ASSET PURCHASE AGREEMENT
By and Between
AMERICAN TOWER SYSTEMS, INC.
and
MERIDIAN SALES AND SERVICES COMPANY
Dated as of
February 5, 1997
TABLE OF CONTENTS
ARTICLE 1 DEFINED TERMS...................................................................................1
ARTICLE 2 SALE AND PURCHASE OF ASSETS.....................................................................2
2.1 Agreement to Sell and Buy.......................................................................2
2.2 Assumption of Liabilities and Obligations. .....................................................3
2.3 Closing; Purchase Price.........................................................................5
2.4 Accounts Receivable.............................................................................6
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF MERIDIAN......................................................7
3.1 Organization and Business; Power and Authority; Effect of Transaction...........................7
3.2 Financial and Other Information. ..............................................................8
3.3 Changes in Condition............................................................................9
3.4 Materiality.....................................................................................9
3.5 Title to Properties; Leases.....................................................................9
3.6 Compliance with Private Authorizations.........................................................10
3.7 Compliance with Governmental Authorizations and Applicable Law.................................11
3.8 Intangible Assets..............................................................................12
3.9 Related Transactions...........................................................................13
3.10 Insurance......................................................................................13
3.11 Tax Matters. .................................................................................13
3.12 Employee Retirement Income Security Act of 1974................................................14
3.13 Absence of Sensitive Payments..................................................................16
3.14 Inapplicability of Specified Statutes..........................................................16
3.15 Employment Arrangements........................................................................16
3.16 Material Agreements............................................................................17
3.17 Ordinary Course of Business....................................................................17
3.18 Material and Adverse Restrictions..............................................................19
3.19 Broker or Finder...............................................................................19
3.20 Solvency.......................................................................................19
3.21 Environmental Matters..........................................................................19
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF ATS..........................................................20
4.1 Organization and Business; Power and Authority; Effect of Transaction..........................20
4.2 Broker or Finder...............................................................................20
4.3 Solvency.......................................................................................21
4.4 No Legal Action................................................................................21
4.5 Physical Assets "AS IS"........................................................................21
ARTICLE 5 COVENANTS......................................................................................21
5.1 Access to Information; Confidentiality.........................................................21
5.2 Agreement to Cooperate.........................................................................23
5.3 Public Announcements...........................................................................24
5.4 Notification of Certain Matters................................................................24
5.5 No Solicitation................................................................................24
5.6 Conduct of Business by Meridian Pending the Closing............................................25
5.7 Preliminary Title Reports......................................................................26
5.8 Environmental Site Assessments.................................................................26
ARTICLE 6 CLOSING CONDITIONS.............................................................................27
6.1 Conditions to Obligations of Each Party to Effect the Transactions.............................27
6.2 Conditions to Obligations of ATS...............................................................27
6.3 Conditions to Obligations of Meridian..........................................................30
ARTICLE 7 TERMINATION, AMENDMENT AND WAIVER..............................................................32
7.1 Termination....................................................................................32
7.2 Effect of Termination..........................................................................32
ARTICLE 8 INDEMNIFICATION................................................................................33
8.1 Survival.......................................................................................33
8.2 Indemnification................................................................................34
8.3 Limitation of Liability........................................................................36
8.4 Notice of Claims...............................................................................37
8.5 Defense of Third Party Claims..................................................................37
8.6 Exclusive Remedy...............................................................................38
ARTICLE 9 GENERAL PROVISIONS.............................................................................38
9.1 Amendment......................................................................................38
9.2 Waiver.........................................................................................38
9.3 Fees, Expenses and Other Payments..............................................................38
9.4 Notices........................................................................................39
9.5 Specific Performance; Other Rights and Remedies................................................40
9.6 Severability...................................................................................40
9.7 Counterparts...................................................................................41
9.8 Section Headings...............................................................................41
9.9 Governing Law..................................................................................41
9.10 Further Acts...................................................................................41
9.11 Entire Agreement; Separate Agreements..........................................................41
9.12 Assignment.....................................................................................42
9.13 Parties in Interest............................................................................42
9.14 Mutual Drafting................................................................................42
9.15 Venue..........................................................................................42
APPENDIX A: Definitions
EXHIBITS:
EXHIBIT A Form of Noncompetition Agreement
EXHIBIT B Form of Indemnity Escrow Agreement
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SCHEDULES:
Meridian Disclosure Schedule
Tax Allocation Schedule
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is dated as of
February 5, 1997 by and between American Tower Systems, Inc., a Delaware
corporation ("ATS"), and Meridian Sales and Services Company, a California
corporation ("Meridian").
WHEREAS, Meridian owns and leases and operates communication towers and
is engaged in the business of managing communication sites for third parties
(the "Meridian Business");
WHEREAS, ATS desires to purchase and Meridian desire to sell the
Meridian Assets and the Meridian Business on the terms and conditions
hereinafter set forth;
WHEREAS, simultaneously with the execution and delivery of this
Agreement, ATS and Meridian have entered into an escrow agreement (the "Escrow
Agreement") with Xxxxxxxx & Worcester LLP, counsel for ATS, and Levinson,
Miller, Xxxxxx & Xxxxxxxx, counsel for Meridian (the "Escrow Agent"), pursuant
to which ATS has made a deposit of $167,500 (the "Escrow Deposit"); and
WHEREAS, ATS is or will become party to an asset purchase agreement
with each of Meridian Radio Sites ("MRS") and Meridian Communications North
("MCN") (individually, an "Other Agreement" and collectively, the "Other
Agreements" as further modified in the definition thereof), relating to the
purchase and sale of the communication towers and the business of managing
communication sites for third parties of each of MRS and MCN;
NOW, THEREFORE, in consideration of the above premises and the
covenants and agreements contained herein, the parties, intending to be legally
bound, do hereby covenant and agree as follows:
ARTICLE 1
DEFINED TERMS
As used herein, unless the context otherwise requires, the terms
defined in Appendix A shall have the respective meanings set forth therein.
Terms defined in the singular shall have a comparable meaning when used in the
plural, and vice versa, and the reference to any gender shall be deemed to
include all genders. Unless otherwise defined or the context otherwise clearly
requires, terms for which meanings are provided in this Agreement shall have
such meanings when used in the Meridian Disclosure Schedule and each Collateral
Document executed or required to be executed pursuant hereto or thereto or
otherwise delivered, from time to time, pursuant hereto or thereto. The term
"either party" shall, unless the context otherwise requires, refer to Meridian
and ATS.
ARTICLE 2
SALE AND PURCHASE OF ASSETS
2.1 Agreement to Sell and Buy. Subject to the terms and conditions set
forth in this Agreement, Meridian hereby agrees to sell, assign, transfer and
deliver to ATS at the Closing, and ATS agrees to purchase at the Closing, the
Meridian Assets and the Meridian Business, free and clear of any Liens of any
nature whatsoever except for Permitted Liens. For purposes of this Agreement,
the term "Meridian Assets" shall mean all of the Assets of Meridian, including
without limitation the right to use the name "Meridian" and all variations
thereof, other than the Excluded Assets. For purposes of this Agreement, the
term "Excluded Assets" shall mean the following Assets:
(i) all cash and cash equivalents;
(ii) all Accounts Receivable;
(iii) all FCC Licenses and equipment and other assets relating
to the specialized mobile radio business of Meridian as more
specifically described in Section 2(iii) of the Meridian Disclosure
Schedule;
(iv) all FCC licenses and equipment and other assets relating
to the repeater radio service business of Meridian as more specifically
described in Section 2.1(iv) of the Meridian Disclosure Schedule;
(v) all books and records (including without limitation, if
retained by Meridian, any financial records necessary or desirable to
enable the condition specified in Section 6.2(g) to be satisfied) which
Meridian is required by Applicable Law to retain, subject to the right
of ATS to have access and to copy for a period of five (5) years from
the Closing Date; the records described herein shall further include
without limitation all corporate seals, certificates of incorporation,
minute books, stock books, Tax Returns or other records having to do
with the corporate organization of Meridian;
(vi) any pension, profit-sharing or employee benefit plans,
including any assets in any related trusts;
(vii) the personal assets of the officers, directors and
shareholders of Meridian as more specifically described in Section
2.1(vii) of the Meridian Disclosure Schedule;
(viii) any and all rights of Meridian and its shareholders for
federal, state and local tax refunds; and
(ix) any and all products, profits and proceeds of, and
including without limitation any Claims with respect to, any of the
foregoing.
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2.2 Assumption of Liabilities and Obligations.
(a) At the Closing, ATS shall assume and agree to pay, discharge and
perform the following obligations and liabilities of Meridian (collectively, the
"Meridian Assumed Obligations"): (i) all of the obligations and liabilities of
Meridian under the ATS Assumable Agreements, (ii) all obligations and
liabilities of Meridian with respect to the ownership and operation of the
Meridian Assets and the conduct of the Meridian Business, on and after the
Closing Date, and (iii) all obligations and liabilities of Meridian arising from
or relating to the acquisition, ownership or operation of the New Sites, whether
arising prior to or after the Closing Date (the "New Site Assumed Obligations"),
except for such obligations and liabilities (A) that arise from grossly
negligent or willful misconduct of Meridian prior to the Closing Date or (B) the
existence of which is in contravention of (I) representations or warranties made
by Meridian pursuant to the provisions of Article 3, (II) covenants or
agreements made by Meridian pursuant to the provisions of Section 5.6, or (III)
provisions of this Agreement requiring the approval of ATS; provided, however,
that notwithstanding the foregoing, ATS shall not assume and agree to pay, and
shall not be obligated with respect to, the Meridian obligation and liabilities
referred to in Section 2.2(b) (the "Meridian Nonassumed Obligations"); provided
further, however, that, notwithstanding the preceding proviso or Section 2.2(b),
the term "Meridian Nonassumed Obligations" shall not include, and the term
"Meridian Assumed Obligations" shall include, any liability arising out of the
transfer or assignment to ATS of, or the use or enjoyment of the benefits by ATS
under, any Contract, Governmental Authorization or Private Authorization the
transfer or assignment of which (according to Section 2.2(a) of the Meridian
Disclosure Schedule) requires or may require the consent of any Authority or
other third party (collectively, the "Nonassignable Contracts"), if ATS has, on
or prior to the Closing Date, notified Meridian in writing (an "Acceptance
Notice") that ATS consents to the transfer or assignment of such Nonassignable
Contract despite the failure or inability of ATS and Meridian to obtain the
approval or consent of an Authority or a third party whose approval or consent
is required pursuant to the terms of such Nonassignable Contract, or elects to
receive the benefits of such Nonassumable Contract, in either of which events,
if the approval or consent of an Authority or a third party applicable to
transfer of such Nonassignable Contract is required to be obtained as a
condition to ATS's obligations at Closing pursuant to the provisions of Section
6.1(a), 6.2(d) or 6.2(m), ATS shall be deemed to have waived such condition with
respect to such Nonassignable Contract. With respect to any Nonassignable
Contract for which the applicable consent of the third party is not obtained
prior to the Termination Date and for which ATS does not timely deliver an
Acceptance Notice as described in the preceding sentence, the rights and
obligations of the parties shall be as follows unless otherwise agreed by
Meridian and ATS in writing: (1) if obtaining such approval or consent was a
condition to ATS's obligations at the Closing pursuant to the provisions of
Section 6.1(a), 6.2(d) or 6.2(m), this Agreement shall terminate in the manner
described in Section 7.2(a); and (2) if obtaining such approval or consent was
not such a condition to ATS's obligations, the purchase and sale contemplated
hereunder shall proceed in accordance with all the terms of this Agreement,
except that the Nonassignable Contract shall no longer constitute part of the
"Meridian Assets" and Meridian shall retain all benefits and liabilities
thereunder.
(b) Except for the Meridian Assumed Obligations or as expressly
provided in this Agreement, ATS shall not assume or become obligated to perform
any debt, liability or obligation
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of Meridian or relating to the ownership or operation of any of the Meridian
Assets or the conduct of the Meridian Business whatsoever, including without
limitation the following:
(i) subject to the provisions of Article 8, the ownership and
operation of the Meridian Assets or the conduct of the Meridian
Business prior to the Closing Date, including without limitation Taxes,
unfunded pension costs, any Employment Arrangement of Meridian
(including without limitation any obligation to any Meridian Employee
for severance benefits, vacations time or sick leave), and any of the
following to the extent same arise from Events occurring prior to or
existing on the Closing Date: products liability, Legal Actions or
other Claims, and obligations and liabilities relating to Environmental
Law;
(ii) any obligations or liabilities under the ATS Assumable
Agreements relating to the period prior to the Closing;
(iii) any insurance policies of Meridian;
(iv) those required to be disclosed in the Meridian Disclosure
Schedule which are not so disclosed or which, if disclosed, Section
8.2(b)(ii) of the Meridian Disclosure Schedule indicates that such
obligation or liability will not be assumed;
(v) any liability or obligation from or relating to breach of
any warranty or any misrepresentation by Meridian under this Agreement
or any Collateral Document;
(vi) any liability or obligation from or relating to breach or
violation of, or failure to perform, any of Meridian's obligations,
covenants, agreements or undertakings set forth in this Agreement or
any Collateral Document, including without limitation Article 5 of this
Agreement;
(vii) any obligation or liability relating to any Excluded
Asset;
(viii) any obligation or liability with respect to capitalized
lease obligations or Indebtedness for Money Borrowed;
(ix) any taxes, fees, expenses or other amounts required to be
paid by Meridian pursuant to the provisions of this Agreement or any
Collateral Document; and
(x) any Contract with any Affiliate of Meridian, other than
those set forth in Section 2(b)(x) of the Meridian Disclosure Schedule.
The term "ATS Assumable Agreements" shall mean all obligations and liabilities
of Meridian under all Contractual Obligations, Governmental Authorizations and
Private Authorizations relating to the ownership or operation of any of the
Meridian Assets or the conduct of the Meridian Business, other than any Meridian
Nonassumed Obligation.
(c) Notwithstanding anything contained in this Agreement to the
contrary, except as set forth in Article 8 or Section 2.2(c) of the Meridian
Disclosure Schedule, all items of income and
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expense (including without limitation with respect to rent, utility charges, Pro
Ratable Taxes and wages, salaries and accrued but unused vacation of Meridian
employees) arising from the ownership or operation of the Meridian Assets or the
conduct of the Meridian Business shall be prorated as of 12:01 a.m., Eastern
time, on the Closing Date, with Meridian entitled to and responsible for any
such items on or prior to the Closing Date and ATS entitled to and responsible
for any such items relating to any subsequent period. For these purposes, Pro
Ratable Taxes attributable to a period that begins before and ends after the
Closing Date shall be treated on a "closing of the books" basis as two partial
periods, one ending at the close of the Closing Date and the other beginning on
the day after the Closing Date, except that Pro Ratable Taxes (such as property
Taxes) imposed on a periodic basis shall be allocated on a daily basis. If
either party shall have received any such revenues or paid any such expenses or
charges which, pursuant to the terms hereof, the other party is entitled to or
responsible for, it shall furnish the other party with a detailed statement of
any such items as soon as practicable after receipt or payment thereof. The
parties shall use their best efforts to agree upon such items and other
adjustments prior to the Closing Date and, in any event, except as set forth in
Section 2.2(c) of the Meridian Disclosure Schedule, with sixty (60) days
thereafter. If the parties are unable within such period to agree upon such
items and other adjustments, Meridian and ATS shall, within the following ten
(10) days, jointly designate a nationally known independent public accounting
firm to be retained to review such items and other adjustments. The fees and
other expenses of retaining such independent public accounting firm shall be
borne equally by Meridian and ATS. Such firm shall report its conclusions as to
such items and other adjustments pursuant to this Section and such report shall
be conclusive on all parties to this Agreement and not subject to dispute or
review. Upon such agreement or determination by such independent accounting
firm, Meridian or ATS, as the case may be, shall promptly reimburse the other
party for any income received or expenses paid by the other party and not
previously reimbursed or any other adjustment required by this Section.
Notwithstanding the foregoing or any other provision of this Agreement to the
contrary, ATS shall be solely responsible for the payment of, and shall defend,
indemnify and hold harmless Meridian, its officers, directors and shareholders
from, any and all supplemental or additional real property or personal property
taxes assessed on or in connection with the Meridian Assets or any part thereof,
which arise from the transactions contemplated by this Agreement, except as
otherwise provided in Section 9.3 with respect to California or other sales
and/or use taxes, and documentary or governmental transfer or stamp taxes
arising from the purchase and sale of the Meridian Assets and the Meridian
Business contemplated hereby.
Nothing contained in this Section 2.2(c) is intended or shall be deemed
to amend or modify the indemnification provisions of Article 8 nor to reallocate
responsibility for the matters set forth therein.
2.3 Closing; Purchase Price. The closing of the Transactions (the
"Closing") shall take place at Levinson, Miller, Xxxxxx & Xxxxxxxx, 0000 Xxxxxxx
Xxxx Xxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, at 10:00 a.m., local time, on the date
on or prior to June 30, 1997 which is five (5) business days after all of the
conditions specified in Article 6 (other than those which are to be satisfied at
the Closing) have been satisfied or waived in writing or such other date, prior
to the Termination Date, as the parties may agree (the "Closing Date"). At the
Closing, each of the parties shall deliver such bills of sale, assignments,
assumptions of liabilities and other instruments and documents as are described
in this Agreement or as may be otherwise reasonably requested by the parties and
their respective counsel. The purchase price for the Meridian Assets and the
Meridian Business (the
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"Purchase Price") shall be an amount equal to $21,559,456, plus an amount equal
to the Construction Adjustment. The term "Construction Adjustment" shall mean an
amount equal to the aggregate amount actually paid by Meridian after June 13,
1996 and prior to the Closing Date with respect to the costs and expenses
incurred in the acquisition and construction of those certain projects
(collectively, the "New Sites") (a) described in Section 2.3 of the Meridian
Disclosure Schedule or (b) acquired after the date of this Agreement with the
prior written consent of ATS, which consent shall not be unreasonably withheld,
other than, in all cases, those costs and expenses which are unreasonable or to
which ATS shall have objected in writing prior to their incurrence or commitment
by Meridian. The Purchase Price shall be payable by wire transfer of immediately
available funds (a) to the Indemnity Escrow Agent (or as it may designate)
pursuant to the provisions of the Indemnity Escrow Agreement in the amount of
$2,155,946 minus an amount equal to the amount, if any, expended by Meridian
subsequent to the date of this Agreement pursuant to a mutually agreed upon
designation of Meridian and ATS entitled an "Indemnity Escrow Fund Reducing
Expense" to remedy any misrepresentation, breach of warranty or other breach or
defect (the "Indemnity Escrow Fund") and (b) to Meridian for the balance of the
purchase price to such account as is designated by Meridian in written
instructions to ATS delivered not later than two (2) business days prior to the
Closing.
