Exhibit 2.2
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AGREEMENT TO SUBLEASE
by and among
ALLTEL COMMUNICATIONS, INC.
THE ALLTEL ENTITIES
and
AMERICAN TOWERS, INC.
and
AMERICAN TOWER CORPORATION
December 19, 2000
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.................................................. 2
SECTION 1.2. Other Capitalized Terms...................................... 15
ARTICLE II
AGREEMENT DOCUMENTS........................................................ 15
ARTICLE III
CONVEYANCE AND CONSIDERATION
SECTION 3.1. Conveyance................................................... 16
SECTION 3.2. Consideration................................................ 17
SECTION 3.3. Consents and Approvals....................................... 17
ARTICLE IV
CLOSINGS
SECTION 4.1. Closings..................................................... 18
SECTION 4.2. Transactions and Documents at the Closings................... 19
SECTION 4.3. Costs of Closing............................................. 20
SECTION 4.4. Further Assurances........................................... 20
SECTION 4.5. Site Designation Supplements and MLA Schedules............... 21
SECTION 4.6. Deferral of Closings; Updating of Representations;
Excluded Sites............................................... 23
SECTION 4.7. Prorations................................................... 26
ARTICLE V
ADDITIONAL AGREEMENTS; COVENANTS
SECTION 5.1. Expenses..................................................... 27
SECTION 5.2. Access to Information; Confidentiality....................... 28
SECTION 5.3. Agreement to Cooperate; Certain Other Covenants.............. 29
SECTION 5.4. Public Announcements......................................... 30
SECTION 5.5. Notification of Certain Matters.............................. 31
SECTION 5.6. Other Offers; Non-Solicitation............................... 31
SECTION 5.7. Preliminary Title Reports.................................... 32
SECTION 5.8. Environmental Site Assessments............................... 32
SECTION 5.9. Structural Assessments...................................... 32
SECTION 5.10. Risk of Loss and Insurance.................................. 32
SECTION 5.11. Condemnation................................................ 32
SECTION 5.12. Recordation of Site Designation Supplements................. 33
SECTION 5.13. Additional Sites; In Progress Sites; Zoned Sites............ 33
SECTION 5.14. ATC Parent's Guaranty....................................... 35
SECTION 5.15. ALLTEL Guaranty............................................. 36
SECTION 5.16. Delivery of Tower Files..................................... 37
SECTION 5.17. Conduct of Business by ALLTEL............................... 38
ARTICLE VI
REPRESENTATIONS, WARRANTIES AND COVENANTS OF ALLTEL
SECTION 6.1. Organization and Business; Power and Authority; Effect of
Transaction................................................. 39
SECTION 6.2. [RESERVED].................................................. 41
SECTION 6.3. Title to Properties; Leases................................. 41
SECTION 6.4. Compliance with Private Authorizations...................... 43
SECTION 6.5. Compliance with Governmental Authorizations and Applicable
Law......................................................... 43
SECTION 6.6. Related Transactions........................................ 44
SECTION 6.7. Insurance................................................... 45
SECTION 6.8. Tax Matters................................................. 45
SECTION 6.9. Material Agreements......................................... 45
SECTION 6.10. Broker or Finder............................................ 46
SECTION 6.11. Operating and Maintenance................................... 46
SECTION 6.12. Environmental Matters....................................... 46
SECTION 6.13. Copies of Documents......................................... 47
ARTICLE VII
REPRESENTATIONS, WARRANTIES AND COVENANTS OF ATC
SECTION 7.1. Organization and Business; Power and Authority; Effect of
Transaction................................................. 47
SECTION 7.2. [RESERVED].................................................. 48
SECTION 7.3. Compliance with Governmental Authorizations and Applicable
Law......................................................... 48
SECTION 7.4. Broker or Finder............................................ 49
SECTION 7.5. Sufficient Funding.......................................... 49
ARTICLE VIII
REPRESENTATIONS, WARRANTIES AND COVENANTS OF ATC PARENT
SECTION 8.1. Organization and Business; Power and Authority; Effect of
Transaction................................................. 49
ii
SECTION 8.2. [RESERVED].................................................. 50
SECTION 8.3. Compliance with Governmental Authorizations and Applicable
Law......................................................... 50
SECTION 8.4. Broker or Finder............................................ 51
SECTION 8.5. Sufficient Funding.......................................... 51
SECTION 8.6. ATC Representations and Warranties.......................... 51
ARTICLE IX
[INTENTIONALLY OMITTED]................................................... 51
ARTICLE X
CONDITIONS TO OBLIGATIONS OF ALLTEL AND ATC
SECTION 10.1. Conditions to Obligations of Each Party..................... 51
SECTION 10.2. Conditions to Obligations of ATC............................ 52
SECTION 10.3. Conditions to Obligations of ALLTEL......................... 53
ARTICLE XI
INDEMNIFICATION
SECTION 11.1. Survival................................................... 54
SECTION 11.2. Indemnification............................................ 55
SECTION 11.3. Limitation of Liability.................................... 55
SECTION 11.4. Notice of Claims........................................... 56
SECTION 11.5. Defense of Third Party Claims.............................. 56
SECTION 11.6. Exclusive Remedy........................................... 56
ARTICLE XII
TERMINATION, AMENDMENT AND WAIVER
SECTION 12.1. Termination................................................ 57
SECTION 12.2. Effect of Termination...................................... 58
ARTICLE XIII
GENERAL PROVISIONS
SECTION 13.1. Waivers; Amendments........................................ 59
SECTION 13.2. ALLTEL References.......................................... 59
SECTION 13.3. Notices.................................................... 59
SECTION 13.4. Power of Attorney.......................................... 60
SECTION 13.5. Specific Performance; Other Rights and Remedies............ 60
SECTION 13.7. Counterparts............................................... 61
SECTION 13.8. Section Headings........................................... 61
iii
SECTION 13.9. Governing Law............................................... 61
SECTION 13.10. Further Acts................................................ 61
SECTION 13.11. Entire Agreement............................................ 61
SECTION 13.12. Assignment.................................................. 62
SECTION 13.13. Parties in Interest......................................... 63
SECTION 13.14. Mutual Drafting............................................. 63
SECTION 13.15. [RESERVED].................................................. 63
SECTION 13.16. Excluded Damages............................................ 63
SECTION 13.17. Expenses.................................................... 63
SECTION 13.18. Agents...................................................... 63
SECTION 13.19. Several Liability........................................... 63
Exhibits
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Exhibit A-1 - List of Existing Sites
Exhibit A-2 - List of Potential Existing Sites
Exhibit B - List of ALLTEL Entities
Exhibit C - Form of Joinder to Agreement
Exhibit D - Form of Sublease
Exhibit E - Form of Assignment of Ground Leases
Exhibit F - Form of Assignment of Existing Tenant Leases
Exhibit G - Opinion Letter from ALLTEL's Counsel
Exhibit H - Opinion Letter from ATC's Counsel
Exhibit I - Form of Required Oasis Information
Exhibit J - Form of Assumption of Contractual Obligations
Exhibit K - Notice of Modification or Addition to ALLTEL Equipment
Exhibit L - Excluded Sites
Exhibit M - [RESERVED]
Exhibit N - 1 -Sites to be Completed by ALLTEL (Zoned Sites)
Exhibit N - 2 - Potential Sites to be Completed by ALLTEL (Zoned Sites)
Exhibit O-1 -List of In-Progress Sites
Exhibit O-2 -- List of Potential In Progress Sites
iv
AGREEMENT TO SUBLEASE
THIS AGREEMENT TO SUBLEASE ("Agreement"), made and entered into this 19/th/
day of December, 2000 ("Effective Date"), by and among ALLTEL COMMUNICATIONS,
INC., a Delaware corporation ("ALLTEL Inc."), and the ALLTEL Entities (ALLTEL
Inc., and the ALLTEL Entities being each referred to herein individually as
"ALLTEL," and collectively as the "ALLTEL Companies"), and AMERICAN TOWERS,
INC., a Delaware corporation ("ATC") and AMERICAN TOWER CORPORATION, a Delaware
corporation ("ATC Parent").
W I T N E S S E T H:
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WHEREAS, the ALLTEL Companies own or lease tower site locations used in
connection with their operations or the operation by their Affiliates of a
wireless communications network; and
WHEREAS, ATC Parent directly and through its Affiliates, including ATC, is
engaged in the business of, among other things, developing, constructing,
managing, maintaining, marketing, operating and leasing networks of
communications tower facilities, including the management of wireless
communications sites; and
WHEREAS, ATC Parent and the ALLTEL Companies desire to enter into an
agreement relating to: (i) the lease or sublease of certain cell site locations,
by the ALLTEL Companies, on the one hand, and ATC and ATC Parent, on the other
hand, pursuant to the terms and conditions of the Lease and Sublease in the form
attached hereto as Exhibit D (the "Sublease"); (ii) the design, construction and
installation by ATC of certain tower structures pursuant to the terms and
conditions of that certain Build to Suit Agreement of even date herewith among
the ALLTEL Companies and ATC and ATC Parent (the "Build-to-Suit Agreement");
(iii) with respect to tower sites constructed pursuant to the Build-to-Suit
Agreement, In Progress Sites and sites owned or leased by ATC or its Affiliates,
the license of space on such sites which may be licensed to the ALLTEL
Companies, on the one hand, from ATC or an Affiliate thereof, on the other hand,
pursuant to that certain Master Tower Space License Agreement of even date
herewith among ALLTEL Inc. and ATC (the "MLA"); (iv) leasing, marketing, and
management services pending the closing of the transactions contemplated hereby
pursuant to that certain Site Management Agreement of even date herewith among
ATC and ATC Parent and the ALLTEL Companies (the "Site Management Agreement"),
and (v) various other agreements with respect to the respective rights, duties
and obligations of the parties relating to the subject matter hereof, all as
more particularly described in and subject to the terms and conditions of this
Agreement.
