Exhibit 2.1
CINGULAR WIRELESS LLC
5565 Glenridge Connector
Atlanta, Georgia 30342
CONFIDENTIAL
July 7, 2004
AT&T Wireless Services,
Inc.
7277 164th Avenue NE
Redmond, Washington 98052
Attention: Robert Stokes
Senior VP Corporate Development
Triton PCS Holdings, Inc.
1100 Cassatt Road
Berwyn, Pennsylvania 19312
Attention: Michael E. Kalogris
Chief Executive Officer
Ladies and Gentlemen:
This non-binding
letter of intent (“ LOI ”) sets forth below
certain preliminary understandings with respect to the proposed
exchange of (i) certain assets owned or acquired by
subsidiaries of Triton PCS Holdings, Inc. (“ Triton
”), including the Virginia Licenses (as defined on
Exhibit A hereto), and certain assets and liabilities relating
primarily to the business of marketing, selling and providing
wireless telecommunications and other related telecommunications
services conducted by Triton and its subsidiaries in the Virginia
Market (as defined on Exhibit A hereto) (the “
Virginia Business ”), for (ii) certain assets
owned or acquired by subsidiaries of AT&T Wireless Services,
Inc. (“ AWS ”), including the Multi-Area
Licenses (as defined on Exhibit A hereto), and certain assets
and liabilities relating primarily to the business of marketing,
selling and providing wireless telecommunications and other related
telecommunications services conducted by AWS and its subsidiaries
in the Multi-Area Market (as defined on Exhibit A hereto) (the
“ Multi-Area Business ”), and other
consideration payable by Cingular Wireless LLC (“
Cingular ”) to Triton, as outlined in greater detail
below. A preliminary list of the assets and liabilities proposed to
be exchanged is set forth on Exhibit A hereto.
1)
Structure . The parties intend to achieve a mutually
agreeable structure, it being understood that no party shall be
required to take any action that has significant adverse business,
tax, or other consequences to it in order to achieve such a
structure. At the present time, the parties contemplate that the
relevant subsidiaries of Triton and AWS would contribute the assets
and
liabilities to be transferred
into single member limited liability companies and the parties
would exchange 100% of the membership interests in such limited
liability companies. The relevant subsidiaries may become parties
to a Definitive Agreement (as hereinafter defined). The parties
acknowledge that upon further examination that either or both of
Triton or AWS may desire that the exchange be structured as a
like-kind exchange under Section 1031 of the Internal Revenue
Code of 1986, as amended (the “ Code ”), to the
maximum extent possible or in part. Any party may, at its sole cost
and expense, assign some or all of its rights (but not its
obligations) under a Definitive Agreement to a person serving as a
qualified intermediary within the meaning of Treasury regulations
Section 1.1031(k)-1(g)(4)(iii) or a similar entity or pursuant
to a similar arrangement.
2)
Definitive Agreement . Subject to the negotiation of a
definitive exchange agreement acceptable in form and substance to
the parties (a “ Definitive Agreement ”), a
Definitive Agreement and related transaction documents would
contain representations, warranties, covenants, conditions,
indemnification provisions and other terms customarily contained in
agreements for similar transactions and would:
a)
Provide that Cingular would (i) at a consummation of the
proposed transaction (a “ Closing ”), pay to
Triton (or its designated controlled Affiliate (as defined on
Exhibit B hereto)) One Hundred Seventy-Five Million Dollars
($175,000,000) in cash (the “ Cash Payment
”);
b)
Provide that Triton and AWS would exchange networks in the Virginia
Market and the Multi-Area Market, respectively, with the same
geographic coverage as in effect immediately prior to a Closing and
obtain all required FCC compliance documents, all required
governmental and third party authorizations and consents
(including, without limitation, the consent of landlords under
affected master lease agreements (“ MLAs ”) to
the transfer of affected site leases to, as the parties may agree,
new MLAs or to existing MLAs between the landlord and the
transferee) and give all required notices prior to a Closing. In
the event that any such transfer is not possible because any
required permits or consents are not obtained or any required
notices are not given for any reason, the transferring party would
provide the other party, for a period of time to be agreed upon by
the parties, with the economic benefit of any such
“deferred” cell sites pending obtainment of such
permits and consents and delivery of such notices;
c)
Contain representations and warranties (to be made jointly and
severally by Triton and any subsidiaries thereof which are parties
to a Definitive Agreement, if any (collectively, the “
Triton Parties ”), jointly and severally by AWS and
any subsidiaries thereof which are parties to a Definitive
Agreement, if any (collectively, the “ AWS Parties
”) and severally by Cingular), including, without limitation,
