PARTNERSHIP INTEREST PURCHASE AGREEMENT
This Partnership Interest Purchase Agreement (the "Agreement") is made as
of the 18th day of April, 1997, by and between CELLCO PARTNERSHIP DBA XXXX
ATLANTIC NYNEX MOBILE ("Seller") a general partnership formed under the laws of
Delaware, at 000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, and
MRCC, INC., a wholly-owned subsidiary of Rural Cellular Corporation, a
corporation formed under the laws of the state of Maine ("Buyer") at 0000 Xxxxxx
Xxxxxx XX, Xxxxxxxxxx, Xxxxxxxxx 00000.
RECITALS
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WHEREAS, Seller is the holder of a 49% partnership interest (the
"Interest") in the Northern Maine Cellular Partnership, a general partnership
formed under the laws of the state of Maine ("Partnership"); and
WHEREAS, Seller desires to sell, transfer and assign to Buyer all of
Seller's right, title and interest in the Interest to Buyer on the terms set
forth herein, and Buyer desires to buy the Interest;
NOW THEREFORE, in consideration of the premises and mutual covenants and
agreements set forth herein, as well as other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties mutually covenant and agree as follows:
TERMS
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1. PURCHASE OF INTEREST
At the Closing, as defined below, Seller shall sell, assign, transfer,
convey and deliver to Buyer all of Seller's right, title, and interest in and
to the Interest (the "Assignment"). In consideration of the sale, transfer,
assignment and conveyance of the Interest to Buyer, Buyer shall pay to Seller
the aggregate amount of $7,357,350, based upon the calculation of 143,000
POPs at $105 per POP multiplied by 49%. The purchase price shall be payable
in full at Closing via wire transfer of immediately available funds to an
account designated by Seller.
2. CLOSING/CONDITIONS PRECEDENT TO CLOSING/PENDING CLOSING
a. Closing under this Agreement (the "Closing") shall occur simultaneously
with the Closing of the purchase by MRCC, Inc. of Unity Cellular System,
Inc.'s 51% general partnership interest in the Partnership or within 10
business days after all conditions precedent have been satisfied, whichever
is later. To facilitate the closing, both parties will transmit executed
documents to a mutually agreed upon escrow agent in Minneapolis, which will
release each party's documents to the other party upon confirmation that
funds have been received by Seller.
b. Closing is subject to the following conditions precedent, any of which
may be waived in writing by Seller or Buyer as applicable:
i. All required regulatory approvals, if any, shall have been
obtained.
ii. Buyer shall have completed acquisition of Unity Cellular System,
Inc.'s 51% partnership interest in the Partnership.
c. Pending Closing.
i. Neither Buyer nor Rural Cellular Corporation shall cause the
Partnership to make a capital call prior to the termination of this
Agreement or the Closing, whichever is earlier.
ii. Each of the Buyer and Seller will pay its own out-of-pocket
expenses (including legal, financial advisory and accounting fees and
expenses) in connection with the proposed transaction.
iii. Neither Buyer nor Seller is bound or will become bound by any
agreement under which the other party would be liable to any third party
for any fee, commission or other payment as a result of the execution of
this Agreement or the consummation of the proposed transaction.
3. SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
Seller represents and warrants to Buyer that each of the following are
true and correct on the date of this Agreement and will be true and correct
on the date of Closing:
a. Seller represents and warrants that it has good and marketable title
to the Interest, free and clear of any and all liens, security interests,
encumbrances, pledges or any other rights or interests of others and the
Interest is not the subject of any agreement other than this Agreement and
the Partnership Agreement.
b. Seller represents and warrants that it has full capacity and power to
enter into, execute and deliver this Agreement. This Agreement has been duly
executed by Seller and is a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms.
c. Seller represents and warrants that it is a party to the Partnership
Agreement and has not assigned, sold, hypothecated, encumbered or otherwise
disposed of any of its rights under the Partnership Agreement except pursuant to
this Agreement.
d. Seller represents and warrants that the execution, delivery and
performance by Seller of this Agreement will not conflict with or constitute
a default under any term of any agreement, instrument, judgment, order or
decree to which Seller is a party or by which Seller or the Interest is bound
or of any applicable law, ordinance, rule, or regulation of any governmental
authority.