NOW, THEREFORE, for and in consideration of the premises, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions.
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For purposes of this Agreement, the following capitalized terms have the
following respective meanings:
"Acquired Interests" has the meaning given to such term in Section
3.1(a).
"Action" means any action, suit, litigation, complaint, counterclaim,
claim, petition, mediation contest, or administrative proceeding, or
request for material information by or pursuant to the order of any
Governmental Authority, whether at law, in equity, in arbitration or
otherwise, and whether conducted by or before any Governmental Authority or
other Person.
"Additional ALLTEL Equipment" has the meaning given to such term in
the Sublease.
"Additional ALLTEL Space" has the meaning given to such term in the
Sublease.
"Additional Sites" has the meaning given to such term in Section 5.13.
"Affiliate(s)" or "Affiliated" of a Person means any Person which,
whether directly or indirectly, Controls, is Controlled by or is under
common Control with the subject Party.
"AGL" has the meaning given to such term in Section 4.6(e)(i).
"Agreement" has the meaning given to such term in the preamble.
"ALLTEL" has the meaning given to such term in the preamble and shall
mean one, some or all of the ALLTEL Companies, as the context may require.
"ALLTEL Business" has the meaning given to such term in Section
6.3(a).
"ALLTEL Disclosure Schedule(s)" means those schedules prepared by
ALLTEL and to be attached hereto containing the information required to be
disclosed to ATC pursuant to the terms and conditions of this Agreement.
"ALLTEL Equipment" has the meaning given to such term in the Sublease.
"ALLTEL Entities" means those partnerships, limited liability
companies, and corporations that are listed on Exhibit B attached hereto
and which (i) are signatories to this Agreement on the date hereof, or (ii)
have joined in the execution and delivery of this Agreement by executing
and delivering to ATC and ALLTEL Inc., after the Effective
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Date but on or before the ninetieth (90/th/) day after the Effective Date,
a Joinder to Agreement in the form attached hereto as Exhibit C. The
Agreement shall automatically be deemed amended to include any of the
ALLTEL Entities that executes and delivers to ATC and ALLTEL Inc. within
the time frame set forth above a Joinder to Agreement in the form attached
hereto as Exhibit C without any other action or approval of any other Party
hereto.
"ALLTEL Guarantors" means, individually and in the aggregate, ALLTEL
Inc. and those Affiliates of ALLTEL Inc. listed under the heading "ALLTEL
Guarantors" on the signature pages hereto, each of whom have agreed to
jointly and severally guarantee the ALLTEL Obligations in accordance with
the terms and conditions set forth in Sections 5.15, 6.1(d), and 13.19.
"ALLTEL Inc." has the meaning given to such term in the preamble.
"ALLTEL Indemnitee" means ALLTEL, its Affiliates, and the respective
directors, officers, partners, members, employees, representatives and
agents of ALLTEL or any Affiliate (excluding ATC, its Affiliates and any of
their agents).
"ALLTEL Material Adverse Effect" means as to any Site, any Event or
Events that (a) has had or is reasonably likely to have a material adverse
effect on the Acquired Interests or Sublease Interests in respect of such
Site, or (b) has materially adversely affected or is reasonably likely to
materially adversely affect the validity or enforceability of, or ability
of ALLTEL or any of its Affiliates to perform, this Agreement or any of the
Transaction Documents, or the likelihood of consummation of the
Transactions. Notwithstanding the foregoing, and anything in this
Agreement to the contrary notwithstanding, any Event (i) generally
affecting the economy, the wireless communications industry, the tower
ownership, operation, leasing, management and construction business or (ii)
arising out of the execution or public announcement of this Agreement,
shall not be deemed to constitute such a material adverse effect for the
purposes of this definition.
"ALLTEL Obligations" has the meaning given to such term in Section
5.15(a).
"Alternative Transaction" shall mean any proposal or offer relating to
a sale, assignment, lease, transfer, or disposition of, or similar
transaction involving, all or any substantial portion of the Sites or any
series of related transactions of the foregoing nature.
"ATC" has the meaning given to such term in the preamble.
"ATC Class A Common Stock" has the meaning given to such term in the
Sublease.
"ATC Delivery Date" has the meaning given to such term in Section
4.5(a).
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"ATC Indemnitees" means ATC, its Affiliates, and the respective
directors, officers, partners, members, employees, representatives and
agents of ATC or its Affiliates.
"ATC Material Adverse Effect" shall mean any Event or Events that has
materially adversely affected or is reasonably likely to materially
adversely affect the validity or enforceability of, or ability of ATC or
any ATC Affiliate, to perform this Agreement or any of the Transaction
Documents, or the likelihood of consummation of the Transactions.
Notwithstanding the foregoing, and anything in this Agreement to the
contrary notwithstanding, any Event (i) generally affecting the economy,
the wireless communications industry, the tower ownership, operation,
leasing, management and construction business, or the business of providing
satellite-based communications services, or (ii) arising out of the
execution or public announcement of this Agreement shall not be deemed to
constitute such a material effect for the purposes of this definition.
"ATC Obligations" has the meaning given to such term in Section
5.14(a).
"ATC Parent" has the meaning given to such term in the preamble.
"ATC Parent Indenture" means the Amended and Restated Loan Agreement,
by and among, certain Subsidiaries (as defined therein) of ATC Parent, the
Financial Institutions named therein and the Agents named therein, dated as
of January 6, 2000, as heretofore amended.
"Broadband Carrier" means an FCC licensee providing Broadband
Services.
"Broadband Equivalent Tenant" means the following minimum space and
capacity requirements for use by one (1) Broadband Carrier tenant at a
Site: (a) available space on the Tower for one twelve (12) panel antenna
array (up to 25 lbs. per antenna) and twelve (12) lines (up to a diameter
of 1 5/8" each) and associated mounts at a location on the Tower that is
technologically suitable (with respect to height of location) for the
transmission of wireless broadband services of a Broadband Carrier (but in
no event less than ten consecutive vertical feet of space), and (b) 12 feet
by 28 feet of available ground space to accommodate a shelter or cabinets
(including associated grounding and overhangs).
"Broadband Services" means (a) commercial mobile radio services
provided in the A or B 800 MHz band of spectrum for use in cellular
services, (b) personal communications services provided in the A-through-F
1900 MHz band of spectrum for use in PCS services, or (c) LMDS or MMDS (as
such terms are defined by the FCC) licensed issued by the FCC.
"Build-to-Suit Agreement" has the meaning given to such term in the
third Whereas clause.
"Claims" shall mean any and all debts, liabilities, obligations,
losses, damages,
5
claims, refunds, credits, deficiencies, assessments and penalties, together
with all Actions, pending or, to a Party's Knowledge, 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(s)" has the meaning given to such term in Section 4.1(a).
"Closing Date(s)" has the meaning given to such term in Section
4.1(a).
"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.
"Confidential Information" has the meaning given to such term in
Section 5.2(b).
"Confidentiality Agreement" means that certain confidentiality
agreement between American Tower Corporation and Xxxxxxx Xxxxx Xxxxxx on
behalf of ALLTEL Corporation dated as of September 22, 2000.
"Contract" or "Contractual Obligation" shall mean any agreement,
arrangement, commitment, contract, covenant, indemnity, undertaking or
other obligation or liability to which ALLTEL or ATC, as applicable, is a
party or to which it or any of the Sublease Interests or Acquired Interests
is subject.
"Control" (including the terms "controlled," "controlled by" and
"under common control with") means 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, by contract, arrangement or understanding, or as trustee
or executor, by contract or credit arrangement or otherwise. The sole
general partner of any Person that is a partnership will be deemed to
control such Person and the sole manager(s) of any Person that is a limited
liability company shall be deemed to control such Person.
"Distribution(s)" shall mean, with respect to any Person, (a) the
declaration or payment of any dividend (except dividends payable in common
stock of such Person) on or in respect of any shares of any class of
capital stock of such Person or any shares of capital stock of any
Affiliate of such Person owned by a Person other than such Person or an
Affiliate of such Person, (b) the purchase, redemption or other retirement
of any shares of any class of capital stock of such Person or any shares of
capital stock of any Affiliate of such Person owned by a Person other than
such Person or an Affiliate of such Person, and (c) any other distribution
on or in respect of any shares of any class of capital stock of such Person
or any shares of capital stock of any Affiliate of such Person owned by a
Person other than such Person or an Affiliate of such Person.
6
"Effective Date" has the meaning given to such term in the preamble.