The parties hereto have heretofore agreed upon an allocation schedule
(the "Tax Allocation Schedule") pursuant to which the Purchase Price shall be
allocated among the Meridian Assets. Each of Meridian and ATS shall report the
purchase and sale of the Meridian Assets and the Meridian Business and the other
Transactions in accordance with the Tax Allocation Schedule (as adjusted for
Events between the date hereof and the Closing Date) for purposes of all
federal, state and local Tax Returns and shall not take, and shall cause their
respective Affiliates, representatives, successors and assigns not to take, any
position on any federal, state or local Tax Return or report, inconsistent with
such reporting position. Each of Meridian and ATS shall promptly give the other
notice of any disallowance of or challenge to such reporting by any Taxing
Authority. Notwithstanding the provisions of this Section, the parties to this
Agreement will rely solely on their own advisors in determining the tax
consequences of the transactions contemplated by this Agreement and each party
is not relying, and will not rely, on any representations or assurances of any
other party regarding such consequences other than the representations,
warranties, covenants and agreements set forth in writing in this Agreement or
furnished pursuant to the provisions hereof.
2.4 Accounts Receivable. At the closing, Meridian shall appoint ATS its
agent for the purpose of collecting all Accounts Receivable relating to the
Meridian Business. Meridian shall deliver to ATS on or as soon as practicable
after the Closing Date a complete and detailed statement showing the name,
amount and age of each Accounts Receivable of the Meridian Business. Subject to
and limited by the following, revenues relating to the Accounts Receivable
relating to the Meridian Business will be for the account of Meridian. ATS shall
use its reasonable business efforts to collect the Accounts Receivable with
respect to the Meridian Business for a period of ninety (90) days after the
Closing Date (the "Collection Period"). Any payment received by ATS during the
Collection Period from any customer with an account which is an Accounts
Receivable with respect to the Meridian Business shall first be applied in
reduction of the Accounts Receivable, unless the customer contests in writing
the validity of such application. During the Collection Period, ATS shall
furnish Meridian with a list of, and pay over to Meridian, the amounts collected
with respect to the Accounts Receivable with respect to the Meridian Business on
a bi-weekly basis and forward
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to Meridian, promptly upon receipt or delivery, as the case may be, copies of
all correspondence relating to Accounts Receivable. ATS shall provide Meridian
with a final accounting on or before the fifteenth (15th) day following the end
of the Collection Period. Upon the request of either party at and after such
time, the parties shall meet to mutually and in good faith analyze any
uncollected Accounts Receivable to determine if the same, in their reasonable
business judgment, are deemed to be collectable and if ATS desires to retain
such Accounts Receivable. As to each such Accounts Receivable, the parties shall
negotiate a good faith value of such Accounts Receivable, which ATS shall pay to
Meridian if ATS, in its sole discretion, chooses to retain such Accounts
Receivable. Meridian shall retain the right to collect any of its Accounts
Receivable as to which the parties are unable to reach agreement as to a good
faith value, and ATS agrees to turn over to Meridian any payments received
against any such Accounts Receivable. ATS shall not be obligated to use any
extraordinary efforts to collect any of the Accounts Receivable assigned to it
for collection hereunder or to refer any of such Accounts Receivable to a
collection agency or to any attorney for collection, and ATS shall not make any
such referral or compromise, nor settle or adjust the amount of any such
Accounts Receivable, except with the approval of Meridian. ATS shall not incur
any liability to Meridian for any uncollected account unless ATS shall have
engaged in willful misconduct or gross negligence in the performance of its
obligations set forth in this Section. During and after the Collection Period,
without specific agreement with ATS to the contrary, neither Meridian nor its
agents shall make any direct solicitation of the Accounts Receivable for
collection purposes, except for Accounts Receivable retained by Meridian after
the Collection Period. The provisions of this Section shall not apply to those
certain Accounts Receivable set forth in Section 2.4 of the Meridian Disclosure
Schedule or to any other Accounts Receivable which Meridian, in its sole
business judgment, determines will require extraordinary collection efforts or
referrals to a collection agency or attorney for collection (collectively, the
"Retained Accounts Receivable"), provided the Retained Accounts Receivable are
set forth in a written notice delivered to ATS by Meridian on or prior to the
Closing Date. As to all Retained Accounts Receivable, Meridian shall retain the
sole and exclusive right to collect same as Meridian in its sole discretion may
determine.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF MERIDIAN
Meridian hereby represents, warrants and covenants to, and agrees with,
ATS as follows:
3.1 Organization and Business; Power and Authority; Effect of
Transaction.
(a) Meridian is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization, has all
requisite power and authority (corporate and other) to own or hold under lease
its properties and to conduct its business as now conducted.
(b) Meridian has all requisite corporate power and corporate authority
and has in full force and effect all Governmental Authorizations (which, for
purposes of this Section 3.1(b), relate only to the sale of the Meridian Assets
and Meridian Business generally and not to "site-specific" Governmental
Authorizations or those required by local Applicable Law) and Private
Authorizations, except for those set forth in Section 3.1(b) of the Meridian
Disclosure Schedule or
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those the failure of which to obtain do not and will not have, individually or
in the aggregate, any Material Adverse Effect on ATS, necessary to enable it to
execute and deliver, and to perform its obligations under, this Agreement and
each Collateral Document executed or required to be executed by it pursuant
hereto or thereto or to consummate the Transactions; and the execution, delivery
and performance of this Agreement and each Collateral Document executed or
required to be executed by it pursuant hereto or thereto have been duly
authorized by all requisite corporate action on the part of Meridian. This
Agreement has been duly executed and delivered by Meridian and constitutes, and
each Collateral Document executed or required to be executed by it pursuant
hereto or thereto or to consummate the Transactions when executed and delivered
by Meridian will constitute, legal, valid and binding obligations of Meridian,
enforceable in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, moratorium, insolvency and similar
laws affecting the rights and remedies of creditors and obligations of debtors
generally and by general principles of equity.
(c) Except as set forth in Section 3.1(c) of the Meridian Disclosure
Schedule, and except for matters which would have no Material Adverse Effect on
ATS, neither the execution and delivery by Meridian of this Agreement or any
Collateral Document executed or required to be executed by it pursuant hereto or
thereto, nor the consummation by Meridian of the Transactions, nor compliance
with the terms, conditions and provisions hereof or thereof by Meridian:
(i) will conflict with, or result in a breach or violation of,
or constitute a default under, any Organic Document of Meridian or any
Applicable Law (which, for purposes of this Section 3.1(c)(i), relates
only to the sale of the Meridian Assets and the Meridian Business
generally and not to local Applicable Law) on the part of Meridian, or
will conflict with, or result in a breach or violation of, or
constitute a default under, or permit the acceleration of any
obligation or liability in, or but for any requirement of giving of
notice or passage of time or both would constitute such a conflict
with, breach or violation of, or default under, or permit any such
acceleration in, any Contractual Obligation of Meridian, other than
those constituting Meridian Nonassumed Obligations; or
(ii) will require Meridian to make or obtain any Governmental
Authorization or Filings (which, for purposes of this Section
3.1(c)(ii), relates only to the sale of the Meridian Assets and the
Meridian Business generally and not to "site-specific" authorizations
or those required by local Applicable Law) or Private Authorization
including without limitation under the FCA, except for filings under
the Xxxx-Xxxxx-Xxxxxx Act.
(d) Meridian does not have any Subsidiaries, except as set forth in
Section 3.1(d) of the Meridian Disclosure Schedule.
3.2 Financial and Other Information. Meridian has heretofore furnished
to ATS copies of the financial statements of the Meridian Business listed in
Section 3.2 of the Meridian Disclosure Schedule (the "Meridian Financial
Statements"). The Meridian Financial Statements, including in each case the
notes thereto, have been prepared in accordance with Applicable Principles
applied on a consistent basis throughout the periods covered thereby, except as
otherwise noted therein or as set forth in Section 3.2 of the Meridian
Disclosure Schedule, are true, accurate and complete in all Material respects,
do not contain any untrue statement of a material fact or omit to state a
material
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fact required by Applicable Principles to be stated therein or necessary in
order to make the statements contained therein not misleading, and fairly
present in all material respects the financial position and the results of
operations of the Meridian Business, on the bases therein stated, as of the
respective dates thereof, and for the respective periods covered thereby
subject, in the case of unaudited financial statements, to normal year-end audit
adjustments and accruals.
3.3 Changes in Condition. Since November 30, 1996, except to the extent
specifically described in Section 3.3 of the Meridian Disclosure Schedule and
except for the effect, if any, of the New Sites, there has been, to Meridian's
knowledge, no Material Adverse Change in Meridian. There is no Event (other than
Events which generally affect the economy or any identifiable segment thereof
including without limitation the industries in which Meridian does business and
in which it competes) known to Meridian which Materially Adversely Affects, or
(so far as Meridian can now reasonably foresee) is likely to Materially
Adversely Affect, Meridian, except to the extent specifically described in
Section 3.3 of the Meridian Disclosure Schedule and except for the effect, if
any, of the New Sites.
3.4 Materiality. The representations and warranties set forth in this
Article would in the aggregate be true and correct even without the materiality
exceptions or materiality qualifications contained therein or set forth in the
Meridian Disclosure Schedule, except for such exceptions and qualifications
(other than those set forth in the Meridian Disclosure Schedule) which, in the
aggregate for all such representations and warranties, are not and could not
reasonably be expected to be Materially Adverse to Meridian.
3.5 Title to Properties; Leases.
(a) Section 3.5(a) of the Meridian Disclosure Schedule contains a true,
accurate and complete list of all real property owned or leased by Meridian that
is part of the Meridian Assets. Subject to any exceptions set forth with
reasonable specificity on Section 3.5(a) of the Meridian Disclosure Schedule,
Meridian has good and marketable title to all real property (other than
leasehold Real Property and Insured Real Property) and good and merchantable
title to all other assets (other than real property), tangible and intangible,
constituting a part of the Meridian Assets, in each case free and clear of all
Liens, except (i) Permitted Liens, (ii) Liens set forth on Section 3.5(a) of the
Meridian Disclosure Schedule and (iii) Approved Title Conditions. Except for
financing statements evidencing Liens referred to in the preceding sentence (a
true, accurate and complete list and description of which is set forth in
Section 3.5(a) of the Meridian Disclosure Schedule), no financing statements
under the Uniform Commercial Code and no other filing which names Meridian as
debtor or which covers or purports to cover any of the Meridian Assets is on
file in any state or other jurisdiction, and Meridian has not signed or agreed
to sign any such financing statement or filing or any agreement authorizing any
secured party thereunder to file any such financing statement or filing. Except
as otherwise set forth in Schedule 3.5(a) of the Meridian Disclosure Schedule,
each Lease or other occupancy or other agreement under which Meridian holds real
or personal property constituting a part of the Meridian Assets has been duly
authorized, executed and delivered by Meridian and, to Meridian's knowledge,
each of the other parties thereto, and is a legal, valid and binding obligation
of Meridian, and, to Meridian's knowledge, each of the other parties thereto,
enforceable in accordance with its terms, except as such enforceability may be
limited by bankruptcy, moratorium, insolvency and similar laws affecting the
rights and remedies
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of creditors and obligations of debtors generally and by general principles of
equity. Except as otherwise set forth in Section 3.5(a) of the Meridian
Disclosure Schedule, Meridian has, to Meridian's knowledge, a valid leasehold
interest in and enjoys peaceful and undisturbed possession under all Leases
pursuant to which it holds any such real property or tangible personal property.
Except as otherwise set forth in Section 3.5(a) of the Meridian Disclosure
Schedule, all of such Leases are, to Meridian's knowledge, valid and subsisting
and in full force and effect; neither Meridian nor, to Meridian's knowledge, any
other party thereto, is in Material default in the performance, observance or
fulfillment of any obligation, covenant or condition contained in any such
Lease.
Except as disclosed in Section 3.5(a) of the Meridian Disclosure
Schedule, to Meridian's current actual knowledge, all improvements on the real
property owned or leased by Meridian are in compliance with applicable zoning
and land use laws, ordinances and regulations in all respects necessary to
conduct the operations as presently conducted, except for any instances of
non-compliance which do not and will not in the aggregate have a Material
Adverse Effect on the owner or lessee, as the case may be, of such real
property. Except as disclosed in Section 3.5(a) of the Meridian Disclosure
Statement, all such improvements, to Meridian's current actual knowledge, comply
in all Material aspects with all Applicable Laws, Governmental Authorizations
and Private Authorizations. Except as disclosed in Section 3.5(a) of the
Meridian Disclosure Statement, to Meridian's current actual knowledge, all of
the transmitting towers, ground radials, guy anchors, transmitting buildings and
related improvements located on the real property owned or leased by Meridian
are located entirely on such real property. Meridian has no knowledge of any
pending, threatened or contemplated action to take by eminent domain or
otherwise to condemn any part of any real property owned or leased by Meridian.
The representations and warranties set forth in this paragraph shall not apply
to the New Sites.
(b) Section 3.5(b) of the Meridian Disclosure Schedule contains a true,
accurate and complete description of all Leases under which any real property
used in the Meridian Business is leased. None of the fixed assets or equipment
comprising a part of the Meridian Assets is subject to contracts of sale, and
none is held by Meridian as lessee or as conditional sales vendee under any
Lease or conditional sales contract and none is subject to any title retention
agreement, except as set forth in Section 3.5(b) of the Meridian Disclosure
Schedule. Except for the New Sites, such real property (other than land),
fixtures, fixed assets and other material items of personal property, including
equipment, have, between November 30, 1996 and the date of this Agreement, been
maintained in all Material respects in a manner consistent with past practice.
(c) Except as set forth in Section 3.5(c) of the Meridian Disclosure
Schedule, since January 1, 1993, Meridian has not received any written notice
that any such real property owned or leased by Meridian and reflected in Section
3.5(b) of the Meridian Disclosure Schedule or the use thereof, violates any
applicable title covenant, condition, restriction or reservation or any
applicable zoning, wetlands, land use or other Applicable Law.
3.6 Compliance with Private Authorizations. Section 3.6 of the Meridian
Disclosure Schedule sets forth a true, accurate and complete list and
description of each Private Authorization (other than those with respect to the
New Sites) which individually is Material to the Meridian Assets or the Meridian
Business, all of which are, to Meridian's current actual knowledge, in full
-10-
force and effect. To Meridian's knowledge, Meridian has obtained all Private
Authorizations (other than those with respect to the New Sites) with respect to
the ownership or operation of the Meridian Assets or the conduct of the Meridian
Business as currently conducted which, if not obtained and maintained, could,
individually or in the aggregate, Materially Adversely Affect Meridian. Meridian
is not in breach or violation of, or in default in the performance, observance
or fulfillment of, any such Private Authorization, and no Event exists or has
occurred, which constitutes, or but for any requirement of giving of notice or
passage of time or both would constitute, such a breach, violation or default,
under any such Private Authorization, except for such defaults, breaches or
violations as do not and will not have in the aggregate any Material Adverse
Effect on Meridian. No such Private Authorization is the subject of any pending
or, to Meridian's knowledge, threatened attack, revocation or termination.
3.7 Compliance with Governmental Authorizations and Applicable Law.
(a) Section 3.7(a) of the Meridian Disclosure Schedule contains a
description of:
(i) all Legal Actions pending or, to Meridian's knowledge, at
any time since January 1, 1993 was pending or is currently threatened
against Meridian with respect to the operation or ownership of the
Meridian Assets or conduct of the Meridian Business;
(ii) all Legal Actions pending or, to Meridian's knowledge,
threatened with respect to the operation or ownership of the Meridian
Assets or the conduct of the Meridian Business which, individually or
in the aggregate, are reasonably likely to result in the revocation or
termination of any Governmental Authorization or the imposition of any
restriction of such a nature as would Adversely Affect the ownership or
operations of the Meridian Business; in particular, but without
limiting the generality of the foregoing, there are no applications,
complaints or Legal Actions pending or, to Meridian's knowledge,
threatened before or by any Authority (x) relating to the ownership or
operation of the Meridian Assets or the conduct of the Meridian
Business, (y) involving charges of illegal discrimination by Meridian
under any federal or state employment Laws, or (z) involving
Environmental Laws or zoning laws; and
(iii) to Meridian's current actual knowledge, each
Governmental Authorization required by a conditional use permit or
special use permit that is necessary to permit Meridian to execute and
deliver this Agreement and to perform its obligations hereunder.
(b) To Meridian's current actual knowledge, Meridian has obtained all
Governmental Authorizations which constitutes conditional use permits or special
use permits (other than those with respect to the New Sites) (a true, complete
and accurate, in all material respects, list of which is set forth in Section
3.7(b) of the Meridian Disclosure Schedule or referenced in the documents or
agreements so listed) which are necessary for the ownership or operation of the
Meridian Assets or the conduct of the Meridian Business as now conducted and
which, if not obtained and maintained, would, individually or in the aggregate,
have any Material Adverse Effect on Meridian. None of such Governmental
Authorizations is, to Meridian's current actual knowledge, subject to any
restriction or condition which would limit in any Material respect the ownership
or operations of the Meridian Assets or the conduct of the Meridian Business as
currently conducted, except for
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restrictions and conditions that are either (i) set forth in the documents
evidencing such Governmental Authorization or (ii) generally applicable to
Governmental Authorizations of such type. To Meridian's current actual
knowledge: (x) such Governmental Authorizations are valid and in good standing,
are in full force and effect and are not impaired in any Material respect by any
act or omission of Meridian or its officers, directors, employees or agents; and
(y) the ownership or operation of the Meridian Assets or the conduct of the
Meridian Business are in accordance in all Material respects with the
Governmental Authorizations. To Meridian's current actual knowledge, all
Material reports, forms and statements required to be filed by Meridian with all
Authorities with respect to the Meridian Business (other than with respect to
the New Sites) have been filed and are true, complete and accurate in all
Material respects. No such Governmental Authorization is the subject of any
pending or, to Meridian's knowledge, threatened challenge or proceeding to
revoke or terminate any such Governmental Authorization. To Meridian's current
actual knowledge, no such Governmental Authorization would not be renewed in the
name of Meridian by the granting Authority in the ordinary course, except as set
forth in Section 3.7(b) of the Meridian Disclosure Schedule or except with
respect to the New Sites.
(c) Neither Meridian nor any director or officer thereof (in connection
with ownership, operation or operation of the Meridian Assets or the conduct of
the Meridian Business) is in or is charged by any Authority with or, to
Meridian's knowledge, at any time since January 1, 1993 has been in or has been
charged by any Authority with, or, to Meridian's knowledge, is threatened or
under investigation by any Authority with respect to, breach or violation of, or
default in the performance, observance or fulfillment of, any Governmental
Authorization or any Applicable Law relating to the ownership and operation of
the Meridian Assets or the conduct of the Meridian Business, and, to Meridian's
current actual knowledge, no Event exists or has occurred, which constitutes, or
but for any requirement of giving of notice or passage of time or both would
constitute, such a breach, violation or default, under
(x) any Governmental Authorization or any Applicable Law,
except for such breaches, violations or defaults as do not and will not
have, individually or in the aggregate, any Material Adverse Effect on
Meridian, or
(y) any Material requirement of any insurance carrier,
applicable to the ownership or operations of the Meridian Assets or the
conduct of the Meridian Business;
except as otherwise specifically described in Section 3.7(c) of the Meridian
Disclosure Schedule. or except with respect to the New Sites.
