TOWER ASSET PURCHASE AGREEMENT
By and Among
THE TOWER COMPANY OF LOUISIANA, LLC
as Seller,
XXXXXX INVESTMENT COMPANY, LLC
as the Sole Member of Seller
AND
AYIN HOLDING COMPANY INC.
as Purchaser
Dated as of June 20, 2006
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Definitions . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II. PURCHASE AND SALE . . . . . . . . . . . . . . . . . . . 7
Section 2.1 Purchase and Sale of Assets . . . . . . . . . . . . 7
Section 2.2 Liabilities . . . . . . . . . . . . . . . . . . . . 7
Section 2.3 Consideration . . . . . . . . . . . . . . . . . . . 8
Section 2.4 Prorations. . . . . . . . . . . . . . . . . . . . . 8
Section 2.5 Closing Costs . . . . . . . . . . . . . . . . . . . 8
ARTICLE III. CLOSING . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.1 Closing . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.2 Seller's Obligations at Closings. . . . . . . . . . 9
Section 3.3 Purchaser's Obligations at Closing. . . . . . . . . 12
ARTICLE IV. INSPECTION. . . . . . . . . . . . . . . . . . . . . . . 13
Section 4.1 Duration. . . . . . . . . . . . . . . . . . . . . . 13
Section 4.2 Entry and Inspection. . . . . . . . . . . . . . . . 13
Section 4.3 Indemnification . . . . . . . . . . . . . . . . . . 14
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF SELLER AND
SOLE MEMBER . . . . . . . . . . . . . . . . . . . . . . 14
Section 5.1 Seller's and the Sole Member's Representations and
Warranties. . . . . . . . . . . . . . . . . . . . . 14
Section 5.2 Survival. . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF PURCHASER . . . . . . 21
Section 6.1 Purchaser's Representations and Warranties. . . . . 21
Section 6.2 Survival. . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE VII. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . 22
Section 7.1 Covenants of Seller . . . . . . . . . . . . . . . . 22
Section 7.2 Other Covenants . . . . . . . . . . . . . . . . . . 24
ARTICLE VIII. CONDITIONS PRECEDENT TO PURCHASER'S PERFORMANCE . . . . 25
Section 8.1 Purchaser's Conditions Precedent. . . . . . . . . . 25
ARTICLE IX. CONDITIONS PRECEDENT TO SELLER'S PERFORMANCE. . . . . . 26
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TABLE OF CONTENTS
(continued)
Page
Section 9.1 Seller's Conditions Precedent . . . . . . . . . . . 26
ARTICLE X. INDEMNIFICATION; RISK OF LOSS . . . . . . . . . . . . . 27
Section 10.1 Indemnification by Seller. . . . . . . . . . . . . 27
Section 10.2 Indemnification by Purchaser . . . . . . . . . . . 27
Section 10.3 Notice and Right To Defend Third-Party Claims. . . 28
Section 10.4 Limitation on Indemnification. . . . . . . . . . . 29
ARTICLE XI. TERMINATION; DEFAULT. . . . . . . . . . . . . . . . . . 30
Section 11.1 Termination Events . . . . . . . . . . . . . . . . 30
Section 11.2 Effect of Termination. . . . . . . . . . . . . . . 30
ARTICLE XII. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . 31
Section 12.1 Casualty and Condemnation. . . . . . . . . . . . . 31
Section 12.2 Notices. . . . . . . . . . . . . . . . . . . . . . 31
Section 12.3 Entire Agreement . . . . . . . . . . . . . . . . . 32
Section 12.4 Headings . . . . . . . . . . . . . . . . . . . . . 32
Section 12.5 Governing Law. . . . . . . . . . . . . . . . . . . 33
Section 12.6 Successors and Assigns . . . . . . . . . . . . . . 33
Section 12.7 Assignment . . . . . . . . . . . . . . . . . . . . 33
Section 12.8 Severability . . . . . . . . . . . . . . . . . . . 33
Section 12.9 Public Announcements . . . . . . . . . . . . . . . 33
Section 12.10 Counterparts . . . . . . . . . . . . . . . . . . . 33
Section 12.11 Expenses . . . . . . . . . . . . . . . . . . . . . 33
Section 12.12 Dispute Resolution . . . . . . . . . . . . . . . . 33
Section 12.13 Enforcement. . . . . . . . . . . . . . . . . . . . 34
Section 12.14 Prior Investigation; Disclosure. . . . . . . . . . 34
Section 12.15 Interpretation . . . . . . . . . . . . . . . . . . 34
Section 12.16 No Strict Construction . . . . . . . . . . . . . . 34
Section 12.17 Relationship of Parties. . . . . . . . . . . . . . 34
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EXHIBITS
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Exhibit 3.2(a)(i) Assignment and Assumption of Ground Leases
Exhibit 3.2(a)(i)(A) Ground Lease Estoppels
Exhibit 3.2(a)(iv) Xxxx of Sale and Assignment
Exhibit 3.2(a)(x) Exclusivity Agreement
SCHEDULES
---------
Schedule 5.1 (c) Conflicts
Schedule 5.l(d) Permits
Schedule 5.1 (d)(i) Governmental Approvals
Schedule 5.1(f)(ii) Properties
Schedule 5.l(f)(ii)(A) Leasehold Properties
Schedule 5.l(f)(ii)(B) Owned Properties
Schedule 5.1 (g) Ground Leases
Schedule 5.1 (n) Seller Contracts
Schedule 5.1 (o) Tenant Leases
Schedule 5.1 (q) Non-Compliance with Environmental Laws
Schedule 5.1 (s) Necessary Consents
Schedule 5.1 (t) Improvements
Schedule 5.1 (u)(i) No Access
Schedule 5.1 (u)(ii) Threatened Condemnation/Eminent Domain
Schedule 5.1 (v) Contractors'/Subcontractors' Guaranties
Schedule 5.l(x) Removal Bonds
Schedule 5.1 (y)(i) Reversionary Interest in Improvements
Schedule 5.1 (y)(ii) Landlord's Rights to Consent to Sublease of Ground
Leases
TOWER ASSET PURCHASE AGREEMENT
------------------------------
This Tower Asset Purchase Agreement (the "Agreement") is made as of this
20th day of June, 2006 (the "Effective Date"), by and between AYIN HOLDING
COMPANY INC., a Delaware corporation (the "Purchaser"), THE TOWER COMPANY OF
LOUISIANA, LLC, a Louisiana limited liability company (the "Seller"), and the
sole member of Seller listed on the signature pages hereto (the "Sole Member").
WHEREAS, Seller is engaged in the business of owning and operating wireless
communications towers and co-locating tenants on those towers;
WHEREAS, Seller desires to sell and assign to Purchaser, and Purchaser
desires to purchase and assume, subject to the terms set forth herein, all of
the Assets and Assumed Liabilities (each as defined herein), in exchange for
payment of the Purchase Price (as defined herein) and the assumption of the
Assumed Liabilities; and
WHEREAS, the Sole Member owns all of the units of membership interest in
Seller.
NOW, THEREFORE, in consideration of the mutual covenants, provisions,
representations and warranties contained herein. Purchaser and Seller agree as
follows:
ARTICLE I.
DEFINITIONS
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Section 1.1 Definitions. As used in this Agreement, the following
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terms shall have the following meanings:
"Affiliate" shall mean, with respect to any specified Person, any other
Person that directly or indirectly controls, is directly or indirectly
controlled by, or is directly or indirectly under common control with, such
specified Person, with "control" for such purpose meaning the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities or voting interests, by contract or otherwise.
"Agreement" shall have the meaning ascribed to it in the introductory
paragraph hereof.
"AM Study" means, with respect to any Tower, all reports on any and all
disturbances in close proximity to the Tower of any AM broadcast station antenna
patterns (commonly referred to as an "AM Detune Screening") and if such report
indicates that the Tower is in close proximity to an AM broadcast station, "AM
Study" will be deemed to include a subsequent report on the radial-based
measurements of such Tower before and after its construction.
"Asset" or "Assets" shall mean, individually, and collectively, all of the
Seller's right, title and interest in each of the Properties, together with all
(i) Improvements thereon, (ii) Easements thereto, (iii) Tower(s) thereon and all
tangible personal property related to the design, operation and maintenance of
the Tower(s), (iv) Ground Leases with respect thereto, (v) Tenant Leases with
respect thereto, (vi) assignable Seller Contracts related thereto,
(vii) Permits with respect thereto, (viii) Tower Lighting Systems located
thereon and (ix) each of the following to the extent it is directly related to
any of the foregoing: (A) Security Deposits, claims, refunds, causes of action,
rights of recovery, prepayments, rights of set off and rights of recoupment, (B)
insurance benefits arising or relating to any of the foregoing, (C) reorders,
variances, and similar rights obtained from any Governmental Authority, (D) all
receivables arising from and after the Closing Date and all currently existing
and hereafter arising proceeds related to the foregoing, (E) all original Books
and Records, (F) assignable warranties and guarantees related to any
Improvements, and (G) all other assets related to or used in connection with the
foregoing but excluding the Excluded Assets.
"Assumed Liabilities" shall have the meaning ascribed to it in Section
2.2(a).
"Basket" shall have the meaning ascribed to it in Section 10.4.
"Books and Records" shall mean all original operating, design,
manufacturing, test and other data and records (in each case, in whatever form
or medium, including electronic media), including any tower blue-prints,
architectural plans, construction drawings and specifications, site and M&B
surveys, AM tower studies, geotechnical, NEPA, SHPO reports, research and
development files, data and laboratory books, real estate investigation
documents, title records and documents, zoning documents, documents related to
FAA and FCC matters, regulatory permits, environmental records and documents,
litigation files and other similar property, rights and information, in each
case as related to the Assets.
"Business Day" shall mean any day other than Saturday, Sunday or a day on
which banking institutions in Atlanta, Georgia are required or authorized to be
closed.
"Cap" shall the have meaning ascribed to it in Section 10.4.
"Closing" means the closing for the sale, transfer and assignment of all
Seller's right, title and interest in the Assets to be transferred to Purchaser
at the Closing pursuant to this Agreement which Closing is contemplated by this
Agreement to take place on or before June 20, 2006 in accordance with Section
3.1(a) hereof.
"Closing Date" shall mean the day on which a Closing occurs.
"COBRA" shall have the meaning ascribed to it in Section 5.1(p)(i).
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Communications Equipment" shall mean equipment used in a communications
system located on any Properties or Improvements owned by any Person including,
wireless communications antennas, coaxial cables, wireless communications
equipment boxes, wireless communications transmission equipment, electronic
equipment and microwave dishes installed, and any other real or personal
property but expressly excluding any shelters on the Properties in which any of
the foregoing may be located or stored.
"Confidentiality Agreement" shall have the meaning ascribed to it in
Section 7.2(d).
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"Contracts" shall mean collectively the Ground Leases, Tenant Leases,
Seller Contracts, and Easements.
"Disputes" shall have the meaning ascribed to it in Section 12.12.
"Easements" shall mean all of Seller's right, title and interest in all
servitudes, easements, licenses and agreements belonging to or in any way
appertaining to the Properties, Towers and/or Improvements, and all amendments,
modifications, supplements, assignments, guaranties, side letters and other
documents related thereto whether entered into prior to, on or after the
Effective Date, including, without limitation, all easements, licenses and
agreements providing access to the Properties, Towers, and/or Improvements from
public streets, roads and ways, all easements, licenses and agreements for
location, maintenance, repair and replacement of and for cables, utilities,
utility lines, wires and anchors and all easements, licenses and agreements for
parking.
"Effective Date" shall have the meaning ascribed to it in the introductory
paragraph hereof.
"Environmental Claim" shall mean any claim, complaint, action, suit,
proceeding, investigation or notice in writing by any Person alleging potential
liability arising out of, based on, or resulting from (i) the release, emission,
discharge or disposal into, or presence in, the environment, including, without
limitation, the indoor environment, of any Hazardous Material at any Property
and/or the Improvements thereon, whether or not owned by Seller; and (ii)
circumstances forming the basis of any violation, or alleged violation, of any
Environmental Law.
"Environmental Laws" shall mean all federal, state and local laws,
statutes, ordinances, judgments, decrees, orders, licenses, permits, rules,
regulations and other binding requirements relating to protection of human
health and the environment, including, without limitation, laws, statutes,
ordinances, judgments, decrees, licenses, permits, rules and regulations
relating to emissions, discharges, releases, or threatened releases of any
Hazardous Material, or otherwise relating to the historic preservation use,
treatment, storage, disposal, transport or handling of any Hazardous Material,
each as amended from time to time.
"Environmental Licenses" shall mean all licenses, certificates, permits,
plans, approvals and registrations required under Environmental Laws.
"Excluded Assets" shall mean (i) any Communications Equipment; (ii) the
electrical circuits that serve the Communications Equipment and the associated
telephone company wiring between the meter board and the Communications
Equipment at each Property belonging to any public utility and (iii) those
Assets with respect to which the conditions to Purchaser's obligation to
purchase said Asset as set forth in Section 8.1 (Conditions Precedent) have not
been met as of the Closing and which Purchaser has designated as Excluded Assets
and those Assets that are deemed Excluded Assets pursuant to Section 12.1 or
otherwise expressly excluded in this Agreement.
"Excluded Liabilities" shall have the meaning ascribed to it in Section
2.2(b).
3
"Exclusivity Agreement" shall have the meaning ascribed to it in Section
3.2(a)(ix).
"FAA" shall mean the Federal Aviation Administration or any successor
agency thereto.
"FCC" shall mean the Federal Communications Commission or any successor
agency thereto.
"FIRPTA" shall mean the Foreign Investment in Real Property Tax Act.
"GAAP" shall mean generally accepted accounting principles for financial
reporting in the United States existing on the date hereof, applied on a
consistent basis.
"Governmental Authority" shall mean any federal, state, territorial,
county, municipal, local or other government or governmental agency or body or
any other type of regulatory body, whether domestic or foreign, including,
without limitation, the FAA and the FCC.
"Governmental Laws" shall mean all federal, state and local laws, rules,
ordinances, regulations, orders, judgments, writs, injunctions, codes,
directives, decrees, notices, rules and statutes of any Governmental Authority,
now or hereinafter in effect.
"Ground Lease Estoppels" means an estoppel certificate signed by a ground
lessor under a Ground Lease in substantially the form attached as Exhibit
3.2(a)(i)(A).
