Exhibit 6.2(b). Upon issuance to CT
and ▇▇▇▇▇▇▇, the PMN Shares will be duly authorized and validly
issued, fully paid and nonassessable. There are not, and at the
Closing Date there will not be, outstanding (i) any shares of PMN
stock issued and outstanding other than those listed on Exhibit
6.2(b), or options, warrants, or other rights with respect to the
common stock of PMN, (ii) any securities convertible into or
exchangeable for the common stock of PMN, or (iii) any other
commitments of any kind for the issuance of additional shares of
or other securities of PMN, other than the PMN Shares.
(c) PMN Subsidiaries.
PMN has no subsidiaries.
Section 6.3 Representations and Warranties of the
Partnership and PMN. Each of the Partnership and PMN represents
and warrants to each of CT and ▇▇▇▇▇▇▇ that:
(a) Consents and Approvals; No Violations.
Except as disclosed on Exhibit 6.3(a), neither the
execution or delivery of this Agreement or any of the other Basic
Documents by the Issuers, nor the performance by the Issuers or
any of them of the terms hereof or thereof, nor the consummation
of the transactions contemplated hereby or thereby (i) requires
any notice, consent, or approval under, or has resulted or will
result (with or without notice, lapse of time, or otherwise) in a
breach of the terms or conditions of, a default under, a conflict
with, or the acceleration of (or the creation in any Person of
any right to cause the acceleration of) any performance or any
increase in any payment required by, or the termination,
suspension, modification, impairment, or forfeiture (or the
creation in any Person of any right to cause the termination,
suspension, modification, impairment, or forfeiture) of any
rights or privileges of the Issuer under (a) PMN's Articles of
Incorporation or the Partnership's Certificate of Limited
Partnership, (b) PMN's bylaws or Stockholders' Agreement or the
Limited Partnership Agreement, or (c) any material agreement,
instrument, undertaking, judgment, regulatory or other
restriction, or obligation to which either Issuer is a party or
to or by which either Issuer or any of its properties, assets, or
businesses is subject or bound; (ii) has resulted or will result
(with or without notice, lapse of time, or otherwise) in the
creation, imposition or foreclosure of, or right to exercise or
foreclose any Encumbrance of any nature whatsoever upon or in any
of the properties or assets of the Issuer; (iii) does or will
conflict in any material respect with, or result in any violation
of, any requirement of law applicable to either Issuer or to or
by which either Issuer or any of its properties, assets, or
businesses is subject or bound; or (iv) requires either Issuer to
make any filing with, give any notice to, or obtain any permit,
authorization, consent, or approval of, any Person.
(b) Financial Statements.
Attached as Exhibit 6.3(b) are (i) the financial
statements of the Issuers for the fiscal years ended September
30, 1997, December 31, 1996, and December 1, 1995. Each of the
financial statements referred to in this Section presents, and
any financial statements of the Issuers delivered to CT and
▇▇▇▇▇▇▇ will present, fairly in all material respects the
financial position of such Issuer as of their respective dates
and the results of the Issuer's operations and its cash flows for
the periods then ended, all in conformity with generally accepted
accounting principles applied on a consistent basis, and do not
and will not include or omit to state any fact which renders such
financial statements misleading.
(c) No Undisclosed Liabilities.
Except as set forth in Exhibit 6.3(c), neither the
Partnership nor PMN has any liability or obligation of any nature
whatsoever (whether secured or unsecured, absolute, accrued,
contingent, or otherwise, and whether due or to become due),
except (i) as and to the extent accrued or reserved against in
the Balance Sheet or disclosed in the notes thereto or (ii)
debts, liabilities, and obligations arising after the date of the
Balance Sheet in the ordinary course of business and that neither
individually nor in the aggregate are material.
(d) Absence of Certain Changes or Events.
Except as set forth in Exhibit 6.3(d), since the
date of the Balance Sheet there has not been (i) any change in
the business, operations, condition (financial or other),
properties or assets, liabilities, results of operations, or
prospects of the Partnership or PMN or in the value of the
Partnership Units or the common stock of PMN other than changes
in the ordinary course of business, none of which, individually
or in the aggregate, has had or is reasonably likely to have a
material adverse effect on the business, operations, condition
(financial or other), properties or assets, liabilities, results
of operations, or prospects of the Partnership or PMN or in the
value of the Partnership Units or the common stock of PMN; (ii)
any issuance or authorization of any issuance of any security of
the Partnership or PMN or any declaration, setting aside, or
payment of any dividend or other distribution (whether in cash,
stock, property, or any combination thereof) in respect of the
Partnership Units or common stock of PMN or any other security of
the Partnership or PMN, or any redemption or other acquisition by
the Partnership of Partnership Units or any other security of the
Partnership, or any redemption or other acquisition by PMN of
shares of its stock or any other security of PMN; (iii) any
material damage, destruction, or casualty loss of any of the
Partnership's or PMN's properties or assets, whether covered by
insurance or not; (iv) any increase in the amount or rate or
change in the terms of compensation payable or to become payable
by the Partnership or PMN to any of its directors, officers,
agents, or employees or any increase in the amount or rate or
change in the terms of any bonus, insurance, pension, or other
employee benefit plan, payment, or arrangement made to, for, or
with any of such directors, officers, or employees, or the
adoption or establishment of any such plan or arrangement; (v)
any change by the Partnership or PMN in accounting or auditing
methods, principles, or practices; (vi) any discharge or
satisfaction of any Encumbrance or payment, cancellation,
compromise, or other satisfaction of any material obligation,
indebtedness, or liability (absolute or contingent) other than
the payment in the ordinary course of business of current
liabilities shown on the Balance Sheet of the Partnership or PMN
or incurred since the date thereof in the ordinary course of
business consistent with past practice; (vii) any mortgage,
pledge, subjection to, or suffering to exist of any Encumbrance
upon any of the Partnership's or PMN's properties or assets;
(viii) any sale, transfer, or other disposition of any of the
Partnership's or PMN's properties or assets except in the
ordinary course of business; (ix) any (A) purchase, lease, or
acquisition by the Partnership or PMN of any additional assets
except in the ordinary course of the business and consistent with
past practice or (B) extraordinary capital or operating
expenditure, capital addition, or improvement; (x) any loan or
advance or any other payment by the Partnership or PMN to or any
other transaction with any of the Partnership's or PMN's
directors, officers, or employees or any of their respective
Affiliates or Associates; (xi) any modification, amendment, or
termination of any material agreement to which the Partnership or
PMN is a party or by which it or any of its properties or assets
is bound, or any waiver or release of any rights under any such
agreement; (xii) except for routine operating expenses incurred
in the ordinary course of business consistent with past practice,
any incurrence of any debt, obligation, or liability of any
nature, whether accrued, absolute, contingent, or otherwise;
(xiii) any strike or work stoppage that adversely affects the
Partnership's or PMN's business; (xiv) any merger, consolidation,
share exchange, or other material transaction involving the
Partnership or PMN; or (xv) any authorization of or agreement to
do any of the foregoing.