(d) With respect to matters, if any, of a nature referred to in Section
3.7(a), 3.7(b) or 3.7(c) of the Meridian Disclosure Schedule, except as
otherwise specifically described in Section 3.7(d) of the Meridian Disclosure
Schedule, all such information and matters set forth in the Meridian Disclosure
Schedule, if adversely determined against Meridian, will not, individually or in
the aggregate, in the reasonable business judgment of Meridian, Materially
Adversely Affect Meridian.
3.8 Intangible Assets. Section 3.8 of the Meridian Disclosure Schedule
sets forth a true, accurate and complete description of all Intangible Assets
(other than Governmental Authorizations)
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relating to the ownership and operation of the Meridian Assets or the conduct of
the Meridian Business held or used by Meridian, including without limitation the
nature of Meridian's interest in each and the extent to which the same have been
duly registered in the offices as indicated therein. Except as set forth in
Section 3.8 of the Meridian Disclosure Schedule, to Meridian's knowledge, no
Intangible Assets (except Governmental Authorizations and Private Authorizations
and the Intangible Assets so set forth) are required for the ownership or
operation of the Meridian Assets or the conduct of the Meridian Business
substantially as currently owned, operated and conducted or proposed to be
owned, operated and conducted on or prior to the Closing Date. To Meridian's
knowledge, Meridian does not wrongfully infringe upon or unlawfully use any
Intangible Assets owned or claimed by another, and Meridian has not received any
notice of any claim or infringement relating to any such Intangible Asset.
3.9 Related Transactions. Meridian is not a party or subject to any
Contractual Obligation relating to the ownership or operation of the Meridian
Assets or the conduct of the Meridian Business between Meridian and any of its
officers, directors, shareholders, employees or, to the knowledge of Meridian,
any Affiliate of any thereof, including without limitation any Contractual
Obligation providing for the furnishing of services to or by, providing for
rental of property, real, personal or mixed, to or from, or providing for the
lending or borrowing of money to or from or otherwise requiring payments to or
from, any such Person, other than (i) Employment Arrangements listed or
described in Section 3.15 of the Meridian Disclosure Schedule, (ii) Contractual
Obligations between Meridian and any of its directors, shareholders, officers,
employees or Affiliates of Meridian or any of the foregoing, which constitute
Excluded Assets or Meridian Nonassumed Obligations, or (iii) as specifically set
forth in Section 3.9 of the Meridian Disclosure Schedule.
3.10 Insurance. Meridian maintains, with respect to the Meridian Assets
and the Meridian Business, policies of fire and extended coverage and casualty,
liability and other forms of insurance in such amounts and against such risks
and losses as are set forth in Section 3.10 of the Meridian Disclosure Schedule.
3.11 Tax Matters.
(a) Except as set forth in Section 3.11(a) of the Meridian Disclosure
Schedule, Meridian has in accordance with all Applicable Laws filed all Tax
Returns which are required to be filed, except with respect to failures to file
which in the aggregate would not have a Material Adverse Effect on Meridian and,
to Meridian's knowledge, has paid, or made adequate provision for the payment
of, all Taxes which have or may become due and payable pursuant to said Tax
Returns and all other governmental charges and assessments received to date
other than those Taxes being contested in good faith for which adequate
provision has been made on the most recent balance sheet forming part of
Meridian Financial Statements. The Tax Returns of Meridian have, to Meridian's
knowledge, been prepared in all Material respects in accordance with all
Applicable Laws and generally accepted principles applicable to taxation
consistently applied. All Taxes which Meridian is required by law to withhold
and collect have, to Meridian's knowledge, been duly withheld and collected, and
have been paid over, in a timely manner, to the proper Authorities to the extent
due and payable. Meridian has not executed any waiver to extend, or otherwise
taken or failed to take any action that would have the effect of extending, the
applicable statute of limitations in respect
-13-
of any Tax liabilities of Meridian for the fiscal years prior to and including
the most recent fiscal year. Except as set forth in Section 3.11(a) of the
Meridian Disclosure Schedule, adequate provision has, to Meridian's knowledge,
been made on the most recent balance sheet forming part of Meridian Financial
Statements for all Taxes accrued through the date of such balance sheet of any
kind, including interest and penalties in respect thereof, whether disputed or
not, and whether past, current or deferred, accrued or unaccrued, fixed,
contingent, absolute or other, and there are, to Meridian's knowledge, no past
transactions or matters which could result in additional Taxes of a Material
nature to Meridian for which an adequate reserve has not been provided on such
balance sheet. Meridian is not a "consenting corporation" within the meaning of
Section 341(f) of the Code. Meridian has since January 1, 1989 (i) at all times
been taxable as a Subchapter S corporation under the Code, and (ii) never been a
member of any consolidated group for Tax purposes, except as otherwise set forth
in Section 3.11(a) of the Meridian Disclosure Schedule.
(b) The information shown on the federal income Tax Returns of Meridian
for each of the most recent five tax years (true and complete copies of which
have been furnished by Meridian to ATS to the extent requested in writing by
ATS) is, to Meridian's knowledge, true, accurate and complete in all Material
respects and fairly and accurately reflects the information purported to be
shown. Federal and state income Tax Returns of Meridian have not been examined
by the IRS or applicable state Authority, and Meridian has not been notified of
any proposed examination, except as shown in Section 3.11(b) of the Meridian
Disclosure Schedule.
(c) Meridian is not a party to any tax sharing agreement or
arrangement.
3.12 Employee Retirement Income Security Act of 1974.
(a) Meridian (which for purposes of this Section shall include any
ERISA Affiliate) has not been and has not made at any time since its
organization any contribution to any Plans and has not sponsored any Plan or
Benefit Arrangement except as set forth in Section 3.12(a) of the Meridian
Disclosure Schedule. As to all Plans and Benefit Arrangements listed in Section
3.12(a) of the Meridian Disclosure Schedule:
(i) all such Plans and Benefit Arrangements comply and have
been administered in form and in operation with all Applicable Laws in
all Material respects, and Meridian has not received any notice from
any Authority questioning or challenging such compliance;
(ii) all such Plans maintained or previously maintained by
Meridian that are or were intended to comply with Sections 401 and 501
of the Code comply and complied in form and in operation with all
applicable requirements of such sections, and no event has occurred
which will or could give rise to disqualification of any such Plan
under such sections or to a tax under Section 511 of the Code;
(iii) none of the assets of any such Plan are invested in
employer securities or employer real property;
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(iv) there have been no "prohibited transactions" (as
described in Section 406 of ERISA or Section 4975 of the Code) with
respect to any such Plan and Meridian has not otherwise engaged in any
prohibited transaction;
(v) there have been no acts or omissions by Meridian which
have given rise to or may give rise to any material fines, penalties,
taxes or related charges under Sections 502(c), 502(i) or 4071 or ERISA
or Chapter 43 of the Code for which Meridian may be liable;
(vi) there are no Claims (other than routine claims for
benefits or actions seeking qualified domestic relations orders)
pending or threatened involving such Plans or the assets of such Plans,
and, to Meridian's knowledge, no facts exist which could give rise to
any such Claims (other than routine claims for benefits or actions
seeking qualified domestic relations orders);
(vii) no such Plan is subject to Title IV of ERISA, or, if
subject, there have been no "reportable events" (as described in
Section 4043 of ERISA), and no steps have been taken to terminate any
such Plan;
(viii) all group health Plans of Meridian have been operated
in compliance in all Material respects with the group health plan
continuation coverage requirements of COBRA;
(ix) actuarially adequate accruals for all obligations under
the Plans are reflected in the most recent balance sheet forming part
of the Meridian Financial Statements and such obligations include a pro
rata amount of the contributions which would otherwise have been made
in accordance with past practices for the Plan years which include the
Closing Date;
(x) neither Meridian nor any of its respective directors,
officers, employees or any other fiduciary has committed any breach of
fiduciary responsibility imposed by ERISA or any similar Applicable Law
that would subject Meridian or any of its respective directors,
officers or employees to Material liability under ERISA or any similar
Applicable Law;
(xi) no such Plan which is subject to Part 3 of Subtitle B of
Title I of ERISA or Section 412 of the Code had an accumulated funding
deficiency (as defined in Section 302 of ERISA and Section 412 of the
Code), whether or not waived, as of the last day of the most recent
fiscal year of such Plan to which Part 3 of Subtitle B of Title I of
ERISA or Section 412 of the Code applied, nor would have had an
accumulated funding deficiency on such date if such year were the first
year of such Plan to which Part 3 of Subtitle B of Title I of ERISA or
Section 412 of the Code applied;
(xii) no Material liability to the PBGC has been or is
expected by Meridian to be incurred by Meridian with respect to any
Plan, and there has been no event or condition which presents a
material risk of termination of any Plan by the PBGC;
(xiii) Meridian is not and never has been a party to any
Multiemployer Plan or made contributions to any such Plan;
-15-
(xiv) except as set forth in Section 3.12(a)(xiv) of the
Meridian Disclosure Schedule (which entry, if applicable, shall
indicate the present value of accumulated plan liabilities calculated
in a manner consistent with FAS 106 and actual annual expense for such
benefits for each of the last two (2) years) and pursuant to the
provisions of COBRA, Meridian does not maintain any Plan that provides
benefits described in Section 3(1) of ERISA, except as the provisions
of COBRA may apply, to any former employees or retirees of Meridian;
and
(xv) Meridian has made available to ATS a copy of the two most
recently filed Federal Form 5500 series and accountant's opinion, if
applicable, for each Plan (and the two most recent actuarial valuation
reports for each Plan, if any, that is subject to Title IV of ERISA),
and all information provided by Meridian to any actuary in connection
with the preparation of any such actuarial valuation report was true,
accurate and complete in all material respects.
(b) The execution, delivery and performance by Meridian of this
Agreement and the Collateral Documents executed or required to be executed
pursuant hereto and thereto will not involve any prohibited transaction within
the meaning of ERISA or Section 4975 of the Code.
3.13 Absence of Sensitive Payments. Neither Meridian nor, to Meridian's
knowledge, any of its officers, directors, employees, agents or other
representatives, has with respect to the Meridian Assets or the Meridian
Business (a) made any contributions, payments or gifts to or for the private use
of any governmental official, employee or agent where either the payment or the
purpose of such contribution, payment or gift is illegal under the laws of the
United States or the jurisdiction in which made or (b) established or maintained
any unrecorded fund or asset for any purpose or made any false or artificial
entries on its books.
3.14 Inapplicability of Specified Statutes. Meridian is not a "holding
company", or a "subsidiary company" or an "affiliate" of a "holding company", as
such terms are defined in the Public Utility Holding Company Act of 1935, as
amended, or an "investment company" or a company "controlled" by or acting on
behalf of an "investment company", as defined in the Investment Company Act of
1940, as amended, or a "carrier" or a person which is in control of a "carrier",
as defined in section 11301 of Title 49, U.S.C.
3.15 Employment Arrangements. Section 3.15 of the Meridian Disclosure
Schedule contains a true, accurate and complete list of all Meridian employees
involved in the ownership or operation of the Meridian Assets or the conduct of
the Meridian Business (the "Meridian Employees"), together with each such
employee's title or the capacity in which he or she is employed and the basis
for each such employee's compensation. Meridian has no obligation or liability,
contingent or other, under any Employment Arrangement with any Meridian
Employee, other than those listed or described in Section 3.15 of the Meridian
Disclosure Schedule. Except as described in Section 3.15 of the Meridian
Disclosure Schedule, (i) none of the Meridian Employees is now, or, to
Meridian's knowledge, since January 1, 1993, has been, represented by any labor
union or other employee collective bargaining organization, and Meridian is not,
and has never been, a party to any labor or other collective bargaining
agreement with respect to any of the Meridian Employees, (ii) there are no
pending grievances, disputes or controversies with any union or any other
employee or collective bargaining organization of such employees, or threats of
strikes, work
-16-
stoppages or slowdowns or any pending demands for collective bargaining by any
such union or other organization, and (iii) neither Meridian nor any of such
employees is now, or, to Meridian's knowledge, has since January 1, 1993 been,
subject to or involved in or, to Meridian's knowledge, threatened with, any
union elections, petitions therefore or other organizational or recruiting
activities, in each case with respect to the Meridian Employees. Meridian has
performed in all Material respects all obligations required to be performed
under all Employment Arrangements and is not in Material breach or violation of
or in Material default or arrears under any of the terms, provisions or
conditions thereof.
3.16 Material Agreements. Listed on Section 3.16 of the Meridian
Disclosure Schedule are all Material Agreements relating to the ownership or
operation of the Meridian Assets or the conduct of the business of the Meridian
Business or to which Meridian is a party or to which it is bound or which any of
the Meridian Assets is subject. True, accurate and complete copies of each of
such Material Agreements have been made available by Meridian to ATS and
Meridian has provided ATS with photocopies of all such Material Agreements
requested by ATS (or true, accurate and complete descriptions thereof have been
set forth in Section 3.16 of the Meridian Disclosure Schedule, with respect to
Material Agreements comprised of site leases and site licenses granted by
Meridian to third parties and with respect to Material Agreements that are
oral). All of such Material Agreements are valid, binding and legally
enforceable obligations of Meridian and, to Meridian's knowledge, all other
parties thereto, except as such enforceability may be limited by bankruptcy,
moratorium, insolvency and similar laws affecting the rights and remedies of
creditors and obligations of debtors generally and by general principles of
equity. Meridian has duly complied with all of the Material terms and conditions
of each such Material Agreement (including without limitation with respect to
site user agreements which are Material Agreements) and has not done or
performed, or failed to do or perform (and there is no pending or, to the
knowledge of Meridian, Claim threatened in writing that Meridian has not so
complied, done and performed or failed to do and perform) any act which would
invalidate or provide grounds for the other party thereto to terminate (with or
without notice, passage of time or both) such Material Agreement or impair the
rights or benefits, or increase the costs, of Meridian under any of such
Material Agreements in any Material respect, except to the extent set forth in
Section 3.16 of the Meridian Disclosure Schedule or with respect to the New
Sites.
3.17 Ordinary Course of Business. Meridian, from November 30, 1996 to
the date hereof, except (i) as may be described on Section 3.17 of the Meridian
Disclosure Schedule, or (ii) as may be required or expressly contemplated by the
terms of this Agreement, with respect to the Meridian Assets and the Meridian
Business:
(a) has operated its business in all Material respects in the
normal, usual and customary manner in the ordinary and regular course
of business, consistent with prior practice, except with respect to the
New Sites;
(b) has not sold or otherwise disposed of or contracted to
sell or otherwise dispose of any of its properties or assets having a
value in excess of $20,000, other than in the ordinary course of
business;
-17-
(c) except in each case in the ordinary course of business
(including without limitation with respect to site user agreements),
consistent with prior practice or with respect to the New Sites:
(i) has not incurred any obligation or liability
(fixed, contingent or other) individually having a value in
excess of $20,000;
(ii) has not entered into any individual commitment
having a value in excess of $20,000; and
(iii) has not canceled any Material debts or claims;
(d) has not discharged or satisfied any Lien, other than a
Permitted Lien, and has not paid any obligation or liability (absolute
or contingent) other than current liabilities or obligations under
contracts then existing or thereafter entered into in the ordinary
course of business (including without limitation site user agreements)
and commitments under Leases existing on that date or incurred since
that date in the ordinary course of business or repaying or prepaying
Long-Term Indebtedness or the current portion thereof, except with
respect to the New Sites;
(e) has not created or permitted to be created any Lien on any
of its tangible property other than Permitted Liens;
(f) has not made or committed to make any Material additions
to its property or any purchases of equipment, except (i) in the
ordinary course of business consistent with past practice or for normal
maintenance and replacements or (ii) with respect to the New Sites;
(g) except as described in Section 3.17(h) of the Meridian
Disclosure Schedule, has not increased the compensation payable or to
become payable to any of the Meridian Employees other than in the
ordinary course of business or otherwise Materially altered, modified
or changed the terms of their employment;
(h) has not suffered any Material damage, destruction or loss
(whether or not covered by insurance) or any acquisition or taking of
property by any Authority;
(i) has not waived any rights of Material value without fair
and adequate consideration;
(j) has not experienced any work stoppage;
(k) except in the ordinary course of business (including
without limitation site user agreements), or with respect to the New
Sites, has not entered into, amended or terminated any Lease,
Governmental Authorization, Private Authorization, Material Agreement
or Employment Arrangement, or any transaction, agreement or arrangement
with any Affiliate of Meridian, except for Meridian Nonassumed
Obligations; and
-18-
(l) has not entered into any other transaction or series of
related transactions which individually or in the aggregate is Material
to the Meridian Assets or the Meridian Business except in the ordinary
course of business or with respect to the New Sites.
3.18 Material and Adverse Restrictions. To Meridian's current actual
knowledge, none of the telecommunication towers owned or operated by Meridian,
during the year ended December 31, 1996, incurred costs in connection with such
site in excess of revenues or other benefits attributable to such site, except
as specifically set forth in Section 3.18 of the Meridian Disclosure Schedule.
3.19 Broker or Finder. No Person assisted in or brought about the
negotiation of this Agreement or the Transactions in the capacity of broker,
agent or finder or in any similar capacity on behalf of Meridian.
3.20 Solvency. As of the execution and delivery of this Agreement,
Meridian is, and immediately prior to and after giving effect to the
consummation of the Transactions will be, solvent.
3.21 Environmental Matters. Except as set forth in Section 3.21 of the
Meridian Disclosure Schedule and except with respect to the New Sites, with
respect to the Meridian Assets, Meridian:
(a) to the knowledge of Meridian, has not been notified that
it is potentially liable under, has not received any request for
information or other correspondence concerning its potential liability
with respect to any site or facility under, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, the Resource Conservation Recovery Act, as amended, or any
similar state law;
(b) has not entered into or received any consent decree,
compliance order or administrative order issued pursuant to any
Environmental Law;
(c) is not a party in interest or in default under any
judgment, order, writ, injunction or decree of any final order issued
pursuant to any Environmental Law;
(d) is, to the knowledge of Meridian, in substantial
compliance in all Material respects with all Environmental Laws, has,
to Meridian's knowledge, obtained all Environmental Permits required
under Environmental Laws, and is not the subject of or, to Meridian's
knowledge, threatened with any Legal Action involving a demand for
damages or other potential liability including any Lien with respect to
Material violations or Material breaches of any Environmental Law; and
(e) has no knowledge of any past or present Event related to
the Meridian Business or the Meridian Assets which Event, individually
or in the aggregate, will interfere with or prevent continued Material
compliance with all Environmental Laws, or which, individually or in
the aggregate, will form the basis of any Material Claim for the
release or threatened release into the environment, of any Hazardous
Material.