"Ground Lease" or "Ground Leases" shall mean individually, and
collectively, (i) each lease between a non-affiliated third party landlord, as
lessor, and Seller, as lessee, granting to Seller a leasehold estate in and to a
Leasehold Property, together with all amendments, modifications, supplements,
assignments, guaranties, side letters and other documents related thereto,
whether entered into prior to, on or after the Effective Date, (ii) each
easement agreement (other than easements appurtenant) between a third party, as
grantor, and Seller, as grantee, granting to Seller an easement in and to a
Leasehold Property, together with all amendments, modifications, supplements,
assignments, guaranties, side letters and other documents related thereto,
whether entered into prior to, on or after the Effective Date, and (iii) any
license between a third party as licensor and Seller granting to Seller a
license in and to a Leasehold Property, together with all amendments,
modifications, supplements, assignments, guaranties, side letters and other
documents related thereto, whether entered into prior to, on or after the
Effective Date.
"Hazardous Material" shall mean any material, substance or compound
regulated under any Environmental Law as a pollutant, toxic substance,
contaminant, hazardous waste, hazardous material, hazardous substance, extremely
hazardous material, extremely hazardous substance, hazardous air pollutant,
radioactive substance, solid waste, radioactive waste, special waste, medical
waste, or words of similar import, any petroleum (including crude oil or any
refined fraction, constituent, by-product or residue thereof), asbestos or
polychlorinated biphenyl.
"HSR Act" shall have the meaning ascribed to it in Section 7.2(a).
"Improvements" shall mean any and all buildings, improvements, fixtures,
machinery, equipment (including all service entrance wiring, meter bank
breakers), shelters, fencing,
4
structures, signs, locks, and other tangible assets located on any of the
Properties owned by Seller, including the Towers, other than any Communications
Equipment.
"Indemnifiable Damages" shall have the meaning ascribed to it in Section
10.1.
"Indemnitee" shall have the meaning ascribed to it in Section 10.3(a).
"Indemnitor" shall have the meaning ascribed to it in Section 10.3(a).
"Instruments of Transfer" shall have the meaning ascribed to it in Section
3.2(a).
"Knowledge" shall mean the actual knowledge of Xxxxxxx Xxxxxxxx, the
managers and members of Sole Member, the board of directors of Seller, and any
other executive officer of Seller, in each case after due inquiry into the
subject matter about which the relevant inquiry relates and the knowledge that
each such person reasonably should possess if he or she has properly discharged
his or her duties or made such due inquiry.
"Leasehold Property" or "Leasehold Properties" shall mean, individually and
collectively, each of those certain parcels of land, all of which are listed and
described on Schedule 1.1(A) in which Seller is the holder of a valid leasehold
estate, license, easement or servitude interest or other right to use such land
under and pursuant to a Ground Lease applicable thereto, together with all
rights, alleys, streets, strip gores, water privileges, appurtenances,
advantages and easements belonging thereto or in any way appertaining thereto
and all land lying in the bed of any street or highway, open or proposed, in
front of or adjoining the land to the centerline thereof.
"Liens" shall mean any lien, guaranty, mortgage, security interest,
attachment, levy, charge, claim, restriction, imposition, pledge, encumbrance,
conditional sale or title retention arrangement, or any other interest in
Property or Assets (or the income or profits therefrom), whether consensual or
nonconsensual and whether arising by agreement or under any Governmental Laws or
otherwise.
"Light Monitoring Agreement" shall mean the Light Monitoring Agreement in
form and substance to be mutually agreed upon pursuant to which Seller will
provide, inter alia, light monitoring services with respect to those Towers
acquired by Purchaser hereunder that have Tower Lighting Systems.
"Material Adverse Change" shall mean (a) the commencement of a case under
Title 11 of the United States Code by or against a Seller, as debtor or (b) any
event, occurrence or change which could materially adversely affect (i) the
condition (financial or otherwise), business, operations, properties, results of
operations, use, or prospects of the Assets taken as a whole or of Seller or
(ii) the binding nature, validity or enforceability of this Agreement; provided,
however, that no change or effect arising out of or in connection with or
resulting from any of the following will be deemed to constitute a "Material
Adverse Change": (A) changes or fluctuations in general financial market
conditions or (B) changes affecting the telecommunications industry generally.
5
"Memorandum of Lease" means a memorandum in recordable form setting forth
certain terms of a Ground Lease or Tenant Lease.
"Necessary Consents" shall mean all consents, approvals, concessions,
franchises, licenses, permits, nondisturbance agreements (provided any such
nondisturbance agreements relate solely to recorded interests recorded prior to
the interest of Seller in the applicable Property) and other authorizations that
are required to be obtained by Seller from any Governmental Authority or any
other Person in order to consummate the transactions contemplated by this
Agreement.
"Owned Property" or "Owned Properties" shall mean, individually and
collectively, each of those certain parcels of real property in which Seller has
a fee simple interest, all of which are listed and described as such on Schedule
1.1(B), together with all rights, alleys, streets, strip gores, water
privileges, appurtenances, advantages and easements belonging thereto or in any
way appertaining thereto.
"Parties" shall mean Purchaser, Seller and the Sole Member, collectively.
"Party" shall mean Purchaser, Seller, or the Sole Member, as the case may
be.
"Permits" shall mean all permits, approvals, registrations, licenses,
certifications, or authorizations required by any Governmental Authority in
connection with the construction, ownership, maintenance, use or operation of
the Assets and all pending applications therefor or renewals thereof.
"Permitted Liens" shall mean (a) Liens for current Taxes not yet due and
payable, (b) assessments not yet due and payable under declarations that do not
or would not, individually or in the aggregate, interfere with Purchaser's
actual or intended ownership, lease or use of any Properties and/or Improvements
as telecommunications facilities, (c) any interest or title of a lessor or
servient tenant holder under any Ground Lease, (d) any revenue-sharing
arrangements under any Ground Lease, (e) any Easement, and (f) any recorded
mortgages or deeds of trust encumbering the fee simple interest under any Assets
subject to a Ground Lease with respect to which binding nondisturbance
agreements have been obtained and are in full force and effect or are subsequent
to Seller's recorded interest in the applicable Property. Notwithstanding
anything to the contrary in this Agreement, any mortgage or deed of trust lien,
security interest, and other monetary liens encumbering any Property and/or
Improvements created by Seller or encumbrances created by Seller after the
Effective Date that encumber a Property and/or Improvements will not be
Permitted Liens.
"Person" shall mean any individual, group, corporation, partnership,
limited liability company or other organization or entity.
"Property" or "Properties" shall mean, individually and collectively, each
Leasehold Property and each Owned Property.
"Purchase Price" shall have the meaning ascribed to it in Section 2.3.
"Purchaser" shall have the meaning ascribed to it in the introductory
paragraph hereof.
6
"Purchaser Indemnitee" shall have the meaning ascribed to it in Section
10.1.
"Rules" shall have the meaning ascribed to it in Section 12.12.
"Security Deposits" shall have the meaning ascribed to it in Section
5.1(h).
"Seller" shall have the meaning ascribed to it in the introductory
paragraph hereof.
"Seller Contracts" shall mean all service, supply, maintenance, management
and utility agreements between Seller and a third party relating to or affecting
the Assets, together with all amendments, modifications, supplements,
assignments, guaranties, side letters and other documents related thereto,
whether entered into prior to, on or after the Effective Date.
"Seller Indemnitee" shall have the meaning ascribed to it in Section 10.2.
"Sole Member" shall have the meaning ascribed to it in the introductory
paragraph hereof.
"Tax Return" shall mean any report, declaration, statement, return or other
information filed in respect of Taxes, and any claims for refund of Taxes,
including any amendments or supplements to any of the foregoing, with any Taxing
authority with respect to Taxes imposed upon or attributable to the operation of
any of the Assets.
"Taxes" shall mean any and all taxes, duties, imposts, charges, levies or
other like assessments, including, but not limited to, income, transfer, gains,
gross receipts, excise, inventory, property (real, personal or intangible), ad
valorem, value added, custom, duty, sales, use, license, withholding, capital
stock, license and franchise taxes (including any fee, assessment or other
charge in the nature of or in lieu of any tax), imposed by the United States, or
any state, local government or subdivision or agency thereof, any interest,
penalties, additions to tax or additional amounts in respect of the foregoing
(whether disputed or not), any transferee or successor or secondary liability in
respect of tax (whether imposed by law, contractual agreement or otherwise) and
any liability in respect of any tax as a result of being a member of any
affiliated, consolidated, combined or unitary group for any tax purpose.
"Tenants" shall mean broadband or broadband equivalent lessees that are
parties to Tenant Leases.
"Tenant Lease" or "Tenant Leases" shall mean, individually and
collectively, each lease, sublease, license, sublicense, master lease and other
occupancy agreement for the use and occupancy or future use and occupancy of a
Property and/or Improvements or any portion thereof, together with all
amendments, modifications, supplements, assignments, guaranties, side letters
and other documents related thereto, whether entered into prior to, on or after
the Effective Date.
"Tower" shall mean any wireless communications tower located on a Property
and owned by Seller, including the following material elements: tower
foundation, all supporting elements, bolts, tower structures (including tower
steel), cabinets, shelters, fencing, pads and gates, signs, utility lines,
telecommunication lines, conduits and meter boards, pads, anchors,
7
caissons, lighting, lightening rods, Tower Lighting Systems, foundations, rock
compounds and rock access roads, the tower and compound grounding systems and
all other structures and improvements located on such Property.
"Tower Lighting System" means the lighting control system for a Tower
(including the control module, light fixtures, all associated interconnection
wiring and the external photo-cell) that is owned by Seller.
"Transaction Documents" shall mean this Agreement, the Instruments of
Transfer, the Confidentiality Agreement and any other agreements, certificates,
documents or instruments to be executed and delivered pursuant to the foregoing,
as the same may be amended from time to time.
"Transfer" shall mean any sale, assignment, pledge, encumbrance or other
disposition.
"Transfer Taxes" shall mean, collectively, all excise, sales, use, value
added, registration, stamp, recording, documentary, conveyancing, franchise,
transfer, gains and similar Taxes imposed or attributable or related to the
purchase and sale of the Assets.
"Unlimited Claims" shall have the meaning ascribed to it in Section 10.4.
ARTICLE II.
PURCHASE AND SALE
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Section 2.1 Purchase and Sale of Assets. Subject to and on the terms
---------------------------
and conditions set forth herein, Seller shall sell, transfer, assign and deliver
to Purchaser, and Purchaser shall purchase, acquire and accept from Seller, all
of Seller's right, title and interest in and to the Assets set forth in Schedule
2.1, free and clear of all Liens, other than the Permitted Liens.
Notwithstanding anything to the contrary contained in this Section 2.1 or
elsewhere in this Agreement, the term "Assets" shall not include any Excluded
Assets.
Section 2.2 Liabilities.
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(a) Assumed Liabilities. Subject to and on the terms and
--------------------
conditions of this Agreement, Purchaser agrees to assume and to discharge
all liabilities (the "Assumed Liabilities") of Seller directly relating to
the Assets that arise out of or relate to events, facts or circumstances
that occur on or following the Closing Date for such Assets, including all
of such obligations and liabilities of Seller under or related to any
Ground Lease, Tenant Lease, Seller Contract, Security Deposit, and any
order, requirement or rule of any Governmental Authority.
(b) Excluded Liabilities. Purchaser specifically shall not
---------------------
assume or pay or discharge or have any liability for any debts,
liabilities, or obligations of Seller or otherwise other than the Assumed
Liabilities, including, any and all liabilities or obligations of any sort
whatsoever regardless of how incurred or when arising that relate to Assets
that arise or are incurred by Seller or relate to events, facts, or
circumstances that occur prior to the Closing Date whether or not any such
debt, liability or obligation is disclosed to Purchaser or is set forth on
any Schedule to this Agreement. All such
8
excluded debts, liabilities and obligations in this Section 2.2 are
collectively referred to herein as "Excluded Liabilities".
Section 2.3 Consideration and Payment of Purchase Price. Subject to
--------------------------------------------
the terms and conditions of this Agreement, the consideration to be paid for the
sale, assignment, conveyance, transfer and delivery of the Assets under this
Agreement shall be $325,000 per Tower for each Tower. The aggregate
consideration to be paid for all of the Assets sold, transferred and assigned to
Purchaser pursuant to this Agreement shall be referred to as the "Purchase
Price". At Closing, the Purchase Price shall be paid by federal wire transfer.
Section 2.4 Prorations. At least five (5) days before the Closing
----------
Date, Seller shall provide Purchaser a historical rent roll schedule for all
payments and a schedule of all prepaid rental received and paid by Seller for
periods after the Closing Date. The net sum of all such rental payments shall be
deducted from the Purchase Price. All normal and customarily proratable items
(including real estate taxes, personal property taxes, utility bills, security
bills, and rents) shall be prorated as of the Closing Date, Seller being charged
and credited for all of the same up to such date and Purchaser being charged and
credited for all of the same on and after such date. If the actual amounts to be
prorated are not known as of the applicable Closing Date, the prorations shall
be estimated by Seller; and thereafter, when actual amounts are known, a cash
settlement will be made between Seller and Purchaser.
Section 2.5 Closing Costs. At the Closing, Seller and Purchaser shall
-------------
split all documentary stamp or other Transfer Taxes arising in connection with
any deed or other conveyance document relating to the Assets included in the
Closing. The Party that is required by applicable law to file the Tax Returns
with respect to any applicable Transfer Taxes will do so, and the other Party
will cooperate with respect to such filings as necessary. Purchaser shall have
the sole responsibility for recording, and the costs related thereto, any
Memorandum of Lease with respect to the Ground Leases that Purchaser elects, in
its sole discretion, to have recorded. Purchaser shall pay all recording costs
arising in connection with and shall have the sole responsibility for recording
any applicable Instrument of Transfer under this Agreement except as provided in
the preceding sentence. Purchaser and Seller will cooperate in providing each
other with any appropriate resale exemption certifications and other similar
documentation. At Closing, Seller will pay all applicable sales Tax in
connection with the Closing.
ARTICLE III.