(e) Books of Account.
The books of account of the Partnership and PMN
are true and complete in all material respects, have been
maintained in accordance with good business and accounting
practices, and accurately and fairly reflect all of the
properties, assets, liabilities, and transactions of the
Partnership or PMN, as the case may be, in accordance with
generally accepted accounting principles consistently applied.
Since December 31, 1996 there have not been any disagreements
between the Partnership or PMN and their accountants or former
accountants, or any change by the Partnership or PMN in its
accounting methods, principles, or practices except as required
by generally accepted accounting principles and consented to by
the Partnership's or PMN's accountants.
(f) Title and Related Matters.
The Partnership and PMN own and possess and have
good and merchantable or marketable title to all of their
properties and assets, free and clear of Encumbrances, except as
disclosed in Exhibit 6.3(b). All of such properties and assets
are in good operating condition and repair, ordinary wear and
tear excepted, and are free and clear of any material defects.
The properties and assets of the Partnership and PMN have been
properly maintained and have been repaired or replaced when
necessary. Neither the Partnership nor PMN owns any partnership
interests in or securities of any other corporation or other
entity, and neither the Partnership nor PMN is a partner in any
partnership or member of any joint venture or other business
association, except as disclosed in Exhibit 6.3(f). The assets
and properties owned or leased by the Partnership and PMN
constitute all of the assets and properties necessary or
appropriate for the continued operation of the Partnership's and
PMN's business in the same fashion as it has been conducted.
(g) Certain Contracts and Arrangements.
Exhibit 6.3(g) sets forth a list of all material
contracts of the Partnership and PMN, including all employment
contracts with the other employees of PMN. Except as set forth
in Exhibit 6.3(g), neither the Partnership nor PMN is a party to
any (i) power of attorney (whether revocable or irrevocable)
given to any person for any purpose whatsoever, (ii) agreement to
lease real or personal property, whether as lessor or lessee, or
(iii) guarantee or indemnity or other contract, agreement,
undertaking, or arrangement, whether oral, written, or implied,
that involves payments by or to the Partnership or PMN of more
than $1,000 in the aggregate or that is not terminable by the
Partnership or PMN on 30 or fewer days' notice at any time
without penalty. There is not, under any of the agreements or
instruments listed on Exhibit 6.3(g), any existing default, event
of default, or other event that would constitute (with or without
notice or lapse of time or otherwise) a default or event of
default on the part of the Partnership or PMN; no default, event
of default, or event that would constitute (with or without
notice or lapse of time or otherwise) a default or event of
default by any other party thereto is known or claimed by the
Partnership or PMN to exist; and consummation of the transactions
contemplated hereby will not violate or otherwise constitute a
breach of any such agreements.
(h) Legal Proceedings, etc.
There is no claim, suit, action, arbitration,
governmental inquiry, injunction, consent decree, or legal,
administrative, or other proceeding existing, pending, or
threatened against or relating to the Partnership or PMN or any
of their properties or assets, nor is there any basis for any
such claim, suit, action, arbitration, governmental inquiry,
injunction, consent decree, or legal, administrative, or other
proceeding. There are no judgments outstanding against the
Partnership or PMN or to or by which the Partnership or PMN or
any of its properties or assets are subject or bound.
(i) Insurance.
The Issuers maintain insurance in such amounts and
in respect of such risks as are customary for entities such as
PMN and the Partnership. Exhibit 6.3(i) sets forth a true and
correct list of all insurance policies of any nature whatsoever
currently in effect and maintained by PMN or the Partnership and
the annual or other premiums payable from time to time
thereunder. Neither PMN nor the Partnership has received any
notice or other communication from any such insurance company
canceling or materially amending or materially increasing the
annual or other premiums payable under any of said insurance
policies, and no such cancellation, amendment, or increase of
premiums is threatened. Neither the Partnership nor PMN is in
material default with respect to any provision contained in any
such policy or has failed to give any notice or present any claim
under any such policy in due and timely fashion. Exhibit 6.3(i)
sets forth a list of all claims for any insured loss in excess of
Five Thousand Dollars ($5,000) per occurrence filed by any of the
Issuers during the three-year period immediately preceding the
Closing, including, but not limited to, worker's compensation,
general liability, and environmental liability claims.
(j) Taxes.
The Partnership and PMN have duly filed all
reports and returns of Taxes required to be filed by the
Partnership or PMN, as the case may be, (each such return or
report being true, correct, and complete) and has timely
withheld, collected, and paid or provided for the payment of all
Taxes and other charges due or claimed to be due from or with
respect to the Partnership or PMN by federal, state, and local
taxing authorities, including, without limitation, those due in
respect of the properties, income, franchises, licenses, sales,
or payrolls of the Partnership or PMN. There are no tax liens
upon any properties or assets of the Partnership or PMN, or any
special charges or levies, liens, taxes, unemployment
compensation contributions, penalties, or interest that form or
might form an Encumbrance on any of the Partnership's or PMN's
properties or assets or the Partnership Interests or PMN Shares
or that could become payable by the Partnership, PMN, CT or
▇▇▇▇▇▇▇ following the Closing. There is no agreement for
extension of time of assessment or payment of any Taxes relating
to the Partnership's or PMN's business, and no waiver or any
statute of limitations has been executed by the Partnership or
PMN for any tax year that remains open or unsettled, except as
described in Exhibit 6.3(j).
