EXHIBIT 2.5
August 15, 2002
Mr. ▇▇▇▇▇▇ ▇▇▇▇▇
Price Communications Corporation
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Mr. Price:
Re: Closing Agreement
We refer to the Transaction Agreement dated as of December 18, 2001 (as
amended by an amendment dated April 15, 2002 and the letter agreements dated
July 16, 2002 and August 9, 2002) among Price Communications Corporation, Price
Communications Cellular Inc., Price Communications Cellular Holdings, Inc.,
Price Communications Wireless, Inc., Cellco Partnership and Verizon Wireless of
the East LP (the "Transaction Agreement"). Capitalized terms used and not
defined herein shall have the meanings given to such terms in the Transaction
Agreement.
Notwithstanding the terms set forth in the Transaction Agreement, for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that:
1. Waiver of Certain Consents. Cellco hereby waives, on behalf of itself
and on behalf of New LP, its right under Section 14.02(i) of the Transaction
Agreement to receive, as a condition to its obligation to consummate the
Closing, the following Required Consents (insofar as such Required Consents
have not heretofore been obtained): (a) Assignment of the Lease Agreement for
the Montgomery Western Regional Headquarters (Technacenter) Substitute Sublease
Agreement between GTEC, Inc. and ▇▇▇▇▇▇ Wireless, Inc. dated 11/4/94, as
amended, (b) Assignment of the Intercarrier Network Agreement between United
States Cellular Corporation and ▇▇▇▇▇▇ Cellular Partnership dated 12/2/94 and
(c) Assignment of the Albany-Neyami Lease Agreement identified as Item 9 on
Schedule 7.05(a) of the Transaction Agreement. In consideration for this
waiver, the Company agrees to pay to Cellco at the Closing $123,600, in cash.
Cellco hereby consents, on its behalf and on behalf of New LP, to the
amendments to leases and related assignment agreements relating to the cell
sites identified as Augusta-Ft. ▇▇▇▇▇▇, ▇▇▇▇ -- Pine Mountain and GA10 --
▇▇▇▇▇▇▇ in the forms attached hereto as Exhibit A. The Company agrees to
indemnify and hold harmless Cellco and New LP from all Damages arising out of
or in connection with the failure of the landlords of such sites to execute and
deliver at the Closing such lease amendments and assignment agreements, and
shall use its best efforts to cause such documents to be so executed and
delivered promptly following the Closing.
2. Amendment of Section 5.01. The fourth sentence of Section 5.01 of the
Transaction Agreement is hereby amended and restated in its entirety as
follows:
"To the extent the benefits therefrom and obligations thereunder have
not been provided by alternate arrangements satisfactory to New LP and the
Relevant Party, the Relevant Party and New LP shall negotiate in good
faith, and make an adjustment to the Initial Company Capital Account or
the Initial Cellco Limited Partner Capital Account, as the case may be, in
an amount necessary to reflect the fact that the assignment contemplated
by this Agreement was not made; provided that, to the extent that (i) the
aggregate benefits from and obligations under any Company Contributed
Assets have not been provided by such alternate arrangements and (ii) the
amounts necessary to reflect the fact that the assignments contemplated by
this Agreement were not made does not exceed $123,600 in the aggregate,
the Initial Company Capital Account will be adjusted by an aggregate
amount equal to 50% of the amounts necessary to reflect such
non-assignments."
3. Incomplete Real Estate Matters. The Company will use its best efforts
to complete, at its expense and as soon as practicable after the Closing, the
uncompleted tasks described in the column labeled "Resolution" in Exhibit B
hereto.
4. Air Force Base Contract Waiver. Cellco hereby waives, on behalf of
itself and on behalf of New LP, its right under Section 14.02(i) of the
Transaction Agreement to receive, as a condition to its obligation to
consummate the Closing, the Required Consent for the assignment to New LP of
the Company's interest (the "AFB Lease Interest") in the cell site base
identified as ▇▇▇▇▇ ▇▇▇▇▇▇▇ AFB in Item 47 of Section A of Schedule 7.05(a) to
the Transaction Agreement. Notwithstanding this waiver, the Company agrees to
indemnify and hold harmless Cellco and New LP from all Damages arising out of
any termination of the AFB Lease Interest at any time on or prior to the date
which is 18 months after the Closing to the extent that such termination is
based on the failure of the Company to obtain the consent of the lessor of the
AFB Lease Interest to such assignment.
5. September Rent Payments. The Company agrees to pay, on behalf of New
LP, all of the payments due in respect of the month of September 2002 under all
network and retail leases assigned by the Company to New LP at the Closing. New
LP agrees to reimburse the Company for all such payments made by the Company
promptly upon receipt by New LP of a written invoice setting forth an itemized
list of all such payments and identifying the lease or leases to which each
payment relates.