CLOSING
-------
Section 3.1 Closing. Subject to the satisfaction or waiver of all of
-------
the conditions contained in Article VIII and Article IX hereof: The Closing
shall take place at the offices of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, 000
Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000 at the date upon
which the parties may mutually agree which shall not be later than June 20,
2006. Notwithstanding any other provision of this Agreement, in the event that
as of the Closing the representations or warranties of Seller with respect to
one or more of the Towers or Assets related thereto are not satisfied or any of
the other conditions precedent is not fully satisfied, Purchaser may, in its
sole and absolute discretion and without any obligation to do so, waive the
conditions precedent and proceed to Closing.
9
Section 3.2 Seller's Obligations at Closings. At Closing Seller shall
--------------------------------
execute and deliver to Purchaser the following documents for the Assets to be
transferred at the Closing:
(a) Instruments of Transfer. Instruments of transfer
-------------------------
("Instruments of Transfer") transferring to Purchaser all of Seller's
right, title and interest in and to the Assets. The Instruments of Transfer
shall be as follows:
(i) Assignment and Assumption of Ground Leases. With
-----------------------------------------------
respect to each of the Leased Properties, a duly executed, valid and
acknowledged original assignment and assumption of all of Seller's
right, title and interest in the Ground Lease, substantially in the
form attached as Exhibit 3.2(a)(i) hereto, together with a
corresponding duly executed Ground Lease Estoppel, substantially in
the form attached hereto as Exhibit 3.2(a)(i)(A).
(ii) Assignment and Assumption of Tenant Leases and Seller
--------------------------------------------------------
Contracts. A duly executed, valid and acknowledged original
---------
assignment and assumption of all of Seller's right, title and interest
in and to all of the Tenant Leases and Seller Contracts applicable to
the Assets, in form and substance reasonably satisfactory to
Purchaser.
(iii) Deeds. With respect to each of the Owned Properties,
-----
if any, a special warranty deed duly executed, valid and acknowledged,
in a form acceptable for recording in the state and county where each
of the applicable Owned Properties is located and as otherwise
reasonably satisfactory to Purchaser, together with such other forms
as may be required to record such deed.
(iv) Xxxx of Sale. A duly executed xxxx of sale and
--------------
assignment, transferring all of Seller's right, title and interest in
and to all of the tangible, personal property constituting the Assets
from Seller to Purchaser, substantially in the form attached as
Exhibit 3.2(a)(iv) hereto.
(v) Assignment of Security Deposits. If applicable, a duly
--------------------------------
executed, valid and acknowledged assignment and assumption of all
Security Deposits, together with any and all interest accrued thereon,
if any, together with Seller's indemnification and hold harmless
agreement indemnifying Purchaser with respect to such Security
Deposits for the period prior to the Closing Date, in form and
substance satisfactory to Purchaser.
(vi) Title Affidavits. Any affidavits required by, and
-----------------
reasonably satisfactory to, the title company in order that any
owner's title insurance policy and any mortgage title insurance policy
may be issued free and clear of the standard exceptions which a title
company is permitted by applicable law to remove or modify upon
delivery of such affidavits.
(vii) Memorandum of Lease. For each applicable Leasehold
---------------------
Property, a separate Memorandum of Lease with respect to the Ground
Lease thereof (other than any license or other right to use any
property owned by any United States Federal or State Governmental
Authority) in a form acceptable for recording in
10
the state and county where the applicable Assets are located to the
extent that the Seller has not already recorded a Memorandum of Lease
or other instrument evidencing Seller's rights in such Leasehold
Property.
(viii) Necessary Consents. Evidence reasonably satisfactory
------------------
to Purchaser that Seller has obtained all Necessary Consents for the
Closing.
(ix) Exclusivity Agreement. A duly executed copy of the
----------------------
exclusivity Agreement, substantially in the form attached as Exhibit
3.2(a)(ix) hereto (the "Exclusivity Agreement"). The Exclusivity
Agreement shall cover future sales of towers by Seller to Purchaser
and the rights and obligations of the Parties related thereto.
(x) Light Monitoring Agreement. A duly executed copy of the
--------------------------
Light Monitoring Agreement in form and substance satisfactory to
Purchaser.
(xi) Other Documents. All other documents reasonably
----------------
required to effectuate the transactions contemplated by this
Agreement, including, any and all real property Transfer Tax forms or
returns or any other documents or instruments required to be delivered
in the State and county where each of the applicable Assets are
located.
(b) FIRPTA Certificate. A certificate duly executed by Seller
-------------------
certifying that Seller is not a foreign person for purposes of FIRPTA.
(c) Original Documents. To the extent not already delivered to
-------------------
Purchaser, originals of all Tenant Leases, Ground Leases, Seller Contracts,
Permits, AM Studies, Phase I reports, Phase II reports, NEPA reports,
zoning approvals, FAA clearances, FCC registrations and other environmental
reports, structural reports, surveys, as built- drawings, warranties,
guarantees, title opinions and reports, architectural plans, tower
drawings, tower modifications, foundation drawings, tenant drawings, Books
and Records and other information in Seller's possession or control that
relate to the ownership, operation or use of the Assets.
(d) Nondisturbance Agreements. Any executed nondisturbance
--------------------------
agreements obtained by Seller pursuant to Section 7.1(m), in form and
substance satisfactory to Purchaser, to the extent Purchaser reasonably
deems necessary.
(e) Officer's Certificate. An officer's certificate of Seller
----------------------
signed by an executive officer of Seller certifying that (i) Seller has
performed and complied in all respects with all agreements and covenants
required to be performed or complied with by Seller under this Agreement
and the other Transaction Documents at or prior to the Closing, (ii) each
of the representations and warranties of Seller were true and correct in
all respects when made and are true and correct in all respects as of the
Closing Date as if made on such date, and (iii) each of the persons
executing and delivering this Agreement and the other Transaction Documents
on behalf of Seller has the authority to execute, deliver and consummate
this Agreement and each other Transaction Document.
11
(f) Resolution and Secretary's Certificate. A copy of
-----------------------------------------
resolutions of the board of directors of Seller authorizing the execution,
delivery and performance of this Agreement and the other Transaction
Documents by Seller, and a Secretary's certificate of Seller, dated the
Closing Date, attesting and certifying as to the accuracy of the
organizational documents of Seller and that such resolutions were duly
adopted and are in full force and effect.
(g) Certified Organizational Documents and Certificates of Good
--------------------------------------------------------------
Standing. Copies of the organizational documents of Seller certified by the
--------
Secretary of State of the Seller's jurisdiction of organization and a
certificate of good standing for Seller from its jurisdiction of
organization and each of the jurisdictions in which the Properties are
located.
(h) Legal Opinion. An opinion of Seller's legal counsel, in a
--------------
form reasonably acceptable to Purchaser.
(i) Other Items. Any other keys, access codes, items or
------------
instruments required by this Agreement, necessary for the operation of the
Assets, or reasonably requested by Purchaser to consummate the Closing.
Section 3.3 Purchaser's Obligations at Closing. At Closing Purchaser
----------------------------------
shall deliver to Seller the following:
(a) Price. The Purchase Price in accordance with the provisions
-----
of Article II hereof.
(b) Assignment and Assumption of Ground Leases. With respect to
-------------------------------------------
each of the Leased Properties, a duly executed, valid and original
assignment and assumption of all of Seller's right, title and interest in
and to all of the Ground Leases, substantially in the form attached as
Exhibit 3.2(a)(i) hereto.
(c) Assignment and Assumption of Tenant Leases and Seller
------------------------------------------------------------
Contracts. A duly executed valid and original assignment and assumption of
---------
Seller's right, title and interest in and to all of the Tenant Leases and
Seller Contracts applicable to the Assets.
(d) Officer's Certificate. An officer's certificate of Purchaser
---------------------
signed by an executive officer of Purchaser certifying that (i) Purchaser
has performed and complied in all respects with all agreements and
covenants required to be performed or complied with by Purchaser under this
Agreement and the other Transaction Documents at or prior to the Closing,
(ii) each of the representations and warranties of Purchaser were true and
correct in all respects when made and are true and correct in all respects
as of the Closing Date as if made on such date, and (iii) each of the
persons executing and delivering this Agreement and the other Transaction
Documents on behalf of Purchaser has the authority to execute, deliver and
consummate this Agreement and each other Transaction Document;
(e) Removal Bonds. Removal bonds in form and amount sufficient
--------------
to permit the return of all removal bonds with respect to the Assets
included in the Closing.
12
(f) Exclusivity Agreement. A duly executed copy of the
----------------------
Exclusivity Agreement.
(g) Light Monitoring Agreement. A duly executed copy of the
----------------------------
Light Monitoring Agreement.
(h) Other Documents. Any other documents or instruments required
---------------
by this Agreement to be executed and delivered by Purchaser or reasonably
requested by Sellers to consummate the Closing.
ARTICLE IV.
INSPECTION
----------
Section 4.1 Duration. Purchaser shall have the right during the
--------
period commencing on the Effective Date and ending on the date which is thirty
(30) days after the Effective Date to enter upon, inspect, investigate and
conduct legal, financial, business, accounting, environmental and technical due
diligence with respect to the Assets.
Section 4.2 Entry and Inspection. From and after the Effective Date,
--------------------
Seller shall permit Purchaser and its authorized agents and representatives
reasonable access to (during normal business hours) all of the Assets of Seller,
and Seller shall furnish to Purchaser access to inspect all Books and Records,
as Purchaser may reasonably request, to permit Purchaser to perform its due
diligence investigation with respect to the Assets. Purchaser and its
representatives may undertake a complete physical inspection of the Assets at
Purchaser's sole cost and risk, obtain a survey of the Properties and perform a
complete audit of the Assets; provided, that with respect to the Properties and
the Improvements, any such physical inspection shall not result in any damage to
the same. Except as otherwise provided herein, no such inspections,
investigations or examinations shall unreasonably interfere adversely with the
Seller's business or operations. After completing any physical inspections of
the Property and Improvements thereon, Purchaser shall restore and repair any
damage to the same caused by such inspections to the condition existing prior to
Purchaser's entry. Any site inspections shall be conducted by such employees,
consultants and professionals as Purchaser shall select, and any inspections
shall be arranged at times mutually convenient to the Parties.
Section 4.3 Indemnification. Purchaser agrees to indemnify and hold
---------------
Seller and any affiliate of Seller harmless from any and all claims made, or
causes of action brought against Seller (or any affiliate) resulting from any
damage to the Properties as a result of the activities of Purchaser or any of
Purchaser's agents, servants, contractors or invitees in conducting any of the
physical inspections, investigations or examinations on the Properties. This
indemnification shall survive for a period of one (1) year from the date of
Purchaser's physical inspection, investigation or examination of such Property.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF SELLER AND SOLE MEMBER
--------------------------------------------------------
Section 5.1 Seller's and the Sole Member's Representations and
--------------------------------------------------------
Warranties. Seller and the Sole Member, jointly and severally, hereby
----------
represent and warrant to Purchaser (i) on the Effective Date, (ii) with respect
to any representation or warranty for which a Schedule or other
13
document is delivered after the Effective Date, as of such date and (iii) on the
Closing Date, as if made on each such date, as follows:
(a) Organization and Qualification. Seller is duly organized,
--------------------------------
validly existing and in good standing under the laws of its jurisdiction of
organization. Seller has all requisite limited liability company power and
authority to conduct its business as it is currently conducted and to own,
lease and use the Assets as they are currently owned, leased and used.
(b) Authority; Enforceability. Seller has the absolute and
--------------------------
unrestricted corporate, limited liability company or partnership right,
power and authority to execute, deliver and perform its obligations under
this Agreement and the other Transaction Documents. The execution and
delivery of, and performance of the obligations contained in, this
Agreement and the other Transaction Documents and the transactions
contemplated hereby and thereby by Seller have been duly authorized by all
necessary and proper corporate, limited liability company or partnership
action on the part of Seller. This Agreement and the other Transaction
Documents when executed and delivered by Seller constitute the legal, valid
and binding obligations of Seller, enforceable against Seller in accordance
with the terms hereof and thereof, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting generally the enforcement of creditors' rights and by general
principles of equity.
(c) No Conflicts.
-------------
(i) Except as set forth on Schedule 5.1(c), the execution,
delivery and performance of this Agreement and the other Transaction
Documents and the consummation of the transactions contemplated
hereunder or thereunder do not and will not, directly or indirectly,
conflict with or result in a breach or violation of any term or
provision of, result in the imposition of any Lien upon any Asset or
permit the acceleration of any obligation or liability under or
pursuant to, or constitute a breach or default (including any event
that, with the passage of time or giving of notice, or both, would
become a breach or default or violation under (i) any provision of
Seller's organizational documents or related agreement, or any
resolution adopted by Seller's board of directors; any of the terms or
requirements of, or give any Governmental Authority the right to
revoke, withdraw, suspend, cancel, terminate or modify, any Permit
that is held by Seller or that otherwise relates to the Assets or to
the business of Seller; (iii) any of the terms of, result in a
material modification of, or otherwise give any other contracting
party the right to terminate, any contract, lease or instrument
affecting the Properties or by which Sellers or any of the Assets may
be bound or affected; or (iv) any Governmental Laws, or violate or
permit the acceleration of any obligation or liability under any,
contract, agreement, Governmental Law, license, lease, indenture,
mortgage, loan agreement or note to which Seller is a Party or by
which any of the Assets is bound or may be affected.
(d) Permits. Schedule 5.1(d) contains a true, correct and
-------
complete list of all Permits (whether oral or written) for the Improvements
and the Properties. Except as set
14
forth in Schedule 5.1(d)(i), there are no other approvals required from any
Governmental Authority to operate the Assets as they are currently being
operated except for the Permits, Except as set forth in Schedule 5.1(d)(i),
Seller has not received any indication that any of such Permits will not be
renewed in their ordinary course for the full term contained in any renewal
option or for a term (in the event there is no option) to be negotiated
with the appropriate Governmental Authority. Except as set forth in
Schedule 5.1(d)(i), none of such Permits is subject to any restriction or
condition that would limit in any respect the ownership or operation of the
Assets as presently conducted or as contemplated by this Agreement. Except
as set forth in Schedule 5.1(d)(i), there are no Governmental Laws that
would preclude Seller from assigning any of its Permits to Purchaser, and
Seller is assigning such Permits to Purchaser without any further action
required on the part of Purchaser. True, correct and complete copies of
each of the Permits (and written descriptions of oral Permits) have been
furnished to Purchaser.