e. Seller will do, execute, acknowledge and deliver all such further acts,
bills of sale, assignments, transfers, assurances, endorsements, applications or
other instruments as may
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reasonable be required by Buyer to assure, confirm, permit transfer of, or
evidence the title and interest of Buyer in and to the Interest.
x. Xxxx Atlantic NYNEX Mobile, Inc. ("BANM") is the sole managing general
partner of Seller and is duly authorized to execute this Agreement on
Seller's behalf without the need for any further action by the partnership or
its partners. The undersigned signator for BANM is duly authorized to
execute this Agreement on BANM's behalf.
4. BUYER'S REPRESENTATIONS AND WARRANTIES
a. Buyer has full authority, capacity and power to enter into and
execute and deliver this Instrument. This Agreement has been duly executed
by Buyer and is a legal, valid and binding obligation of Buyer, enforceable
against Buyer in accordance with its terms.
b. The undersigned is duly authorized to execute this Agreement on
Buyer's behalf.
5. INDEMNIFICATION BY SELLER
Seller shall indemnify and hold Buyer harmless from any damage, claim,
liability, loss, injury, judgment and expense, including, without limitation,
interest, penalties, and attorney's fees arising out of or related to (i)
Seller's acquisition and ownership of the Interest before the date of this
Agreement, and (ii) any breach of any representation or warranty of Seller or
any default in the performance by Seller of any covenant or agreement of
Seller contained in this Agreement. The obligations hereunder shall survive
Closing.
6. INDEMNIFICATION BY BUYER
Buyer hereby agrees to pay, perform and discharge, when due, each and
shall indemnify Seller from and against, every obligation, liability, and
commitment arising (i) after the date of this Agreement relating to or
arising in connection with Buyer's ownership of the Interest, and (ii) any
breach of any representation or warranty or covenant of Buyer contained
herein. The obligations hereunder shall survive Closing.
7. CONFIDENTIALITY AND PUBLICITY
Prior to Closing, neither Seller nor Buyer would disclose to the public or
to any third party the fact that Buyer is contemplating the purchase of the
Interest, or that Seller is contemplating the sale of the Interest to Buyer,
or the existence of this Agreement or the proposed terms and conditions of
the sale described herein, except:
a. As required by applicable law or the rules of any relevant stock
exchange, by order or decree of a court or regulatory body having
jurisdiction over such party, or in connection with such party's or its
affiliate's enforcement of any rights it may have at law or equity in
connection with obtaining regulatory approval for the consummation of the
transaction contemplated hereby.
b. On a "need to know" basis to persons within such party's organization,
or outside of such party's organization such as attorneys, accountants,
bankers, financial advisors and other
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consultants or persons at Unity Cellular Systems, Inc. or InterCel, Inc. who
may be assisting such party in connection with the transactions contemplated
hereby and who agree to be bound by the nondisclosure obligations o this
paragraph; or
c. With the express prior written consent of the other party.
8. SUCCESSORS AND ASSIGNS
All of this Agreement shall inure to the benefit of and be binding upon
the heirs, representations, successors and assigns of the parties hereto.
9. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of Delaware, without giving effect to its rules on conflicts of law.
10. COUNTERPARTS
This Agreement may be executed in separate counterparts, each of which
shall constitute an original, all of which together shall constitute one and
the same Agreement binding on all parties.
11. TERMINATION
This Agreement may be terminated by either party by written notice to the
other if Buyer's purchase of Unity Cellular System, Inc.'s 51% interest in
the Partnership is not consummated by September 30, 1997, or by mutual
written agreement of the parties.
12. AMENDMENT
This Agreement, or any provision thereof, may only be amended, modified
or waived by the mutual written agreement of the parties, unless otherwise
stated herein.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
MRCC, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Title: President
CELLCO PARTNERSHIP
By Xxxx Atlantic NYNEX Mobile, Inc.
Its Managing General Partner
By: /s/ Xxxx Xxxx
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Title: Vice President, Planning
& Business Development
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