"Environmental Conditions" means, as to each Site, any conditions or
circumstances, including without limitation, the presence of any
unregistered above or below ground storage tank for Hazardous Materials or
the presence of Hazardous Materials, that (i) require abatement or
correction under the Environmental Laws, (ii) give rise to any civil or
criminal Liability under any Environmental Law relating to the use or
occupancy of any Site or (iii) constitute a public or private nuisance.
"Environmental Exclusion Criteria" has the meaning given to such term
in Section 4.6(a).
"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 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), Environmental Conditions, or otherwise relating to the
manufacture, processing, generation, distribution, use, treatment, storage,
disposal, cleanup, transport or handling of Hazardous Materials and other
pollutants, contaminants or chemicals. Environmental Laws shall include
without limitation the Comprehensive Environmental Response, Compensation
and Liability Act (42 U.S.C. Section 6901 et seq.) ("CERCLA"), 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 National Historic
-- ---
Preservation Act (16 U.S.C. Section 470 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 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 Report" shall mean a Phase I environmental site
assessment report.
"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.
"Excluded Sites" means any Site excluded from this Agreement pursuant
to the
7
terms of this Agreement.
"Exhibits" means the exhibits listed in Article II(b).
"Existing Sites" means the Sites that are listed in Exhibit A-1
attached hereto and, in the event that and to the extent that the
applicable ALLTEL Entity executes a Joinder to Agreement, Exhibit A-2
attached hereto, each as may be amended from time to time in accordance
with Section 5.13 (including, without limitation, the subsequent addition
of In Progress Sites and Zoned Sites). ALLTEL has used its good faith
efforts to list all Sites appropriately between Exhibits A-1 and A-2.
Notwithstanding the exercise of such efforts, in the event the Parties
discover that any Site(s) has been incorrectly listed in Exhibit A-1
(because it is not owned by one of the ALLTEL Entities that is a signatory
to this Agreement on the Effective Date) or in Exhibit A-2 (because it is
owned by one of the ALLTEL Entities that is a signatory to this Agreement
on the Effective Date), such Site(s) shall be removed from Exhibit A-1 or
Exhibit A-2, as the case may be, and added to Exhibit A-1 or Exhibit A-2,
as the case may be, upon written notice to ATC by ALLTEL no less than
thirty (30) days prior to the applicable Closing Date of such Site(s).
"Existing Tenant Leases" means, collectively, the lease, license or
subleases agreements between ALLTEL and any third party for the use of any
Included Site that was executed on or before the Effective Date or the
applicable Closing Date.
"FAA" means the Federal Aviation Administration or any successor
Governmental Authority.
"FCC" means the Federal Communications Commission or any successor
Governmental Authority.
"FCC Authorizations" has the meaning given to such term in the
Sublease.
"Final Closing" has the meaning given to such term in Section 4.1(b).
"Forum" means any federal, state, territorial, county, local,
municipal, foreign or other court, governmental agency, administrative body
or agency, tribunal, authority, private alternative dispute resolution
system, or arbitration panel.
"GAAP" means generally accepted accounting principles, consistently
applied.
"Governmental Authority(ies)" means any federal, state, territorial,
county, municipal, local, or other government or governmental agency,
authority or body or any other type of regulatory agency, authority or
body, whether domestic or foreign, whether administrative, executive,
judicial or legislative, including without limitation the FCC and the FAA.
"Governmental Authorizations" shall mean all approvals, concessions,
consents, franchises, licenses, permits, plans, certificates of occupancy,
registrations and other
8
authorizations, including, without limitations, Site Permits, of all
Governmental Authorities, in connection with the ownership, or operation of
Sites.
"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 Governmental Authorities.
"Ground Lease" means the ground lease, easement, right of way, or
other right of use agreement, pursuant to which ALLTEL holds a leasehold
interest, leasehold estate or other real property interest or other right
of use agreement for any Site (other than Excluded Sites), including,
without limitation, associated access easements and rights of way.
"Ground Lessor" means the "grantor" or "lessor" or "landlord" or
"licensor" under a Ground Lease.
"Ground Rent" has the meaning given to such term in the Sublease.
"Xxxx-Xxxxx-Xxxxxx Act" means the Xxxx Xxxxx Xxxxxx Antitrust
Improvement Act of 1976, as amended.
"Hazardous Materials" means and includes 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" or "hazardous
material" 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
Governmental Authority or subject to any Environmental Law; or (d) the
presence of which on the real property owned or leased by such Person poses
or threatens to pose a hazard to the health or safety of persons on or
about any such real property; or (e) 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, lead, asbestos or asbestos-containing materials, or urea
formaldehyde foam insulation.
"Immediate Family" shall mean, with respect to any individual, his or
her spouses, past or present, children, parents and siblings, and any of
the spouses of the foregoing, past or present, in all cases whether related
by blood, by adoption or by marriage.
"Included Sites" means any Site that becomes subject to the Sublease
or any In Progress Sites that becomes subject to the MLA, in accordance
with the terms and conditions of this Agreement.
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"Indemnity Period" means has the meaning given to such term in Section
11.1.
"Initial Closing" has the meaning given to such term in Section
4.1(b).
"Initial Closing Date" has the meaning given to such term in Section
4.1(b).
"In Progress Sites" means any Site (other than any Site subject to a
build-to-suit or other similar Contract between ALLTEL and a third party as
of the Effective Date) which (a) was not listed on Exhibit X-0, Xxxxxxx X-
0, Exhibit L, Exhibit N-1, or Exhibit N-2 attached hereto, (b) is completed
or in progress by or on behalf of any of the ALLTEL Companies after the
Effective Date and before the Termination Date, and (c) in accordance with
Section 5.13, is acquired by ATC and subleased to ALLTEL pursuant to the
MLA in consideration for the Purchase Price. In Progress Sites are listed
in Exhibit O-1 attached hereto and, in the event that and to the extent
that the applicable ALLTEL Entity executes a Joinder to Agreement, Exhibit
O-2 attached hereto.
"Intellectual Property" means all of ALLTEL's and its Affiliates'
rights in and to, (a) copyrights, patents, trademarks, trade names,
service marks, URLs and applications for the foregoing, and software,
firmware, trade secrets, proprietary technologies, know-how, inventions,
processes and formulas (secret or otherwise, whether patentable or
unpatentable and whether or not reduced to practice), (b) all applications,
registrations, renewals in connection with the foregoing, and all
improvements and goodwill associated therewith; and (c) all copies and
tangible embodiments thereof (in whatever form or medium) provided,
however, that notwithstanding the foregoing, Intellectual Property shall
not include, and the Sublease Interests or Acquired Interests (as
applicable) shall include, the Required Co-Location Documents, the Tower
File Data and the Required Oasis Information, it being understood that both
ALLTEL and ATC shall have the right to have copies of and to use the
Required Co-Location Documents, the Tower File Data and the Required Oasis
Information.
"Joinder to Agreement" means a Joinder to Agreement in the form
attached hereto as Exhibit C pursuant to which certain ALLTEL Entities may
join in the execution and delivery of this Agreement.
"Lighting & Monitoring Equipment" has the meaning given to such term
in the Sublease.
"known," "to the best knowledge of," "to the knowledge of," or words
of similar import means, as to each Party hereto, the actual knowledge of
(or words of similar import) any director or executive officer of ATC or
ALLTEL, respectively, as of the Effective Date, as such knowledge exists as
of the Effective Date, (or, in the case of the ALLTEL Disclosure Schedule,
as of the date of such addition), after reasonable review and reasonable
inquiry of appropriate employees.
"Laws" means (a) all administrative, judicial, legislative or other
actions, codes consent decrees, constitutions, decrees, directives,
enactments, laws, injunctions,
10
judgments, orders, ordinances, promulgations, regulations, requirements,
rules, settlement agreements, statutes, or writs of any Governmental
Authority, domestic or foreign; (b) the common law, or other legal
precedent; or (c) all arbitrator's, mediator's or referee's final, binding
and non-appealable awards, decisions, findings or recommendations.
"Leased Site" shall have the meaning given such term in the Sublease.
"Liability" means any liability or obligation whether asserted or
unasserted, absolute or contingent, accrued or unaccrued, liquidated or
unliquidated and whether due or to become due.
"Lien" shall mean any of the following: mortgage; lien (statutory or
other including, without limitation, any Tax lien); 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
11.2(a).
"Material Adverse Effect" means, respectively, an ALLTEL Material
Adverse Effect or an ATC Material Adverse Effect.
"Material Agreement" shall mean, (a) with respect to ALLTEL any Ground
Lease, Swap Agreement or Existing Tenant Lease, and (b) with respect to
each Party, but in the case of ALLTEL only with respect to an Included
Site, any material Contractual Obligation that (i) was not entered into in
the ordinary course of business, (ii) was entered into in the ordinary
course of business which (A) involved the purchase, sale or lease of goods
or materials, or purchase or sale of services, aggregating more than
$50,000.00 per Contract for which such Party has continuing obligations
thereunder, except for warranty obligations pursuant to standard
warranties, or (B) is not terminable on one-hundred eighty (180) days or
less notice without penalty or other payment, (iii) is or otherwise
constitutes a written agency, broker, dealer, license, distributorship,
sales representative or similar written agreement, (iv) is with any
Governmental Authority (other than individual Site or tenant lease
agreements), or (v) whose termination or non-performance would reasonably
likely have an ALLTEL Material Adverse Effect or an ATC Material Adverse
Effect, as the case may be.