(e) Compliance With Laws. Seller and the Assets, and the current
--------------------
ownership, use, occupancy, safety and operation of the Assets, are in
material compliance with, and there is no event that has rendered, or would
render such ownership, use, occupancy, safety and operation materially
non-compliant under, any Governmental Law or Permit, including, without
limitation, the record-keeping or periodic reporting requirements of all
such Governmental Laws and Permits.
(f) Title Matters. Seller holds, and will transfer to Purchaser
--------------
at the Closing, good and merchantable title for all of the owned Assets,
and a valid and insurable leasehold interest for all of the Leasehold
Properties and a valid interest in all other leased Assets, in each case,
free and clear of all Liens, other than Permitted Liens, and Liens that
will be discharged at or prior to the Closing. Seller holds no Owned
Properties.
(g) Ground Leases. Schedule 5.1(g) contains a true, complete
--------------
and correct list and description of each of the Ground Leases (whether oral
or written) for the Leasehold Properties. To Seller's Knowledge, each
owner, lessor or easement grantor under each Ground Lease has good and
marketable title to the corresponding Property. Each Ground Lease is in
full force and effect, has not been modified or amended, and to Seller's
Knowledge, there is no action to revoke, cancel, renegotiate or adversely
affect in any manner any Ground Lease. Seller is in actual possession of
the premises under the Ground Leases, and there are no material defaults
thereunder by Seller or, to Seller's Knowledge, by the applicable owner,
lessor, licensor, or easement grantor under any of the Ground Leases,
Seller has not received any notices from or given notice to any owner,
lessor, licensor or easement grantor claiming that the other party is in
default under any of the Ground Leases and, to Seller's Knowledge, there is
no event, with the giving of notice or the passage of time or both, would
constitute a default. There are no existing disputes regarding the use of
Property under any of the Ground Leases, the computation and payment of
fees or other lease payments under the Ground Leases or any other material
provisions under any of the Ground Leases. Seller has performed its
obligations and paid the rent and other payments set forth in or required
to be paid under the Ground Leases on a current basis and there are no
material past due amounts. Seller has no obligation to pay any additional
rent or charges to any of the owners, lessors,
15
licensors or easement grantors under any Ground Lease except as set forth
in the applicable Ground Lease.
(h) Security Deposits. There are no security deposits, notes,
------------------
instruments or other tenant impounds (the "Security Deposits") currently
held by (i) a landlord, lessor, licensor or easement grantor under any
Ground Lease or (ii) Seller under its Tenant Leases.
(i) No Third Party Rights. No Person (other than Purchaser by
------------------------
reason of this Agreement) has any contractual or other right of first
refusal or any other right or option to acquire the Assets or any portion
thereof.
(j) Bankruptcy and Solvency Matters. Seller has not changed its
--------------------------------
name or suspended its business and has not had proceedings pending or
threatened by or against it in bankruptcy or reorganization in any state or
Federal court, resolved or otherwise agreed to file or actually has filed a
case in bankruptcy or reorganization in any state or Federal court,
admitted in writing its inability to pay its debts as they become due, or
suffered the attachment or judicial seizure of all or substantially all of
its assets or suffered the appointment of a receiver to take possession of
all or substantially all of its assets.
(i) Seller is not now insolvent and will not be rendered
insolvent by any of the transactions contemplated hereunder. As used
in this Section 5.1(j), "insolvent" shall have the meaning assigned to
such term under applicable state laws.
(ii) Immediately after giving effect to the consummation of
the transactions contemplated hereunder: (A) Seller will be able to
pay its liabilities as they become due in the ordinary course of its
business; (B) Seller will not have unreasonably small capital with
which to conduct its present or proposed business; (C) Seller will
have assets (calculated at fair market value) that exceed its retained
liabilities; and (D) taking into account all pending and threatened
litigation, final judgments against Seller in actions for money
damages are not reasonably anticipated to be rendered at a time when,
or in amounts such that, Seller will be unable to satisfy any such
judgments promptly in accordance with their terms (taking into account
the maximum probable amount of such judgments in any such actions and
the earliest potential times at which such judgments might be
rendered) as well as all other obligations of Seller.
(k) Real Estate Matters. There are no easements, servitudes,
---------------------
rights of use, leases, subleases, licenses, concessions, or other
agreements, written or oral, granting to any party or parties the right to
use, occupy, encumber or otherwise affect any portion of any of the
Properties, except pursuant to the Ground Leases, Tenant Leases, Easements
and Seller Contracts. There are no parties (other than Seller) in
possession of the Assets, except Tenants under Tenant Leases, and ground
lessors, servient tenant holders and licensors under the Ground Leases.
16
(l) Broker or Finder. Seller has not entered into any agreement,
----------------
commitment or obligation with regard to any brokerage commission or
finder's fee which would be payable by Seller arising out of the execution,
delivery or performance of this Agreement or the transactions contemplated
hereby, except for Media Capital Advisors, Inc.
(m) Litigation. There is no pending or to Seller's Knowledge,
----------
threatened claim, dispute, suit, grievance, arbitration, action, proceeding
(including any condemnation proceeding) or governmental investigation
against Seller that affects any of the Assets or Seller's ability to
consummate the transactions contemplated by this Agreement, and Seller has
not received notice of any of the foregoing. There is no outstanding or
unsatisfied award, judgment, order or decree to which Seller is a Party or
which involves the Assets.
(n) Seller Contracts. Schedule 5.1(n) sets forth a true,
-----------------
complete and correct list of all Seller Contracts (whether oral or written)
of which true, correct and complete copies (or written descriptions of any
such oral Seller Contracts) have been furnished to Purchaser and its
representatives. Except as set forth on Schedule 5.1(n): (i) each Seller
Contract is in full force and effect, has not been modified or amended, and
no action to revoke, cancel, renegotiate or adversely affect in any manner
any Seller Contract has been initiated or threatened, and Seller is in
material compliance therewith; (ii) Seller has performed its obligations
under each Seller Contract and has not received any written notice from or
given any written notice to the other party that Seller or the other party,
as the case may be, is in default under any Seller Contract; (iii) neither
Seller, nor any other party thereto, is in default thereunder, nor has any
event occurred that with notice or the lapse of time would constitute a
default thereunder; and (iv) all amounts required to be paid by Seller
under Seller Contracts have been paid to date.
(o) Tenant Leases. Schedule 5.1(o) sets forth a true, complete
--------------
and correct list and description of certain key terms of all Tenant Leases
(whether oral or written) true, complete and correct copies (or written
descriptions of any such oral Tenant Leases) of which have been made
available to Purchaser and its representatives. Each such Tenant Lease is
in full force and effect, has not been modified or amended, is not the
subject of any dispute with respect to computation or payment of fees, and
no action to revoke, cancel, renegotiate or adversely affect in any manner
any such Tenant Lease has been initiated or threatened, and Seller is in
compliance therewith. Seller has performed its obligations under the Tenant
Leases and has not received any written or oral notice from or given any
written or oral notice to any Tenant that Seller or the Tenant, as the case
may be, is in default under the Tenant Lease or that such Tenant is
entitled to any rent reduction, refund, counterclaims or offset or to
cancel or terminate or such Tenant desires to terminate the applicable
Tenant Lease or be released from any of its obligations under a Tenant
Lease. There are no monetary or other defaults or any events that have
occurred that with notice or the lapse of time would constitute a default
by any Tenants or Seller under any such Tenant Leases. No rent under a
Tenant Lease has been paid to Seller more than one (1) month in advance of
its due date. Each such Tenant Lease requires payment of monthly rent of at
least $2400.
(p) Taxes.
-----
17
(i) Seller has duly and timely, or will so file when due,
with the appropriate Governmental Authorities (or there have been or
will be duly and timely filed on its behalf) all Tax Returns required
to be filed by it with respect to the Assets, and all such Tax Returns
are true, correct and complete in all material respects and were
prepared in accordance with applicable Governmental Law, and all Taxes
with respect to the Assets due and payable, whether or not, shown as
due on such Tax Returns, have been or will be timely paid or are being
contested in good faith by appropriate proceedings;
(ii) there are no Tax Liens (other than Liens for Taxes not
yet due and payable) on any of the Assets that will not be paid and
discharged prior to Closing, or, to the Knowledge of the Seller, any
Lien, action, suit, proceeding, investigation, audit, examination or
assessment with regard to any Taxes that relate to the Assets, or for
which Purchaser could be liable, or which could result in a Lien on
any of the Assets;
(iii) there are no waivers or extensions of the statute of
limitations by Seller for the assessment or collection of Taxes of
Seller with respect to Taxes which could result in an encumbrance upon
the Assets;
(iv) the consummation of the transactions contemplated by
this Agreement will not trigger any excess parachute payments under
Section 280(G) of the Code for which Purchaser could have any
liability or obligation; and
(v) Seller is not a "foreign person" within the meaning of
Section 1445(f)(3) of the Code or Treasury Regulation Section
1.1445-2(b)(2)(i).
(q) Environmental Laws. Except as set forth on Schedule 5.1(q),
-------------------
(A) no operations or activities conducted on the Properties by the Seller
or, to the Seller's Knowledge, those of any other third party are, or have
been, in material violation of or delinquent under any Environmental Laws;
(B) Seller has not received any written notice and has no Knowledge of any
violation of or delinquency related to the Properties or arising out of
such operations with respect to any Environmental Laws; (C) there is no
consent decree, consent order, or similar document relating to any
violations of any Environmental Law in force to which Seller is a Party
relating to any of the Property; and (D) there are no circumstances or
conditions existing that would prevent or interfere with carrying on
Seller's business as it is currently conducted in compliance with
Environmental Laws.
(r) Utilities. Each of the Properties has electricity and
---------
telephone and other utilities that (i) adequately service the Assets, (ii)
enter each Asset through lands as to which valid public or private
easements exist that will inure to the benefit of Purchaser and such Asset
and (iii) for which the cost of installation of such utilities has been
fully paid. To the extent due and payable, all amounts owed in respect of
current operating utility services have been paid or will be fully paid
prior to the Closing.
18
(s) Consents. Schedule 5.1(s) contains a true, complete and
--------
correct list of all Necessary Consents. Except for the Necessary Consents,
the execution, delivery and performance of this Agreement by Seller does
not require any consent that has not been made, given or otherwise
accomplished.
(t) Improvements. Schedule 5.1(t) sets forth a true, correct,
------------
and complete list of all Improvements at each of the Properties (including
a list and description of the height and type of each Tower), and: (i)
there are no structural or latent defects in such Improvements; (ii) all
Improvements have been maintained in accordance with normal communications
tower industry practice; (iii) the Improvements are in good working order,
operating condition and repair, adequate for normal operations, and require
no repair, replacement, de-vegetation, or rehabilitation (subject to normal
wear and tear), other than ordinary course maintenance; and (iv) are
suitable for the purposes for which they presently are used.
(u) Access. Except as set forth on Schedule 5.1(u)(i), Seller
------
has vehicular access to each of the Properties via public roads or private
roads pursuant to an Easement or other valid legal right. Except as set
forth on Schedule 5.1(u)(ii), to Seller's Knowledge, there is no threatened
condemnation or eminent domain proceedings relating to or affecting such
Property.
(v) Warranties/Guaranties. To the extent existing and in
---------------------
Seller's possession, Schedule 5.1(v) sets forth a true, correct and
complete list of all contractors' or subcontractors' guaranties and
warranties relating to the Assets, and all agreements, amendments,
guaranties, side letters and other documents relating to such guaranties
and warranties, copies of which have been made available to Purchaser, and
there are no other such documents or agreements, whether written or oral.
(w) Conduct of Business. Since acquiring or constructing the
---------------------
Assets related to a Property, Seller has owned and operated such Assets
only in the ordinary course of business practices that are customary in the
industry.
(x) Removal Bonds. Schedule 5.1(x) sets forth all removal bonds
--------------
with respect to any and all of the Assets.
(y) Assets Criteria. Except as set forth in Schedule 5.1(y)(i),
----------------
no Person party to a Contract, or other agreement, document or instrument,
or otherwise, or by operation of Governmental Law, has any reversionary
interest in any of the Improvements or any of the Owned Properties.
(i) None of the Ground Leases or Tenant Leases provides for
the payment by Seller to a third party (including a landlord or
Tenant) of any portion of revenues received by the Seller under any of
the Tenant Leases.
(ii) Except as set forth on Schedule 5.1(y)(ii), no landlord,
easement grantor or licensor has the right to consent to any lessee's
subleasing of space under any of the Ground Leases.
19
(iii) No lessor, easement grantor or licensor under a Ground
Lease will have a discretionary right to terminate the Ground Lease.
(iv) No Person party to a Contract, or other agreement,
document or instrument, or otherwise, or by operation of Governmental
Law, has any reversionary interest in any of the Improvements or any
of the Owned Properties,
(z) HSR Matters. The Properties and the Towers located thereon
------------
(exclusive of common areas within such Properties) are rented, or held for
rental to Persons which are not Affiliates of any Seller. For purposes of
this Section 5.1(z) only, an Affiliate of another Person shall include any
Person which is included within such other Person pursuant to the rules
promulgated under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended.
(aa) No Employees. Seller does not have, and has never had, any
-------------
employees.
Section 5.2 Survival. Subject to the immediately following sentence,
--------
the representations and warranties of Seller contained in this Agreement and all
liability for indemnification with respect to any breach of any such
representations and warranties pursuant to the terms of this Agreement shall
survive the Closing Date. From and after each Closing, Seller shall have
liability for breach of any such representations and warranties for a period of
eighteen (18) months following the Closing Date; provided, however, that Seller
-------- -------
shall remain liable until the expiration of the relevant statute of limitations
period (including any applicable extensions thereof) for breaches of the
representations and warranties contained in Sections 5.1(a), (b), (f), (l),
(p), and (q), and indefinitely for any intentional misrepresentation or fraud.
Notwithstanding the foregoing, the representations and warranties that are the
subject of any indemnity claim made within the required time period under this
Section 5.2 shall continue in effect insofar as they relate or allegedly relate
to such claim, until any such claim is finally resolved.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
-------------------------------------------
Section 6.1 Purchaser's Representations and Warranties. Purchaser
---------------------------------------------
hereby represents and warrants to Seller and the Sole Member (i) on the
Effective Date and (ii) on the Closing Date, as if made on each such date as
follows:
(a) Organization and Qualification. Purchaser is a corporation
--------------------------------
duly organized, validly existing and in good standing under the laws of the
State of Delaware. Purchaser has all requisite limited liability company
power and authority to conduct its business as it is currently conducted.