(k) All Accounts Paid.
The Partnership and PMN are not in default with
respect to the payment of any material liability.
(l) Broker's or Finder's Fees.
No agent, broker, or other Person acting on behalf
of the Issuers is or will be entitled to any commission or
broker's or finder's fees from any of the parties hereto, or from
any Affiliate of any of the parties hereto, in connection with
any of the transactions contemplated hereby.
(m) Employment Matters.
(i) The Partnership has no employees now and has
never had an employee. PMN is in compliance with all federal,
state, and local laws, ordinances, and regulations respecting
employment practices, terms and conditions of employment, and
wages and hours and is not engaged in any unfair labor practice,
and there is no unfair labor practice complaint against the
Partnership pending before the National Labor Relations Board.
Neither the Partnership nor PMN is now, or has ever been, a party
to any union contract or collective bargaining agreement with any
labor union or other association of employees and, to the
knowledge of the Partnership and PMN, no attempt has been made to
organize or certify the employees of PMN as a bargaining unit.
(ii) PMN has never been the subject of any
inspection or investigation relating to its compliance with or
alleging any violation of the Immigration Reform and Control Act
of 1986, or any related federal statute and the rules and
regulations promulgated thereunder (the "Immigration Laws"), nor
has PMN been fined or otherwise penalized by reason of any
failure to comply with the Immigration Laws, nor, to the
knowledge of PMN, is any such proceeding pending or threatened.
(iii) Exhibit 6.3(m)(iii) contains a true and
complete list of all employees (including officers) of PMN, their
current compensation and other remuneration of every kind,
including current year vacation pay earned to date, accrued sick
leave, and the date and amount of the latest compensation
increase of each such employee, together with a summary of
compensation (whether current or deferred) if any, paid or
payable to each such person for services rendered effective
January 1, 1998 and the basis therefor.
(iv) Exhibit 6.3(m)(iv) contains a true and
complete list of all plans, contracts, agreements, practices,
policies, or arrangements, oral or written, that provide for any
bonuses, deferred compensation, excess benefits, pensions,
retirement benefits, profit sharing, stock bonuses, stock
options, stock purchases, fringe benefits, life, accident, and
health insurance, hospitalization, savings, holiday, vacation,
sick pay, sick leave, disability, tuition refund, service awards,
scholarship, relocation, patent awards, severance agreements, or
any other employee or executive benefits, with respect to, and
which currently cover, any employee or former employee of PMN
including, without limitation, any such plan, contract,
agreement, practice, policy, or arrangement that is an "employee
benefit plan" as defined in Section 3(3) of ERISA, including any
"employee welfare benefit plan" as defined in Section 3(1) of
ERISA and any "employee pension benefit plan" as defined in
Section 3(2) of ERISA (all of the foregoing are referred to
herein as the "Benefit Plans").
(v) PMN has made available complete copies, or
accurate and complete descriptions where copies of the same are
not available, of (a) all documents governing the Benefit Plans,
including, without limitation, all amendments thereto which will
become effective at a later date, (b) to the extent required for
any Benefit Plan, the latest Internal Revenue Service
determination letter obtained with respect to such plan, (iii)
Form 5500 for the most recent completed plan year for each of the
Benefit Plans, together with all schedules forming a part
thereof, (iv) all summary plan descriptions relating to the
Benefit Plans, (v) all annuity contracts funding obligations of
any Benefit Plan, and (vi) all insurance policies or contracts
with respect to the Benefit Plans.
(vi) Except as set forth on Exhibit 6.3(m)(iv),
PMN is not, and as of the Closing will not be, obligated or
liable, pursuant to any plan, contract, agreement, arrangement,
understanding, applicable law or judgment, or otherwise, for the
payment of severance pay or other benefit by reason of the
voluntary or involuntary termination of the employment of any
Person, whether before or after the Closing.
(vii) PMN and each plan administrator and
fiduciary of each Benefit Plan identified on Exhibit 6.3(m)(iv)
are and have at all times complied in all material respects with
all applicable requirements of ERISA, the Code, and any other
applicable law (including applicable regulations and rulings
thereunder); each such Benefit Plan is and has been at all times
properly administered in all material respects in accordance with
its terms; and PMN has no liability under or with respect to any
Benefit Plan that could, individually or in the aggregate, have a
material adverse effect on the Partnership.
(viii) Neither PMN nor any other Person has
engaged in any transaction that could subject PMN to liability
for breach of fiduciary duty or for any civil penalty or excise
tax under either Section 502(i) of ERISA or Sections 4972 or 4975
through 4980B of the Code.
(ix) PMN does not contribute, and has not
contributed, to any multiemployer plan within the meaning of
Section 3(37) of ERISA.
(x) PMN has no current plans that provide, and no
projected liability in respect of, post-retirement health and
medical benefits.
(xi) All reports and disclosures relating to the
Benefit Plans required to be filed with or furnished to
governmental agencies, plan participants, or plan beneficiaries
have been or will be filed or furnished in accordance with
applicable law in a timely manner.
(xii) There are no claims or lawsuits (other
than routine claims for benefits) that have been asserted or
instituted against the Benefit Plans, and no basis for any such
claim or lawsuit exists.
(xiii) The total of all unpaid contributions
(including all employer contributions and employer salary
reduction contributions), premiums, and other payments with
respect to the Benefit Plans for all plan periods ending on or
before the Closing does not exceed one thousand dollars.
(xiv) PMN does not and has not ever maintained
an employee pension benefit plan within the meaning of Section
3(2) of ERISA and to which Title IV of ERISA applies pursuant to
Section 4021 of ERISA.
(n) Accounts Receivable.
All accounts receivable of PMN and the Partnership
represent valid obligations. There is no contest, claim, or
right of set-off contained in any agreement with any maker of an
account receivable relating to the amount or validity of such
account receivable.
(o) OSHA.
The Partnership and PMN are in compliance in all
material respects with all requirements of the Occupational
Safety and Health Act pertaining to the facilities and operations
used in the Partnership's business.
(p) Environmental Matters.