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ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF ATS
ATS represents, warrants and covenants to, and agrees with, Meridian as
follows:
4.1 Organization and Business; Power and Authority; Effect of
Transaction.
(a) ATS is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has all
requisite power and authority (corporate and other) to own or hold under lease
its properties and to conduct its business as now conducted.
(b) ATS has all requisite corporate power and corporate authority
necessary to enable it to execute and deliver, and to perform its obligations
under, this Agreement and each Collateral Document executed or required to be
executed by it pursuant hereto or thereto or to consummate the Transactions; and
the execution, delivery and performance of this Agreement and each Collateral
Document executed or required to be executed by it pursuant hereto or thereto
have been duly authorized by all requisite corporate or other action on the part
of ATS. This Agreement has been duly executed and delivered by ATS and
constitutes, and each Collateral Document executed or required to be executed by
it pursuant hereto or thereto or to consummate the Transactions when executed
and delivered by ATS will constitute, legal, valid and binding obligations of
ATS, enforceable in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, moratorium, insolvency and similar
laws affecting the rights and remedies of creditors and the obligations of
debtors generally and by general principles of equity.
(c) Except for matters which would have not Material Adverse Effect on
Meridian, neither the execution and delivery by ATS of this Agreement or any
Collateral Document executed or required to be executed by it pursuant hereto or
thereto, nor the consummation by ATS of the Transactions, nor compliance with
the terms, conditions and provisions hereof or thereof by ATS:
(i) will conflict with, or result in a breach or violation of,
or constitute a default under, any Organic Document of ATS or any
Applicable Law on the part of ATS, or will conflict with, or result in
a breach or violation of, or constitute a default under, or permit the
acceleration of any obligation or liability in, or but for any
requirement of giving of notice or passage of time or both would
constitute such a conflict with, breach or violation of, or default
under, or permit any such acceleration in, any Contractual Obligation
of ATS; or
(ii) will require ATS to make or obtain any Governmental
Authorization, Governmental Filing or Private Authorization including
without limitation under the FCA, except for filings under the
Xxxx-Xxxxx-Xxxxxx Act.
4.2 Broker or Finder. No Person assisted in or brought about the
negotiation of this Agreement or the Transactions in the capacity of broker,
agent or finder or in any similar capacity on behalf of ATS.
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4.3 Solvency. As of the execution and delivery of this Agreement, ATS
is, and immediately prior to and after giving effect to the consummation of the
Transactions will be, solvent.
4.4 No Legal Action. There are no Legal Actions pending or, to the
knowledge of ATS, threatened against ATS or any of its Affiliated Entities,
officers or directors, that question or may affect the validity of this
Agreement or the right of ATS to consummate the transactions contemplated
hereunder.
4.5 Physical Assets "AS IS". ATS acknowledges and agrees as follows:
ALL BUILDINGS, STRUCTURES, TRANSMITTING AND COMMUNICATION TOWERS,
EQUIPMENT, LEASEHOLD IMPROVEMENTS, PHYSICAL ASSETS AND OTHER PERSONAL
PROPERTY (AS DEFINED IN THIS AGREEMENT) PURCHASED BY ATS HEREUNDER IS
BEING PURCHASED "AS IS", "WHERE IS", AND "WITH ALL FAULTS". BY ITS
EXECUTION OF THIS AGREEMENT, ATS ACKNOWLEDGES AND AGREES THAT, MERIDIAN
MAKES NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED (INCLUDING WITHOUT
LIMITATION ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE) AS TO THE WORKING ORDER OR PHYSICAL CONDITION OF
ANY SUCH PERSONAL PROPERTY, EXCEPT AS PROVIDED IN THE LAST SENTENCE OF
SECTION 3.5(b).
Nothing contained in this Section shall be construed as a limitation on
Meridian's obligations pursuant to Section 5.6(a).
ARTICLE 5
COVENANTS
5.1 Access to Information; Confidentiality.
(a) Meridian shall afford to ATS and its accountants, counsel, lenders,
financial advisors and other representatives (the "Representatives") full access
during normal business hours throughout the period prior to the Closing Date to
all of Meridian's properties, books, contracts, commitments and records
(including without limitation Tax Returns) relating to the Meridian Assets and
the Meridian Business and, during such period, shall furnish promptly upon
request (i) a copy of each report, schedule and other document filed or received
by any of them pursuant to the requirements of any Applicable Law or filed by it
with any Authority in connection with the Transactions or which may have an
Adverse Effect on the Meridian Assets or the Meridian Business or the
businesses, operations, properties, prospects, personnel, condition, (financial
or other), or results of operations thereof, (ii) to the extent not provided for
pursuant to the preceding clause, all financial records, ledgers, work papers
and other sources of financial information possessed and
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controlled by Meridian or its accountants deemed by ATS or its Representatives
necessary or useful for the purpose of performing an audit of the business of
the Meridian Business and certifying financial statements and financial
information, and (iii) such other information in the possession and control of
Meridian or its accountants concerning any of the foregoing as ATS shall
reasonably request; provided, however, that Meridian shall not be required to
permit any such access to the extent same would unreasonably interfere with
Meridian's normal business operations. All non-public information relating to
the Meridian Assets or the Meridian Business furnished prior to the execution,
or pursuant to the provisions, of this Agreement, including without limitation
this Section, or, in the case of Meridian, with respect to the covenant
hereinafter set forth, whether or not so furnished, will be kept confidential
and shall not, (x) prior to the Closing, without the prior written consent of
Meridian, or (y) from and after the Closing, without the prior written consent
of ATS, be disclosed by ATS or Meridian, as the case may be, in any manner
whatsoever, in whole or in part, and shall not be used by ATS prior to the
Closing for any purposes, other than in connection with the Transactions. In no
event shall ATS or any of its Representatives use such information to the
detriment of Meridian or, from and after the Closing by Meridian or any of its
Representatives, to the detriment of ATS. Prior to the Closing, ATS agrees to
reveal such information only to those of its Representatives or other Persons
who need to know such the information for the purpose of evaluating the
Transactions, who are informed of the confidential nature of such information
and who shall undertake to act in accordance with the terms and conditions of
this Agreement. From and after the Closing, Meridian shall not, without the
prior written consent of ATS, disclose any information remaining in its
possession with respect to the Meridian Assets or the Meridian Business or to
which it may have access in accordance with the provisions of the following
paragraph, and no such information shall be used for any purposes, other than in
connection with the Transactions or to the extent required by Applicable Law,
except as otherwise provided in the following paragraph.
All books and records to which Meridian is entitled to access pursuant
to the provisions of this Agreement shall be retained by ATS at is offices in
the Los Angeles area for a period of at least five (5) years from the Closing
Date. ATS shall permit Meridian to photocopy such books and records to the
extent reasonably required for the permissible purposes described in the
definition of Assets. In the event of any conflict between the provisions of
this paragraph and the provisions of any noncompetition or confidentiality
agreement executed by Meridian or any of its principals, the provisions of this
paragraph shall be controlling.
(b) Subject to the terms and conditions of Section 5.1(a), ATS may,
subject to prior consultation with Meridian, disclose such information as may be
necessary in connection with seeking all Governmental and Private Authorizations
or that is required by Applicable Law to be disclosed. In the event that this
Agreement is terminated for any reason, ATS shall promptly redeliver all
non-public written material provided pursuant to this Section or any other
provision of this Agreement or otherwise in connection with the Transactions and
shall not retain any copies, extracts or other reproductions in whole or in part
of such written material, other than one copy thereof which shall be delivered
to independent counsel for such party and may be used only in the event of any
Legal Action or other Claim arising in connection with the subject matter of
this Agreement or the termination of this Agreement.
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(c) No investigation pursuant to this Section or otherwise shall affect
any representation or warranty in this Agreement of either party or any
condition to the obligations of the parties hereto, except as set forth in
Section 8.3(e).
5.2 Agreement to Cooperate.
(a) Subject to the provisions of Section 9.16, each of the parties
hereto shall use reasonable business efforts promptly (x) to take, or cause to
be taken, all actions and to do, or cause to be done, all things necessary,
proper or advisable under Applicable Law to consummate the Transactions, and (y)
to refrain from taking, or cause to be taken, any action and to refrain from
doing or causing to be done, any thing which could impede or impair the
consummation of the Transactions, including, in all cases, without limitation
using its reasonable business efforts (i) to prepare and file with the
applicable Authorities as promptly as practicable after the execution of this
Agreement all requisite applications and amendments thereto, together with
related information, data and exhibits, necessary to request issuance of orders
approving the Transactions by all such applicable Authorities, each of which
must be obtained or become final to the extent provided in Section 6.1(a), (ii)
to obtain all necessary or appropriate waivers, consents and approvals,
including without limitation those referred to in Section 6.2(d), without
payment of consideration to the other party, (iii) to effect all necessary
registrations, filings and submissions (including without limitation filings
under the Xxxx-Xxxxx-Xxxxxx Act and all filings necessary for ATS to own and
operate the Meridian Assets and conduct the Meridian Business), (iv) to lift any
injunction or other legal bar to the Transactions (and, in such case, to proceed
with the Transactions as expeditiously as possible), and (v) to obtain the
satisfaction of the conditions specified in Article 6, including without
limitation the truth and correctness as of the Closing Date as if made on and as
of the Closing Date of the representations and warranties of such party and the
performance and satisfaction as of the Closing Date of all agreements and
conditions to be performed or satisfied by such party, without the payment of
any amounts, except to the extent otherwise required by the provisions of this
Agreement.
(b) The parties shall cooperate with one another in the preparation,
execution and filing of all Tax Returns, questionnaires, applications, or other
documents regarding any real property transfer or gains, sales, use, transfer,
value added, stock transfer and stamp Taxes, any transfer, recording,
registration and other fees, and any similar Taxes which become payable in
connection with the Transactions that are required or permitted to be filed on
or before the Closing Date.
(c) Meridian shall cooperate and use its reasonable business efforts to
(i) prepare balance sheets and statements of income (loss) and cash flow for
eleven month period ended November 30, 1996 and thereafter on a monthly basis
until the month preceding the Closing in accordance with GAAP subject only to
such exceptions for periods ending on or before December 31, 1996 as are set
forth in Section 3.2 of the Meridian Disclosure Schedule, and (ii) cause its
independent accountants to reasonably cooperate with ATS, and at ATS's expense,
in order to enable ATS to have its independent accountants prepare audited
financial statements for the Meridian Business described in Section 6.2(g).
Without limiting the generality of the foregoing, Meridian agrees that after the
Closing Date it will (x) consent to the use of such audited financial statements
in any registration statement or other document filed by ATS or any Affiliate of
ATS under the Securities Act or the Exchange Act to the extent required by
Applicable Law or any underwriter in an
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underwritten public offering, and (y) execute and deliver, and cause its
directors and officers to execute and deliver, such "representation" letters as
are customarily delivered in connection with audits and as ATS's independent
accountants may reasonably request under the circumstances; provided, however,
that as a condition precedent to the use of such audited financial statements by
any Affiliate of ATS, such Affiliate shall execute an indemnification agreement,
in form and content reasonably acceptable to Meridian's counsel, pursuant to
which such Affiliate agrees to indemnify Meridian and related parties from
liability arising from the use of such statements on the same terms and subject
to the same conditions as ATS so agrees in Section 8.2(e)(ii) of this Agreement.
5.3 Public Announcements. Until the Closing, or in the event of
termination of this Agreement, Meridian and ATS shall consult with the other
before issuing any press release or otherwise making any public statements with
respect to this Agreement or the Transactions and shall not issue any such press
release or make any such public statement without the prior consent of the
other. Notwithstanding the foregoing, each party acknowledges and agrees that
Meridian and ATS may, without its prior consent, issue such press releases or
make such public statements as may be required by Applicable Law, in which case,
to the extent practicable, the party proposing to make such press release or
public statement will consult with the other regarding the nature, extent and
form of such press release or public statement.
5.4 Notification of Certain Matters. Meridian and ATS shall give prompt
notice to the other, of the occurrence or non-occurrence of any Event the
occurrence or non-occurrence of which would be likely to cause (i) any
representation or warranty made by it contained in this Agreement to be untrue
or inaccurate in any respect such that one or more of the conditions of Closing
might not be satisfied, or (ii) any covenant, condition or agreement made by it
contained in this Agreement not to be complied with or satisfied, or (iii) any
change to be made in the Meridian Disclosure Schedule in any respect such that
one or more of the conditions of Closing might not be satisfied, and any failure
made by it 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
hereunder in any respect such that one or more of the conditions of Closing
might not be satisfied; provided, however, that the delivery of any notice
pursuant to this Section shall not limit or otherwise affect the remedies
available hereunder to the party receiving such notice.
5.5 No Solicitation. Meridian shall not, nor shall it knowingly permit
any of its Representatives (including, without limitation, any investment
banker, broker, finder, attorney or accountant retained by it) to, initiate,
solicit or facilitate, directly or indirectly, any inquiries or the making of
any proposal with respect to any Alternative Transaction, engage in any
discussions or negotiations concerning, or provide to any other Person any
information or data relating to, it or any Subsidiary for the purposes of, or
otherwise cooperate in any way with or assist or participate in, or facilitate
any inquiries or the making of any proposal which constitutes, or may reasonably
be expected to lead to, a proposal to seek or effect any Alternative
Transaction, or agree to or endorse any Alternative Transaction. "Alternative
Transaction" means a transaction or series of related transactions (other than
the Transactions) resulting in (i) any merger or consolidation, regardless of
whether Meridian is the surviving Entity unless the surviving Entity remains
obligated under this Agreement to the same extent as it was, or (ii) any sale or
other disposition of all or any substantial part of the Meridian Assets or the
Meridian Business. If Meridian or any of its Representatives receives any
inquiry with respect to an Alternative Transaction while this Agreement is in
effect,
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Meridian shall inform the inquiring party that it is not entitled to enter into
discussions or negotiations relating to an Alternative Transaction. ATS
acknowledges that prior to the date of this Agreement, Meridian engaged in
discussion with certain other parties relating to the possibility of acquiring
the Meridian Assets and the Meridian Business.
5.6 Conduct of Business by Meridian Pending the Closing. Except as
otherwise contemplated by this Agreement, after the date hereof and prior to the
Closing Date or earlier termination of this Agreement, unless ATS shall
otherwise agree in writing, Meridian shall, to the extent relating to the
Meridian Business or the Meridian Assets:
(a) conduct its business in the ordinary and usual course of
business and consistent with past practice, including without
limitation the performance of such maintenance, repairs or replacements
with respect to communication towers, fixtures and Personal Property
comprising the Meridian Assets as is consistent with past practice;
(b) use all reasonable business efforts to preserve intact its
business organizations and goodwill, keep available the services of its
present key employees, and preserve the goodwill and business
relationships with customers and others having business relationships
with it;
(c) confer, as and when reasonably requested, on a regular and
frequent basis with one or more representatives of ATS to report
Material operational matters and the general status of ongoing
operations;
(d) maintain with financially responsible insurance companies
insurance on its assets and its business in such amounts and against
such risks and losses as are consistent with past practice;
(e) use reasonable business efforts to (i) operate the
Meridian Business in conformity in all Material respects with all
Governmental and Private Authorizations, Leases and Material Agreements
on a basis consistent with past practice and Applicable Law and the
rules and regulations of any Authority with jurisdiction over the
Meridian Assets or the Meridian Business, and (ii) maintain in full
force and effect all such Governmental and Private Authorizations,
Leases and Material Agreements relating to the Meridian Business;
(f) not (i) dispose of any of the Meridian Assets owned by
Meridian or used in the operation of the Meridian Business (other than
for the disposition in the ordinary course of business of immaterial
assets that are of no further use to the Meridian Business) or (ii)
modify or change in any Material respect, or enter into, any Material
Agreement relating to the Meridian Business (other than site user
agreements); and
(g) not voluntarily take any action which if taken between the
end of its most recent fiscal quarter and prior to the date of this
Agreement would have been required to be noted as an exception on
Section 3.17 of the Meridian Disclosure Schedule.
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With respect to any transaction or act proposed to be entered into or performed
by Meridian which, pursuant to Sections 5.1(a) through (g), requires the prior
approval of ATS, ATS shall be deemed to have approved same unless written notice
of disapproval is received by Meridian within five (5) business days after
receipt by Meridian of a written request for approval made by Meridian.
5.7 Preliminary Title Reports. Prior to the execution of this
Agreement, Meridian has, at its sole cost and expense, delivered or caused to be
delivered to ATS a standard preliminary title report dated as of a recent date
issued by one or more title companies authorized to do business in the State of
California (the "Title Company") with respect to those Meridian Assets comprised
of the parcels of real property described in Section 5.7 of the Meridian
Disclosure Schedule (the "Insured Real Property"). Such reports, as same may be
amended or supplemented from time to time to reflect additional title matters,
are referred to herein as the "Title Reports". Section 5.7 of the Meridian
Disclosure Schedule sets forth a description of those matters, if any, shown in
the Title Reports as to which ATS has objected and which Meridian has agreed to
remedy prior to or, with the written approval of ATS, subsequent to the Closing
Date (the "Disapproved Title Matters", which term shall include any matters
added thereto pursuant to the provisions of the last sentence of this Section).
All matters disclosed by the Title Reports (as of the date hereof) which are not
reflected on Section 5.7 of the Meridian Disclosure Schedule have heretofore
been approved by ATS. If, at any time following the date hereof, Meridian or the
Title Company notifies ATS of any additional matter affecting title to the
Insured Real Property, the parties shall negotiate in good faith in an effort to
resolve such matters and, in the event that are not able to reach such agreement
within thirty (30) days of the date ATS has received written notification
thereof, either party may terminate this Agreement with the effect set forth in
Section 7.2.
5.8 Environmental Site Assessments. Prior to the execution of this
Agreement, ATS has, at its sole cost and expense, delivered or caused to be
delivered to Meridian a Phase I environmental assessment report dated as of a
recent date issued by Aquaterra Environmental Services Corp.(the "Environmental
Company") with respect to those Meridian Assets comprised of the parcels of real
property described in Section 5.8 of the Meridian Disclosure Schedule (the
"Environmental Real Property"). Such reports, as same may be amended or
supplemented from time to time to reflect additional environmental matters, are
referred to herein as the "Environmental Reports". Section 5.8 of the Meridian
Disclosure Schedule sets forth a description of those matters, if any, shown in
the Environmental Reports as to which ATS has objected and which Meridian has
agreed to remedy prior to or, with the written approval of ATS, subsequent to
the Closing Date (the "Disapproved Environmental Matters" which term shall
include any matters added thereto pursuant to the provisions of the last
sentence of this Section). All matters disclosed by the Environmental Reports
(as of the date hereof) which are not reflected on Section 5.8 of the Meridian
Disclosure Schedule have heretofore been approved by ATS. If, at any time
following the date hereof, Meridian or the Environmental Company notifies ATS of
any additional matter affecting the environmental status of the Environmental
Real Property, the parties shall negotiate in good faith in an effort to resolve
such matters and, in the event that are not able to reach such agreement within
thirty (30) days of the date ATS has received written notification thereof,
either party may terminate this Agreement with the effect set forth in Section
7.2.