"Microwave Equipment" has the meaning given to such term in the
Sublease.
"Microwave Reserved Space" has the meaning given to such term in the
11
Sublease.
"Microwave Site(s)" has the meaning given to such term in Section
4.6(e).
"MLA" has the meaning given to such term in the third Whereas clause.
"Orders" means all applicable orders, writs, judgments, decrees,
rulings, consent agreements, and awards of or by any Forum or entered by
consent of the party to be bound.
"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; with respect to a Person which is a partnership, its agreement and
certificate of partnership (if any), any agreements among partners, and any
management and similar agreements between the partnership and any general
partners (or any Affiliate thereof); and with respect to any other Person,
its organizational filings with any Governmental Authority and all
agreements among it and/or one or more of its owners or beneficiaries,
relating to the Person's governance, operations, and/or Distributions.
"Owned Site" shall have the meaning given to such term in the
Sublease.
"Party" means each of the ALLTEL Companies, ATC and ATC Parent, as
appropriate.
"Parties" means the ALLTEL Companies, ATC and ATC Parent together.
"Permitted Liens" means: (a) Liens for current Taxes not yet due and
payable, (b) worker's, carrier's and materialman's Liens incurred in the
ordinary course of business related to obligations not yet due and payable,
(c) Existing Tenant Leases, and (d) such imperfections of title, easements,
rights of way, encumbrances or other Liens, if any, which 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 Permitted Use thereof,
provided, however, that in no event shall Permitted Liens include any Liens
affecting any of the Towers or Sites (other than the Reserved Space,
Microwave Reserved Space, Additional ALLTEL Space, Microwave Equipment,
Additional ALLTEL Equipment and the ALLTEL Equipment), Sublease Interest,
or Acquired Interest securing any indebtedness for money borrowed or
capitalized lease obligations of any of the ALLTEL Companies (or any of
their Affiliates) or otherwise for the benefit of any creditor of any
ALLTEL Company (or any of their Affiliates).
"Permitted Use" has the meaning given to such term in the Sublease.
"Person" means an individual, partnership, joint venture, limited
liability company, association, corporation, trust or any other legal
entity.
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"Private Authorizations" shall mean all approvals, concessions,
consents, franchises, licenses, permits, and other authorizations of all
Persons (other than Governmental Authorities) including without limitation
Required Consents.
"Purchase Price" means, at any given Closing, ATC shall pay to ALLTEL
for each In Progress Site deemed to be an Included Site, in accordance with
the terms and conditions of Section 5.13(b) and (c), for such Closing, an
aggregate amount of cash equal to ALLTEL's out-of-pocket costs and expenses
(as set forth in a reasonably detailed description thereof furnished to ATC
not less than twenty (20) days following substantial completion of such In
Progress Site) as of the applicable Closing Date associated with or
directly related to the identification, acquisition, development and
construction of such In Progress Site.
"Purchase Option Consideration" shall have the meaning given to such
term in the Sublease.
"Purchase Option Floor" has the meaning given to such term in the
Sublease.
"Purchase Option Price" has the meaning given to such term in the
Sublease.
"Release" shall have the meaning given to such term, or any term of
similar import, in the Environmental Laws, including, without limitation,
Section 101(14) of CERCLA.
"Rent" has the meaning given to such term in the Sublease.
"Required Co-Location Documents" means a complete set of complete
copies of all of the following for each Site (other than Excluded Sites)
that are prepared by, for, on behalf of, or otherwise in the possession of
ALLTEL (including any prepared after the date hereof in order to satisfy
ALLTEL's obligation to obtain complete copies): (a) fully executed Ground
Lease, together with any amendments or modifications and any oral promises
made (if any) or, if applicable, a deed, (b) chain of all applicable
assignments of Ground Leases, (c) Environmental Report that affects the
Site; (d) a real property boundary survey (including, without limitation,
all access and utility easements); provided, however, that notwithstanding
anything to the contrary in this Agreement, such boundary survey (if not in
ALLTEL's possession) may be delivered by ALLTEL no more than forty-five
(45) days after the applicable Closing or may be performed by ATC at
ALLTEL's sole but reasonable cost and expense, (e) either a 1A or 2C Site
Survey (or both if in ALLTEL's possession), (f) all easements and the chain
of applicable assignments of such easements, (g) NEPA checklist, (h) title
reports, commitments or policies of ALLTEL's leasehold or fee simple
interest in the Site, (i) Site plans, Tower drawings, and foundation plans,
(j) all Existing Tenant Leases that were executed on or before the
Effective Date, and (k) final zoning approval/determination, conditional
use permits, or a letter (signed by ALLTEL) stating that no zoning was
required and the basis thereof.
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"Required Consent" has the meaning given to such term in Section
3.3(a).
"Required Oasis Information" means the completion of all information
in the tower site data form attached hereto as Exhibit I.
"Reserved Space" has the meaning given to such term in the Sublease.
"Restricted Items" has the meaning given to such term in Section
3.3(a).
"Site(s)" means all wireless communication sites with a Tower located
thereon that is owned or leased by ALLTEL and is now or hereafter subject
to the Transaction Documents (other than any Tower site which is owned by a
third party where ALLTEL merely collocates on such site). Sites shall
include Additional Sites, Existing Sites, Included Sites, In Progress
Sites, Zoned Sites and Excluded Sites, as applicable.
"Site Exclusion Criteria" has the meaning given to such term in
Section 4.6(a).
"Site Designation Supplement" has the meaning given to such term in
the Sublease.
"Site Improvements" means, as to each Included Site, (i) Towers, (ii)
grounding rings (other than those for the ALLTEL Equipment, Microwave
Equipment or Additional ALLTEL Equipment); (iii) fencing; (iv) signage; (v)
connections for utility service; (vi) hardware constituting tower
platforms; (vii) access road improvements; (viii) common shelters, if any;
and (ix) such other equipment, alterations, replacements, modifications,
additions, and improvements as may be installed on or made to all or any
component of an Included Site. Notwithstanding anything to the contrary,
Site Improvements do not include the ALLTEL Equipment, Microwave Equipment,
Additional ALLTEL Equipment or personal property owned by third party
tenants.
"Site Maintenance Agreements" means a Contract associated with the
operations or maintenance of any Included Site (or any portion thereof)
that ALLTEL is a party to so long as such Contract is not associated with
the operations or maintenance of the Reserved Space, Microwave Reserved
Space, Additional ALLTEL Space, Microwave Equipment, Additional ALLTEL
Equipment or the ALLTEL Equipment.
"Site Management Agreement" has the meaning given to such term in the
third Whereas clause.
"Site Permits" means any and all Governmental Authorizations other
than those associated directly and solely with the ownership or operation
of any of the ALLTEL Equipment, Microwave Equipment, Additional ALLTEL
Equipment or FCC Authorizations.
"Structural Reports" means a report related to the structure of the
Tower and its structural capacity or other improvements on a Site (other
than Excluded Sites).
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"Sublease" has the meaning given to such term in the third Whereas
clause.
"Sublease Interests" has the meaning given to such term in Section
3.1(a).
"Subleased Property" has the meaning given to such term in the
Sublease.
"Substantial Portion of Site" means, as to a Site, so much of such
Site (including the Land, Tower and Site Improvements thereof, or any
portion thereof) as, when subject to a Taking or damage as a result of a
casualty, leaves the untaken or undamaged portion unsuitable for the
continued feasible and economic operation of such Site for the Permitted
Use.
"Swap Agreements" means any Contractual Obligation between any of the
ALLTEL Companies and any other provider of wireless communications
services, local public safety organization, Governmental Authority
(including without limitation post offices and law enforcement
organizations), or operator of remote monitoring systems for commercial
purposes, whereby any of the ALLTEL Companies (or any of their Affiliates)
receives a favorable lease rate or right to co-locate on a site owned or
operated by such third party for each (or some exchange rate for each) Site
upon which such third party co-located(s) upon or vice versa.
"Taking" means, as to any Site, any condemnation or exercise of the
power of eminent domain by any Governmental Authority vested with such
power, or any taking in any other manner for public use, including a
private purchase, in lieu of condemnation, by a public authority vested
with the power of eminent domain.
"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, additions 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 Return" or "Returns" shall mean all returns, reports, summaries
or information, consolidated or otherwise (including without limitation
information returns), required to be filed with any Governmental Authority
with respect to Taxes.
"Taxing Authority" shall mean any Governmental Authority responsible
for the
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imposition, assessment or collection of any Tax.
"Termination Date" has the meaning given to such term in Section 12.1.
"Termination Fee" has the meaning given to such term in Section 12.1.
"Tower" means a wireless communication tower structure with an
engineered foundation.