The Partnership and PMN are in compliance in all
material respects with all applicable Environmental Laws.
(q) Regulatory Licensure or Other Violation.
The Partnership and PMN have not violated any
regulatory agreements or licensing regulations or inspections for
which a fine or penalty may be levied.
(r) Permits, Licenses, and Other Legal Requirements;
Compliance with Laws.
The Partnership and PMN have obtained all
approvals, authorizations, licenses, and permits required by all
federal, state, and local governmental agencies, including,
without limitation, any Environmental Laws and any applicable
building, zoning, or other law, ordinance, or regulation
affecting the Partnership's or PMN's properties or assets or the
conduct of the Partnership's or PMN's business. All such
approvals, authorizations, licenses, and permits are listed on
Exhibit 6.3(r) and are in full force and effect, and the
Partnership and PMN are in compliance with all thereof. The
Partnership and PMN have complied in all material respects with
all applicable requirements of law in respect of the conduct of
the Partnership's or PMN's business and the ownership,
possession, maintenance, and operation of its properties and
assets, and no claims or investigations alleging any violation by
the Partnership or PMN of any such requirements of law have at
any time been made or settled.
(s) Documents Delivered.
All documents that have been or that shall be
delivered to CT and ▇▇▇▇▇▇▇ by or on behalf of the Partnership or
PMN pursuant to this Agreement or any of the other Basic
Documents, or in connection with the transactions contemplated
hereby or thereby, are, or when so delivered shall be, true and
complete copies of the originals thereof.
(t) Solvency.
The Partnership is, and at the Closing Date will
be, solvent. PMN is, and at the Closing Date will be, solvent.
No event of bankruptcy with respect to the Partnership or PMN has
occurred or is planned or proposed.
(u) Full Disclosure.
None of the representations and warranties made by
any of the Issuers herein, or in any document, schedule, or
certificate furnished or to be furnished by the Issuers pursuant
hereto, contains, or will contain when so furnished, any false
statement of a material fact or omits or will omit to state any
material fact the omission of which would be misleading.
Section 6.4 Representations of PMN and the Partnership with
Respect to the SC RSA Partnerships.
For purposes of the representations and warranties of PMN
and the Partnership in this Section 6.4 references to the Company
shall be deemed to refer to the SC RSA Partnerships. In addition
the representations and warranties by both PMN and the
Partnership with respect to the SC RSA Partnerships shall be
limited to their actual knowledge with respect to such
partnerships. Subject to the foregoing, each of PMN and the
Partnership represent and warrant to CT and ▇▇▇▇▇▇▇ as follows:
(a) No Undisclosed Liabilities.
Except as set forth in Exhibit 6.4(a), the Company
has no liability or obligation of any nature whatsoever (whether
secured or unsecured, absolute, accrued, contingent, or
otherwise, and whether due or to become due), except (i) as and
to the extent accrued or reserved against in the Balance Sheet of
such Company or disclosed in the notes thereto or (ii) debts,
liabilities, and obligations arising after the date of the
Balance Sheet of such Company in the ordinary course of business
and that neither individually nor in the aggregate are material.
(b) Absence of Certain Changes or Events.
Except as set forth in Exhibit 6.4(b), since the
date of the Balance Sheet of such Company there has not been (i)
any change in the business, operations, condition (financial or
other), properties or assets, liabilities, results of operations,
or prospects of the Company or in the value of its ownership
interests other than changes in the ordinary course of business,
none of which, individually or in the aggregate, has had or is
reasonably likely to have a material adverse effect on the
business, operations, condition (financial or other), properties
or assets, liabilities, results of operations, or prospects of
the Company or in the value of such interests; (ii) any issuance
or authorization of any issuance of any security of the Company
or any declaration, setting aside, or payment of any dividend or
other distribution (whether in cash, stock, property, or any
combination thereof) in respect of or any other security of the
Company, or any redemption or other acquisition by the Company of
or any other security of the Company; (iii) any material damage,
destruction, or casualty loss of any of the Company's properties
or assets, whether covered by insurance or not; (iv) any increase
in the amount or rate or change in the terms of compensation
payable or to become payable by the Company to any of its
directors, officers, agents, or employees or any increase in the
amount or rate or change in the terms of any bonus, insurance,
pension, or other employee benefit plan, payment, or arrangement
made to, for, or with any of such directors, officers, or
employees, or the adoption or establishment of any such plan or
arrangement; (v) any change by the Company in accounting or
auditing methods, principles, or practices; (vi) any discharge or
satisfaction of any Encumbrance or payment, cancellation,
compromise, or other satisfaction of any material obligation,
indebtedness, or liability (absolute or contingent) other than
the payment in the ordinary course of business of current
liabilities shown on the Company's Balance Sheet or incurred
since the date thereof in the ordinary course of business
consistent with past practice; (vii) any mortgage, pledge,
subjection to, or suffering to exist of any Encumbrance upon any
of the Company's properties or assets; (viii) any sale, transfer,
or other disposition of any of the Company's properties or assets
except in the ordinary course of business; (ix) any (A) purchase,
lease, or acquisition by the Company of any additional assets
except in the ordinary course of the business and consistent with
past practice or (B) extraordinary capital or operating
expenditure, capital addition, or improvement; (x) any loan or
advance or any other payment by the Company to or any other
transaction with any of the Company's directors, officers, or
employees or any of their respective Affiliates or Associates;
(xi) any modification, amendment, or termination of any material
agreement to which the Company is a party or by which it or any
of its properties or assets is bound, or any waiver or release of
any rights under any such agreement; (xii) except for routine
operating expenses incurred in the ordinary course of business
consistent with past practice that are normally paid within 30
days of the due date thereof, any incurrence of any debt,
obligation, or liability of any nature, whether accrued,
absolute, contingent, or otherwise; (xiii) any strike or work
stoppage that adversely affects the Company's business; (xiv) any
merger, consolidation, share exchange, or other material
transaction involving the Company; or (xv) any authorization of
or agreement to do any of the foregoing.
(c) Books of Account.