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ARTICLE 6
CLOSING CONDITIONS
6.1 Conditions to Obligations of Each Party to Effect the Transactions.
The respective obligations of each party to effect the Transactions shall,
except as hereinafter provided in this Section, be subject to the satisfaction
at or prior to the Closing Date of the following conditions, any or all of which
may be waived, in whole or in part, to the extent permitted by Applicable Law:
(a) All authorizations, consents, waivers, orders or approvals
required to be obtained from all Authorities, and all filings,
submissions, registrations, notices or declarations required to be made
by ATS and Meridian with any Authority, prior to the consummation of
the Transactions, shall have been obtained from, and made with, all
such Authorities, except for such authorizations, consents, waivers,
orders, approvals, filings, registrations, notices or declarations as
are set forth in Section 6.1(a) of the Meridian Disclosure Schedule or
the failure to obtain or make would not, in the reasonable business
judgment of each of the parties, have a Material Adverse Effect on the
Meridian Assets and the Meridian Business;
(b) The transactions contemplated by the Other Agreements
shall have been consummated prior to or simultaneously with the
consummation of the Transactions; and
(c) The parties shall have entered into an escrow agreement in
customary form, reasonably satisfactory to the parties with an escrow
agent reasonably acceptable to the parties, pursuant to which, among
other things, Meridian shall have delivered deeds in customary form
with respect to all of the real property to be conveyed to ATS as part
of the Meridian Assets, and ATS will have deposited the portion of the
purchase price attributable to such real property, the parties, to the
extent required by Section 9.3, shall have deposited an amount
sufficient to pay all recording fees and transfer taxes, and other fees
and expenses which must be paid as a condition of consummation of the
transactions contemplated by this Agreement.
6.2 Conditions to Obligations of ATS. The obligation of ATS to effect
the Transactions shall be subject to the satisfaction of the following
conditions, any or all of which may be waived, in whole or in part, to the
extent permitted by Applicable Law:
(a) All agreements, certificates, opinions and other documents
required to be delivered pursuant to the provisions of this Agreement
shall be reasonably satisfactory in form, scope and substance to ATS
and its counsel shall have received all information and copies of all
documents, including records of corporate proceedings, which they may
reasonably request in connection therewith, such documents where
appropriate to be certified by proper corporate officers;
(b) Meridian shall have furnished ATS and, at ATS's request,
any bank or other financial institution providing credit to ATS, with
an opinion, dated the Closing Date of Levinson, Miller, Xxxxxx &
Xxxxxxxx, counsel for Meridian, reasonably acceptable to ATS,
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with respect to the matters set forth in Sections 3.1(a), (b) and (c),
3.7(a)(i) and (ii), and 3.14 and with respect to such other matters
arising after the date of this Agreement and incident to the
Transactions, as ATS or its counsel or its counsel may reasonably
request or which may be reasonably requested by any such bank or
financial institution or their respective counsel;
(c) The representations, warranties, covenants and agreements
of Meridian contained in this Agreement or otherwise made in writing by
it or on its behalf pursuant hereto or otherwise made in connection
with the Transactions shall be true and correct in all Material
respects at and as of the Closing Date with the same force and effect
as though made on and as of such date except those which speak as of a
certain date which shall continue to be true and correct in all
Material respects as of such date on the Closing Date (including
without limitation giving effect to any later obtained knowledge of
Meridian or ATS, except as otherwise specifically provided herein);
each and all of the agreements and conditions to be performed or
satisfied by Meridian hereunder at or prior to the Closing Date shall
have been duly performed or satisfied in all Material respects; and
Meridian shall have furnished ATS with such certificates and other
documents evidencing the truth of such representations, warranties,
covenants and agreements and the performance of such agreements or
conditions as ATS or its counsel shall have reasonably requested;
(d) Except to the extent, if any, specifically set forth in
Section 6.2(d) of the Meridian Disclosure Schedule, all authorizations,
consents, waivers, orders or approvals required by the provisions of
this Agreement to be obtained from all Persons (other than Authorities)
prior to the consummation of the Transactions, including without
limitation those required by the provisions of this Agreement in order
to vest fully in ATS all right, title and interest in and to all of the
Meridian Assets and the Meridian Business (including without limitation
all Private Authorizations, Leases and Material Agreements of Meridian
and, at the cost and expense of Meridian, all modifications of Leases
and other Contractual Obligations heretofore requested by ATS and set
forth in Section 6.2(d) of the Meridian Disclosure Schedule) and the
full enjoyment thereof shall have been obtained, without the
imposition, individually or in the aggregate, of any condition or
requirement which could Adversely Affect ATS;
(e) Between the date of this Agreement and the Closing Date,
there shall not have occurred and be continuing any Material Adverse
Change in Meridian from that reflected in the most recent Meridian
Financial Statements; as of the Closing Date, the Governmental
Authorizations with respect to the ownership or operation of the
Meridian Assets or the conduct of the Meridian Business shall not have
been Materially and Adversely Affected by any act, or failure to act,
of Meridian;
(f) Meridian shall have delivered or cause to be delivered to
ATS all of the Collateral Documents and other agreements, documents and
instruments required to be delivered by Meridian to ATS at or prior to
the Closing pursuant to the terms of this Agreement;
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(g) ATS shall have received from Meridian such documentation
as shall reasonably enable ATS's independent accountants to advise ATS
in writing that they could issue an unqualified report (as to the scope
of the audit, access to the books and records and the cooperation of
management) on the financial statements (consisting of balance sheets
and statements of operations and cash flow required by Rule 3.05(b)(2)
of Regulation S-X) of the Meridian Assets and the Meridian Business,
and that such financial statements can be prepared in conformity with
GAAP and Regulation S-X under the Securities Act;
(h) As of the Closing Date, except as otherwise set forth in
Section 3.7(a) of the Meridian Disclosure Schedule, no Legal Action
shall be pending before or threatened in writing by any Authority
seeking to enjoin, restrain, prohibit or make illegal or to impose any
Materially Adverse conditions in connection with, the consummation of
the Transactions, or which might, in the reasonable business judgment
of ATS, based upon the advice of counsel, have a Material Adverse
Effect on the Meridian Assets and the Meridian Business, it being
understood and agreed that a written request by any Authority for
information with respect to the Transactions, which information could
be used in connection with such Legal Action, shall not be deemed to be
a threat of any such Legal Action;
(i) All Disapproved Environmental Matters shall have been
cured or arrangement shall have been made to cure, in each case, in a
manner reasonably satisfactory to ATS;
(j) X. X. Xxxxxxxx ("Xxxxxxxx"), the chief executive officer
and trustee for the principal shareholder of Meridian, shall have
executed and delivered to ATS an agreement substantially in the form of
Exhibit A attached hereto and made a part hereof (the "Xxxxxxxx
Noncompetition Agreement");
(k) Meridian and Xxxxxxxx shall have executed and delivered to
ATS and the escrow agent named therein (the "Indemnity Escrow Agent")
an escrow agreement (the "Indemnity Escrow Agreement") substantially in
the form of Exhibit B attached hereto and made a part hereof;
(l) All Disapproved Title Matters shall have been cured or
arrangements shall have been made to cure, in each case, in a manner
reasonably satisfactory to ATS, and ATS shall have received standard
CLTA title insurance policies insuring ATS' fee interests in all
Insured Real Property, subject only to Approved Title Conditions;
(m) Meridian shall have delivered to ATS, or ATS shall have
otherwise received, all use permits, consents or other Governmental
Authorizations of and Leases from the United States Forest Service set
forth in Section 6.2(m) of the Meridian Disclosure Schedule;
(n) Meridian shall have an assignment, in form, scope and
substance reasonably satisfactory to ATS, from the holder or holders of
all interests in the sites identified in Section 6.2(n) of the Meridian
Disclosure Schedule of such holder's or holders' interests in all such
sites;
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(o) Meridian shall have executed and delivered to ATS an
agreement, in form, scope and substance reasonably satisfactory to ATS
(the "Nonassignable Contracts Agreement"), pursuant to which (i)
Meridian will hold (but with no obligation to perform services
thereunder), for the account of ATS, and remit promptly to ATS all
amounts received pursuant to the provisions of, all of the
Nonassignable Contracts as to which the required approval or consent to
the assignment or transfer of which was not obtained and as to which
ATS has delivered an Acceptance Notice, and (ii) ATS will agree to (A)
perform all services required to be performed under such Nonassignable
Contracts, (B) reimburse Meridian for all costs and expenses reasonably
incurred pursuant to the Nonassignable Contracts Agreement and (C)
indemnify and hold harmless Meridian with respect to all actions taken
by ATS pursuant thereto and all actions, if any, taken by Meridian
pursuant thereto other than those relating to the bad faith or willful
misconduct of Meridian or its officers, directors, stockholders or
employees; and
(p) To the extent that the representations and warranties of
Meridian specifically exclude a reference to the New Sites, ATS shall
have determined, in its reasonable business judgment, that
representations and warranties to the extent not so made would be true
and correct in all Material respects at and as of the Closing Date with
the same force and effect as though made with respect to the New Sites
as of the Closing Date.
6.3 Conditions to Obligations of Meridian. The obligation of Meridian
to effect the Transactions shall be subject to the satisfaction of the following
conditions, any or all of which may be waived, in whole or in part, to the
extent permitted by Applicable Law:
(a) All agreements, certificates, opinions and other documents
required to be delivered pursuant to the provisions of this Agreement
shall be reasonably satisfactory in form, scope and substance to
Meridian and its counsel, and Meridian and its counsel shall have
received all information and copies of all documents, including records
of corporate proceedings, which they may reasonably request in
connection therewith, such documents where appropriate to be certified
by proper corporate officers;
(b) ATS shall have furnished Meridian and, at ATS's request,
any bank of other financial institution providing credit to Meridian,
with an opinion, dated the Closing Date of Xxxxxxxx & Worcester LLP,
counsel for ATS, reasonably acceptable to Meridian, with respect to
matters set forth in Sections 4.1(a), (b) and (c) and with respect to
such other matters arising after the date of this Agreement and
incident to the Transactions, as Meridian or its counsel may reasonably
request or which may be reasonably requested by any such bank or
financial institution or their respective counsel;
(c) The representations, warranties, covenants and agreements
of ATS contained in this Agreement or otherwise made in writing by it
or on its behalf pursuant hereto or otherwise made in connection with
the Transactions shall be true and correct in all Material respects at
and as of the Closing Date with the same force and effect as though
made on and as of such date except those which speak as of a certain
date which shall continue to be true and correct in all Material
respects as of such date on the Closing Date (including without
limitation giving effect to any later obtained knowledge of Meridian or
ATS, except as
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otherwise specifically provided herein); each and all of the agreements
and conditions to be performed or satisfied by ATS hereunder at or
prior to the Closing Date shall have been duly performed or satisfied
in all Material respects; and ATS shall have furnished Meridian with
such certificates and other documents evidencing the truth of such
representations, warranties, covenants and agreements and the
performance of such agreements or conditions as Meridian or its counsel
shall have reasonably requested;
(d) ATS shall have delivered or cause to be delivered to
Meridian all of the Collateral Documents and other agreements,
documents and instruments required to be delivered by ATS to Meridian
at or prior to the Closing pursuant to the terms of this Agreement;
(e) As of the Closing Date, no Legal Action shall be pending
before or threatened in writing by any Authority seeking to enjoin,
restrain, prohibit or make illegal or to impose any Materially Adverse
conditions in connection with, the consummation of the Transactions, it
being understood and agreed that a written request by any Authority for
information with respect to the Transactions, which information could
be used in connection with such Legal Action, shall not be deemed to be
a threat of any such Legal Action;
(f) ATS shall have executed and delivered to Meridian and X.X.
Xxxxxxxx and the Indemnity Escrow Agent a counterpart of the Indemnity
Escrow Agreement substantially in the form of Exhibit C attached hereto
and made a part hereof;
(g) ATS shall have executed and delivered to Meridian an
agreement (the "Meridian License Agreement"), reasonably satisfactory
to Meridian, pursuant to which ATS will grant to Meridian (and its
successors and assigns) a non-exclusive three-year royalty-free license
to use, throughout Southern California, the name "Meridian
Communications" with respect to Meridian's radio repeater service
business; provided, however, that such agreement shall continue only so
long as Xxxxxxxx, members of his family or trusts for the benefit of
same are actively involved in such business and own equity interests in
proportions not less than those they currently hold in Meridian;
(h) ATS shall have executed and delivered to Meridian site
user agreements for Meridian's radio repeater service business and
specialized mobile radio business, containing the terms and conditions
described in Section 6.3(h) of the Meridian Disclosure Schedules; and
(i) ATS shall have executed and delivered to Meridian the
Nonassumable Contracts Agreement, in form, scope and substance
reasonably satisfactory to Meridian.
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ARTICLE 7
TERMINATION, AMENDMENT AND WAIVER
7.1 Termination. This Agreement shall terminate if the Closing does not
occur on or prior to the Termination Date and may be terminated at any time
prior to the Closing Date:
(a) by mutual consent of Meridian and ATS;
(b) by either ATS or Meridian if any permanent injunction, decree or
judgment by any Authority preventing the consummation of the Transactions shall
have become final and nonappealable; or
(c) by Meridian in the event (i) Meridian is not in Material breach of
this Agreement and none of its representations or warranties shall have become
and continue to be untrue in any Material respect, and (ii) either (A) the
Transactions have not been consummated prior to the Termination Date and ATS is
in Material breach of this Agreement or any of its representations or warranties
shall have become and continue to be untrue in any Material respect, or (B) such
a breach or untruth exists and is not capable of being cured by and will prevent
or delay consummation of the Transactions by or beyond the Termination Date; or
(d) by ATS in the event (i) ATS is not in Material breach of this
Agreement and none of its representations or warranties shall have become and
continue to be untrue in any Material respect, and (ii) either (A) the
Transactions have not been consummated prior to the Termination Date and
Meridian is in Material breach of this Agreement or any of its representations
or warranties shall have become and continue to be untrue in any Material
respect, or (B) such a breach or untruth exists and is not capable of being
cured by and will prevent or delay consummation of the Transactions by or beyond
the Termination Date; or
(e) by ATS in the event of a failure of the condition set forth in
Section 6.2(i) or 6.2(l); or.
(f) by either party pursuant to the provisions of Section 9.16.
The term "Termination Date" shall mean June 30, 1997 or such other date
as the parties may, from time to time, mutually agree.
The right of ATS or Meridian to terminate this Agreement pursuant to
this Section shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of either party, any Person controlling
any such party or any of their respective Representatives whether prior to or
after the execution of this Agreement.
7.2 Effect of Termination.
(a) Except as provided in Sections 5.1, 5.3 and 9.3 and this Section,
in the event of the termination of this Agreement pursuant to Section 7.1, or in
the event the Transactions shall not have
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been consummated prior to the end of business on the Termination Date, this
Agreement shall forthwith become void, there shall be no liability on the part
of either party, or any of their respective shareholders, officers or directors,
to the other and all rights and obligations of either party shall cease;
provided, however, that such termination shall not relieve either party from
liability for any misrepresentation or breach of any of its warranties,
covenants or agreements set forth in this Agreement.
(b) In the event this Agreement is terminated by Meridian pursuant to
the provisions of Section 7.1(c) or by ATS pursuant to the provisions of Section
7.1(d), the terminating party shall be entitled to damages as follows and in no
other circumstances other than fraud:
(i) in the event that any misrepresentation that was made was
not a willful misrepresentation at the time it was made, or any breach
of any warranty, covenant or agreement set forth in this Agreement was
not a willful breach, on the part of the non- terminating party, then
the terminating party shall be entitled to recover only its reasonable
out-of-pocket fees and expenses not to exceed in the aggregate
$167,500; and
(ii) in the event that any misrepresentations that was made
was a willful misrepresentation at the time it was made, or the breach
of any warranty, covenant or agreement was a willful breach, on the
part of the non-terminating party, then the terminating party shall be
entitled to recover the actual amount of its damages, including without
limitation consequential damages and reasonable out-of-pocket fees and
expenses, in an amount not to exceed the amount of the Indemnity Escrow
Fund.
Notwithstanding the foregoing, each party shall have the right to seek specific
performance pursuant to the provisions of Section 9.5.
(c) In the event this Agreement is terminated pursuant to the
provisions of Sections 5.7, 5.8, 7.1(a), 7.1(b), 7.1(e) or 7.1(f), except as
provided in Section 7.2(a), neither of the parties shall have any further rights
or remedies.
ARTICLE 8
INDEMNIFICATION
8.1 Survival. The representations, warranties, covenants and agreements
of the parties contained in or made pursuant to this Agreement or any Collateral
Document (including without limitation the indemnification obligations set forth
in this Article) shall, except as provided in Section 8.3(e), survive the
Closing and shall remain operative and in full force and effect, regardless of
any investigation or statement as to the results thereof made by or on behalf of
any party hereto, for a period of two (2) years after the Closing Date (the
"Indemnity Period"); provided, however, that notwithstanding the foregoing (a)
the representations and warranties referred to in (i) Section 3.21 shall survive
for a period of four (4) years after the Closing Date, and (ii) Sections 3.1 (to
the extent they relate to due organization, valid existence and good standing of
Meridian, corporate power and corporate authority of Meridian, the due
execution, delivery and performance by
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Meridian of this Agreement and each Collateral Document, and the legal, valid,
binding and enforceable nature of this Agreement and each Collateral Document on
Meridian), 3.12, and 4.1 (to the extent they related to due organization, valid
existence and good standing of ATS, corporate power and corporate authority of
ATS, the due execution, delivery and performance by ATS of this Agreement and
each Collateral Document, and the legal, valid, binding and enforceable nature
of this Agreement and each Collateral Document of ATS) shall survive for the
applicable statute of limitations, (b) those covenants and agreements set forth
in Sections 5.1, 5.2(b) and 5.2(c) and Article 9 shall survive for the statute
of limitations applicable to contracts, (c) the indemnification obligations of
ATS set forth in Section 8.2(c), to the extent same relate to New Site Assumed
Obligations or to obligations and liabilities under ATS Assumable Agreements
applicable to periods from and after the Closing Date, shall survive until all
liabilities and obligations which are the subject thereof have been paid or
discharged in full, and (d) the indemnification obligations of ATS referred to
in Section 8.2(e) shall survive until all liabilities and obligations which are
the subject thereof have been paid or discharged in full. No claim for
indemnification, other than with respect to fraud, may be asserted after the
expiration of the Indemnity Period, except as provided in this Section and
Section 8.3(d). Notwithstanding anything herein to the contrary, any
representation, warranty, covenant and agreement which arises and is the subject
of a Claim which is asserted in writing prior to the expiration of the Indemnity
Period shall survive with respect to such Claim or any dispute with respect
thereto until the final resolution thereof.