"Tower File Data" means (a) the Required Co-Location Documents, and
(b) complete copies of all of the following, but only to the extent
existing as of the Effective Date or prepared thereafter in the ordinary
course of business applicable to a particular Site (other than Excluded
Sites) and in the possession of any of the ALLTEL Companies or any third
party retained by any of the ALLTEL Companies to store such information on
their behalf as of the applicable Site Commencement Date: (i) FAA
determination, (ii) State or Local Tall Structure Permits, (iii) FCC
antenna registration, (iv) Geotech Soils Report, (v) "Haz Mat"
certificates, (vi) copy of any recorded memorandum of Ground Lease, if any,
(vii) copies of releases of (X) all material third party judgment Liens/Tax
Liens Clearances and all judgment Liens/Tax Liens, and (Y) deed
restrictions, covenants, and zoning violations that affect the ability to
utilize the property as co-locatable tower facility during the term of the
Ground Lease, (viii) copy of local zoning ordinance(s), approved zoning
drawings or letter stating that no zoning is required (if applicable), (ix)
copy of zoning application, (x) application for building (or similar)
permit, (xi) copy of certificate of occupancy, (xi) approved construction
drawings from the applicable local jurisdiction, (xii) building permit and
other local and State permits required for construction of the access, Site
and Tower, (xiii) approved zoning drawings, (xiv) site plan, as built, and
other site drawings, and (xv) concurrence letter from the state historic
preservation office.
"Transactions" shall mean the transactions contemplated by this
Agreement, including without limitation the execution, delivery and
performance of the Transaction Documents.
"Transaction Documents" means collectively this Agreement, the
Sublease, the Build-to-Suit Agreement, the Site Management Agreement, the
MLA and each of the other documents and agreements listed in Articles IV
and X.
"Zoned Site(s)" means any Site listed in Exhibit N-1 attached hereto,
and, in the event that and to the extent that the applicable ALLTEL Entity
executes a Joinder to Agreement, the applicable Sites listed in Exhibit N-2
attached hereto.
SECTION 1.2. Other Capitalized Terms.
------------------------------------
(a) Any other capitalized terms used in this Agreement shall have the
respective meanings given to them elsewhere in this Agreement.
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ARTICLE II
AGREEMENT DOCUMENTS
This Agreement shall consist of the following documents, as amended from
time to time as provided herein:
(a) this Agreement document;
(b) the following Exhibits:
Exhibit A-1 - List of Existing Sites
Exhibit A-2 - List of Potential Existing Sites
Exhibit B - List of ALLTEL Entities
Exhibit C - Form of Joinder to Agreement
Exhibit D - Form of Sublease
Exhibit E - Form of Assignment of Ground Leases
Exhibit F - Form of Assignment of Existing Tenant Leases
Exhibit G - Opinion Letter from ALLTEL's Counsel
Exhibit H - Opinion Letter from ATC's Counsel
Exhibit I - Form of Required Oasis Information
Exhibit J - Form of Assumption of Contractual Obligations
Exhibit K - Notice of Modification or Addition to ALLTEL Equipment
Exhibit L - Excluded Sites
Exhibit M - [Reserved]
Exhibit N-1 -- Sites to be Completed by ALLTEL (Zoned Sites)
Exhibit N-2 -- Potential Sites to be Completed by ALLTEL (Zoned
Sites)
Exhibit O-1 -List of In Progress Sites
Exhibit O-2 -- List of Potential In Progress Sites
(c) the ALLTEL Disclosure Schedules attached hereto or to be attached
hereto in accordance with Section 4.6(b).
If any of the foregoing is inconsistent, this Agreement shall prevail over
Exhibits and the ALLTEL Disclosure Schedules.
ARTICLE III
CONVEYANCE AND CONSIDERATION
SECTION 3.1. Conveyance.
-----------------------
(a) Subject to the terms and conditions of this Agreement, ALLTEL agrees
to grant, convey and deliver to ATC, and ATC agrees to take and accept from
ALLTEL, at the Closings, (i) a leasehold, subleasehold interest, or other
interest consistent with the terms of the Sublease in
17
and to the Subleased Property, as more particularly described in the Site
Designation Supplement and an assignment and assumption of the Existing Tenant
Leases for each of the Included Sites in the form attached hereto as Exhibit F
(collectively, the "Sublease Interests"), and (ii) a xxxx of sale and/or
assignment and assumption, as applicable, for all Site Improvements, Ground
Leases or other real property interest and Site Permits, with respect to certain
of the In-Progress Sites in accordance with Section 5.13 ("Acquired Interests").
Each grant, transfer and/or assignment of interest shall be pursuant to the
instruments contemplated by this Agreement and free and clear of all Liens
except for Permitted Liens.
(b) Notwithstanding anything to the contrary contained in Section 3.1(a),
the Sublease Interests and Acquired Interests shall not include any of ALLTEL's
right, title or interest in or to the following: (i) the ALLTEL Equipment,
Microwave Equipment, and Additional ALLTEL Equipment; (ii) any equipment or
transmissions systems used for the remote monitoring of the Sites (other than
the Lighting and Monitoring Equipment); (iii) any and all rights that accrue or
will accrue to ALLTEL under the Transaction Documents, including, without
limitation, the Rent payments due to ALLTEL under the Sublease; (iv) any and all
rights retained by and/or granted to ALLTEL pursuant to the Transaction
Documents; (v) any Governmental Authorizations relating to the ALLTEL Equipment,
Microwave Equipment, Additional ALLTEL Equipment or the provision of wireless
telecommunication services, including, without limitation, the FCC
Authorizations, (vi) any Intellectual Property, (vii) the Excluded Sites, (viii)
any receivables under any Existing Tenant Leases accrued with respect to periods
ending on or before the applicable Closing Date; and (ix) all Claims with
respect to periods ending on or prior to the applicable Closing Date.
SECTION 3.2. Consideration.
--------------------------
Subject to the adjustments set forth in this Section 4.7, the aggregate
consideration payable by ATC to ALLTEL for entering into the Transaction
Documents shall be (a) the Rent provided for in Section 11 of the Sublease and
the Purchase Option Consideration, if applicable, and (b) the Purchase Price
with respect to the In Progress Sites.
SECTION 3.3. Consents and Approvals.
-----------------------------------
(a) Nothing in this Agreement shall be construed as an attempt by ALLTEL
to lease or sublease to ATC pursuant to the Sublease, or otherwise make subject
to the Sublease, or to transfer pursuant to any Material Contract, Governmental
Authorizations, or Private Authorization relating to Ground Leases or Existing
Tenant Leases included in the Sublease Interests or Acquired Interests which is
unable by its terms or by Law to be so leased, subleased, transferred or made
subject without the consent of any other Person (including any Governmental
Authority), ("Required Consent"), unless such Required Consent shall have been
given. Notwithstanding anything to the contrary, Required Consent shall include,
without limitation, (i) a consent, approval or new permit from the Ground Lessor
under a Ground Lease necessary for (x) an assignment of the Ground Lease to ATC
in the case of Acquired Interests in accordance with the terms and conditions of
this Agreement, and (y) a sublease and an assignment (contingent on exercise of
the purchase option provided for in the Sublease) of the Ground Lease to ATC in
the case of Sublease Interests in accordance with the terms and conditions of
this
18
Agreement and the Sublease, (ii) a consent or approval under any Ground Lease or
Existing Tenant Lease necessary for ATC to further sublease Available Space (as
defined in the Sublease) in accordance with the terms and conditions of the
Sublease, or (iii) a consent under any Ground Lease necessary to remove any
limit or restriction on the right to install or permit the installation or
modification of tenant equipment, towers (including height and number), and
buildings at the applicable Site.
(b) ALLTEL shall use commercially reasonable efforts to obtain the
relevant written Required Consent without making any concessions to a Ground
Lessor that would result in any increase in the Ground Rent, creation or
increase in any form of revenue sharing arrangements, or any other term or
condition that would be reasonably deemed less favorable to ATC as compared to
the terms and conditions under the applicable Ground Lease as of the Effective
Date. Such efforts may include, without limitation, contacts with the Ground
Lessor of each Site by letter, telephone and in person. ATC agrees to cooperate
with ALLTEL in its efforts to obtain any Required Consent; provided however,
that in no event shall ATC be obligated to incur any out-of-pocket expense or
additional obligation with respect to such cooperation. If ALLTEL is unable, at
anytime prior to the Final Closing, to obtain any Required Consent by the
applicable Closing, ALLTEL shall continue using commercially reasonable efforts
to obtain such Required Consent; provided, that if the Parties subsequently
obtain such Required Consent as to any Site, the Closing for such Site shall
take place at the Closing next succeeding the date on which such Required
Consent is obtained until the Final Closing has occurred; provided further, that
to the extent that ALLTEL has not obtained any such Required Consent on or
before the expiration of six (6) months following the Effective Date, ATC
reserves the right, at its sole expense and in its sole discretion, to attempt
to directly obtain any such Required Consent for a Site.
(c) If any such Required Consent is obtained prior to the Final Closing,
the related Site shall be subjected to the Sublease or MLA, as applicable, at
the next practicable subsequent Closing. Pending the obtainment of the Required
Consent, such Required Consent and the related Site shall not be deemed an
Included Site unless the Parties otherwise agree in writing to include such Site
in any Closing. Any Site subject to a Required Consent (other than with respect
to any Included Site subject to a prior Closing) that has not been obtained by
the Final Closing, shall be deemed an Excluded Site unless the Parties otherwise
agree in writing to include such Site in the Final Closing.