Except as disclosed in Exhibit 6.4(c), the books
of account of the Company are true and complete in all material
respects, have been maintained in accordance with good business
and accounting practices, and accurately and fairly reflect all
of the properties, assets, liabilities, and transactions of the
Company in accordance with generally accepted accounting
principles consistently applied. Since December 31, 1996, there
have not been any disagreements between the Company and its
accountants or former accountants, or any change by the Company
in its accounting methods, principles, or practices except as
required by generally accepted accounting principles and
consented to by the Company's accountants.
(d) Title and Related Matters.
The Company owns and possesses and has good and
merchantable or marketable title to all of its properties and
assets, free and clear of Encumbrances, except as described in
Exhibit 6.3(b). All of such properties and assets are in good
operating condition and repair, ordinary wear and tear excepted,
and are free and clear of any material defects. The properties
and assets of the Company have been properly maintained and have
been repaired or replaced when necessary. The Company does not
own any shares in or securities of any other corporation or other
entity, except as described in Exhibit 6.3(b). The assets and
properties owned or leased by the Company constitute all of the
assets and properties necessary or appropriate for the continued
operation of the Company's business in the same fashion as it has
been conducted.
(e) Legal Proceedings, etc.
There is no claim, suit, action, arbitration,
governmental inquiry, injunction, consent decree, or legal,
administrative, or other proceeding existing, pending, or
threatened against or relating to the Company or any of its
properties or assets, nor is there any basis for any such claim,
suit, action, arbitration, governmental inquiry, injunction,
consent decree, or legal, administrative, or other proceeding.
There are no judgments outstanding against the Company or to or
by which the Company or any of its properties or assets are
subject or bound.
(f) Insurance.
The Company maintains insurance in such amounts
and in respect of such risks as are customary for entities such
as the Company. The Company has not received any notice or other
communication from any such insurance company canceling or
materially amending or materially increasing the annual or other
premiums payable under any of said insurance policies, and no
such cancellation, amendment, or increase of premiums is
threatened. The Company is not in material default with respect
to any provision contained in any such policy or has failed to
give any notice or present any claim under any such policy in due
and timely fashion.
(g) Taxes.
The Company has duly filed all reports and returns
of Taxes required to be filed by the Company prior to the date
hereof (each such return or report being true, correct, and
complete) and has timely withheld, collected, and paid or
provided for the payment of all Taxes and other charges due or
claimed to be due from or with respect to the Company by federal,
state, and local taxing authorities, including, without
limitation, those due in respect of the properties, income,
franchises, licenses, sales, or payrolls of the Company. There
are no tax liens upon any properties or assets of the Company, or
any special charges or levies, liens, taxes, unemployment
compensation contributions, penalties, or interest that form or
might form an Encumbrance on any of the Company's properties or
assets or that could become payable by the Company or the Issuer
following the Closing. There is no agreement for extension of
time of assessment or payment of any Taxes relating to the
Company's business, and no waiver or any statute of limitations
has been executed by the Company for any tax year that remains
open or unsettled, except as disclosed on Exhibit 6.3(j).
(h) All Accounts Paid.
The Company is not in default with respect to the
payment of any material liability.
(i) Accounts Receivable.
All accounts receivable as shown on the Balance
Sheet of the Company represent valid obligations arising in the
ordinary course of business. As of the Closing Date, all such
accounts receivable net of applicable reserves will be
collectible in the ordinary course of business. There is no
contest, claim, or right of set-off contained in any agreement
with any maker of an account receivable relating to the amount or
validity of such account receivable.
(j) Environmental Matters.
The Company is in compliance in all material
respects with all applicable Environmental Laws.
(k) Regulatory Licensure or Other Violation.
The Company has not violated any regulatory
agreements or licensing regulations or inspections for which a
fine or penalty may be levied.
(l) Permits, Licenses, and Other Legal Requirements;
Compliance with Laws.
Except as described on Exhibit 6.4(l), the Company
has obtained all approvals, authorizations, licenses, and permits
required by all federal, state, and local governmental agencies,
including, without limitation, any Environmental Laws and any
applicable building, zoning, or other law, ordinance, or
regulation affecting the Company's properties or assets or the
partnership interests or the conduct of the Company's business.
All such approvals, authorizations, licenses, and permits are in
full force and effect, and the Company is in compliance with all
thereof. The Company has complied in all material respects with
all applicable requirements of law in respect of the conduct of
the Company's business and the ownership, possession,
maintenance, and operation of its properties and assets, and no
claims or investigations alleging any violation by the Company of
any such requirements of law have at any time been made or
settled.
(m) Documents Delivered.
All documents that have been or that shall be
delivered to the Issuer by or on behalf of the Company or any
Acquiror pursuant to this Agreement or any of the other Basic
Documents, or in connection with the transactions contemplated
hereby or thereby, are, or when so delivered shall be, true and
complete copies of the originals thereof.
(n) Solvency.
The Company is, and at the Closing Date will be,
solvent. No event of bankruptcy with respect to the Company or
any of the Acquirors has occurred or is planned or proposed.
(o) Full Disclosure.
None of the representations and warranties with
respect to the Company herein, or in any document, schedule, or
certificate furnished or to be furnished pursuant hereto,
contains, or will contain when so furnished, any false statement
of a material fact or omits or will omit to state any material
fact the omission of which would be misleading.
ARTICLE VII COVENANTS OF THE PARTIES
Section 7.1 Amendment to the Limited Partnership
Agreement. The Issuers covenant and agree that no later than
February 28, 1998, the Limited Partnership Agreement shall be
amended as follows: (1) the requirement that a limited partner
be a South Carolina local exchange carrier shall be deleted; (2)
the percentage limitations on ownership of interests in the
Partnership shall be increased to 30% from 10%; (3) the "Book
Value" of the Partnership shall be deemed to be one hundred
million dollars; and (4) a new definition of "Change in Control"
which requires, among other things, that such change in ownership
must be accomplished by a single person or group acting in
concert.
Section 7.2 Amendment to the Stockholders' Agreement.
The Issuers covenant and agree that no later than February 28,
1998, the Stockholders' Agreement shall be amended as follows:
(1) the percentage limitations on ownership of interests in the
Corporation shall be increased to 30% from 10%; and (2) the
"Book Value" of the Corporation shall be deemed to be one million
dollars; and (3) a representative of ▇▇▇▇▇▇▇ and a representative
of CT shall be nominated and elected to the board of directors of
PMN.