8.2 Indemnification.
(a) Each of Meridian and ATS (the "indemnifying party") agrees that on
and after the Closing it shall indemnify and hold harmless the other (the
"indemnified party") from and against any and all damages, claims, losses,
expenses, costs, obligations and liabilities, including without limitation
liabilities for all reasonable attorneys', accountants' and experts' fees and
expenses including those incurred to enforce the terms of this Agreement or any
Collateral Document (collectively, "Loss and Expense"), suffered, directly or
indirectly, by the indemnified party by reason of, or arising out of:
(i) any breach of representation or warranty made by the
indemnifying party pursuant to this Agreement or any Collateral
Document or any failure by the indemnifying party to perform or fulfill
any of its respective covenants or agreements set forth in this
Agreement or any Collateral Document (including without limitation any
Legal Action or other Claim by any third party which Claim is based
upon a breach or alleged breach of representation or warranty by the
indemnifying party pursuant to this Agreement or any Collateral
Document); or
(ii) in the case of Meridian as the indemnifying party, the
failure of Meridian to comply with Bulk Sales law of the State of
California.
(b) Meridian agrees that from and after the Closing it shall indemnify
and hold harmless ATS and each of its officers, directors, stockholders, and any
of their respective heirs, executors, representatives, successors and assigns,
from and against any and all Loss and Expense suffered, directly or indirectly,
by any of them by reason of, or arising out of, including without limitation any
Legal Action or other Claim that relates to Meridian Nonassumed Obligations or
the ownership and
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operation of the Meridian Assets and the Meridian Business prior to the Closing
Date; provided, that the foregoing obligation shall not extend to any Claim,
Legal Action, Loss or Expense from or relating to (i) the condition of physical
assets which, pursuant to the provisions of Section 4.5, are being sold
hereunder on an "AS IS" basis, (ii) Events, Contracts, transactions, acts,
omissions, agreements, matters or things the existence or nonexistence of which
is disclosed with reasonable specificity in the Meridian Disclosure Schedule or
in the documents reference therein (to the extent copies thereof have been
furnished to ATS), except to the extent, if at all, Section 8.2(b) of the
Meridian Disclosure Schedule specifically indicates to the contrary, (iii)
Environmental Law or environmental matters, except to the extent Meridian is in
breach of the representations and warranties set forth in Section 3.21 with
respect thereto, or (iv) matters of a type described in Section 8.2(d).
(c) ATS agrees that from and after the Closing it shall indemnify and
hold harmless Meridian and each of its officers, directors, stockholders, and
any of their respective heirs, executors, trustees, beneficiaries,
representatives, successors and assigns (collectively, the "Meridian Indemnified
Parties"), from and against any and all Loss and Expense suffered, directly of
indirectly, by any of them by reason of, or arising out of, including without
limitation any Legal Action or other Claim that relates to, (i) Meridian Assumed
Obligations or (ii) the ownership and operation of the Meridian Assets and the
Meridian Business from and after the Closing Date, except for Events arising
prior to or existing on the Closing Date, unless they are part of the Meridian
Assumed Obligations or are within the provisions of Section 8.2(d).
(d) Notwithstanding any provision of this Agreement to the contrary,
ATS agrees that from and after the Closing it shall indemnify and hold harmless
Meridian and each of the other Meridian Indemnified Parties, from and against
any Legal Action or other Claim arising from damage or injury to person or
property (including wrongful death) based upon, involving or arising out of the
ownership or operation (whether prior to or after the Closing Date) of the
Meridian Assets and the Meridian Business; provided, however, that nothing
contained in this Section is intended to relieve Meridian of its obligations set
forth in Section 8.2(a).
(e) ATS agrees that from and after the Closing, it shall indemnify and
hold harmless Meridian and each of the other Meridian Indemnified Parties, from
and against the following:
(i) Such matters as are the subject of ATS's indemnification
obligations under the Nonassignable Contracts Agreement described in
Section 6.2(o); and
(ii) All Loss and Expense suffered, directly or indirectly, by
any of them by reason of, or arising out of, the use by ATS of audited
financial statements relating to the Meridian Business as described in
Section 5.2(c); provided, however, that notwithstanding the foregoing,
to the extent (A) such Loss and Expense is attributable to a breach of
warranty and a misrepresentation from those contained in Section 3.2 of
this Agreement and (B) at the time ATS is obligated to make
indemnification under this subparagraph (ii) or any ATS Affiliate is so
obligated pursuant to the provision of any agreement executed pursuant
to the provisions of Section 5.2(c) there are Escrow Indemnity Funds to
cover all or part of such obligation, then ATS may utilize such Escrow
Indemnity Funds to discharge that portion of
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its or such Affiliate's obligation as is commensurate with the amount
of Escrow Indemnity Funds so available.
8.3 Limitation of Liability.
(a) Notwithstanding the provisions of Section 8.2, after the Closing,
except as otherwise provided in Section 8.6, each indemnifying party's rights to
indemnification shall be subject to the following limitations: (i) the
indemnified party shall be entitled to recover its Loss and Expense in respect
of any Claim only in the event that the aggregate Loss and Expense for all
Claims exceeds, in the aggregate, $100,000, in which event the indemnified party
shall be entitled to recover all such Loss and Expense (including without
limitation such $100,000), and (ii) in no event shall the aggregate amount
required to be paid pursuant to the provisions of this Article exceed the Escrow
Indemnity Fund in the case of Meridian or $2,155,946 in the case of ATS'
obligations under Sections 8.2(a) and 8.2(c); provided, that ATS's obligation to
indemnify Meridian or other Persons from (x) New Site Assumed Obligations, (y)
liabilities or obligations arising after the Closing Date pursuant to ATS
Assumable Agreements, or (z) liabilities or obligations referred to in Section
8.2(e), shall be subject to no maximum dollar limitation.
(b) Anything in this Agreement, including without limitation the
provisions of Sections 8.2 or 8.3(a), to the contrary notwithstanding, except as
provided in Sections 8.3(d) and 8.6, (i) the exclusive recourse of ATS with
respect to the liability of Meridian pursuant to Section 8.2 or any other
provision of this Agreement or Applicable Law which requires Meridian to defend,
indemnify or hold harmless ATS from or against any Claim, Loss or Expense shall
be the Escrow Indemnity Fund; and (ii) ATS's remedies for any such liability of
Meridian, or for any Claim or Loss or Expense arising under this Agreement,
shall be limited to its right to recover from the Escrow Indemnity Funds in
accordance with the provisions of the Escrow Indemnity Agreement, and neither
ATS nor any of its officers, directors, shareholders, agents or Affiliated
Entities shall have any right of recovery against Meridian or any other Meridian
Indemnified Party or against the assets of any of them for any such liability.
(c) In the event there shall be no Claims pursuant to the provisions of
this Agreement with respect to the Escrow Indemnity Funds, if any, existing at
the expiration of the Indemnity Period, the Escrow Indemnity Funds then
remaining (together with any then existing interest or earnings) shall be
distributed to the Persons entitled thereto. In the event one or more such
Claims with respect to the Escrow Indemnity Funds, if any, shall exist upon the
expiration of the Indemnity Period, funds in an amount equal to the sum of (i)
the aggregate amount of such Claims and (ii) the amount reasonably necessary to
cover the fees, expense and other costs (including reasonable counsel fees and
expenses) which will be required to resolve such Claims shall be retained as
part of the Escrow Indemnity Funds and the balance thereof, if any, shall be
distributed to the Persons entitled thereto. Upon the resolution of all such
Claims and the payment of all such fees, expenses and costs out of the Escrow
Indemnity Funds, the remainder of the Escrow Indemnity Funds, if any, shall be
distributed to the Persons entitled thereto.
(d) If, following the expiration of the Indemnity Period and the
distribution to Meridian or any other Person claiming by, through or in the name
of Meridian of any remaining Escrow Indemnity Funds, ATS becomes entitled to
indemnification for Loss and Expense suffered by ATS
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arising from (i) any misrepresentation or breach of warranty with respect to the
matters referred to in clause (a) of the proviso or (ii) any breach of the
covenants and agreements referred to in clause (b) of the proviso, in each case
in the first sentence of Section 8.1, then, subject to the limitation periods
stated in such proviso, ATS may pursue its Claim for such indemnification
directly against Meridian, its successors and assigns and Xxxxxxxx; provided,
however, that the maximum amount of liability in the aggregate of Meridian (and
such successors and assigns and Xxxxxxxx) for any and all such Claims shall be
the amount of Escrow Indemnity Funds that were distributed to Meridian or any
other Person (other than a claimant whose Claim is alleged by ATS to be subject
to satisfaction from the Indemnity Escrow Fund) claiming by, through or in the
name of Meridian (including without limitation Xxxxxxxx or Meridian's or his
successors, assigns, trustees, beneficiaries, representatives, heirs or
executors) upon the expiration of the Indemnity Period or thereafter.
(e) In the case any event shall occur which would otherwise entitle
either party to assert a claim for indemnification hereunder, no Loss and
Expense shall be deemed to have been sustained by such party to the extent of
any proceeds received by such party from any insurance policies with respect
thereto. No indemnifying party shall be liable under this Article for a loss
resulting from any event relating to a misrepresentation or breach of warranty
if the indemnifying party can establish that the indemnified party had actual
knowledge on or before the Closing Date of such event and did not, on or before
the Closing Date, reserve its rights with respect thereto.
8.4 Notice of Claims. If an indemnified party believes that it has
suffered or incurred any Loss and Expense, it shall notify the indemnifying
party promptly in writing, and in any event within the applicable time period
specified in Section 8.1, describing such Loss and Expense, all with reasonable
particularity and containing a reference to the provisions of this Agreement in
respect of which such Loss and Expense shall have occurred. If any Legal Action
is instituted by a third party with respect to which an indemnified party
intends to claim any liability or expense as Loss and Expense under this
Article, such indemnified party shall promptly notify the indemnifying party of
such Legal Action, but the failure to so notify the indemnifying party shall not
relieve such indemnifying party of its obligations under this Article, except to
the extent such failure to notify prejudices such indemnifying party's ability
to defend against such Claim.
8.5 Defense of Third Party Claims. The indemnifying party shall have
the right to conduct and control, through counsel of their own choosing,
reasonably acceptable to the indemnified party, any third party Legal Action or
other Claim, but the indemnified party may, at its election, participate in the
defense thereof at its sole cost and expense; provided, however, that if the
indemnifying party shall fail to defend any such Legal Action or other Claim,
then the indemnified party may defend, through counsel of its own choosing, such
Legal Action or other Claim, and (so long as it gives the indemnifying party at
least fifteen (15) days' notice of the terms of the proposed settlement thereof
and permits the indemnifying party to then undertake the defense thereof) settle
such Legal Action or other Claim and to recover the amount of such settlement or
of any judgment and the reasonable costs and expenses of such defense. The
indemnifying party shall not compromise or settle any such Legal Action or other
Claim without the prior written consent of the indemnified party; provided,
however, that if the indemnified party fails or refuses to consent in writing to
any compromise of settlement proposed by the indemnifying party and agreed to in
writing by the claimant in such Legal Action or other Claim (the "Settlement
Proposal") within ten
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(10) business days after receipt of written notice of all of the material terms
and conditions of the Settlement Proposal, and such terms and conditions (a)
include a full release of the indemnified party from the Legal Action or other
Claim which is the subject of the Settlement Proposal and (b) if the indemnified
party is ATS, do not include any term or condition which would restrict in any
material manner the continued ownership and operations of the Meridian Assets
and the conduct of the Meridian Business in substantially the manner theretofore
owned, operated and conducted by Meridian, then, unless the indemnifying party
forthwith withdraws the Settlement Proposal, the indemnified party (i) shall
have the right but not the obligation to undertake the conduct of the defense of
such Legal Action or other Claim, and (ii) whether or not it shall so undertake
the defense of such Legal Action or other Claim, shall bear, and shall indemnify
and hold the indemnifying party harmless from, all Loss and Expense arising from
such Legal Action or other Claim (to the extent not theretofore (x) accrued with
respect to the costs and expenses of the defense of such Legal Action or other
Claim or (y) paid with respect to such Legal Action or other Claim) in excess of
the amount contained in the Settlement Proposal, it being understood, in such
event, that the indemnifying party shall bear all Loss and Expense, including
subsequently incurred Loss and Expense (including without limitation those
attributable to legal fees and expenses) up to the amount contained in the
Settlement Proposal, even if the ultimate disposition of such Legal Action or
other Claim results in payments to the claimant of less than those contained in
the Settlement Proposal.
8.6 Exclusive Remedy. Except for fraud or willful or intentional breach
of representation or warranty or as otherwise provided in Section 9.5, the
indemnification provided in this Article shall be the sole and exclusive
post-Closing remedy available to either party against the other party for any
Claim under this Agreement.
ARTICLE 9
GENERAL PROVISIONS
9.1 Amendment. This Agreement may be amended from time to time by the
parties hereto at any time prior to the Closing Date but only by an instrument
in writing signed by the parties hereto.
9.2 Waiver. At any time prior to the Closing Date, except to the extent
not permitted by Applicable Law, ATS or Meridian may extend the time for the
performance of any of the obligations or other acts of the other, subject,
however, to the provisions with respect to the Termination Date, waive any
inaccuracies in the representations and warranties of the other contained herein
or in any document delivered pursuant hereto, and waive compliance by the other
with any of the agreements, covenants or conditions contained herein. Any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
9.3 Fees, Expenses and Other Payments. All California and other sales
and/or use Taxes, documentary or governmental transfer Taxes, recording fees, or
other comparable charges levied by any Authority in connection with the purchase
and sale of the Meridian Assets and the Meridian Business contemplated hereby,
and all Xxxx-Xxxxx-Xxxxxx filing fees, shall be borne equally by
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Meridian and ATS. All title insurance costs and expenses shall be borne by
Meridian and all Environmental Report costs and expenses shall be borne by ATS,
except that in the event this Agreement is terminated pursuant to the provisions
of Section 5.8, all such Environmental Report costs and expenses shall be borne
by Meridian. All other costs and expenses incurred in connection with this
Agreement and the consummation of the Transactions, and in compliance with
Applicable Law and Contractual Obligations as a consequence hereof and thereof,
including without limitation fees and disbursements of counsel, financial
advisors and accountants incurred by the parties hereto shall be borne solely
and entirely by the party which has incurred such costs and expenses (with
respect to such party, its "Expenses").
9.4 Notices. All notices and other communications which by any
provision of this Agreement are required or permitted to be given shall be given
in writing and shall be (a) mailed by first-class or express mail, or by
recognized courier service, postage prepaid, (b) sent by telex, telegram,
telecopy or other form of rapid transmission, confirmed by mailing (by first
class or express mail, or by recognized courier service, postage prepaid)
written confirmation at substantially the same time as such rapid transmission,
or (c) personally delivered to the receiving party (which if other than an
individual shall be an officer or other responsible party of the receiving
party). All such notices and communications shall be mailed, sent or delivered
as follows:
(a) If to ATS:
0000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer and
Chief Financial Officer
Telecopier No.: (000) 000-0000
with copies to:
American Radio Systems Corporation
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Chief Financial Officer
Telecopier No.: (000) 000-0000
and
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopier No.: (000) 000-0000
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(b) If to Meridian:
00000 Xxxx Xxxxxxxx, Xxxxx 000X
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: X. X. Xxxxxxxx, Chief Executive Officer
Telecopier No.: (000) 000-0000
with a copy to:
Levinson, Miller, Xxxxxx & Xxxxxxxx
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telecopier No.: (000) 000-0000
or to such other person(s), telex or facsimile number(s) or address(es) as the
party to receive any such communication or notice may have designated by written
notice to the other party.
9.5 Specific Performance; Other Rights and Remedies. Each party
recognizes and agrees that in the event the other party should refuse to perform
any of its obligations under this Agreement or any Collateral Document, the
remedy at law would be inadequate and agrees that for breach of such provisions,
each party shall, in addition to such other remedies as may be available to it
at law or in equity or as provided in Article 7, be entitled to injunctive
relief and to enforce its rights by an action for specific performance to the
extent permitted by Applicable Law. Each party hereby waives any requirement for
security or the posting of any bond or other surety in connection with any
temporary or permanent award of injunctive, mandatory or other equitable relief.
Nothing herein contained shall be construed as prohibiting each party from
pursuing any other remedies available to it pursuant to the provisions of, and
subject to the limitations contained in, this Agreement for such breach or
threatened breach. Notwithstanding the foregoing or any provision of this
Agreement to the contrary, ATS shall not be entitled to specific performance or
any other remedy to the extent that the aggregate costs and expenses required to
be paid by Meridian arising from the enforcement or exercise of such remedy
(inclusive of reasonable attorneys fees) would exceed an amount equal to the
amount of the Escrow Indemnity Fund, and after the Closing Meridian shall not be
required to expend any of its funds (other than payments by the Indemnity Escrow
Agent out of the Escrow Indemnity Fund (as reduced in accordance with the
provisions of Section 2.3) or except as provided in Section 8.3(d)) for such
purpose.
9.6 Severability. If any term or provision of this Agreement shall be
held or deemed to be, or shall in fact be, invalid, inoperative, illegal or
unenforceable as applied to any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions or in all cases, because of the
conflicting of any provision with any constitution or statute or rule of public
policy or for any other reason, such circumstance shall not have the effect of
rendering the provision or provisions in question invalid, inoperative, illegal
or unenforceable in any other jurisdiction or in any other case or circumstance
or of rendering any other provision or provisions herein contained invalid,
inoperative, illegal or unenforceable to the extent that such other provisions
are not themselves actually in conflict with such constitution, statute or rule
of public policy, but this Agreement shall be reformed and
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construed in any such jurisdiction or case as if such invalid, inoperative,
illegal or unenforceable provision had never been contained herein and such
provision reformed so that it would be valid, operative and enforceable to the
maximum extent permitted in such jurisdiction or in such case. Notwithstanding
the foregoing, in the event of any such determination the effect of which is to
Affect Materially and Adversely either party, the parties shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by Applicable Law
in an acceptable manner to the end that the Transactions are fulfilled and
consummated to the maximum extent possible.
9.7 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, binding upon all of the
parties. In pleading or proving any provision of this Agreement, it shall not be
necessary to produce more than one of such counterparts.