ARTICLE IV
CLOSINGS
SECTION 4.1. Closings.
---------------------
(a) Subject to prior termination of this Agreement by ALLTEL or ATC
pursuant to Article XII, the consummation of the transfer and conveyance of the
Sublease Interests, Acquired Interests and other Transactions shall occur in
multiple closings (individually, a "Closing", and collectively, the "Closings"),
and each such Closing shall take place in Little Rock, Arkansas and at such
times mutually agreed to by the Parties and on such dates (each, the "Closing
Date") as set forth in this Article IV.
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(b) Notwithstanding anything to the contrary contained herein, the parties
acknowledge and agree that each Closing shall be subject to the provisions of
Article X and shall take place after all the conditions set forth in Article X
have been satisfied or waived. The parties agree to use commercially reasonable
efforts to cause the initial Closing (the "Initial Closing") to take place on
April 2, 2001 (the "Initial Closing Date"), and thereafter each Closing shall
take place on the first day of the calendar month upon no less than fifteen (15)
days prior written notice from ALLTEL, which notice shall identify those Sites
selected by ALLTEL, consistent generally with the agreement of the Parties
contemplated by the last sentence of this Section 4.1(b) and that are ready to
close in accordance with the provisions of this Agreement, including, without
limitation, the right of ATC to exclude Sites from a Closing pursuant to
Sections 4.5, 4.6 and 5.13 and the Closing of any Site shall not occur prior to
the applicable ATC Delivery Date for such Site (unless expressly waived by ATC
in writing on a Site-by-Site basis or in the event that ATC has delivered an
unchallenged Site Designation Supplement to ALLTEL with respect to such Site);
provided, however, that in no event shall the final Closing (the "Final
Closing") occur later than the Termination Date. ALLTEL and ATC shall, within
twenty (20) days of the Effective Date, use reasonable efforts to agree
generally as to which particular geographic areas of Sites are to be included in
which Closings.
(c) The parties hereto shall use reasonable good faith efforts to include
at least two hundred fifty (250) Included Sites in the Initial Closing and each
subsequent Closing shall include at least two hundred fifty (250) Included
Sites, including, without limitation, any Sites deferred pursuant to Section 4.6
from the previous Closings; provided, however, that no minimum number of
Included Sites shall be applicable to the Final Closing.
SECTION 4.2. Transactions and Documents at the Closings.
-------------------------------------------------------
(a) At each Closing:
(i) ATC shall pay to ALLTEL by wire transfer of immediately
available funds to an account in the United States designated in
writing by ALLTEL the Rent in respect of all of the Subleased Property
of each Included Site being leased or subleased at such Closing and
the Purchase Price in respect of all of the Acquired Interests being
acquired at such Closing;
(ii) ATC shall execute and deliver to ALLTEL (A) Site Designation
Supplements with respect to Sublease Interests of the Included Sites
being leased or subleased at such Closing, (B) an assignment and
assumption agreement relating to the assignment of the Existing Tenant
Leases affecting the Included Sites and Ground Leases with respect to
In Progress Sites subject to such Closing in the forms attached hereto
as Exhibits E and F; (C) a site schedule under the MLA for each In
Progress Site acquired at such Closing, (D) an assumption agreement
relating to the assumption of the Contractual Obligations associated
with the operations or maintenance of the Included Sites subject to
such Closing in the form attached hereto as Exhibit J, and (E) such
other documents, certificates and other papers as set forth in Section
10.3 or may be reasonably necessary to effectuate the consummation of
the Transactions.
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(iii) ALLTEL shall execute and deliver to ATC (A) all Required
Consents in respect of the Included Sites at such Closing; (B) an
assignment and assumption agreement relating to the assignment of the
Existing Tenant Leases affecting the Included Sites and Ground Leases
with respect to In Progress Sites subject to such Closing in the forms
attached hereto as Exhibits E and F; (C) a site schedule under the MLA
for each In Progress Site acquired at such Closing, and (D) Site
Designation Supplements with respect to the Sublease Interests of
Included Sites being leased or subleased at such Closing; (E) a
receipt for the Rent and Purchase Price delivered to it at such
Closing, (F) an assumption agreement relating to the assumption of the
Contractual Obligations associated with the operations or maintenance
of the Included Sites subject to such Closing in the form attached
hereto as Exhibit J; and (G) such other documents, certificates and
other papers as set forth in Section 10.2 or may be reasonably
necessary to effectuate the consummation of the Transactions.
(b) In addition to and not in limitation of Section 4.2(a), at the Initial
Closing, ATC and ALLTEL shall execute and deliver the Sublease and the opinion
letters in the form attached hereto as Exhibits G and H, respectively.
SECTION 4.3. Costs of Closing.
-----------------------------
ALLTEL and ATC shall equally share and be responsible for and pay any and
all transfer and recording taxes and routine closing costs and expenses,
including, without limitation, any transfer Tax payable on the Sublease
Interests or Acquired Interests or the Purchase Option Consideration; provided,
however, that ALLTEL shall be responsible for and pay all recording costs
relating to any title clearance matters existing on or before to the applicable
Closing Date. Notwithstanding anything to the contrary contained herein, (i) any
fees, costs and expenses incurred by or on behalf of ATC for the services
ordered or requested by ATC for which ALLTEL is not liable under the Transaction
Documents shall be the responsibility of and shall be paid for by ATC and (ii)
any fees, costs and expenses incurred by or on behalf of ALLTEL for services
ordered or requested by ALLTEL for which ATC is not liable under the Transaction
Documents shall be the responsibility of and shall be paid for by ALLTEL.
SECTION 4.4. Further Assurances.
-------------------------------
(a) At each Closing, and from time to time thereafter, ALLTEL shall do all
such additional and further acts, and shall execute and deliver all such
additional and further instruments, certificates and documents, as ATC may
reasonably request to fully vest in and assure to ATC full right, title and
interest in and to the Sublease Interests and Acquired Interests to the full
extent contemplated by this Agreement and otherwise to effectuate the
consummation of the Transactions. Each of the Parties hereto will cooperate with
the others and execute and deliver to the other Parties such other instruments
and documents and take such other actions as may be reasonably requested from
time to time by any other Party as necessary to carry out, evidence and confirm
the intended purposes of the Transaction Documents and such obligation shall
survive any Closing without limitation.
21
(b) If after any Closing any Party discovers that the name of the ALLTEL
Company as set forth in any Site Designation Supplement is incorrect, the
applicable ALLTEL Company shall re-execute such Site Designation Supplement in
such a manner as to correct such name, and ALLTEL shall re-record such Site
Designation Supplement, unless the Parties agree that such re-recordation is not
necessary. The foregoing obligation shall survive all Closings.
(c) ALLTEL and ATC shall have the right, at the requesting Party's sole
expense, to cause any amendment to the Site Designation Supplement to be
recorded.
SECTION 4.5. Site Designation Supplements; Required Co-Location Documents
-------------------------------------------------------------------------
and MLA Schedules.
-----------------
(a) Following ATC's receipt of the Required Co-Location Documents for a
Site (other than In Progress Sites) in accordance with Section 5.16, ATC shall,
at its sole expense, collect the data relating to such Site, adequately describe
such Site (including, without limitation, the Reserved Space, the Microwave
Space, the Additional ALLTEL Space, the ALLTEL Equipment, the Microwave
Equipment, and the Additional ALLTEL Equipment) and prepare and deliver to
ALLTEL, within sixty (60) days following ATC's receipt of the associated
Required Co-Location Documents (provided, however, that in the event that ALLTEL
delivers Required Co-Location Documents for more than two hundred fifty (250)
Sites or fifty (50) Sites within any given market within any consecutive
fourteen (14) day period, ATC shall be entitled to an additional fourteen (14)
days for each group (but only such group(s)) of up to fifty (50) additional
deliveries (or twenty-five (25) within any given market) of Required Co-Location
Documents for the associated additional Sites during any such consecutive
fourteen (14) day period) (the applicable delivery date by ATC for a particular
Site is hereinafter referred to as the "ATC Delivery Date"), the Site
Designation Supplement and exhibits attached thereto for all Site Designation
Supplements relating to such Site, all in accordance with the terms thereof;
provided, however, that notwithstanding anything to the contrary, the foregoing
shall in no way alter ATC or ALLTEL's rights or obligations with respect to
Section 8 and Exhibit 4 of the Sublease or the representations and warranties of
ALLTEL set forth in Article VI. In no event shall ALLTEL deliver Required Co-
Location Documents for less than one hundred (100) Sites in any given delivery
to ATC. In the event that ALLTEL notifies ATC of a reasonable discrepancy or
inaccuracy in a Site Designation Supplement, together with what ALLTEL believes
to be a correct Site Designation Supplement for such Site, ALLTEL and ATC shall
cooperate, in good faith, to resolve any such dispute as to the accurate
descriptions to be listed therein; provided, however that if ALLTEL fails to
notify ATC of its disagreement with the information contained in any Site
Designation Supplement within fifteen (15) days of ALLTEL's receipt of such Site
Designation Supplement, ALLTEL's approval of such Site Designation Supplement
shall be deemed granted by ALLTEL. Subject to terms and conditions to this
Section 4.5(a), ALLTEL shall promptly reimburse ATC for all reasonable out-of-
pocket costs and expenses associated with investigating, correcting and
resolving any such alleged inaccuracy or dispute following receipt of an invoice
together with verifiable receipts and documentation; provided, however, if such
investigation reveals that ATC provided inaccurate information with respect to
the description of the ALLTEL Equipment, Microwave Equipment, and/or Additional
ALLTEL Equipment quantity, type and/or location, ALLTEL shall not be responsible
for any such out-of-
22
pocket costs and expenses associated with the applicable Site as long as ALLTEL
retained a third party to perform such investigation and such third party is the
same retained by ATC to initially perform the associated incorrect work.