the following: organization, existence and qualification to hold
its assets; authorization, execution, delivery and enforceability;
title to and condition of assets; real property; contracts and
subscribers; governmental licenses and FCC matters; compliance with
laws; no conflicts and consents; litigation and legal proceedings;
employee benefits; tax matters; environmental compliance;
undisclosed liabilities; and cell sites; provided that a Definitive
Agreement would not contain representations and warranties
concerning network quality or Sarbanes-Oxley-related
representations and warranties with respect to internal controls
over financial reporting;
d)
Contain customary covenants by the appropriate parties to operate
each of the Virginia
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Business and the Multi-Area
Business in the ordinary course during the period prior to a
Closing;
e)
Provide for joint and several indemnification by the Triton
Parties, on the one hand, and the AWS Parties and Cingular (as of a
Closing), on the other hand, for losses arising out of (i) any
breach of a representation or warranty, covenant or agreement,
(ii) the indemnitor’s ownership, operation or control of
the transferred assets or business for the period prior to a
Closing, and (iii) such other matters as the parties may agree
upon;
f)
Provide that the Triton Parties would not commence or maintain any
action, suit or proceeding in any court or before any other
governmental authority regarding the Merger (as defined on
Exhibit B hereto);
g)
Provide that the Triton Parties would use commercially reasonable
efforts to provide Cingular and the AWS Parties with co-location
rights to obtain space on towers and ground space on the cell sites
transferred to the Triton Parties under a Definitive Agreement as
well as with respect to any cell sites owned, leased or managed by
the Triton Parties in the Multi-Area Market on commercially
reasonable terms;
h)
Provide that Cingular and the AWS Parties would use commercially
reasonable efforts to provide the Triton Parties with co-location
rights to obtain space on towers and ground space on the cell sites
owned, leased or managed by Cingular or the AWS Parties in the
Multi-Area Market which are not transferred to the Triton Parties
under a Definitive Agreement on commercially reasonable terms;
provided, however, in the event that there is a Change in Control
(as defined on Exhibit B hereto) of Triton, Triton PCS, Inc.
(“ Triton PCS ”), Triton PCS Operating Company,
LLC (“ Triton Operating ”) or Triton PCS License
Company L.L.C. (“ Triton License ”) (Triton,
Triton PCS, Triton Operating and Triton License are hereinafter
each referred to as a “ Triton Entity ”) and the
controlling party following such Change in Control is Alltel
Corporation, Nextel, Sprint, T-Mobile or Verizon (alone or in any
combination) or any Affiliates, parent companies or successors or
assigns thereof (each a “ Designated Telecom Company
”), Cingular would be able to terminate the arrangement
described above in its sole discretion; and
i)
Provide for limitations on liability in the event a Definitive
Agreement is terminated and the Merger Agreement is terminated
consistent with the limitations provided in the Commercial
Agreements (as hereinafter defined).
3)
Conditions Precedent . The parties contemplate that a
Definitive Agreement would contain customary conditions precedent,
including the following: (i) the closing of the Merger (as
defined in Exhibit B) and in connection therewith, no event
described in Schedule A shall have occurred or be required
(and a Definitive Agreement also would address the circumstance
described in Schedule A); (ii) the closing of the transactions
contemplated by that certain agreement by and among AWS, AT&T
Wireless PCS LLC (“ AWS PCS ”), Cingular, Triton
PCS and, with respect only to certain matters described therein,
Triton Operating and Triton License, and that certain agreement by
and among AWS, AWS PCS, Triton and Cingular, each of even date
herewith (the “ Commercial Agreements ”); (iii)
all regulatory approvals and third party consents, including the
FCC consent to the transfers of the relevant licenses by final
order, shall have been obtained and all required notices given;
(iv) all applicable waiting periods under the
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Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, shall have expired or been
terminated, and no objection shall have been made by the FTC or the
DOJ; (v) the execution and delivery by the parties of a
transition services agreement and other related transaction
documents; (vi) in order to preserve the integrity of the
network coverage, there shall be no more than a specified number of
“deferred” cell sites; (vii) the absence of any
material adverse effect on the business, operations, assets or
results of operations of the Virginia Business or the Multi-Area
Business; and (viii) an
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