(b) Authority; Enforceability. Purchaser has the absolute and
--------------------------
unrestricted corporate right, power and authority to execute, deliver and
perform its obligations under this Agreement and the other Transaction
Documents. The execution and delivery of, and performance of the
obligations contained in, this Agreement and the other Transaction
Documents and the transactions contemplated hereby and thereby by Purchaser
have been duly authorized by all necessary and proper corporate action on
the
20
part of Purchaser. This Agreement and the other Transaction Documents when
executed and delivered by Purchaser constitute the legal, valid and binding
obligations of Purchaser, enforceable against Purchaser in accordance with
the terms hereof and thereof, except as the same may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting generally the enforcement of creditors' rights and
by general principles of equity.
(c) Litigation. To Purchaser's knowledge, there is no pending or
----------
threatened claim, dispute, suit, grievance, arbitration, action, proceeding
or governmental investigation against Purchaser that affects Purchaser's
ability to consummate the transactions contemplated by this Agreement and
Purchaser has not received any notice of the foregoing.
Section 6.2 Survival. Subject to the immediately following sentence,
--------
representations and warranties of Purchaser contained in this Agreement and all
liability for indemnification with respect to any breach of any such
representations and warranties pursuant to the terms of this Agreement will
survive the Closing Date. From and after each Closing, Purchaser shall have
liability for breach of any such representations and warranties for a period of
one (1) year from the Closing Date; provided, however, that Purchaser shall
remain liable until the expiration of the relevant statute of limitations period
(including any applicable extension thereof) for breaches of the representations
and warranties contained in Section 6.1 (a) and 6.1(b) and indefinitely for any
intentional misrepresentation or fraud. Notwithstanding the foregoing, the
representations and warranties that are the subject of any indemnity claim made
within the required time period under this Section 6.2 shall continue in effect
insofar as they relate or allegedly relate to such claim, until any such claim
is finally resolved.
ARTICLE VII.
COVENANTS
---------
Section 7.1 Covenants of Seller. Seller covenants and agrees with
---------------------
Purchaser as follows:
(a) Operation of Assets. From the Effective Date until the
---------------------
applicable Closing Date for the Assets, Seller (i) will operate, maintain,
repair the access roads and compounds and replace the Assets in accordance
with normal and customary industry business practices; (ii) will not enter
into, cancel, modify, accelerate, terminate or grant any waiver under any
contracts, arrangements, understandings or agreements that will affect any
of the Assets, including any amendment, modification, termination,
cancellation, acceleration or other alteration of any, or entering into any
new, Ground Lease, Tenant Lease or Seller Contract without the prior
written approval of Purchaser, which approval shall not be unreasonably
withheld, (iii) shall take all actions to maintain and preserve all
Contracts and timely make all payments and observe and perform all
obligations to be paid, observed or performed by the Seller under the
Contracts and shall not take any action that would materially increase the
expenses under any of the Contracts; (iv) shall promptly notify Purchaser
of any receipt of delivery of any notice (including any notice of default)
under the Contracts and will promptly cure such default to the extent that
such default is curable; and (v) will not accept payments of fixed rents,
21
additional rents or any other sums due and payable under the Tenant Leases
applicable to such Assets that are tendered more than one (1) month in
advance of the due dates thereof.
(b) Authorizations. Seller shall execute and deliver to
--------------
Purchaser upon request therefor, all written consents and authorizations as
may be necessary, in the reasonable opinion of Purchaser or its counsel, to
make a search of the records of any federal, state, county or municipal or
other governmental or quasi-governmental department, agency or authority
having jurisdiction over the Assets in order to verify any provision,
covenant, agreement, condition, warranty or representation made by Seller
in this Agreement or any information relating thereto.
(c) Notice of Changes. Seller shall notify Purchaser promptly of
-----------------
any circumstance, event, condition, fact, occurrence or non-occurrence that
make or could make Seller's representations and warranties to be untrue or
results or could result in a breach thereof or in any failure to comply
with or satisfy or be able to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by it under this
Agreement and will use its best efforts to cure such breach or default;
provided, however, that any such notice will not affect any rights or
remedies of Purchaser under this Agreement or relieve Seller of any
liability or obligation under this Agreement due to the inaccuracy or
breach of any such representation or warranty under this Agreement. In
addition to the foregoing obligations, Seller shall promptly deliver to
Purchaser notice of any circumstance, event, condition, fact, occurrence or
non-occurrence that could materially and adversely affect the Assets,
Seller's business or the consummation of the transactions contemplated
under this Agreement. Seller shall promptly deliver to Purchaser a copy of
any notice of, and, if the same may adversely affect Purchaser, the Assets
or Seller's business, defend at Seller's expense, all actions, suits,
claims or other proceedings affecting the Assets, or the use, ownership,
lease, possession or occupancy thereof.
(d) Notice of Condemnation. Seller shall promptly deliver to
------------------------
Purchaser a copy of any notice of any actual or threatened condemnation of
any Property or any portion thereof.
(e) Permits. Seller shall maintain all Permits in full force and
-------
effect and promptly deliver notice to Purchaser of any intention of Seller
to seek any new Permit or any notice of violation or non-compliance under
any Permit and shall use its best efforts to cure such violation or
non-compliance.
(f) Cooperation Regarding Due Diligence. Seller and its
--------------------------------------
Affiliates shall be, and Seller's Affiliates shall cause their personnel to
be, reasonably available to Purchaser at all reasonable times, and
cooperate in all reasonable respects with Purchaser in connection with its
due diligence investigation of the Assets pursuant to Article IV hereof and
its review and verification of financial information relating thereto and
its development of projections with respect thereto.
22
(g) Insurance Coverage. Subject to Sellers' right to renew or
-------------------
replace on terms acceptable to Seller, insurance policies whose terms
expire during the term of this Agreement, Seller shall maintain in full
force and effect all insurance policies currently in effect with respect to
the Assets and promptly deliver to Purchaser copies of any work orders or
requirements of any company insuring the Assets against casualty loss.
(h) Violation of Law. Seller shall promptly deliver to Purchaser
----------------
copies of any notice of violation of, or non-compliance with, any
Governmental Law relating to the Assets, Seller's business and any notice
of violation of any site plan approvals, zoning or subdivision regulations
or urban redevelopment plans applicable to any Asset and shall use its best
efforts to cure such violation or non-compliance.
(i) Maintenance of Property. Seller shall not remove from any
-------------------------
Property any article of personal property except as may be necessary for
repairs, or the discarding of worn out or useless items, provided, however,
that any article removed for repairs shall be returned to such Property
promptly upon its repair and shall remain a part of the Assets whether or
not such article shall be located on such Property at the time of the
Closing, and any article so discarded shall be replaced with a new article
of similar quality and utility prior to the Closing.
(j) No Liens. Seller shall not make, grant or suffer to exist
---------
any Liens, other than Permitted Liens, with respect to any of the Assets or
any portion thereof that will not be discharged at or prior to the Closing,
without the prior written consent of Purchaser in each instance, and shall
cause the condition set forth in Section 8.1(f) to be satisfied.
(k) No Renovations. Seller shall not undertake or commence any
---------------
material renovations or alterations to the Assets, except those necessary
to comply with any of the provisions of this Agreement, without the prior
written consent of Purchaser in each instance.
(l) Security Deposits. Seller shall not apply any of the
------------------
Security Deposits under the Tenant Leases, whether to a default of a Tenant
or otherwise, without the prior written consent of Purchaser.
(m) Consents; Nondisturbance Agreements. Seller shall use
-------------------------------------
commercially reasonable efforts to obtain all Necessary Consents prior to
the Closing as soon as possible after the Effective Date; provided,
however, that Seller shall not be in breach of this Agreement with respect
to any nondisturbance agreement, which cannot be obtained after using
commercially reasonable efforts to do so.
(n) Exclusive Dealing. Seller will not, and will cause each of
------------------
its subsidiaries, Affiliates, directors, officers, members, employees,
agents and representatives (including investment bankers, attorneys and
accountants) not to, take any action to, directly or indirectly, solicit,
encourage or initiate proposals, inquiries or offers from, solicit,
encourage, initiate or participate or engage in inquiries, discussions or
negotiations with, or provide any information to, any Person (other than
Purchaser or its representatives or Governmental Authorities with respect
to the transactions contemplated by this
23
Agreement), concerning any of the Assets or any sale of assets or similar
transactions involving any of the Assets or otherwise facilitate in any
other manner any effort or attempt by any Person to do or seek to do any of
the foregoing. Seller will immediately notify Purchaser if, at any time
prior to the Closing Date, any proposal, offer, inquiry or contact with
respect to any of the foregoing is made and shall provide copies of any
written communications and summaries of any verbal communications received
in connection therewith.
(o) Marketing. Seller shall continue to market the Towers in
---------
accordance with Seller's normal and customary business practices.
Section 7.2 Other Covenants.
----------------
(a) HSR Filing. If either Party or its counsel determines that
-----------
the Parties are required to file with the Federal Trade Commission and the
Antitrust Division of the United States Department of Justice under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act") in connection with this Agreement, the Parties shall cooperate in
making sure filing is effected. Purchaser and Seller shall each pay one
half of any filing fees required in connection therewith.
(b) Cooperation and Further Acts. Each of Purchaser and Seller
------------------------------
shall use commercially reasonable efforts to: (i) take all actions and do
all things necessary, proper, or advisable in order to consummate and make
effective the transactions contemplated by this Agreement, including the
satisfaction of the conditions precedent applicable to each such Party set
forth in Articles VIII and IX hereof; and (ii) cooperate with the other
Party in connection with the other Party's obligations under this Agreement
and keep the other Party informed in connection with this Agreement. If, at
any time before, on or after the Closing Date, any further action by either
Party is necessary to carry out the purposes of this Agreement, such Party
shall take all such necessary action or use such Party's commercially
reasonable efforts to cause such action to be taken, including the
execution and delivery of all documents and instruments contemplated
hereby.
(c) Access to Records. Each Party shall grant the other Party
-------------------
reasonable access during normal business hours upon reasonable prior notice
to its Books and Records covering the Assets for the purpose of the
requesting Party's complying with any Governmental Laws relating to the
period during which the other Party operated and/or owned the Assets
including, without limitation, the filing of any Tax Returns. Any expenses
incurred in furnishing such information or assistance or making such
records available shall be borne by the Party requesting it.
(d) Confidentiality. The Parties acknowledge and agree
---------------
that the Confidentiality Agreement, dated as of October 7, 2005, between
Purchaser and Seller (the "Confidentiality Agreement") shall be deemed to
apply to each of the Parties, this Agreement, the other Transaction
Documents and the transactions contemplated hereby and thereby and the
information provided, disclosed and/or prepared in connection with
24
this Agreement and the other Transaction Documents shall be "Confidential
Information" as defined in such Confidentiality Agreement.
(e) Tax Cooperation. Purchaser and Seller agree to furnish or
----------------
cause to be furnished to each other, upon request, as promptly as
practicable, such information and assistance relating to the business and
Assets (including access to Books and Records) as is reasonably necessary
for the filing of all Tax Returns, the making of any election related to
Taxes, the preparation for any audit by any Taxing authority, and the
prosecution or defense of any claims, suit or proceeding relating to any
Tax. Any expenses incurred in furnishing such information or assistance
shall be borne by the Party requesting it.
ARTICLE VIII.
CONDITIONS PRECEDENT TO PURCHASER'S PERFORMANCE
-----------------------------------------------
Section 8.1 Purchaser's Conditions Precedent. Purchaser's obligation
--------------------------------
to consummate the Closing is expressly contingent upon the satisfaction or
fulfillment of all of the following terms and conditions unless such conditions
are waived in writing by Purchaser; provided, however, that no waiver by
Purchaser of any condition contained in this Section 8.1 shall operate as a
waiver of any rights of Purchaser hereunder or otherwise:
(a) Accuracy of Certain Representations and Warranties. At the
----------------------------------------------------
Closing, each representation and warranty of Seller and the Sole Member
shall be true and correct in all material respects as of the Closing Date,
as if made on the Closing Date, except that the representations and
warranties of Seller and the Sole Member that are qualified by materiality
shall be true and correct in all respects as of the Closing Date, as if
made on the Closing Date.
(b) Execution and Delivery of Documents. Seller shall have
---------------------------------------
executed and delivered to Purchaser the documents and items specified in
Section 3.2.
(c) Performance. Seller shall have performed and complied in all
-----------
respects with all covenants, conditions and obligations of this Agreement
to be performed or complied with by Seller on or before the Closing Date.
(d) Absence of Litigation. There shall not exist or have been
-----------------------
instituted and pending any action (i) which could reasonably be expected to
make illegal, or to delay or otherwise directly or indirectly restrain or
prohibit, the consummation of the transactions contemplated by this
Agreement, or (ii) which could reasonably be expected to result in material
damages in connection with the transactions contemplated by this Agreement,
(e) Material Change. No Material Adverse Change shall have
----------------
occurred between the Effective Date and the Closing Date.
(f) Release of Seller Indebtedness. Seller shall at its sole
---------------------------------
cost and expense have, or shall have caused to be paid off and released of
record from (or delivered into escrow at a Closing), any mortgages, deeds
of trust, deeds to secure debt or similar security instruments created by
Seller that encumber Seller's title to the Assets to be
25
transferred at the Closing and secure indebtedness for money borrowed by
Seller or any Affiliate (including, without limitation, the filing of
UCC-3s). Seller shall provide confirmatory evidence of such discharge of or
prior to the Closing.
(g) Necessary Consents. Seller shall have received the Necessary
------------------
Consents.
(h) HSR Approval. If required under applicable Governmental
-------------
Laws, all filings required under the HSR Act shall have been made and the
applicable waiting period shall have expired or been earlier terminated
without the receipt of any objection or the commencement or threat of any
litigation by a Governmental Authority of competent jurisdiction to
restrain the consummation of the transactions contemplated by this
Agreement.
(i) Waiver. Any and all preemptive rights, first refusal or
------
other rights with respect to Seller triggered by the consummation of the
transactions contemplated hereunder shall have been waived.