Notwithstanding the foregoing, in all events, ALLTEL shall reimburse ATC for all
reasonable costs and expenses associated with ATC's in-house efforts in
investigating, correcting and resolving any such alleged inaccuracy or dispute
(including, without limitation, ATC's in-house labor costs and reasonable travel
expenses) following receipt of an invoice together with verifiable receipts and
documentation. In addition, ALLTEL agrees that it will use its reasonable
efforts to provide ATC with copies of its annual tower equipment audits, if any,
for each Site no less than ten (10) days prior to ATC's performance of an on-
site tower audit in connection with ATC's preparation of a Site Designation
Supplement and in the event that ALLTEL fails to provide ATC such copy by such
date, ALLTEL agrees that it may not use any such annual tower equipment audit as
the basis for a challenge of the accuracy of the associated information
contained in the Site Designation Supplement delivered by ATC. In the event that
the Parties are unable to resolve the dispute, the Parties shall mutually agree
to the appointment of an independent expert with a national firm experienced in
these matters, which expert shall resolve the dispute in accordance with common
industry practice and both parties hereto agree to be bound by such decision.
The costs associated with such independent expert shall be borne equally by the
Parties. The Parties agree that neither Party shall be obligated to execute a
Site Designation Supplement that is in dispute in accordance with the terms and
conditions of this Section 4.5 and any Site affected by such dispute shall be
deferred, if necessary, to a subsequent Closing until such dispute is resolved,
except as otherwise provided in Section 10.2(d)(ii) and 10.3(d). The
commencement date for each Site Designation Supplement with respect to an
Included Site shall be the applicable Closing Date.
(b) ALLTEL shall collect the data relating to the In Progress Sites,
adequately describe such In Progress Sites (including, without limitation, the
ALLTEL Equipment, Additional ALLTEL Equipment and Microwave Equipment that
ALLTEL has or intends to install at the In Progress Site) and prepare and
deliver to ATC no less than sixty (60) days prior to the applicable Closing
Date, the site schedule and associated exhibits pursuant to the MLA relating to
such In Progress Sites, all in accordance with the terms thereof. In the event
that ATC notifies ALLTEL of a reasonable discrepancy or inaccuracy in such site
schedules and ATC provides what it believes to be a correct site schedule for
such In Progress Site to ALLTEL, ALLTEL and ATC shall cooperate, in good faith,
to resolve any such dispute provided, however that if ATC fails to notify ALLTEL
of its disagreement with the information contained in any site schedule within
forty-five (45) days of ATC's receipt of such site schedule, ATC's approval of
such site schedule shall be deemed granted by ATC. In addition, where any such
inaccuracy requires verification, including without limitation verification as
to the number of antennas, height of antennas, location of antennas or location
of antenna mounting hardware, the Parties shall provide adequate resources and
personnel to resolve such dispute as to the alleged inaccuracy as soon as
reasonably practical and all reasonable costs and expenses associated thereto
shall be at ATC's sole cost and expense; provided, however, if such
investigation reveals that ALLTEL provided inaccurate information with respect
to the description of the ALLTEL Equipment, Microwave Equipment, and Additional
ALLTEL Equipment quantity, type and/or location, ALLTEL shall be responsible for
such costs and expenses associated with the applicable Site. In the event that
the
23
Parties are unable to resolve the dispute, the Parties shall mutually agree to
the appointment of an independent expert with a national firm experienced in
these matters, which expert shall resolve the dispute in accordance with common
industry practice and both parties hereto agree to be bound by such decision.
The costs associated with such independent expert shall be borne equally by both
Parties. The Parties agree that neither Party shall be obligated to execute a
site schedule that is in dispute in accordance with the terms and conditions of
this Section 4.5(b) and any Site affected by such dispute shall be deferred, if
necessary, to a subsequent Closing until such dispute is resolved, except as
otherwise provided in Section 10.2(d)(ii) and 10.3(d).
SECTION 4.6. Deferral of Closings; Updating of Representations;Excluded
-----------------------------------------------------------------------
Sites.
-----
(a) Subject to the provisions of this Agreement, ALLTEL or ATC will have
the right to defer the Closing as to any Site (other than any Included Site
subject to a prior Closing) to a later Closing by virtue of (i) the failure of
such Site to satisfy any condition set forth in Article X applicable to such
Party respecting such Site (including, without limitation, the failure to obtain
any Required Consent or the documents and information referred to in Section
10.2(d)), (ii) any Sites for which an Environmental Report or an environmental
assessment performed pursuant to Section 5.8 raises questions of potential
liability that has had or is reasonably likely to have an ALLTEL Material
Adverse Effect ("Environmental Exclusion Criteria"), (iii) any Sites for which a
Structural Report reasonably indicates the Tower on such Site can not
structurally accommodate in accordance with Law, Governmental Authorizations,
and sound engineering practices the equipment owned by third parties installed
on or before the Effective Date and the ALLTEL Equipment and Microwave Equipment
existing on the Effective Date or installed by ALLTEL on or after the Effective
Date but prior to the applicable Closing Date and the structural modification of
such Tower to accommodate such installations would result in capital
expenditures aggregating more than $25,000.00, (iv) any Sites associated with a
Ground Lease with a term (after giving effect to all renewal options of the
tenant thereunder) expiring within five (5) years following the Effective Date,
(v) Sites associated with a Ground Lease that contains a revenue-sharing
mechanism or payment to the Ground Lessor of twenty-five percent (25%) or more
of the revenues derived from a third party tenant and (vi) in the case of Sites
subject to a Ground Lease, the Ground Lessor and underlying landowner (if not
the Ground Lessor), as the case may be, does not have good indefeasible (subject
to the terms and conditions of the associated Ground Lease, if applicable) and
insurable leasehold interest or fee title, as applicable, free and clear of any
Lien that materially impairs the Permitted Use of the applicable Site,
(subsections (i) through (vi) above, collectively, the "Site Exclusion
Criteria"). Notwithstanding anything to the contrary, ATC must notify ALLTEL in
writing not later than the applicable ATC Delivery Date with respect to a Site
(that such Site (other than an Included Site subject to a prior Closing) meets
the Site Exclusion Criteria (except for Events occurring or arising after such
ATC Delivery Date with respect to such Site, in which case ATC shall notify
ALLTEL within ten (10) days of actual knowledge of such Event), and provide a
reasonable description explaining how such Site meets the applicable Site
Exclusion Criteria. For all Sites that ATC fails to notify ALLTEL that such
Sites meet the Site Exclusion Criteria by the applicable ATC Delivery Date, such
Sites shall be deemed to not meet the Site Exclusion Criteria. For those Sites
(other than any Included Sites subject to a prior Closing) that ALLTEL does
receive notice from ATC that such Sites meet the Site Exclusion Criteria by the
applicable
24
ATC Delivery Date, and if, by the Final Closing, ALLTEL fails, after the
exercise of commercially reasonable efforts, to cause such Site to not meet the
applicable Site Exclusion Criteria, such Site shall be deemed an Excluded Site.
ALLTEL shall, at its sole cost and expense, use its commercially reasonable
efforts to remove, satisfy or otherwise cure the matter(s) that cause any Site
to satisfy a Site Exclusion Criteria known to ALLTEL.
(b) No more than sixty (60) days following the Effective Date, ALLTEL shall
deliver to ATC the ALLTEL Disclosure Schedule. Any Existing Site in respect of
which ALLTEL makes any disclosure that qualifies a representation of ALLTEL in
Sections 6.3(a) (other than the listing of Owned Sites), 6.3(b) (other than the
listing of Ground Leases), 6.3(c) (other than the listing of Existing Tenant
Leases), 6.3(e), 6.4 (with respect only to failures to obtain Private
Authorizations), 6.5 (other than the listing of Governmental Authorizations in
Section 6.5(a) or Actions under Section 6.5(c) which are subject to a final,
nonappealable and binding order of a Governmental Authority or full settlement
and release as of the Effective Date), 6.11 and 6.12 (other than the listing of
above ground or underground tanks under Section 6.12(e)) (including without
limitation any such failure disclosed in the ALLTEL Disclosure Schedule) as to
such Site, ATC may, at ATC's option not later than the applicable ATC Delivery
Date with respect to a Site (or within twenty (20) days following a subsequent
written disclosure to ATC, if disclosed to ATC after the applicable ATC Delivery
Date with respect to a Site), elect to defer such Site to a later Closing Date
pursuant to Section 4.6(a) or designate it as an Excluded Site. The sole remedy
of ATC in respect of any such disclosure as to any Site shall be to cause such
Site, at its option, to be an Excluded Site hereunder or to defer the Closing
for such Site to a later Closing Date. ATC shall have the right, at its option,
by written notice to ALLTEL delivered on or before the applicable ATC Delivery
Date with respect to a Site (or within twenty (20) days following a subsequent
written disclosure to ATC, if disclosed to ATC after the applicable ATC Delivery
Date with respect to a Site), to elect to defer one or more particular Sites to
a later Closing Date or designate it as an Excluded Site if the ALLTEL
Disclosure Schedule makes any disclosure that qualifies such Sites with respect
to one or more of the representations of ALLTEL in Article VI (other than those
referred to in the second sentence of this Section 4.6(b)) and that,
individually or in the aggregate, has had or is reasonably likely to have an
ALLTEL Material Adverse Effect.