Section 7.3 Expenses. Whether or not the transactions
contemplated hereby are consummated, all costs and expenses
incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such
costs and expenses; provided, that the Partnership shall
reimburse CT for the amount of fees and expenses of legal counsel
of CT in connection with the regulatory filings with the Federal
Communications Commission ("FCC").
Section 7.4 Restatement of Partnership and Stockholder
Agreements. The parties agree that the provisions of the Limited
Partnership Agreement and the Stockholders' Agreement may no
longer adequately reflect the goals and interests of the partners
and shareholders, as the case may be. A committee consisting of
four partners of the Partnership and a representative of CT and a
representative of ▇▇▇▇▇▇▇ (the "Special Committee") shall be
convened to review the Partnership Agreement and the
Stockholders' Agreement. This Special Committee shall prepare,
with the assistance of counsel, a revised and restated limited
partnership agreement and revised and restated stockholders'
agreement which shall be submitted to the partners of the
Partnership and to the shareholders of PMN within ninety (90)
days of the execution of this Agreement. The Special Committee's
review will address the issues listed on Exhibit 7.4 and any
other issues it deems to be appropriate.
Section 7.5 Further Assurances. Subject to the terms
and conditions of this Agreement, each of the parties hereto
shall use all reasonable efforts to take, or cause to be taken,
all actions, and to do, or cause to be done, all things
necessary, proper, or advisable under applicable laws and
regulations to consummate and make effective the transactions
contemplated by this Agreement. From time to time after the
Closing, without further consideration, each party shall, at its
own expense, execute and deliver such documents to any other
party as such party may reasonably request in order to more
effectively consummate the transactions contemplated by this
Agreement. The parties agree (i) to file or cause their
appropriate Affiliates to file with the appropriate state
regulatory authorities, if any, in North Carolina, as well as the
FCC and such other federal and state regulatory agencies that the
parties agree is necessary (such agreement not to unreasonably be
withheld) all notifications, applications, and other documents
needed to secure all approvals or consents required of such
regulatory bodies in order to consummate the transactions
contemplated in this Agreement, and (ii) to use their
commercially reasonable best efforts to obtain such approvals and
consents. In addition, the parties agree to use their
commercially reasonable best efforts to obtain the waiver,
consent and approval of all other Persons whose waiver, consent
or approval is required (a) in order to consummate the
transactions contemplated by this Agreement or (b) by any
material agreement, instrument, arrangement, judgment, decree,
order or license to which the Partnership, PMN, CT or ▇▇▇▇▇▇▇ is
a party, and which would prohibit, or require the waiver, consent
or approval of any Person or entity to such transaction or under
which, without such waiver, consent or approval, such transaction
would constitute an occurrence of default under the provisions
thereof, result in the acceleration of any obligation thereunder,
or give rise to a right of any party thereto to terminate its
obligations thereunder. All obtained written waivers, consents
and approvals relating to the Partnership and PMN shall be
produced at Closing in form and content reasonably satisfactory
to ▇▇▇▇▇▇▇ and CT, and all obtained written waivers, consents and
approvals relating to ▇▇▇▇▇▇▇ and CT shall be produced at Closing
in form and content reasonably satisfactory to the Partnership
and PMN.
Section 7.6 Consents and Licenses. Each of the parties
hereto shall use all reasonable efforts and cooperate with each
other to obtain the consents or approvals of all Persons
necessary to the consummation of the transactions contemplated by
this Agreement.
Section 7.7 Public Announcements. The parties hereto
shall consult with the other parties hereto before issuing any
press releases or otherwise making any public statements with
respect to this Agreement and the transactions contemplated
hereby, and no party shall issue any such press release or make
any such public statement without the express written consent of
the other parties.
ARTICLE VIII CLOSING CONDITIONS
Section 8.1 Conditions to the Obligations of CT and
▇▇▇▇▇▇▇. The obligations of each of CT and ▇▇▇▇▇▇▇ to effect the
transactions contemplated hereby shall be further subject to the
fulfillment at the Closing of the following conditions, any one
or more of which except (a) may be waived by CT and ▇▇▇▇▇▇▇
acting jointly:
(a) none of the transactions contemplated hereby or by
any of the other Basic Documents shall be restrained or enjoined
(preliminarily, temporarily or permanently) by any governmental
or regulatory authority;
(b) each of the Issuers shall have delivered to CT and
▇▇▇▇▇▇▇ all of the documents, instruments, and other items
required to be delivered by Issuers to CT and ▇▇▇▇▇▇▇ pursuant to
Section 4.4;
(c) all governmental and third-party consents and
approvals (including, without limitation, the FCC) necessary in
connection with the transfer of the CT Interests, the ▇▇▇▇▇▇▇
Interest, the Partnership Units, and the PMN Shares and the other
transactions contemplated by this Agreement or any of the other
Basic Documents shall have been obtained and be in effect; and
(d) each Issuer shall, in all material respects, have
performed and complied with the agreements contained in this
Agreement required to be performed and complied with by it at or
prior to the Closing, and the representations and warranties of
such Issuer set forth in this Agreement shall be true and correct
in all material respects as of the date of this Agreement and as
of the Closing as though made at and as of the date of the
Closing (except as otherwise contemplated by this Agreement), and
such Issuer shall have delivered to CT and ▇▇▇▇▇▇▇ a certificate
to that effect substantially in the form of Exhibit 8.1(d) dated
as of the Closing Date and signed by a duly authorized
representative of such Issuer.
Section 8.2 Conditions to the Obligations of the Issuers.