(j) Financing. Purchaser shall have obtained third party
---------
financing, on commercially reasonable terms, sufficient to pay the Purchase
Price and consummate the transactions contemplated hereunder.
ARTICLE IX.
CONDITIONS PRECEDENT TO SELLER'S PERFORMANCE
--------------------------------------------
Section 9.1 Seller's Conditions Precedent. Seller's obligation to
-------------------------------
consummate a Closing is expressly contingent upon the satisfaction or
fulfillment of the following terms and conditions unless such conditions are
waived in writing by Seller; provided, however, that no waiver by Seller of any
condition contained in this Section 9.1 shall operate as a waiver of any rights
of Seller hereunder or otherwise:
(a) Accuracy of Covenants, Representations and Warranties. At
--------------------------------------------------------
the Closing, each representation and warranty of the Purchaser shall be
true and correct in all material respects as of the Closing Date, as if
made on the Closing Date, except that the representations and warranties of
Purchaser that are qualified by materiality shall be true and correct in
all respects as of the Closing Date, as if made on the Closing Date.
(b) Execution and Delivery of Documents. Purchaser shall have
--------------------------------------
executed and delivered to Seller the documents and items specified in
Section 3.3.
(c) Performance. Purchaser shall have performed and complied in
-----------
all respects with all covenants, conditions and obligations of this
Agreement to be performed or complied with by Purchaser on or before the
Closing Date,
(d) Absence of Litigation. There shall not exist or have been
-----------------------
instituted and pending any action (i) which could reasonably be expected to
make illegal, or to delay or otherwise directly or indirectly restrain or
prohibit, the consummation of the transactions contemplated by this
Agreement, or (ii) which could reasonably be expected to result in material
damages in connection with the transactions contemplated by this Agreement.
26
(e) HSR Approval. If required under applicable Governmental
-------------
Laws, all filings required under the HSR Act shall have been made and the
applicable waiting period shall have expired or been earlier terminated
without the receipt of any objection or the commencement or threat of any
litigation by a Governmental Authority of competent jurisdiction to
restrain the consummation of the transactions contemplated by this
Agreement.
ARTICLE X.
INDEMNIFICATION; RISK OF LOSS
-----------------------------
Section 10.1 Indemnification by Seller. Seller and the Sole Member
---------------------------
shall indemnify Purchaser, its Affiliates, directors, officers, agents and
employees (each, a "Purchaser Indemnitee") and hold each of them harmless from
any and all losses, liabilities, claims, Taxes, suits, proceedings, demands,
judgments, damages, expenses and costs, including counsel fees and
disbursements, expert fees and costs and expenses incurred in the investigation,
defense or settlement of any of the foregoing (collectively, the "Indemnifiable
Damages"), as incurred, which such Purchaser Indemnitee may suffer or incur by
reason of, arising from or in connection with (i) the inaccuracy or breach of
any representation or warranty of Seller or the Sole Member contained in this
Agreement or any other Transaction Document; (ii) the breach by Seller of any
covenant made by it in this Agreement or in any of the other Transaction
Documents; (iii) the ownership, lease, operation, use or transfer of the Assets
or the business thereof prior to the Closing Date; (iv) any Taxes of or
attributable to Seller (and not subject to proration at a Closing as to which
Purchaser shall have responsibility); (v) the Excluded Assets; (vi) any acts or
omissions of Seller or any of its agents, servants, contractors,
representatives, managers, members, agents, or employees; and (vii) any Excluded
Liabilities.
Section 10.2 Indemnification by Purchaser. Purchaser shall indemnify
----------------------------
Seller and its Affiliates, managers, members, agents and employees (each a
"Seller Indemnitee") against and hold each of them harmless from any and all
Indemnifiable Damages, as incurred, which any such Seller Indemnitee may suffer
or incur by reason of, arising from or in connection with (i) the inaccuracy or
breach of any representation or warranty of Purchaser contained in this
Agreement or any other Transaction Document; (ii) the breach by Purchaser of any
covenant made by it in this Agreement or any of the other Transaction Documents;
(iii) the ownership, lease, operation or use of the Assets on or after the
Closing Date; (iv) the failure of Purchaser to pay or perform any Assumed
Liability; and (v) any acts or omissions of Purchaser or any of its agents,
servants, contractors, representatives, directors, officers, agents or
employees; provided, however, that Purchaser shall have no liability hereunder
or otherwise for any Indemnifiable Damages that relate to, or arise out of, any
Excluded Assets or Excluded Liabilities.
Section 10.3 Notice and Right To Defend Third-Party Claims.
---------------------------------------------------
(a) Upon receipt of written notice of any claim, demand or
assessment or the commencement of any suit, action or proceeding in respect
of which indemnity may be sought on account of an indemnity obligation
contained in this Article X (which shall constitute the sole source of any
indemnity obligation under this Agreement or any other
27
Transaction Document), the Party seeking indemnification (the "Indemnitee")
shall promptly, but in no event later than twenty (20) days prior to the
date a response or answer thereto is due (unless a response or answer is
due within fewer than twenty (20) days from the date of Indemnitee's
receipt of notice thereof and in any event ten (10) days prior to the date
such answer is due), inform the Party against whom indemnification is
sought (the "Indemnitor") in writing thereof. The failure, refusal or
neglect of such Indemnitee to notify the Indemnitor within the time period
specified above of any such claim or action shall not relieve such
Indemnitor from any liability which it may have to such Indemnitee in
connection therewith, unless the effect of such failure, refusal or neglect
is to prejudice materially the rights of the Indemnitor in defending
against the claim or action. If any claim, demand or assessment shall be
asserted or suit, action or proceeding commenced against an Indemnitee, and
such Indemnitee shall have timely and properly notified the Indemnitor of
the commencement thereof, Indemnitor shall have the right to assume the
defense, conduct or settlement thereof at the expense of the Indemnitor,
with counsel selected by Indemnitor, which shall be reasonably acceptable
to Indemnitee. Should Indemnitor so elect to assume the defense of such a
claim, the Indemnitor shall take all steps necessary in the defense or
settlement thereof and shall at all times diligently and promptly pursue
the resolution thereof.
(b) The Indemnitee will, at the Indemnitor's expense, cooperate
with the Indemnitor in connection with any such claim, make personnel,
witnesses, books and records relevant to the claim available to the
Indemnitor at Indemnitor's cost and grant such authorizations or powers of
attorney to the agents, representatives and counsel of the Indemnitor as
the Indemnitor may reasonably request in connection with the defense or
settlement of any such claim.
(c) Notwithstanding the foregoing in this Article X, Indemnitee
shall have the right to employ separate counsel in any such action, claim
or proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be its fees and expenses. The Indemnitor
shall be liable for the fees and expenses of counsel employed by the
Indemnitee for any period during which the Indemnitor has failed to assume
the defense therefor or if it does not expressly elect to assume the
defense thereof (including acknowledging its indemnification obligation as
aforesaid).
(d) If the Indemnitor assumes the defense of any such claim, the
Indemnitor will promptly supply to the Indemnitee copies of all
correspondence and documents relating to or in connection with such claim
and keep the Indemnitee fully informed of all developments relating to or
in connection with such claim (including, without limitation, providing to
the Indemnitee on request updates and summaries as to the status thereof).
Without the Indemnitee's prior written consent, the Indemnitor shall not
consent to any settlement, compromise or discharge (including the consent
to entry of any judgment), and the Indemnitee may refuse to agree to any
such settlement, compromise or discharge (x) that provides for injunctive
or other nonmonetary relief affecting the Indemnitee or (y) that, in the
reasonable opinion of the Indemnitee would otherwise materially adversely
affect the Indemnitee. If the Indemnitor does not assume the defense of any
claim or proceeding resulting therefrom in accordance with the terms of
this Article X,
28
the Indemnitee may defend against such claim or proceeding in such manner
as it may deem appropriate including settling such claim or proceeding
after giving notice of the same to the Indemnitor, on such terms as the
Indemnitee may deem appropriate.
Section 10.4 Limitation on Indemnification. Subject to the terms and
-----------------------------
conditions set forth in this paragraph 10.4, the liability hereunder of Seller,
on the one hand, or Purchaser, on the other hand, shall not exceed an amount
equal to the Purchase Price (the "Cap"), provided that from and after the
Closing neither party shall be liable for any Indemnifiable Damages of the other
party unless and until the total Indemnifiable Damages of the other party exceed
Fifty Thousand ($50,000) Dollars (the "Basket") in which case the Indemnitor
shall be liable only for all Indemnifiable Damages in excess of the Basket but
only up to the Cap. For purposes of calculating any Basket, the dollar value of
any breaches of any representation or warranty shall be calculated without
reference to any materiality qualifier set forth in such representation or
warranty. Notwithstanding the foregoing, the following claims ("Unlimited
Claims") shall not be subject to the Basket and, except as expressly provided,
shall not be subject to the Cap: (a) (i) Purchaser's indemnification obligations
for Indemnifiable Damages resulting from any Assumed Liability or (ii)
Purchaser's liability for any intentional misrepresentation or fraud, or (b) (i)
Sellers' indemnification obligations with respect to the Excluded Assets and the
Excluded Liabilities, (ii) Seller's and the Sole Member's indemnification
obligations for Indemnifiable Damages resulting from any breach of any
representation or warranty contained in Sections 5.1(a), (b), (f), (l), (o), (p)
and (q); provided, that, Sections 5.1(f), (l), (p) and (q) shall be subject to
the Cap; or (iii) Seller's and the Sole Member's liability for any intentional
misrepresentation or fraud. For the avoidance of doubt, Seller's, the Sole
Member's or Purchaser's liability for any Unlimited Claims shall not be applied
toward any amount in connection with claims subject to the Cap.
ARTICLE XI.
TERMINATION: DEFAULT
--------------------
Section 11.1 Termination Events. This Agreement may be terminated
-------------------
upon the occurrence of any of the following events:
(a) The Parties may terminate this Agreement by written mutual
consent of both Parties in each Party's sole discretion at any time prior
to the Closing Date.
(b) Either Purchaser or Seller may terminate this Agreement upon
written notice to the other Party if the Closing has not occurred on or
before July 21, 2006 or such other date as the Parties may agree upon in
writing; provided that the Party seeking to terminate this Agreement under
this Section 11.1(b) has not breached or defaulted hereunder and has
performed or stands ready, willing, and able to perform, its obligations
under this Agreement.
(c) Either Purchaser or Seller may terminate this Agreement upon
written notice to the other Party if there shall be any Governmental Law
that makes consummation of the transactions contemplated by this Agreement
illegal or otherwise prohibited or if any court of competent jurisdiction
or other Governmental Authority shall have issued an order, decree or
ruling or taken any other action permanently restraining,
29
enjoining or otherwise prohibiting the consummation of the transactions
contemplated by this Agreement and such order, decree, ruling or other
action shall not be subject to appeal or shall have become final and
unappealable.
(d) Purchaser may terminate this Agreement if Seller has failed to
comply with any material term or condition of this Agreement and such
failure (other than any failure to satisfy any condition set forth in
Article VIII on the date such condition is required to be satisfied) is not
cured within ten (10) Business Days of written notice of such breach, as
long as Purchaser is not in breach of this Agreement at such time.
(e) Seller may terminate this Agreement if Purchaser has failed to
comply with any material term or condition of this Agreement and such
failure (other than any failure to satisfy any condition set forth in
Article IX on the date such condition is required to be satisfied) is not
cured within ten (10) Business Days of written notice of such breach as
long as Seller is not in breach of this Agreement at such time.
(f) Purchaser or Seller may terminate this Agreement in the event
of a Material Adverse Change.
Section 11.2 Effect of Termination.
-----------------------
(a) In the event of the termination of this Agreement pursuant to
this Article XI, all obligations of the Parties hereunder shall terminate,
except for the respective obligations of the Parties under Sections 3.2 and
3.3; provided, however, that no termination of this Agreement shall relieve
a defaulting or breaching Party from any liability to the other Party or
Parties hereto for or in respect of such default or breach or release any
Party from any payment obligation that has arisen prior to the date of such
termination.
(b) Notwithstanding anything to the contrary contained in this
Agreement, if Seller defaults hereunder for any reason, Purchaser shall
have the right to seek to obtain specific performance of Seller's
obligations hereunder, and if Purchaser prevails thereunder, Seller shall
reimburse Purchaser for all reasonable legal fees, court costs and all
other reasonable costs of such action.
ARTICLE XII.
MISCELLANEOUS
-------------
Section 12.1 Casualty and Condemnation.
---------------------------
(a) Casualty. Seller assumes all risk and liability, damage to
--------
or injury occurring to each Asset by fire, storm, explosion, earthquake,
windstorm, flood, act of God, war, terrorism, seizure, accident or any
other casualty or cause until the Closings have been consummated, other
than material damage caused by Purchaser's due diligence investigation. If
any Asset suffers any such damage or casualty prior to the Closing,
Purchaser may elect to either (i) terminate this Agreement as to that
particular Asset, deem such Asset to be an Excluded Asset and receive a
reduction in the Purchase Price, (ii) cause the Seller to restore such
Asset to its condition prior to such damage or (iii) to
30
obligate Seller to assign any insurance proceeds it is entitled to as a
result of such damage or casualty to Purchaser.
(b) Condemnation. If, prior to the Closing, action is initiated
------------
or threatened to take a part of any Asset by eminent domain proceeding,
Purchaser may (i) terminate this Agreement as to any such Assets related to
such Asset, deem such Asset to be an Excluded Asset and receive a reduction
in the Purchase Price or (ii) remain obligated to purchase such Asset and
be entitled to receive any and all amounts of any judgments awarded in
connection with any such taking.
Section 12.2 Notices. All notices, demands or other communications to
-------
be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and may be delivered personally to the recipient, or sent by
reputable overnight courier service (charges prepaid) or mailed to the recipient
by certified or registered mail, return receipt requested and postage prepaid.
Any notice so delivered personally be deemed to be received on the date of
delivery; any notice so sent by overnight courier shall be deemed to be received
one (1) Business Day after the date sent and any notice so mailed shall be
deemed to be received on the date stamped on the receipt (rejection or other
refusal to accept or inability to deliver because of a change of address of
which no notice was given shall be deemed to be receipt of notice). Such
notices, demands and other communications shall be sent to each of the Parties
hereto at the addresses indicated below:
To Purchaser:
Ayin Holding Company Inc.