9.8 Section Headings. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
9.9 Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by, and construed in accordance
with, the applicable laws of the United States of America and the laws of the
State of New York applicable to contracts made and performed in such State and,
in any event, without giving effect to any choice or conflict of laws provision
or rule that would cause the application of domestic substantive laws of any
other jurisdiction. Anything in this Agreement to the contrary notwithstanding,
including without limitation the provisions of Article 8, in the event of any
dispute between the parties which results in a Legal Action, the prevailing
party shall be entitled to receive from the non-prevailing party reimbursement
for reasonable legal fees and expenses incurred by such prevailing party in such
Legal Action.
9.10 Further Acts. Each party agrees that at any time, and from time to
time, before and after the consummation of the transactions contemplated by this
Agreement, it will do all such things and execute and deliver all such
Collateral Documents and other assurances, as any other party or its counsel
reasonably deems necessary or desirable in order to carry out the terms and
conditions of this Agreement and the transactions contemplated hereby or to
facilitate the enjoyment of any of the rights created hereby or to be created
hereunder.
9.11 Entire Agreement; Separate Agreements. This Agreement (together
with the Meridian Disclosure Schedule and the other Collateral Documents
delivered in connection herewith), constitutes the entire agreement of the
parties and supersedes all prior agreements and undertakings, both written and
oral, between the parties, with respect to the subject matter hereof, including
without limitation that certain letter of intent, dated July 24, 1996, between
the parties. ATS acknowledges that (i) Meridian, MRS and MCN are separate
parties with differing ownership, (ii) this Agreement and the Other Agreements
are separate agreements, and (iii) Meridian shall have no obligation or
liability with respect to the Other Agreements or any claims made thereunder.
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9.12 Assignment. This Agreement shall not be assignable by any party
and any such assignment shall be null and void, except that it shall inure to
the benefit of and by binding upon any successor to any party by operation of
law, including by way of merger, consolidation or sale of all or substantially
all of its assets, and ATS may assign its rights and remedies hereunder to any
bank or other financial institution which has loaned funds or otherwise extended
credit to it.
9.13 Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any Person any right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement,
except as otherwise provided in Section 9.12.
9.14 Mutual Drafting. This Agreement is the result of the joint efforts
of Meridian and ATS, and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of the parties and there shall be no
construction against either party based on any presumption of that party's
involvement in the drafting thereof.
9.15 Venue. In the event of any Legal Action between the parties
arising out of this Agreement, the parties agree to submit the matter to the
appropriate municipal, state or federal court sitting in Los Angeles County,
California, and the parties agree to submit to the jurisdiction of such courts.
9.16 Meridian Disclosure Schedule. Meridian will deliver to ATS, on or
before February 21, 1997, the Meridian Disclosure Schedule and all other
documents (including the interim financial statements constituting a part of the
Meridian Financial Statements) required to be delivered by Meridian pursuant to
Article 3 of this Agreement. Without limiting the generality of the foregoing,
the Meridian Disclosure Schedule shall set forth Meridian's proposal with
respect to which (a) authorizations, consents, waivers, orders or approvals are
proposed to be a condition of Closing pursuant to the provisions of Section
6.1(a), (ii) which Private Authorizations, Leases and Material Agreements and
which modifications, if any, of Leases and other Contractual Obligations are
proposed to be a condition to Closing pursuant to the provisions of Section
6.2(d), and (iii) which permits, consents or other Governmental Authorizations
of the United States Forest Service are proposed to be a condition to Closing
pursuant to the provisions of Section 6.2(m).
ATS shall have the right, for a period commencing upon its receipt of
the Meridian Disclosure Schedule and each other document (other than such
interim financial statements) together with a letter from Meridian indicating
that such delivery constitutes a "final and complete" delivery pursuant to this
Section and terminating at 11:59 p.m. on the fifteenth (15th) day following such
receipt, (a) to terminate this Agreement, if the Meridian Disclosure Schedule
reveals any Event of which it was unaware as of the date of this Agreement,
which unknown Events, individually or in the aggregate, would have a Material
Adverse Effect on Meridian, and (b) to propose to Meridian alternatives as to
which (i) authorizations, consents, waivers, orders or approvals are to be a
condition of Closing pursuant to the provisions of Section 6.1(a), (ii) which
Private Authorizations, Leases and Material Agreements and which modifications,
if any, of Leases and other Contractual Obligations are to be a condition to
Closing pursuant to the provisions of Section 6.2(d), and (iii) which permits,
consents or other Governmental Authorizations of the United States Forest
Service are to be a condition to Closing pursuant to the provisions of Section
6.2(m). ATS shall have a
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further right to terminate this Agreement for a period of five (5) business days
following receipt of such interim financial statements marked "final and
complete" if such interim financial statements indicate that a Material Adverse
Change in Meridian has occurred of which ATS was unaware of the date of this
Agreement.
Anything in this Section 9.16 or elsewhere in this Agreement to the
contrary notwithstanding, Meridian shall not be obligated to agree to any
proposal of ATS pursuant to clause (b) of the first sentence of the preceding
paragraph and neither Meridian nor ATS shall be obligated to negotiate in good
faith with respect to resolving such matters and each may make a determination
to terminate in its sole and absolute discretion. In the event ATS and Meridian
do not agree in writing on the resolution of matters raised by any proposal made
by ATS pursuant to such clause (b) on or prior to ten (10) business days of
receipt by Meridian of any such proposal of ATS (the "Interim Period") either
party may, on or prior to ten (10) business days (the "Termination Period"),
following the expiration of the Interim Period, terminate this Agreement. In the
event neither party shall have so terminated this Agreement on or prior to the
expiration of the Termination Period, or, in the event ATS makes no proposal
pursuant to clause (b) of the preceding paragraph, this Agreement shall continue
in full force and effect and the original proposal of Meridian (as set forth in
the Meridian Disclosure Schedule) shall control for purposes of determining the
conditions of Closing set forth in Section 6.1(a), 6.2(d) and 6.2(m).
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IN WITNESS WHEREOF, ATS and Meridian have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
American Tower Systems, Inc.
By:_____________________________________
Name:
Title:
Meridian Sales and Services Company
By:______________________________________
Name:
Title:
The undersigned, X.X. Xxxxxxxx, the principal shareholder of Meridian,
hereby acknowledges and agrees to be bound by the provisions of Section 8.3(d).
----------------------------------
X. X. Xxxxxxxx
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APPENDIX A
DEFINITIONS
As used in this Agreement, unless the context otherwise requires, the
following terms (or any variant in the form thereof) have the following
respective meanings. Terms defined in the singular shall have a comparable
meaning when used in the plural, and vice versa, and the reference to any gender
shall be deemed to include all genders. Unless otherwise defined or the context
otherwise clearly requires, terms for which meanings are provided herein shall
have such meanings when used in the Meridian Disclosure Schedule, and each
Collateral Document executed or required to be executed pursuant hereto or
thereto or otherwise delivered, from time to time, pursuant hereto or thereto.
References to "hereof", "herein" or similar terms are intended to refer to the
Agreement as a whole and not a particular Section, and references to "this
Section" are intended to refer to the entire Section and not a particular
subsection thereof. The term "either party" shall, unless the context otherwise
requires, refer to Meridian and ATS.
Acceptance Notice shall have the meaning given to it in Section 2.2(a).
Accounts Receivable shall mean (a) any and all rights to the payment of
money or other forms of consideration of any kind at any time now or hereafter
owing or to be owing to Meridian attributable to the ownership or operation of
the Meridian Business (whether classified under the Uniform Commercial Code of
any state as accounts, contract rights, chattel paper, general intangibles or
otherwise), including without limitation accounts receivable, letters of credit
and the right to receive payment thereunder, chattel paper, insurance proceeds,
contract rights, notes, drafts, instruments, documents, acceptances, and all
other debts, obligations and liabilities in whatever form now or hereafter owing
from any other Person, all guarantees, security and Liens for the payment of any
thereof, and all of Meridian's rights to goods, now owned or hereafter acquired,
sold (delivered, undelivered, in transit or returned) which may be represented
thereby; and (b) all proceeds of any of the foregoing.
Adverse, Adversely, when used alone or in conjunction with other terms
(including without limitation "Affect," "Change" and "Effect") shall mean any
Event which is reasonably likely, in the reasonable business judgment of ATS, to
be expected to (a) adversely affect the validity or enforceability of this
Agreement or the likelihood of consummation of the Transactions, or (b)
adversely affect the business, operations, management, properties or prospects,
or the condition, financial or other, or results of operation of the Meridian
Business, or (c) impair Meridian's ability to fulfill its obligations under the
terms of this Agreement, or (d) adversely affect the aggregate rights and
remedies of ATS under this Agreement. Notwithstanding the foregoing, and
anything in this Agreement to the contrary notwithstanding, any Event generally
affecting the economy or any identifiable segment thereof, including without
limitation the industries in which Meridian does business and in which it
competes, shall not be deemed to constitute an Adverse Change, have an Adverse
Effect or to Adversely Affect or Effect.
Additional Title Matter shall have the meaning given to it in Section
5.7.
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Affiliate, Affiliated shall mean, with respect to any Person, (a) any
other Person at the time directly or indirectly controlling, controlled by or
under direct or indirect common control with such Person, (b) any other Person
of which such Person at the time owns, or has the right to acquire, directly or
indirectly, twenty percent (20%) or more of any class of the capital stock or
beneficial interest, (c) any other Person which at the time owns, or has the
right to acquire, directly or indirectly, twenty percent (20%) or more of any
class of the capital stock or beneficial interest of such Person, (d) any
executive officer or director of such Person, (e) with respect to any
partnership, joint venture or similar Entity, any general partner thereof, and
(f) when used with respect to an individual, shall include any member of such
individual's immediate family or a family trust.
Agreement shall mean this Agreement as originally in effect, including,
unless the context otherwise specifically requires, this Appendix A, the
Meridian Disclosure Schedule and all exhibits hereto, and as any of the same may
from time to time be supplemented, amended, modified or restated in the manner
herein or therein provided.
Applicable Law shall mean any Law of any Authority, whether domestic or
foreign, including without limitation the FCA and all federal and state
securities and Environmental Laws, to which a Person is subject or by which it
or any of its business or operations is subject or any of its property or assets
is bound.
Applicable Principles shall mean (a) with respect to Meridian Financial
Statements for periods ending prior to November 30, 1996, tax accounting
principles and (b) with respect to Meridian Financial Statements for periods
ending on or after November 30, 1996, generally accepted accounting principles.
Approved Title Conditions shall mean any one or more of the following:
(a) Liens for real property taxes and assessments not then delinquent; (b) the
Lien of supplemental Taxes assessed pursuant to Chapter 3.5 commencing with
Section 75 of the California Revenue and Taxation Code, to the extent that such
supplemental Taxes are attributable to the transactions contemplated by this
Agreement; (c) matters set forth on the Title Reports other than Disapproved
Title Matters; and (d) matters of title created following the date of this
Agreement by or with the written consent of ATS.
Assets shall mean the business and the tangible and intangible assets
owned by Meridian and used in connection with the conduct of the business or
operations of the Meridian Business, which business and assets are being
exchanged, transferred or otherwise conveyed hereunder, including without
including without limitation the following:
(a) the Personal Property;
(b) the Real Property;
(c) the Governmental Authorizations, to the extent
transferable;
(d) the Private Authorizations;
(e) the Contracts (other than the Meridian Nonassumed
Obligations);
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(f) the corporate name of Meridian and all variations thereof;
(g) all Intellectual Property and other proprietary
information, which relate to the Meridian Business, including without
limitation, technical information and data, machinery and equipment
warranties, maps, computer discs and tapes, plans, diagrams, blueprints
and schematics, including filings with all Authorities which relate to
the Meridian Business;
(h) all claims, choses in action and rights under warranties
(to the extent transferable) relating to the Meridian Business or any
of the Meridian Assets;
(i) all books and records relating to the ownership or
operation of the Meridian Assets or the conduct of the Meridian
Business, including executed copies of Leases, Material Agreements and
other written Contracts, and all records required by Applicable Law to
be kept, subject to the right of the conveying party to have such books
and records made available to it for such time as may be reasonably
required in connection with audits, defense or prosecution of lawsuits,
or other legitimate business purposes. The records described herein
shall not include corporate seals, certificates of incorporation,
minute books, stock books, tax returns or other records having to do
with the corporate organization of Meridian; and
(j) any and all products, profits and proceeds of, and
including without limitation any Claims with respect to, any of the
foregoing;
provided, however, that notwithstanding the foregoing, the term Assets shall not
include any of the Excluded Assets.
ATS shall have the meaning given to it in the Preamble.
ATS Assumable Agreements shall have the meaning given to it in Section
2.2(b).
Authority shall mean any governmental or quasi-governmental authority,
whether administrative, executive, judicial, legislative or other, or any
combination thereof, including without limitation any federal, state,
territorial, county, municipal or other government or governmental or
quasi-governmental agency, arbitrator, authority, board, body, branch, bureau,
central bank or comparable agency or Entity, commission, corporation, court,
department, instrumentality, master, mediator, panel, referee, system or other
political unit or subdivision or other Entity of any of the foregoing, whether
domestic or foreign., including without limitation the FCC.
Benefit Arrangement shall mean any material benefit arrangement that is
not a Plan, including (a) any employment or consulting agreement (b) any
arrangement providing for insurance coverage or workers' compensation benefits,
(c) any incentive bonus or deferred bonus arrangement, (d) any arrangement
providing termination allowance, severance or similar benefits, (e) any equity
compensation plan, (f) any deferred compensation plan, and (g) any compensation
policy and practice, but only to the extent that it covers or relates to any
officer, employee or other Person
A-3
involved in the ownership and operation of the Assets or the conduct of the
business of the Meridian Business.
Claims shall mean any and all debts, liabilities, obligations, losses,
damages, deficiencies, assessments and penalties, together with all Legal
Actions, pending or threatened, claims and judgments of whatever kind and nature
relating thereto, and all fees, costs, expenses and disbursements (including
without limitation reasonable attorneys' and other legal fees, costs and
expenses) relating to any of the foregoing.
Closing shall have the meaning given to it in Section 2.3.
Closing Date shall have the meaning given to it in Section 2.3.
COBRA shall mean the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended, as set forth in Section 4980B of the Code and Part 6 of
Subtitle B of Title I of ERISA.
Code shall mean the Internal Revenue Code of 1986, and the rules and
regulations thereunder, all as from time to time in effect, or any successor
law, rules or regulations, and any reference to any statutory or regulatory
provision shall be deemed to be a reference to any successor statutory or
regulatory provision.
Collateral Document shall mean the Escrow Agreement, the Indemnity
Escrow Agreement, the Meridian License Agreement, the Nonassumable Contracts
Agreement, the Xxxxxxxx Noncompetition Agreement, deeds (warrantying against
Meridian's acts), bills of sale, assignments of intangibles, assumption
agreements with respect to the Meridian Assumed Obligations, other instruments
of conveyance and assignment sufficient to vest in ATS title to all of the other
Meridian Assets and the Meridian Business, and any other agreement, certificate,
contract, instrument, notice, opinion or other document delivered pursuant to
the provisions of this Agreement or any Collateral Document.
Collection Period shall have the meaning given to it in Section 2.4.
Construction Adjustment shall have the meaning given to it in Section
2.3.
Contract, Contractual Obligation shall mean any agreement (including
without limitation any Lease), arrangement, commitment, contract, covenant,
indemnity, undertaking or other obligation or liability which involves the
ownership or operation of the Meridian Assets or the conduct of the Meridian
Business, other than pursuant to a Governmental Authorization or Private
Authorization.
Control (including the terms "controlled," "controlled by" and "under
common control with") shall mean the possession, directly or indirectly or as
trustee or executor, of the power to direct or cause the direction of the
management or policies of a Person, or the disposition of such Person's assets
or properties, whether through the ownership of stock, equity or other
ownership,
A-4
by contract, arrangement or understanding, or as trustee or executor, by
contract or credit arrangement or otherwise.
Disapproved Environmental Matter shall have the meaning given to it in
Section 5.8.
Disapproved Title Matter shall have the meaning given to it in Section
5.7.
Escrow Agent shall have the meaning given to it in the fourth Whereas
paragraph.
Escrow Agreement shall have the meaning given to it in the fourth
Whereas paragraph.
Escrow Deposit shall have the meaning given to it in the fourth Whereas
paragraph.
Employment Arrangement shall mean, with respect to Meridian, any
employment, consulting, retainer, severance or similar contract, agreement,
plan, arrangement or policy (exclusive of any which is terminable within thirty
(30) days without liability, penalty or payment of any kind by Meridian or any
Affiliate), or providing for severance, termination payments, insurance coverage
(including any self-insured arrangements), workers compensation, disability
benefits, life, health, medical, dental or hospitalization benefits,
supplemental unemployment benefits, vacation or sick leave benefits, pension or
retirement benefits or for deferred compensation, profit-sharing, bonuses, stock
options, stock purchase or appreciation rights or other forms of incentive
compensation or post-retirement insurance, compensation or post-retirement
insurance, compensation or benefits, or any collective bargaining or other labor
agreement, whether or not any of the foregoing is subject to the provisions of
ERISA, but only to the extent that it covers or relates to any officer, employee
or other Person involved in the ownership or operation of the Meridian Assets or
the conduct of the Meridian Business.
Encumber shall mean to suffer, accept, agree to or permit the
imposition of a Lien.
Entity shall mean any corporation, firm, unincorporated organization,
association, partnership, limited liability company, trust (inter vivos or
testamentary), estate of a deceased, insane or incompetent individual, business
trust, joint stock company, joint venture or other organization, entity or
business, whether acting in an individual, fiduciary or other capacity, or any
Authority.
Environmental Company shall have the meaning given to it in Section
5.8.
Environmental Law shall mean any Law relating to or otherwise imposing
liability or standards of conduct concerning pollution or protection of the
environment, including without limitation Laws relating to emissions,
discharges, releases or threatened releases of Hazardous Materials or other
chemicals or industrial pollutants, substances, materials or wastes into the
environment (including, without limitation, ambient air, surface water, ground
water, mining or reclamation or mined land, land surface or subsurface strata)
or otherwise relating to the manufacture, processing, generation, distribution,
use, treatment, storage, disposal, cleanup, transport or handling of pollutants,
contaminants, chemicals or industrial, toxic or hazardous substances, materials
or wastes. Environmental Laws shall include without limitation the
A-5
Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C.
Section 6901 et seq.), the Hazardous Material Transportation Act (49 U.S.C.
Section 1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C.
Section 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C.
Section 1251 et seq.), the Clean Air Act (42 U.S.C. Section 7401 et seq.), the
Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.), the Occupational
Safety and Health Act (29 U.S.C. Section 651 et seq.), the Federal Insecticide
Fungicide and Rodenticide Act (7 U.S.C. Section 136 et seq.), and the Surface
Mining Control and Reclamation Act of 1977 (30 U.S.C. Section 1201 et seq.), and
any analogous federal, state, local or foreign, Laws, and the rules and
regulations promulgated thereunder all as from time to time in effect, and any
reference to any statutory or regulatory provision shall be deemed to be a
reference to any successor statutory or regulatory provision.