6. Fees of Delaware Counsel. New LP agrees to pay to the Company an amount
equal to 50% of the fees paid by the Company to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and Finger
("Delaware Counsel") in connection with its review of the Amended and Restated
Agreement of Limited Partnership for Verizon Wireless of the East L.P. and the
delivery of its opinion with respect thereto at the Closing. New LP will pay
such amount promptly after receipt of a written invoice in such amount
accompanied by a copy of the billing statement of Delaware Counsel.
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7. Additional Excluded Assets. In addition to those items constituting
Company Excluded Assets under Section 3.02 of the Transaction Agreement, the
personal computer equipment listed on Exhibit C hereto shall also constitute
Company Excluded Assets.
8. Severance Reimbursements. Cellco agrees that its obligation to
reimburse the Price Corporations and their Affiliates for severance and similar
liabilities under Section 13.07 of the Transaction Agreement applies to any
payment made by any Price Corporation to a Business Employee after the Closing
to the extent that such reimbursement obligation would have been applicable to
such payment if such payment had been made on or prior to the Closing.
9. Accrual for Giant Bear Fees. Except to the extent that an appropriate
entry or adjustment is made on the Final Closing Balance Sheet, New LP shall
reimburse the Company for that portion of the total amount payable by the
Company under the Giant Bear Agreement in respect of the month during which the
Closing occurs determined by multiplying the total amount payable by the
Company by a fraction, the numerator of which is the number of days in such
month occurring after the date of the Closing and the denominator of which is
the total number of days in such month.
10. Access to Georgia 10/Mt. ▇▇▇▇▇▇. Cellco agrees, on behalf of itself
and on behalf of New LP that the title insurance policy and warranty deed in
respect of the property identified as Georgia 10/Mt. ▇▇▇▇▇▇ may include an
exception with respect to the absence of a legally enforceable perpetual
easement or other similar right assuring the owner of such property access to
the property; provided that, (i) after the Closing the Company will use its
best efforts to obtain at its cost and expense such a legally enforceable
easement or right and will thereafter transfer and assign such easement or
right to New LP without requiring any additional consideration in respect of
such transfer and assignment and (ii) the Company will indemnify and hold
harmless Cellco and New LP from all Damages arising out of New LP's inability
at any time after the Closing to perform maintenance on, make capital
improvements on, or use the Georgia 10/Mount ▇▇▇▇▇▇ tower site for provision of
commercial mobile radio services to the extent that such inability arises out
of the failure of the Company to obtain such easement or other similar right
and make such assignment.
11. Changes in Contracts and Required Consents. The parties hereto have
reached the following agreements:
(a) The Company represents and warrants to Cellco and New LP that
the agreements listed in Annexes A(I), B-1(B) and B-1(D)
require, in connection with the consummation of the transactions
contemplated by the Transaction Agreement only notice to, and
not the consent of the other party or parties thereto to an
assignment of such agreements to New LP, and that such notice
has been delivered. In reliance on this representation, Cellco
hereby waives, on behalf of itself and on behalf of New LP, its
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right, under Section 14.02(i) of the Transaction Agreement, to
receive, as a condition to its obligation to consummate the
Closing, the delivery of such consents.
(b) The Company represents and warrants to Cellco and New LP that
the land lease listed in Annex A-II hereto does not require, in
connection with the consummation of the transactions
contemplated by the Transaction Agreement, any consent of any
party thereto because the subject property is owned by the
Company. In reliance on this representation, Cellco hereby
waives, on behalf of itself and on behalf of New LP, its right,
under Section 14.02(i) of the Transaction Agreement, to receive,
as a condition to its obligation to consummate the Closing, the
delivery of such consent.
(c) The Company represents and warrants to Cellco and to New LP that
the agreements listed in Annexes B-1(A), B-1(C), B-1(E) and B-2
have been terminated. In reliance on this representation, Cellco
hereby waives, on behalf of itself and on behalf of New LP, its
right, under Section 14.02(i) of the Transaction Agreement, to
receive, as a condition to its obligation to consummate the
Closing, any consents in connection with the assignment to New
LP of such agreements.
(d) The parties have agreed to treat as Company Excluded Assets the
agreement listed in Annex B-1(F) hereto. The Company agrees that
it will terminate such agreement in accordance with the terms
thereof as promptly as practical following the Closing. Cellco
agrees to indemnify and hold harmless the Company from all
Damages arising our of or in connection with such agreement for
the period from and after the Closing.
(e) The Company represents and warrants to Cellco and to New LP that
the agreements listed in Annexes A-III and B-3 hereto were never
executed by the Company or any of its Affiliates. In reliance on
this representation, Cellco hereby waives, on behalf of itself
and on behalf of New LP, its right, under Section 14.02(i) of
the Transaction Agreement, to receive, as a condition to its
obligation to consummate the Closing, any consents in connection
with the assignment to New LP of such agreements.