00000 XX 000
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx, President
with copies to (which shall not constitute notice to the Purchaser):
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx
Facsimile: 000-000-0000
Charys Holding Company, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx X000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxx, Xx., Chief Executive Officer
31
To Seller:
The Tower Company of Louisiana, LLC
0000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
with a copy to (which shall not constitute notice to the Seller or the Sole
Member):
Xxxxx X Xxxxxxx XX
Attorney at Law
000 Xxxx Xxxxxxxxx, Xxxxx 000 (zip 70501)
XX Xxx 0000
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
Section 12.3 Entire Agreement. The Confidentiality Agreement, this
-----------------
Agreement and the other Transaction Documents and its schedules and exhibits
attached hereto and thereto embody the entire agreement between the Parties with
respect to the subject matter hereof and thereof and there are no oral or
written agreements with respect thereto which are not expressly set forth herein
or therein. This Agreement may be amended only by a written instrument executed
by the Party or Parties to be bound thereby.
Section 12.4 Headings. The captions and headings used in this
--------
Agreement are for convenience only, and do not in any way limit, amplify or
otherwise modify the provisions of this Agreement.
Section 12.5 Governing Law. The law of the State of Georgia shall
--------------
govern all issues all issues and questions concerning the construction,
validity, enforcement and interpretation of this Agreement and the exhibits and
schedules hereto, without giving effect to any conflict of law rules or
provisions thereof.
Section 12.6 Successors and Assigns. Except as otherwise expressly
------------------------
provided herein, all covenants and agreements contained in this Agreement by or
on behalf of any of the parties hereto shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto whether so expressed
or not. No other Person will have any right or obligation hereunder.
Section 12.7 Assignment. Neither Seller nor Purchaser may assign its
----------
rights under this Agreement without the express written consent of the other
Party.
Section 12.8 Severability. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
32
Section 12.9 Public Announcements. Each Party shall consult with the
--------------------
other before issuing any press release or otherwise making any public statements
with respect to this Agreement and shall not issue any such press release or
make any such public statement without the prior written approval of the other.
Notwithstanding the foregoing, the Parties acknowledge and agree that they may,
without each other's prior consent, issue such press releases or make such
public statements as may be required by applicable Governmental Law, in which
case the issuing Party shall consult with the other Party and use all
commercially reasonable efforts to agree upon the nature, content and form of
such press release or public statement. No such announcement shall indicate that
Purchaser has acquired substantially all of the business or assets of the Seller
and/or its Affiliates.
Section 12.10 Counterparts. This Agreement may be executed
------------
simultaneously in two or more counterparts, by fax or original signature, any
one of which need not contain the signatures of more than one party, but all
such counterparts taken together shall constitute one and the same Agreement.
Section 12.11 Expenses. Except as set forth elsewhere in this
--------
Agreement, Seller and Purchaser shall each bear their own costs and expenses
incurred in connection with the negotiation, preparation or execution of this
Agreement (including, but not limited to, fees and expenses of attorneys,
accountants, brokers, consultants, finders and investment bankers), whether or
not any Closing occurs.
Section 12.12 Dispute Resolution. Each of the parties hereto
-------------------
irrevocably agrees that any legal action or proceeding with respect to this
Agreement or the transactions contemplated hereby, or for recognition and
enforcement of any judgment in respect hereof, brought by the other party hereto
or its successors or assigns may be brought and determined in the federal courts
sitting in the State of Georgia, and each party hereby irrevocably submits with
regard to any such action or proceeding for itself and in respect of its
property, generally and unconditionally, to the nonexclusive jurisdiction of the
aforesaid courts. Each party hereto hereby irrevocably waives, and agrees not to
assert, by way of a motion, as a defense, counterclaim or otherwise, in any
action or proceeding with respect to this Agreement, (a) any claim that it is
not personally subject to the jurisdiction of the above-named courts for any
reason other than the failure to lawfully serve process, (b) that it or its
property is exempt or immune from jurisdiction of any such court or from any
legal process commenced in such courts (whether through service of notice,
attachment prior to judgment, attachment in aid of execution of judgment,
execution of judgment or otherwise), and (c) to the fullest extent permitted by
applicable law, that (i) the suit, action or proceeding in any such court is
brought in an inconvenient forum, (ii) the venue of such suit, action or
proceeding is improper, and (iii) this Agreement, or the subject matter hereof,
may not be enforced in or by such courts.
Section 12.13 Enforcement. In the event that it is necessary for
-----------
Seller or Purchaser to incur any costs and expenses; (a) in the enforcement of
any of the terms and provisions of this Agreement or other Transaction Document
in arbitration or a court of law or equity; (b) in the defense of any attempted
enforcement of any of the terms and provisions of this Agreement or other
Transaction Document in arbitration or a court of law or equity; (c) in an
action for damages in an arbitration or a court of law; or (d) in an effort to
protect the rights of the solvent Party in an insolvency, bankruptcy, or
receivership proceeding, in any such case the non-
33
prevailing Party shall pay to the prevailing Party any and all costs and
expenses incurred including, but not limited to, reasonable attorneys' fees and
costs.
Section 12.14 Prior Investigation; Disclosure. All representations,
--------------------------------
warranties, covenants agreements made by Seller, the Sole Member, or Purchaser,
respectively, in this Agreement or in certificates, statements or other
documents delivered pursuant to this Agreement, including the Transaction
Documents, shall be unaffected by any investigation made by or on behalf of
Seller, the Sole Member, or Purchaser, respectively, or knowledge of Seller, the
Sole Member, or Purchaser, respectively, obtained as a result thereof or
otherwise. Disclosure of any item in any section of or on any schedule to this
Agreement shall not constitute disclosure of such item in any other section of
or on any other schedule to this Agreement, whether or not the existence of the
item or its contents should be or is relevant to any other section of or
schedule to this Agreement.
Section 12.15 Interpretation. Where the context requires, the use of
--------------
a pronoun of one gender or the neuter is to be deemed to include a pronoun of
the appropriate gender. References herein to any Governmental Law shall be
deemed to refer to such Governmental Law, as amended from time to time, and all
rules and regulations promulgated thereunder. The use of the word "including"
shall mean "including without limitation."
Section 12.16 No Strict Construction. The Parties hereto have
------------------------
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any Party by
virtue of the authorship of any of the provisions of this Agreement.
Section 12.17 Relationship of Parties. Notwithstanding any other
-------------------------
provision of this Agreement or any of the other Transaction Documents or
obligations that may derive from them, nothing in this Agreement or the
Transaction Documents shall be construed to make the Parties partners, agents,
or joint venturers. Except as expressly provided for in this Agreement and the
Instruments of Transfer, neither Party shall be liable for any of the debts or
obligations of the other Party.
[NEXT PAGE IS SIGNATURE PAGE]
34
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the year
and day first above mentioned.
PURCHASER:
AYIN HOLDING COMPANY INC.
By:
--------------------------------
Name:
Title:
SELLER:
THE TOWER COMPANY OF LOUISIANA, LLC
By:
--------------------------------
Name:
Title:
SOLE MEMBER OF SELLER:
XXXXXX INVESTMENT COMPANY, LLC
By:
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager and Member
By:
--------------------------------
Xxxxx Xxxxxxxxx Xxxxxx
Manager and Member
35
TOWER ASSET EXCLUSIVE OPTION AGREEMENT
--------------------------------------
This Tower Asset Exclusive Option Agreement (the "Agreement") is made as of
---------
this 20th day of June, 2006 (the "Effective Date"), by and between AYIN HOLDING
--------------
COMPANY INC., a Delaware corporation (the "Purchaser"), and THE TOWER COMPANY OF
---------
LOUISIANA, LLC, a Louisiana limited liability company (the "Seller").
------
WHEREAS, Seller is engaged in the business of owning and operating wireless
communications towers and co-locating tenants on those towers; and
WHEREAS, Seller is currently a party to, and from time to time following
the Effective Date may become a party to, build-to-suit contracts pursuant to
which Seller or an Affiliate shall construct Towers and related systems, and
enter into Contracts for the operation of Towers, on behalf of potential future
Tenants; and
WHEREAS, in connection with the transactions contemplated by that certain
Tower Asset Purchase Agreement, dated of even date herewith, by and among
Purchaser, Seller and the shareholders of Seller that are signatories thereto
(the "Tower Asset Purchase Agreement"),Seller desires to grant to Purchaser, and
------------------------------
Purchaser desires to receive from Seller, the exclusive option to purchase
Towers constructed by Seller or any Affiliate from time to time during the
period beginning on the Effective Date and ending on the thirty six (36) month
anniversary of the Effective Date (the "Option Term") and other assets and
-----------
Contracts pertaining to such Towers constructed, purchased or entered into by
Seller or any Affiliate from time to time during the Option Term, as more
particularly set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, provisions,
representations and warranties contained herein, Purchaser and Seller agree as
follows:
ARTICLE I.
DEFINITIONS
-----------
Section 1.1 Definitions. As used in this Agreement, the following terms
-----------
shall have the following meanings:
"Affiliate" shall mean, with respect to a Party, any other Person
---------
controlling, controlled by, or under common control with, such Party, for only
so long as such control exists. For these purposes, "control" shall refer to:
(i) the possession, directly or indirectly, of the power to direct the
management or policies of a Person, whether through the ownership of voting
securities, by contract or otherwise, or (ii) the ownership, directly or
indirectly, of more than fifty percent (50%) of the voting securities or other
ownership interest of a Person.
"Business Day" shall mean any day other than Saturday, Sunday or a day on
-------------
which banking institutions in Atlanta, Georgia are required or authorized to be
closed.
"Communications Equipment" shall mean equipment used in a communications
-------------------------
system located on any Properties or Improvements owned by any Person including,
wireless communications antennas, coaxial cables, wireless communications
equipment boxes, wireless
- 1 -
communications transmission equipment, electronic equipment and microwave dishes
installed, and any other real or personal property but expressly excluding any
shelters on the Properties in which any of the foregoing may be located or
stored.
"Contracts" shall mean collectively the Ground Leases, Tenant Leases,
---------
Seller Contracts, and Easements.
"Easements" shall mean all of Seller's right, title and interest in all
---------
servitudes, easements, licenses and agreements belonging to or in any way
appertaining to the Properties, Towers and/or Improvements, and all amendments,
modifications, supplements, assignments, guaranties, side letters and other
documents related thereto whether entered into prior to, on or after the
Effective Date, including, without limitation, all easements, licenses and
agreements providing access to the Properties, Towers, and/or Improvements from
public streets, roads and ways, all easements, licenses and agreements for
location, maintenance, repair and replacement of and for cables, utilities,
utility lines, wires and anchors and all easements, licenses and agreements for
parking.
"Ground Lease" or "Ground Leases" shall mean individually, and
------------- --------------
collectively, (a) each lease between a third party landlord, as lessor, and
Seller or any Affiliate, as lessee, granting to Seller or any Affiliate a
leasehold estate in and to a Leasehold Property, together with all amendments,
modifications, supplements, assignments, guaranties, side letters and other
documents related thereto, (b) each easement agreement (other than easements
appurtenant) between a third party, as grantor, and Seller or any Affiliate, as
grantee, granting to Seller or any Affiliate an easement in and to a Leasehold
Property, together with all amendments, modifications, supplements, assignments,
guaranties, side letters and other documents related thereto, and (c) any
license between a third party as licensor and Seller or any Affiliate granting
to Seller or any Affiliate a license in and to a Leasehold Property, together
with all amendments, modifications, supplements, assignments, guaranties, side
letters and other documents related thereto, in each case whether entered into
prior to, on or after the Effective Date.
"Improvements" shall mean any and all improvements, fixtures, machinery,
------------
equipment (including all service entrance wiring, meter bank breakers, etc.),
fencing, structures, signs, locks, and other tangible assets located on any of
the Properties owned by Seller or any Affiliate, including the Towers, other
than any Communications Equipment.
"Leasehold Property" shall mean, individually and collectively, each of
-------------------
those certain parcels of land in which Seller or any Affiliate is the holder of
a valid leasehold estate, license, easement or servitude interest or other right
to use such land under and pursuant to a Ground Lease applicable thereto,
together with all rights, alleys, streets, strip gores, water privileges,
appurtenances, advantages and easements belonging thereto or in any way
appertaining thereto and all land lying in the bed of any street or highway,
open or proposed, in front of or adjoining the land to the centerline thereof.
"Parties" shall mean Purchaser and Seller, collectively.
-------
"Party" shall mean Purchaser or Seller, as the case may be.
-----
- 2 -
"Permits" shall mean all permits, approvals, registrations, licenses,
-------
certifications, or authorizations required by any governmental authority in
connection with the construction, ownership, maintenance, use or operation of
the Tower Assets and all pending applications therefor or renewals thereof.
"Person" shall mean any individual, group, corporation, partnership,
------
limited liability company or other organization or entity.
"Property" or "Properties" shall mean, individually and collectively, each
-------- ----------
Leasehold Property and each Owned Property.
"Tenants" shall mean broadband or broadband equivalent lessees that are
-------
parties to Tenant Leases.
"Tenant Lease" or "Tenant Leases" shall mean, individually and
------------- --------------
collectively, each lease, sublease, license, sublicense, master lease and other
occupancy agreement for the use and occupancy or future use and occupancy of a
Property and/or Improvements or any portion thereof, together with all
amendments, modifications, supplements, assignments, guaranties, side letters
and other documents related thereto, whether entered into prior to, on or after
the Effective Date.
"Tower" shall mean any wireless communications tower located on a Property
-----
and owned by Seller, including the following material elements: tower
foundation, all supporting elements, bolts, tower structures (including tower
steel), cabinets, shelters, fencing, pads and gates, signs, utility lines,
telecommunication lines, conduits and meter boards, pads, anchors, caissons,
lighting, lightening rods, Tower Lighting Systems, foundations, rock compounds
and rock access roads, the tower and compound grounding systems and all other
structures and improvements located on such Property.