The obligations of the Issuers to effect the transactions
contemplated hereby shall be further subject to the fulfillment
at or prior to the Closing of the following conditions, any one
or more of which except (a) may be waived by the Issuers:
(a) none of the transactions contemplated hereby or by
any of the other Basic Documents shall be restrained or enjoined
(preliminarily, temporarily, or permanently) by any governmental
or regulatory authority;
(b) the Managers of CT 15 LLC and CT 4/5 LLC shall
have delivered to the Partnership written resignations
substantially in the form of Exhibit 8.2(b);
(c) all governmental and third-party consents and
approvals (including, without limitation, the FCC) necessary in
connection with the transfer of the CT Interests, the ▇▇▇▇▇▇▇
Interest, the Partnership Units, and the PMN Shares and the other
transactions contemplated by this Agreement or any of the other
Basic Documents shall have been obtained and be in effect;
(d) CT and ▇▇▇▇▇▇▇ shall have delivered all of the
other documents, instruments, and other items required to be
delivered by them to the Issuers pursuant to Section 4.2 and 4.3;
and
(e) CT and ▇▇▇▇▇▇▇ shall, in all material respects,
have performed and complied with the agreements contained in this
Agreement required to be performed and complied with by them at
or prior to the Closing, and the representations and warranties
of CT and ▇▇▇▇▇▇▇ set forth in this Agreement shall be true and
correct in all material respects as of the date of this Agreement
and as of the Closing Date as though made at and as of the
Closing Date (except as otherwise contemplated by this
Agreement), and CT and ▇▇▇▇▇▇▇ shall have delivered to the
Partnership a certificate to that effect in the form of Exhibit
8.2(e) dated as of the Closing Date and signed by a duly
authorized representative of CT or ▇▇▇▇▇▇▇, as the case may be.
ARTICLE IX TERMINATION
Section 9.1 Termination. This Agreement may be
terminated at any time prior to the Closing:
(a) by mutual consent of all of CT and ▇▇▇▇▇▇▇ and the
Issuers;
(b) if the Closing has not occurred by December 31,
1998, by either CT, ▇▇▇▇▇▇▇, PMN, or the Partnership;
(c) by the Issuers if at any time from the date of
this Agreement through the Closing, either (i) the
representations and warranties of CT and ▇▇▇▇▇▇▇ set forth in
this Agreement or any of the Basic Documents shall not have been
true and correct in all material respects when made or except as
otherwise contemplated hereby shall have ceased to be true and
correct in all material respects or (ii) CT or ▇▇▇▇▇▇▇ shall
breach or fail to perform in any material respect any of his or
her covenants or agreements contained in this Agreement, and such
violation or breach has not been waived by the Issuers;
(d) by either CT or ▇▇▇▇▇▇▇ if at any time from the
date of this Agreement through the Closing, either (i) the
representations and warranties of either Issuer set forth in this
Agreement or any of the Basic Documents shall not have been true
and correct in all material respects when made or except as
otherwise contemplated hereby shall have ceased to be true and
correct in all material respects or (ii) either Issuer shall
breach or fail to perform in any material respect any of its
covenants or agreements contained in this Agreement, and such
violation or breach has not been waived by CT and ▇▇▇▇▇▇▇; or
(e) by any of the parties hereto if the consummation
of the transactions contemplated hereby shall be prohibited by a
final, non-appealable order, decree or injunction of a court of
competent jurisdiction or government agency.
Section 9.2 Procedure and Effect of Termination. In the
event of the termination of this Agreement and abandonment of the
transactions contemplated hereby by any party pursuant to Section
9.1, written notice thereof shall forthwith be given to the other
parties, and this Agreement shall terminate and the transactions
contemplated hereby shall be abandoned without further action by
any of the parties hereto. If this Agreement is terminated
pursuant to Section 9.1(a) or Section 9.1(e), no party or any of
its respective directors, officers, stockholders, partners, or
Affiliates shall have any liability or further obligation to any
other party. If this Agreement is terminated pursuant to Section
9.1(b), no party shall have any liability or further obligation
to any other party unless such first party shall have failed to
act reasonably and in good faith to cause the Closing to occur by
the date specified in Section 9.1(b). In the case of a
termination of this Agreement pursuant to Section 9.1(c) or
Section 9.1(d) due to the violation or breach of any agreement,
representation, or warranty of any party hereto, the other
parties shall have the right to pursue any and all rights and
remedies available at law or in equity against the party at
fault.
ARTICLE X INDEMNIFICATION
Section 10.1 Definition of Indemnified Party.
"Indemnified Party" shall mean (i) the Acquirors, the Issuers and
their respective Affiliates and (ii) the respective partners,
trustees, officers, employees, agents, consultants, and advisors
of the CT, ▇▇▇▇▇▇▇, Issuers and their respective Affiliates
(acting in their capacities as such and within the scope of their
employment or engagement).
Section 10.2 Indemnification by Parties. Each party to
this Agreement shall, individually and not jointly, defend,
protect, indemnify, and hold harmless each Indemnified Party from
and against any and all claims, damages, liabilities,
obligations, losses, deficiencies, penalties, judgments, costs,
disbursements, and expenses of any kind or nature (including,
without limitation, the reasonable fees and disbursements of
counsel and amounts paid or agreed to be paid in settlement of
any claim, action, suit, proceeding, or investigation) in any
manner resulting from, arising out of, based upon, or related or
attributable to (i) any breach or inaccuracy of any
representation or warranty made by such party in this Agreement
or any of the other Basic Documents or (ii) any breach or failure
to perform any covenant, agreement, or obligation of such party
contained in this Agreement or any of the other Basic Documents.
This indemnification obligation shall survive the Closing, and
shall apply notwithstanding any provision of this Agreement, the
Partnership Agreement, or the Shareholders Agreement to the
contrary.
Section 10.3 Defense of Action. Any Indemnified Party
seeking indemnification under this Article shall give the
Indemnifying Party from whom such indemnification is sought
prompt notice of any third-party claim, investigation, action,
suit, or proceeding with respect to which such indemnification is
sought. In the case of any such third-party claim, such
Indemnified Party shall be entitled, at the sole expense and
liability of the Indemnifying Party from whom indemnification is
sought (the "Indemnifying Party"), to exercise full control of
the defense, compromise or settlement of any third-party claim,
investigation, action, suit or proceeding unless the Indemnifying
Party within 10 Business Days after the giving of such notice by
the Indemnified Party shall (i) deliver a written confirmation to
such Indemnified Party that the indemnification provisions of
this Article are applicable to such claim, investigation, action,
suit, or proceeding and that the Indemnifying Party shall
indemnify such Indemnified Party in respect of such claim,
investigation, action, suit, or proceeding pursuant to the terms
of Section 10.2, (ii) notify such Indemnified Party in writing of
the Indemnifying Party's intention to assume the defense thereof,
and (iii) retain legal counsel reasonably satisfactory to such
Indemnified Party to conduct the defense of such claim,
investigation, action, suit or proceeding. If the Indemnifying
Party so assumes the defense of any such claim, investigation,
action, suit, or proceeding in accordance herewith, then such
Indemnified Party shall cooperate with the Indemnifying Party in
any manner that the Indemnifying Party reasonably may request in
connection with the defense, compromise, or settlement thereof.