(f) The Company represents and warrants to Cellco and to New LP that
the agreements listed on Annex B-4(B) hereto have terminated or
have been superseded by those agreements set forth in Annex
B-4(A) hereto. In reliance on this representation, Cellco hereby
waives, on behalf of itself and on behalf of New LP, its right,
under Section
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14.02(i) of the Transaction Agreement, to receive, as a
condition to its obligation to consummate the Closing, any
consents in connection with the assignment to New LP of the
agreements listed in Annex B-4 (B). Cellco also waives, on
behalf of itself and on behalf of New LP, its right, under
Section 14.02(i) of the Transaction Agreement to receive, as a
condition to its obligation to consummate the Closing, any
consents required in connection with the assignment to New LP of
the contracts listed in Annex B-4(A).
(g) The Company represents and warrants to Cellco and New LP that
the agreements listed in Annex B-5 hereto are with ▇▇▇▇▇▇
Communications Inc. or its affiliates. In reliance on this
representation, Cellco hereby waives, on behalf of itself and on
behalf of New LP, its right, under Section 14.02(i) of the
Transaction Agreement, to receive, as a condition to its
obligation to consummate the Closing, any consents in connection
with the assignment to New LP of such agreements.
(h) The Company represents and warrants to Cellco and to New LP that
the agreements listed in Annex B-6 hereto are with US Cellular
or its affiliates. In reliance on this representation, Cellco
hereby waives, on behalf of itself and on behalf of New LP, its
right, under Section 14.02(i) of the Transaction Agreement, to
receive, as a condition to its obligation to consummate the
Closing, any consents in connection with the assignment to New
LP of such agreements.
(i) The Company represents and warrants to Cellco and to New LP that
the agreements listed in Annex B-7(B) have terminated or been
superseded by the agreement listed in Annex B-7(A) . In reliance
on this representation, Cellco hereby waives, on behalf of
itself and on behalf of New LP, its right, under Section
14.02(i) of the Transaction Agreement, to receive, as a
condition to its obligation to consummate the Closing, any
consents in connection with the assignment to New LP of the
agreements listed in Annex B-7(B).
(j) The Company represents and warrants to Cellco and to New LP that
Cellco or certain of its Affiliates are parties to the
agreements listed in Annex B-8 hereto. In reliance on this
representation, Cellco hereby waives, on behalf of itself and on
behalf of New LP, its right, under Section 14.02(i) of the
Transaction Agreement, to receive, as a condition to its
obligation to consummate the Closing, any
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consents in connection with the assignment to New LP of such
agreements.
(k) The Company represents and warrants to Cellco and to New LP that
the agreements listed in Annex B-9(B) hereto have terminated or
been superseded by the agreements listed in Annex B-9(A) hereto.
In reliance on this representation, Cellco hereby waives, on
behalf of itself and on behalf of New LP, its right, under
Section 14.02(i) of the Transaction Agreement, to receive, as a
condition to its obligation to consummate the Closing, any
consents in connection with the assignment to New LP of the
agreements listed in Annex B-9(B).
(l) The Company represents and warrants to Cellco and to New LP that
the agreements listed in Annex B-10(B) hereto have terminated or
been superseded by the agreements listed in Annex B-10(A)
hereto. In reliance on this representation, Cellco hereby
waives, on behalf of itself and on behalf of New LP, its right,
under Section 14.02(i) of the Transaction Agreement, to receive,
as a condition to its obligation to consummate the Closing, any
consents in connection with the assignment to New LP of the
agreements listed in Annex B-10(B).
(m) The Company represents and warrants to Cellco and to New LP that
the agreements listed in Annex B-11 hereto are with Alltel or
its affiliates. In reliance on this representation, Cellco
hereby waives, on behalf of itself and on behalf of New LP, its
right, under Section 14.02(i) of the Transaction Agreement, to
receive, as a condition to its obligation to consummate the
Closing, any consents in connection with the assignment to New
LP of such agreements.
(n) Cellco agrees, on its behalf and on behalf of New LP to waive
its right, under Section 14.02(i) of the Transaction Agreement,
to receive, as a condition to its obligation to consummate the
Closing, any consents in connection with the assignment to New
LP of the agreements listed in Annex B-12 hereto.
This letter agreement shall be governed by and construed in accordance
with the law of the State of New York.
Please confirm your agreement with the foregoing by signing and returning
to the undersigned the duplicate copy of this letter enclosed herewith.
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Very truly yours,
CELLCO PARTNERSHIP
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: VP Business Development
VERIZON WIRELESS OF THE EAST LP
By: Verizon Wireless of Georgia LLC, as
General Partner
By: Cellco Partnership, as sole member of
Verizon Wireless of Georgia LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: VP Business Development
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Accepted and agreed as of the
date first written above:
PRICE COMMUNICATIONS CORPORATION.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive VP and CFO
PRICE COMMUNICATIONS CELLULAR INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive VP and CFO
PRICE COMMUNICATIONS CELLULAR HOLDINGS, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive VP and CFO
PRICE COMMUNICATIONS WIRELESS, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive VP and CFO
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