"Tower Asset" or "Tower Assets" shall mean, individually, and collectively,
----------- ------------
all of the Seller's or any Affiliate's right, title and interest in each of the
Properties, together with all (a) Improvements thereon, (b) Easements thereto,
(c) Tower(s) thereon and all tangible personal property related to the design,
operation and maintenance of the Tower(s), (d) Ground Leases with respect
thereto, (e) Tenant Leases with respect thereto, (f) assignable Contracts
related thereto, (g) Permits with respect thereto, (h) the lighting control
system for the Tower (including the control module, light fixtures, all
associated interconnection wiring and the external photocell) that is owned by
Seller or any Affiliate and located thereon, and (i) each of the following to
the extent it is directly related to any of the foregoing: (i) security
deposits, claims, refunds, causes of action, rights of recovery, prepayments,
rights of set off and rights of recoupment, (ii) insurance benefits arising or
relating to any of the foregoing, (iii) reorders, variances, and similar rights
obtained from any governmental authority, (iv) all receivables arising from and
after the closing date of the purchase of any Tower Asset, and all currently
existing and hereafter arising proceeds related to the foregoing, (v) all
original books, files and records pertaining to any Tower Asset, (vi) assignable
warranties and guarantees related to any Improvements, and (vii) all other
assets related to or used in connection with the foregoing.
"Transfer" shall mean any sale, assignment, pledge, encumbrance or other
--------
disposition.
- 3 -
ARTICLE II.
EXCLUSIVE OPTION TO PURCHASE
----------------------------
Section 2.1 Grant of Option. Seller hereby grants to Purchaser an
-----------------
exclusive option (the "Option") to Purchase from Seller all Tower Assets held or
------
constructed by Seller or any Affiliate during the Option Term (including without
limitation Tower Assets that are held or under construction by Seller or any
Affiliate as of the Effective Date), in accordance with the provisions of this
Agreement. Seller acknowledges and agrees that any and all Tower Assets held or
hereinafter constructed by Seller or any Affiliate as of the Effective Date or
during the Option Term shall be offered to Purchaser pursuant to Section 2.2
hereunder.
Section 2.2 Offer of Tower Asset Groups.
---------------------------
(a) At such time during the term of this Agreement that Seller or
any Affiliate has constructed and holds twenty five (25) individual
Tower Assets, Seller shall deliver to Purchaser a notice (an "Offer Notice"
------------
and the date of such notice being the "Offer Date") (i) identifying a group
----------
(each such group being a "Tower Asset Group") of twenty five (25)
-------------------
individual Tower Assets held by Seller and any Affiliate on the Offer Date,
which the President and Chief Executive Officer of Seller shall certify in
such Offer Notice that the Contracts, Permits, and all other rights and
restrictions pertaining to each Tower Asset are on terms and conditions
substantially similar to the Contracts, Permits, and other rights and
restrictions pertaining to the Tower Assets purchased pursuant to the Tower
Asset Agreement, and (ii) provide for each individual Tower Asset included
in such Tower Asset Group all of the original information set forth on
Exhibit A (such information being the "Tower Documentation").
---------- --------------------
(b) Not later than thirty (30) days following Purchaser's receipt
of an Offer Notice and all Tower Documentation required to be provided
for the Tower Asset Group identified on such Offer Notice, Purchaser shall
notify Seller of Purchaser's exercise or non-exercise of its option to
purchase some or all of the Tower Asset Group identified on such Offer
Notice.
(c) In the event that Purchaser declines to exercise its option to
purchase any individual Tower Assets included in a particular Tower
Asset Group, (i) Purchaser's option shall terminate with respect to such
individual Tower Assets, (ii) the exclusivity provisions set forth in
Article III shall terminate with respect to such individual Tower Assets,
------------
and (iii) Seller shall not include such individual Tower Assets in any
Tower Asset Group offered to Purchaser in any future Offer Notice.
Notwithstanding the foregoing, Purchaser's refusal or failure to exercise
its option to purchase any Tower Assets in a Tower Asset Group shall in no
way effect, limit, or terminate Seller's obligation to deliver an Offer
Notice on subsequent Offer Dates, or Purchaser's right to exercise its
option to purchase Tower Assets identified on any subsequent Offer Notice.
(d) In the event that Purchaser notifies Seller of its exercise of
its option to purchase some or all Tower Assets included in a
particular Tower Asset Group, Purchaser and Seller shall enter into an
Option Purchase Agreement on the same terms and conditions as are set forth
in the Tower Asset Purchase Agreement (each, an "Option
------
- 4 -
Purchase Agreement") pursuant to which Purchaser shall purchase and assume
-------------------
from Seller, and Seller shall sell and transfer to Purchaser, the
Tower Assets described on the application Offer Notice and accepted by
Purchaser, for a per-Tower Asset purchase price as determined in accordance
with Section 2.3, Seller shall be prepared to close the transactions
contemplated by each Option Purchase Agreement not later than forty five
(45) business days after Seller's receipt of Purchaser's notification of
the exercise of its option in accordance with Section 2.2(b).
Section 2.3 Per-Tower Asset Purchase Price.
------------------------------
(a) Subject to the terms and conditions of the applicable Option
Purchase Agreement, the consideration to be paid for the sale,
assignment, conveyance, transfer and delivery of Tower Assets identified on
each Offer Notice shall be an amount (the "Per Tower Asset Purchase Price")
------------------------------
equal to: (i) $325,000 per Tower Asset for each Tower Asset with a single
Tenant; and (ii) an amount per Tower Asset with an additional Tenant on the
Offer Date equal to $325,000 plus "X", where "X" equals an amount obtained
by dividing the monthly revenue attributable to the additional Tenant lease
by $1,800, and multiplying such quotient by $75,000.
(b) The Per Tower Asset Purchase Price shall be subject to
reasonable pro rata adjustments based on any percentage increases in
Seller's costs of construction of the Tower Assets occurring following the
Effective Date.
Section 2.4 Right to Perform Site Acquisitions and Construction
---------------------------------------------------------
Functions. Regardless of whether Purchaser exercises its option to purchase any
---------
Tower Assets included in a particular Tower Asset Group, Purchaser and any of
its direct or indirect affiliates shall have the right to perform all site
acquisitions and construction functions necessary to bring all Tower Assets
online, for any Tower Asset constructed by Seller or any Affiliate for a period
of thirty-six (36) months following the Effective Date, at a price equal to or
less than the price charged by Complete Tower Sources, Inc. and/or Xxxxxxxx Site
Acq., Inc., as applicable, for such services on the Effective Date, subject to
reasonable adjustments for any increases in the consumer price index.
ARTICLE III.
EXCLUSIVITY
-----------
During the Option Term, Seller shall not offer to any third party the right
or option to purchase any Tower Asset unless and until such Tower Asset has (a)
been included within a Tower Asset Group offered to Purchaser in accordance with
the provisions of Section 2.2, and (b) Purchaser has rejected Seller's Option
Notice with respect to such Tower Asset included in a Tower Asset Group.
ARTICLE IV.
TERM
----
This Agreement shall become effective as of the Effective Date, and shall
remain in effect during the Option Term.
- 5 -
ARTICLE V.
MISCELLANEOUS
-------------
Section 5.1 Notices. All notices, demands or other communications to be
-------
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and may be delivered personally to the recipient or sent by
reputable overnight courier service (charges prepaid) or mailed to the recipient
by certified or registered mail, return receipt requested and postage prepaid.
Any notice so delivered personally shall be deemed to be received on the date of
delivery; any notice so sent by overnight courier shall be deemed to be received
one (1) Business Day after the date sent and any notice so mailed shall be
deemed to be received on the date stamped on the receipt (rejection or other
refusal to accept or inability to deliver because of a change of address of
which no notice was given shall be deemed to be receipt of notice). Such
notices, demands and other communications shall be sent to each of the Parties
hereto at the addresses indicated below:
To Purchaser:
Ayin Holding Company Inc.
17314SH249
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxx, President
with copies to (which shall not constitute notice to the Purchaser):
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx
Facsimile: 000-000-0000
Charys Holding Company, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx X000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxx, Xx., Chief Executive Officer
To Seller:
The Tower Company of Louisiana, LLC
0000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
with a copy to (which shall not constitute notice to the Seller or the
Shareholders):
Xxxxx X. Xxxxxxx XX
Attorney at Law
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000 Xxxx Xxxxxxxxx, Xxxxx 000 (zip 70501)
XX Xxx 0000
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
Section 5.2 Entire Agreement. This Agreement and the schedules and
-----------------
exhibits attached hereto and thereto embody the entire agreement between the
Parties with respect to the subject matter hereof and thereof and there are no
oral or written agreements with respect thereto which are not expressly set
forth herein or therein. This Agreement may be amended only by a written
instrument executed by the Party or Parties to be bound thereby.
Section 5.3 Headings. The captions and headings used in this Agreement
--------
are for convenience only, and do not in any way limit, amplify or otherwise
modify the provisions of this Agreement.
Section 5.4 Governing Law. The law of the State of Georgia shall govern
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all issues all issues and questions concerning the construction, validity,
enforcement and interpretation of this Agreement and the exhibits and schedules
hereto, without giving effect to any conflict of law rules or provisions
thereof.
Section 5.5 Successors and Assigns. Except as otherwise expressly
-------------------------
provided herein, all covenants and agreements contained in this Agreement by or
on behalf of any of the parties hereto shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto whether so expressed
or not. No other Person will have any right or obligation hereunder.
Section 5.6 Assignment. Neither Seller nor Purchaser may assign its
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rights under this Agreement without the express written consent of the other
Party.
Section 5.7 Severability. Whenever possible, each provision of this
------------
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
Section 5.8 Public Announcements. Each Party shall consult with the
---------------------
other before issuing any press release or otherwise making any public statements
with respect to this Agreement and shall not issue any such press release or
make any such public statement without the prior written approval of the other.
Notwithstanding the foregoing, the Parties acknowledge and agree that they may,
without each other's prior consent, issue such press releases or make such
public statements as may be required by applicable law, in which case the
issuing Party shall consult with the other Party and use all commercially
reasonable efforts to agree upon the nature, content and form of such press
release or public statement. No such announcement shall indicate that Purchaser
has acquired substantially all of the business or assets of the Seller and/or
its Affiliates.
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Section 5.9 Counterparts. This Agreement may be executed simultaneously
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in two (2) or more counterparts, by fax or original signature, any one of which
need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same Agreement.
Section 5.10 Expenses. Except as set forth elsewhere in this Agreement,
--------
Seller and Purchaser shall each bear their own costs and expenses incurred in
connection with the negotiation, preparation or execution of this Agreement
(including, but not limited to, fees and expenses of attorneys, accountants,
brokers, consultants, finders and investment bankers), whether or not any
Closing occurs.
Section 5.11 Dispute Resolution. Each of the parties hereto irrevocably
------------------
agrees that any legal action or proceeding with respect to this Agreement or the
transactions contemplated hereby, or for recognition and enforcement of any
judgment in respect hereof, brought by the other party hereto or its successors
or assigns may be brought and determined in the federal courts sitting in the
State of Georgia, and each party hereby irrevocably submits with regard to any
such action or proceeding for itself and in respect of its property, generally
and unconditionally, to the nonexclusive jurisdiction of the aforesaid courts.
Each party hereto hereby irrevocably waives, and agrees not to assert, by way of
a motion, as a defense, counterclaim or otherwise, in any action or proceeding
with respect to this Agreement, (a) any claim that it is not personally subject
to the jurisdiction of the above-named courts for any reason other than the
failure to lawfully serve process, (b) that it or its property is exempt or
immune from jurisdiction of any such court or from any legal process commenced
in such courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise),
and (c) to the fullest extent permitted by applicable law, that (i) the suit,
action or proceeding in any such court is brought in an inconvenient forum, (ii)
the venue of such suit, action or proceeding is improper, and (iii) this
Agreement, or the subject matter hereof,, may not be enforced in or by such
courts.
Section 5.12 Enforcement. In the event that it is necessary for Seller
-----------
or Purchaser to incur any costs and expenses: (a) in the enforcement of any of
the terms and provisions of this Agreement or other Transaction Document in
arbitration or a court of law or equity; (b) in the defense of any attempted
enforcement of any of the terms and provisions of this Agreement or other
Transaction Document in arbitration or a court of law or equity; (c) in an
action for damages in an arbitration or a court of law; or (d) in an effort to
protect the rights of the solvent Party in an insolvency, bankruptcy, or
receivership proceeding, in any such case the non-prevailing Party shall pay to
the prevailing Party any and all costs and expenses incurred including, but not
limited to, reasonable attorneys' fees and costs.
Section 5.13 Interpretation. Where the context requires, the use of a
--------------
pronoun of one gender or the neuter is to be deemed to include a pronoun of the
appropriate gender. The use of the word "including" shall mean "including
without limitation."
Section 5.14 No Strict Construction. The Parties hereto have
------------------------
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto,
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and no presumption or burden of proof shall arise favoring or disfavoring any
Party by virtue of the authorship of any of the provisions of this Agreement.
Section 5.15 Relationship of Parties. Notwithstanding any other
-------------------------
provision of this Agreement or any of the other Transaction Documents or
obligations that may derive from them, nothing in this Agreement or the
Transaction Documents shall be construed to make the Parties partners, agents,
or joint venturers. Except as expressly provided for in this Agreement and the
Instruments of Transfer, neither Party shall be liable for any of the debts or
obligations of the other Party.
[NEXT PAGE IS SIGNATURE PAGE]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the year
and day first above mentioned.
PURCHASER:
AYIN HOLDING COMPANY INC.
By:
-------------------------------------
Name:
Title:
SELLER:
THE TOWER COMPANY OF LOUISIANA, LLC
By:
-------------------------------------
Name:
Title:
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EXHIBIT A
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TOWER DOCUMENTATION
1. FAA and FCC documentation including FAA 7460, FAA Determination Letter,
FAA 2C Survey, Aeronautical Study Number, AM Studies, FCC letters
2. Tower specifications including type, height, manufacturer, ground
elevation
3. Lighting system manufacturer and warranty documentation
4. Tower monitoring contracts
5. Tower inspection reports, tower repairs and modifications
6. Phase 1 and 2
7. NEPA and XXXX
0. Title Reports
9. Zoning applications, correspondence and permits
10. Site plans, original CD's and red line "as built" drawings
11. Tower and foundation drawings
12. Boundary survey and right of way easements survey
13. Meets and bounds of compound and right of way
14. Compound size, fenced area and leased area (if different)
15. Geotechnical reports
16. Structural reports
17. Building permits
18. Ground leases
19. Tenant leases
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