If the Indemnifying Party so assumes the defense of any such
claim, investigation, action, suit, or proceeding, the
Indemnified Party shall have the right to employ separate counsel
and to participate in (but not control) the defense, compromise,
or settlement thereof, but the reasonable fees and expenses of
such counsel shall be the expense of such Indemnified Party
unless (i) the Indemnifying Party has agreed to pay such fees and
expenses, (ii) any relief other than the payment of money damages
is sought against such Indemnified Party, or (iii) such
Indemnified Party shall have been advised by its counsel that
there may be one or more legal defenses available to it that are
different from or additional to those available to the
Indemnifying Party, and in any such case the reasonable fees and
expenses of such separate counsel shall be borne by the
Indemnifying Party. The Indemnifying Party shall not, without
the written consent of such Indemnified Party, settle or
compromise or consent to entry of any judgment with respect to
any such claim, investigation, action, suit, or proceeding (i) in
which any relief other than the payment of money damages is or
may be sought against such Indemnified Party or (ii) that does
not include as an unconditional term thereof the giving by the
claimant, Person conducting such investigation, plaintiff, or
petitioner to such Indemnified Party of a release from all
liability with respect to such claim, investigation, action,
suit, or proceeding (unless such claimant, Person, plaintiff, or
petitioner is a governmental authority and refuses to grant such
release).
ARTICLE XI MISCELLANEOUS PROVISIONS
Section 11.1 Amendment and Modification. Subject to
applicable law, this Agreement may be amended, modified, or
supplemented only by written agreement of all of the parties at
any time prior to the Closing Date with respect to any of the
terms contained herein.
Section 11.2 Waiver of Compliance; Consents. Except as
otherwise provided in this Agreement, any failure of any party to
comply with any obligation, covenant, agreement, or condition
herein may be waived by whichever of the other parties are
entitled to the benefits thereof only by a written instrument
signed by such parties, but such waiver or failure to insist upon
strict compliance with such obligation, covenant, agreement, or
condition shall not operate as a waiver of, or an estoppel with
respect to, any subsequent failure to comply with such
obligation, covenant, agreement, or condition. Whenever this
Agreement requires or permits consent by or on behalf of any
party, such consent shall be given in writing in a manner
consistent with the requirements for a waiver of compliance as
set forth in this Section.
Section 11.3 Investigations; Survival of Representations
and Warranties. Notwithstanding any investigations or inquiries
made by any Person prior to the Closing or the waiver of any
conditions, the representations, warranties, covenants, and
agreements of the parties, shall survive the Closing and,
notwithstanding the Closing, shall continue in full force and
effect.
Section 11.4 Notices. All notices and other
communications hereunder shall be in writing and shall be deemed
given if delivered personally, sent by overnight courier or
facsimile transmission, or mailed by registered or certified mail
(return receipt requested), postage prepaid, to the parties at
the following addresses (or at such other address for a party as
shall be specified by like notice; provided that notice of a
change of address shall be effective only upon receipt thereof):
(a) if to CT: to (b) if to ▇▇▇▇▇▇▇,to
CT Cellular, Inc. ▇▇▇▇▇▇▇ Telephone Company
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
P. O. Box 227 P. O. Box 220
Concord, NC 28026-0277 ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇ Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: with a copy to:
Facsimile No. Facsimile No.
Attention: Attention:
(b) if to either Issuer, to
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
PMN, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ Law Firm, P.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: M. ▇▇▇▇ ▇▇▇▇▇, Jr.
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Section 11.5 Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and
permitted assigns, but neither this Agreement nor any of the
rights, interests, or obligations hereunder shall be assigned by
any party without the prior written consent of the other parties,
nor is this Agreement intended to confer upon any Person except
the parties hereto any rights or remedies hereunder.
Section 11.6 Governing Law. This Agreement shall be
governed by the laws of the State of South Carolina (regardless
of the laws that might otherwise govern under applicable
principles of conflicts of law) as to all matters, including,
without limitation, matters of validity, construction, effect,
performance, and remedies.
Section 11.7 Counterparts. This Agreement may be executed
in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
Section 11.8 Interpretation. The article and section
headings contained in this Agreement are solely for the purpose
of reference, are not part of the agreement of the parties and
shall not in any way affect the meaning or interpretation of this
Agreement. The use of any gender herein shall be deemed to be or
include the other genders and the use of the singular herein
shall be deemed to be or include the plural (and vice versa),
wherever appropriate.
Section 11.9 Entire Agreement. This Agreement, including
the Exhibits and the documents, schedules, certificates, and
instruments referred to herein, embodies the entire agreement and
understanding of the parties hereto in respect of the
transactions contemplated by this Agreement. There are no
restrictions, promises, representations, warranties, covenants or
undertakings, other than those expressly set forth or referred to
herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such
transactions.
Section 11.10 Severability. Any provision of this
Agreement that is invalid, illegal, or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective to
the extent of such invalidity, illegality, or unenforceability
without affecting in any way the remaining provisions hereof in
such jurisdiction or rendering that or any other provisions of
this Agreement invalid, illegal, or unenforceable in any other
jurisdiction.
(SIGNATURES ARE ON THE FOLLOWING PAGE.)
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
PMN, INC.
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Chairman
PALMETTO MOBILENET, L.P.
By: PMN, Inc., its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇, Chairman
▇▇▇▇▇▇▇ TELEPHONE COMPANY
By: /S/ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, President
CT CELLULAR, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: President