Environmental Permit shall mean any Governmental Authorization required
by or pursuant to any Environmental Law.
Environmental Real Property shall have the meaning given to it in
Section 5.8.
Environmental Reports shall have the meaning given to it in Section
5.8.
ERISA shall mean the Employee Retirement Income Security Act of 1974,
and the rules and regulations thereunder, all as from time to time in effect, or
any successor law, rules or regulations, and any reference to any statutory or
regulatory provision shall be deemed to be a reference to any successor
statutory or regulatory provision.
ERISA Affiliate shall mean any Person that is treated as a single
employer with Meridian under Sections 414(b), (c), (m) or (o) of the Code or
Section 4001(b)(1) of ERISA.
Event shall mean the existence or occurrence of any act, action,
activity, circumstance, condition, event, fact, failure to act, omission,
incident or practice, or any set or combination of any of the foregoing.
Exchange Act shall mean the Securities Exchange Act of 1934, and the
rules and regulations thereunder, all as from time to time in effect, or any
successor law, rules or regulations, and any reference to any statutory or
regulatory provision shall be deemed to be a reference to any successor
statutory or regulatory provision.
Excluded Assets shall have the meaning given to it in Section 2.1.
FCA shall mean the Communication Act of 1934, and the rules and
regulations thereunder, all as from time to time in effect, or any successor
law, rules or regulations, and any reference to any statutory or regulatory
provision shall be deemed to be a reference to any successor statutory or
regulatory provision.
FCC shall mean the Federal Communications Commission and shall include
any successor Authority.
A-6
Final Order shall mean, with respect to any Authority, including
without limitation the FCC, one with respect to which no appeal, no stay, no
petition or application for rehearing, reconsideration, review or stay, whether
on motion of the applicable Authority or other Person or otherwise, and no other
Legal Action contesting such consent or approval, is in effect or pending and as
to which the time or deadline for filing any such appeal, petition or
application or other Legal Action has expired or, if filed, has been denied,
dismissed or withdrawn, and the time or deadline for instituting any further
Legal Action has expired.
GAAP shall mean generally accepted accounting principles as in effect
from time to time in the United States of America.
Governmental Authorizations shall mean all approvals, concessions,
consents, franchises, licenses, permits, plans, registrations and other
authorizations of all Authorities, including without limitation the United
States Forest Service (other than Leases from the United States Forest Service)
and the Federal Aviation Administration, in connection with the ownership or
operation of the Meridian Assets or the conduct of the Meridian Business.
Governmental Filings shall mean all filings, including franchise and
similar Tax filings, and the payment of all fees, assessments, interest and
penalties associated with such filings, with all Authorities.
Xxxx-Xxxxx-Xxxxxx Act shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, and the rules and regulations thereunder, all as from
time to time in effect, or any successor law, rules or regulations, and any
reference to any statutory or regulatory provision shall be deemed to be a
reference to any successor statutory or regulatory provision.
Hazardous Materials shall mean and include any substance, material,
waste, constituent, compound, chemical, natural or man-made element or force (in
whatever state of matter): (a) the presence of which requires investigation or
remediation under any Environmental Law, or (b) that is defined as a "hazardous
waste" or "hazardous substance" under any Environmental Law; or (c) that is
toxic, explosive, corrosive, etiologic, flammable, infectious, radioactive,
carcinogenic, mutagenic or otherwise hazardous and is regulated by any
applicable Authority or subject to any Environmental Law; or (d) the presence of
which on the real property owned or leased by such Person causes or threatens to
cause a nuisance upon any such real property or to adjacent properties or poses
or threatens to pose a hazard to the health or safety of persons on or about any
such real property; or (e) the presence of which on adjacent properties could
constitute a trespass by such Person; or (f) that contains gasoline, diesel fuel
or other petroleum hydrocarbons, or any by-products or fractions thereof,
natural gas, polychlorinated biphenyls ("PCBs") and PCB-containing equipment,
radon or other radioactive elements, ionizing radiation, electromagnetic field
radiation and other non-ionizing radiation, sonic forces and other natural
forces, lead, asbestos or asbestos- containing materials ("ACM"), or urea
formaldehyde foam insulation.
Indebtedness shall mean, with respect to any Person, (a) all items,
except items of capital stock or of surplus or of general contingency or
deferred tax reserves or any minority interest in any Subsidiary of such Person
to the extent such interest is treated as a liability with indeterminate term on
the consolidated balance sheet of such Person, which in accordance with GAAP
would be
A-7
included in determining total liabilities as shown on the liability side of a
balance sheet of such Person, (b) all obligations secured by any Lien to which
any property or asset owned or held by such Person is subject, whether or not
the obligation secured thereby shall have been assumed, and (c) to the extent
not otherwise included, all Contractual Obligations of such Person constituting
capitalized leases and all obligations of such Person with respect to Leases
constituting part of a sale and leaseback arrangement.
Indebtedness for Money Borrowed shall mean, with respect to Meridian,
money borrowed and Indebtedness represented by notes payable and drafts accepted
representing extensions of credit, all obligations evidenced by bonds,
debentures, notes or other similar instruments, the maximum amount currently or
at any time thereafter available to be drawn under all outstanding letters of
credit issued for the account of such Person, all Indebtedness upon which
interest charges are customarily paid by such Person, and all Indebtedness
(including capitalized lease obligations) issued or assumed as full or partial
payment for property or services, whether or not any such notes, drafts,
obligations or Indebtedness represent Indebtedness for money borrowed, but shall
not include (a) trade payables, (b) expenses accrued in the ordinary course of
business, (c) customer advance payments and customer deposits received in the
ordinary course of business, or (d) conditional sales agreements not prohibited
by the terms of this Agreement.
Indemnity Escrow Agent shall have the meaning given to it in Section
6.2(k).
Indemnity Escrow Agreement shall have the meaning given to it in
Section 6.2(k).
Indemnity Escrow Fund shall have the meaning given to it in Section
2.3.
Insured Real Property shall have the meaning given to it in Section
5.7.
Intangible Assets shall mean all assets and property lacking physical
properties the evidence of ownership of which must customarily be maintained by
independent registration, documentation, certification, recordation or other
means, and shall include, without limitation, concessions, copyrights,
franchises, license, patents, permits, service marks, trademarks, trade names,
and applications with respect to any of the foregoing, technology and know-how.
Interim Period shall have then meaning given to it in Section 9.16.
Intellectual Property shall mean any and all research, information,
inventions, designs, procedures, developments, discoveries, improvements,
patents and applications therefor, trademarks and applications therefor, service
marks, trade names copyrights and applications therefor, logos, trade secrets,
drawing, plans, systems, methods, specifications, computer software programs,
tapes, discs and related data processing software (including without limitation
object and source codes) owned by such Person or in which it has an ownership
interest and all other manufacturing, engineering, technical, research and
development data and know-how made, conceived, developed and/or acquired by such
Person, which relate to the manufacture, production or processing of any
products developed or sold by such Person or which are within the scope of or
usable in connection with such Person's business as it may, from time to time,
hereafter be conducted or proposed to be conducted.
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Law shall mean any (a) administrative, judicial, legislative or other
action, code, consent decree, constitution, decree, directive, enactment,
finding, guideline, law, injunction, interpretation, judgment, order, ordinance,
policy statement, proclamation, promulgation, regulation, requirement, rule,
rule of law, rule of public policy, settlement agreement, statute, or writ or
any Authority, domestic or foreign; (b) the common law, or other legal or
quasi-legal precedent; or (c) arbitrator's, mediator's or referee's award,
decision, finding or recommendation; including, in each such case or instance,
any interpretation, directive, guideline or request, whether or not having the
force of law including, in all cases, without limitation any particular section,
part or provision thereof.
Lease shall mean any lease of property, whether real, personal or
mixed, and all amendments thereto.
Legal Action shall mean, with respect to any Person, any and all
litigation or legal or other actions, arbitrations, counterclaims,
investigations, proceedings, requests for material information by or pursuant to
the order of any Authority or suits, at law or in arbitration, equity or
admiralty, whether or not purported to be brought on behalf of such Person,
affecting such Person or any of such Person's business, property or assets.
Lien shall mean any of the following: mortgage; lien (statutory or
other); or other security agreement, arrangement or interest; hypothecation,
pledge or other deposit arrangement; assignment; charge; levy; executory
seizure; attachment; garnishment; encumbrance (including any easement,
exception, reservation or limitation, right of way, and the like); conditional
sale, title retention or other similar agreement, arrangement, device or
restriction; preemptive or similar right; any financing lease involving
substantially the same economic effect as any of the foregoing; the filing of
any financing statement under the Uniform Commercial Code or comparable law of
any jurisdiction; restriction on sale, transfer, assignment, disposition or
other alienation; or any option, equity, claim or right of or obligation to, any
other Person, of whatever kind and character.
Loss and Expense shall have the meaning given to it in Section 8.2.
Material, Materially or materiality for the purposes of this Agreement,
shall, unless specifically stated to the contrary, be determined without regard
to the fact that various provisions of this Agreement set forth specific dollar
amounts.
Material Agreement shall mean, with respect to Meridian, any
Contractual Obligation (other than Governmental Authorizations) which (a) was
not entered into in the ordinary course of business, (b) was entered into in the
ordinary course of business which (i) involved the purchase, sale or lease of
goods or materials, or purchase of services, aggregating more than $20,000
during any of the last three fiscal years, (ii) extends for more than three (3)
months, or (iii) is not terminable on thirty (30) days or less notice without
penalty or other payment, (c) involves a capitalized lease obligation or
Indebtedness for Money Borrowed, (d) is or otherwise constitutes a written
agency, broker, dealer, license, distributorship, sales representative or
similar written agreement, (e) accounted for more than three percent (3%) of the
revenues of the Meridian Business in any of the last three fiscal years or is
likely to account for more than three percent (3%) of revenues of the Meridian
Business during the current fiscal year, (d) is with the United States Forest
Service or any
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other Authority, or (e) involves the management by Meridian of any communication
tower of any other Person.
MCN shall have the meaning given to it in the fourth Whereas paragraph.
Meridian shall have the meaning given to it in the Preamble.
Meridian Assets shall have the meaning given to it in Section 2.1.
Meridian Assumed Obligations shall have the meaning given to it in
Section 2.2(a).
Meridian Business shall have the meaning given them in the first
Whereas paragraph.
Meridian Disclosure Schedule shall mean the Meridian Disclosure
Schedule dated as of the date of this Agreement delivered by Meridian to ATS.
Anything in this Agreement to the contrary notwithstanding, all matters set
forth under a specific Section number of the Meridian Disclosure Schedule (or in
any agreement, instrument or other document specifically referenced therein to
the extent a copy thereof has been delivered to ATS) shall be deemed to have
been fully disclosed and set forth under all other Sections of the Meridian
Disclosure Schedule.
Meridian Employees shall have the meaning given it in the Section
3.15(a).
Meridian Financial Statements shall have the meaning given to it in
Section 3.2(b).
Meridian Indemnified Parties shall have the meaning given to it in
Section 8.2(d).
Meridian License Agreement shall have the meaning given to it in
Section 6.3(g).
Meridian Nonassumed Obligations shall have the meaning given to it in
Section 2.2(b).
Meridian's current actual knowledge shall mean the actual knowledge of
any Meridian director or executive officer, as such knowledge exists on the date
of this Agreement and on no later date, without any duty of inquiry or
investigation on the part of such director or executive officer and without any
review of (i) Meridian's Contracts, Governmental Authorizations, Private
Authorizations, files, books or records or (ii) public records or the files or
records of any Authority.
Meridian's knowledge shall mean the actual knowledge of any Meridian
director or officer, as such knowledge exists on the date of this Agreement and
no later date, after reasonable review of appropriate Meridian records.
MRS shall have the meaning given to it in the fourth Whereas paragraph.
Multiemployer Plan shall mean a Plan which is a "multiemployer plan"
within the meaning of Section 4001(a)3 of ERISA.
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New Sites shall have the meaning to it in Section 2.3.
New Sites Assumed Obligations shall have the meaning given to it in
Section 2.2(a).
Nonassignable Contracts shall have the meaning to it in Section 2.2(a).
Nonassignable Contracts Agreement shall have the meaning to it in
Section 2.2(a).
Organic Document shall mean, with respect to a Person which is a
corporation, its charter, its by-laws and all shareholder agreements, voting
trusts and similar arrangements applicable to any of its capital stock and, with
respect to a Person which is a partnership, its agreement and certificate of
partnership, any agreements among partners, and any management and similar
agreements between the partnership and any general partners (or any Affiliate
thereof).
Otay Mountain Litigation shall have the meaning given to it in Section
2.1.
Other Agreement(s) shall have the meaning given to it in the fourth
Whereas paragraph, it being understood by the parties, however, that the Other
Agreement which relates to MCN may be modified to reflect the acquisition by ATS
of the partnership interest of Xxxxxxxx in MCN rather than the assets and
business of MCN and that all references in this Agreement to the Other
Agreements, insofar as they relate to MCN shall be deemed to include such
understanding.
PBGC shall mean the Pension Benefit Guaranty Corporation and any Entity
succeeding to any or all of its functions under ERISA.
Permitted Liens shall mean (a) Liens for current taxes not yet due and
payable, (b) such imperfections of title, easements, encumbrances and mortgages
or other Liens, if any, as are not, individually or in the aggregate,
substantial in character, amount or extent and do not Materially detract from
the value, or Materially interfere with the present use, of the property subject
thereto or affected thereby, or otherwise Materially impair the conduct of the
Meridian Business, and (c) such other Liens as are permitted by the provisions
of this Agreement to be in place on the Closing Date.
Person shall mean any natural individual or any Entity.
Personal Property shall mean all of the machinery, equipment, tools,
vehicles, furniture, leasehold improvements, office equipment, plant, inventory,
spare parts and other tangible personal property which are owned or leased by
Meridian and used or useful as of the date hereof in the conduct of the business
or operations of the Meridian Business, plus such additions thereto and
deletions therefrom arising in the ordinary course of business between the date
hereof and the Closing Date. Personal Property includes without limitation the
communication towers, buildings and other fixtures and improvements located on
Real Property.
Plan shall mean, with respect to any Person and at a particular time,
any employee benefit plan which is covered by ERISA and in respect of which such
Person or an ERISA Affiliate is (or,
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if such plan were terminated at such time, would under Section 4069 of ERISA be
deemed to be) an "employer" as defined in Section 3(5) of ERISA, but only to the
extent that it covers or relates to any officer, employee or other Person
involved in the ownership and operation of the Assets or the conduct of the
business of the Meridian Business.
Private Authorizations shall mean all approvals, concessions, consents,
franchises, licenses, permits, and other authorizations of all Persons (other
than Authorities) including without limitation those with respect to
Intellectual Property.
Pro Ratable Taxes shall mean real estate and other property Taxes, ad
valorem Taxes, gross receipts Taxes and similar Taxes, but shall not include
federal, state or local income Taxes, franchise Taxes or other Taxes measured by
or based upon income or gain on sale or other disposition of property or assets.
Purchase Price shall have the meaning given to it in Section 2.3.
Real Property shall mean all of the fee estates, leasehold interest,
easements, licenses, rights to access, right-of- way, and other real property
interest which are owned by Meridian as of the date hereof, in the operations of
the Meridian Business, plus such additions thereto and deletions therefrom
arising in the ordinary course of business between the date hereof and the
Closing Date.
Regulations shall mean the federal income tax regulations promulgated
under the Code, as such Regulations may be amended from time to time. All
references herein to specific sections of the Regulations shall be deemed also
to refer to any corresponding provisions of succeeding Regulations, and all
references to temporary Regulations shall be deemed also to refer to any
corresponding provisions of final Regulations.
Xxxxxxxx shall have the meaning given to it in Section 6.2(j).
Xxxxxxxx Noncompetition Agreement shall have the meaning given to it in
Section 6.2(j).
Representatives shall have the meaning given to it in Section 5.1(a).
Retained Accounts Receivable shall have the meaning given to it in
Section 2.4.
SEC shall mean the United States Securities and Exchange Commission, or
any successor Authority.
Securities Act shall mean the Securities Act of 1933, and the rules and
regulations of the SEC thereunder, all as from time to time in effect, or any
successor law, rules or regulations, and any reference to any statutory or
regulatory provision shall be deemed to be a reference to any successor
statutory or regulatory provision.
Settlement Proposal shall have the meaning given to it in Section 8.5.
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Subsidiary shall mean, with respect to a Person, any Entity a majority
of the capital stock ordinarily entitled to vote for the election of directors
of which, or if no such voting stock is outstanding, a majority of the equity
interests of which, is owned directly or indirectly, legally or beneficially, by
such Person or any other Person controlled by such Person.
Tax (and "Taxable", which shall mean subject to Tax), shall mean, with
respect to any Person, (a) all taxes (domestic or foreign), including without
limitation any income (net, gross or other including recapture of any tax items
such as investment tax credits), alternative or add-on minimum tax, gross
income, gross receipts, gains, sales, use, leasing, lease, user, ad valorem,
transfer, recording, franchise, profits, property (real or personal, tangible or
intangible), fuel, license, withholding on amounts paid to or by such Person,
payroll, employment, unemployment, social security, excise, severance, stamp,
occupation, premium, environmental or windfall profit tax, custom, duty or other
tax, or other like assessment or charge of any kind whatsoever, together with
any interest, levies, assessments, charges, penalties, addition to tax or
additional amount imposed by any Taxing Authority, (b) any joint or several
liability of such Person with any other Person for the payment of any amounts of
the type described in (a) and (c) any liability of such Person for the payment
of any amounts of the type described in (a) as a result of any express or
implied obligation to indemnify any other Person.
Tax Allocation Schedule shall have the meaning given to it in Section
2.3.
Tax Claim shall mean any Claim which relates to Taxes, including
without limitation the representations and warranties set forth in Section 3.11.
Tax Return or Returns shall mean all returns, consolidated or otherwise
(including without limitation information returns), required to be filed with
any Authority with respect to Taxes.
Tax accounting principles shall have the meaning given to it in Section
3.2.
Taxing Authority shall mean any Authority responsible for the
imposition of any Tax.
Termination Date shall have the meaning given to it in Section 7.1.
Termination Period shall have the meaning given to it in Section 9.16.
Title Company shall have the meaning given to it in Section 5.7.
Title Reports shall have the meaning given to it in Section 5.7.
Transactions shall mean the transactions contemplated to be consummated
on or prior to the Closing Date, including without limitation the purchase and
sale of the Meridian Assets and the Meridian Business and the execution,
delivery and performance of the Collateral Documents.
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