(c) The Sites listed in Exhibit L attached hereto are hereby designated by
the Parties as Excluded Sites.
(d) In the event that the aggregate number of proposed Included Sites
exceeds two thousand one hundred ninety-three (2,193), ATC shall have the right
(but not the obligation) to designate all Sites (other than Excluded Sites) in
excess of the initial 2,193 Included Sites as Included Sites by providing ALLTEL
with written notice hereunder not less than fifteen (15) days prior to the
applicable Closing Date of ATC's intention to include such excess Site(s) as an
Included Site(s). In the event that ATC does not so notify ALLTEL within the
foregoing time period with respect to such excess Site, such Site(s) shall be
deemed an Excluded Site(s) for all purposes hereunder.
(e) With respect to the following Sites (other than Excluded Sites):
25
(i) In the event that a Site has a Tower located thereon that (x) is
greater than or equal to 200 feet above ground level ("AGL"), (y) has
more than three (3) microwave antennas installed on such Tower and
(z) has less than three thousand dollars ($3,000) in monthly rent
receivables under Existing Tenant Leases with Broadband Carrier
tenants associated with such Tower operating Broadband Services from
the Site, ALLTEL shall perform or shall caused to be performed, at
ALLTEL's sole cost and expense, a structural analysis by engineers
reasonably acceptable to ATC to determine whether such Tower can
accommodate two (2) additional Broadband Equivalent Tenants (other
than ALLTEL and Existing Third Party Tenants).
(ii) In the event that a Site has a Tower located thereon that (x) is less
than 200 feet AGL, (y) has (A) more than one (1) microwave antenna
installed on such Tower or (B) an ALLTEL microwave antenna having a
diameter in excess of eight (8) feet installed on such Tower and (z)
has less than three thousand dollars ($3,000) in monthly rent
receivables under Existing Tenant Leases with Broadband Carrier
tenants associated with such Tower operating Broadband Services from
the Site, ALLTEL shall perform or shall caused to be performed, at
ALLTEL's sole cost and expense, a structural analysis by engineers
reasonably acceptable to ATC to determine whether such Tower can
accommodate two (2) additional Broadband Equivalent Tenants (other
than ALLTEL and Existing Third Party Tenants).
(iii) In the event that any structural analysis referred to in subsections
(i) and (ii) above, reasonably indicates that the applicable Tower is
unable to accommodate two (2) additional Broadband Equivalent Tenants
(other than ALLTEL and Existing Third Party Tenants), the
corresponding Site shall be deemed to be an Excluded Site unless: (x)
the Parties mutually agree in writing to include such Site
("Microwave Site") as an Included Site and mutually agree in writing
to reduce the Rent, Purchase Option Floor and number of shares of ATC
Class A Common Stock associated with the Purchase Option Price to a
market rate with respect to such Microwave Site, and such agreement
shall be reflected in the applicable Site Designation Supplement, or
(y) ALLTEL elects, in its sole discretion and at its sole cost and
expense, to modify or reinforce such Tower, if necessary in
accordance with the terms and conditions of this Section
4.6(e)(iii)(y), in a manner necessary for the applicable Tower to
accommodate the following:
(1) two (2) Broadband Equivalent Tenants (other than ALLTEL and
Existing Third Party Tenants), in the event that the monthly
rent receivable payable under Existing Tenant Leases with
Broadband Carriers associated with such Tower operating
Broadband Services from the Site, in the aggregate, is less
seven hundred fifty dollars ($750);
(2) one (1) Broadband Equivalent Tenant (other than ALLTEL and
Existing Third Party Tenants), in the event that the monthly
rent
26
receivable payable under Existing Tenant Leases with
Broadband Carriers associated with such Tower operating
Broadband Services from the Site, in the aggregate, is
greater than or equal to seven hundred fifty dollars ($750)
but less than two thousand two hundred fifty dollars
($2,250); and
(3) no modification or reinforcement of such Tower by ALLTEL
shall be required in the event that the monthly rent
receivable payable under Existing Tenant Leases with
Broadband Carriers associated with such Tower operating
Broadband Services from the Site, in the aggregate, is
greater than two thousand two hundred fifty dollars
($2,250).
(iv) In the event that ALLTEL elects to modify or reinforce a Tower in
accordance with Section 4.6(e)(iii)(y), the associated Site shall not
be an Included Site unless and until all required modifications or
reinforcements are completed.
In the event that ALLTEL elects to modify or reinforce a Tower in
accordance with Section 4.6(e)(iv)(y), ALLTEL shall notify ATC in writing
of such election, together with a complete set of the Required Co-Location
Documents for the associated Site, and ATC may, in its sole discretion,
require that ALLTEL modify or reinforce such Tower in excess of that
required of ALLTEL hereunder, provided, however, that (x) ATC shall be
solely responsible for all reasonable costs and expenses associated with
any such excess modification or reinforcement and shall promptly reimburse
ALLTEL for such amounts upon receipt of an invoice accompanied by
reasonably verifiable documentation, (y) ATC notifies ALLTEL in writing of
such election no more than thirty (30) days following ATC's receipt of the
later of (i) ALLTEL's notice of election to modify or reinforce a Tower,
and (ii) associated Required Co-Location Documents to ATC and (z) such
excess modification or reinforcement requested by ATC will not unreasonably
delay ALLTEL's efforts to modify or reinforce a Tower in accordance with
Section 4.6(e)(y)(iii).
SECTION 4.7. Prorations.
-----------------------
(a) Appropriate prorations shall be made on a daily basis as of the close
of business on the applicable Closing Date with respect to the Included Sites at
such Closing relating to Existing Tenant Leases and Ground Lease payments,
utilities, and all other items of income and expense due or payable under any
Ground Lease, Existing Tenant Lease or Site Maintenance Agreement, in each case,
of a nature ordinarily prorated as of closing in real estate transactions (and
not separately addressed elsewhere in this Agreement) including all items of
income and expense that are prepaid or payable in arrears, any unbilled costs
and fees and related accounts, notes and other receivables, in each case, of a
nature ordinarily prorated as of closing in real estate transactions (and not
separately addressed elsewhere in this Agreement) with ALLTEL being entitled to
all such income and responsible for all such expenses relating to all periods on
or prior to the applicable Closing Date and ATC being entitled to all such
income and responsible for all such expenses relating to all periods subsequent
to the Closing Date. Such prorations shall be
27
calculated by ALLTEL and submitted to ATC for approval (which shall not be
unreasonably withheld, delayed or conditioned), promptly after each Closing
(and, in any event, within forty-five (45) days after the applicable Closing),
and shall be settled in cash within thirty (30) days thereafter. To the extent
that any relevant bills or other documentation necessary to effect such
prorations are not available during such 45-day period, the parties shall make
such prorations based on reasonable estimates and shall adjust the relevant
prorations as soon as the relevant bills or other documentation becomes
available.
(b) If ATC disputes ALLTEL's determination of prorations, ATC shall give
ALLTEL written notice of such dispute within such thirty (30) day period after
ATC has received the applicable proration notice, which notice of dispute shall
specify in reasonable detail the basis for such dispute as well as ATC's
determination of prorations. If ATC does not give ALLTEL such notice of dispute
within such 30-day period, ALLTEL's calculation of the prorations shall be
binding and conclusive on the Parties. If the Parties are unable to resolve such
dispute within thirty (30) days after such notice of dispute is given, or such
longer period as the Parties may from time to time mutually agree, such dispute
shall be resolved by arbitration as hereinafter provided. Either Party may
request arbitration by giving written notice thereof to the other party after
such 30-day (or longer if mutually agreed upon) period. If, within ten (10) days
after such notice of arbitration, the Parties cannot agree on a single impartial
qualified arbitrator, such arbitrator shall be selected by the American
Arbitration Association in the City of New York. The arbitrator may, but shall
not be obligated to, select either ALLTEL's or ATC's determination of
prorations. Arbitration proceedings shall be conducted pursuant to the rules,
regulations and procedures from time to time in effect as promulgated by the
American Arbitration Association. The decision of the arbitrator shall be
binding and conclusive, and judgment upon the award or decision of the
arbitrator may be entered in the applicable court. The Parties consent to the
jurisdiction of such court and further agree that any process or notice of
motion or other application to the court or a judge thereof may be served
outside of the State of New York by registered mail or by personal service,
provided a reasonable time for appearance is allowed. The costs and expenses of
each arbitration hereunder and their apportionment between the parties shall be
determined by the arbitrator in his award or decision. Within five (5) business
days after the final determination of the prorations in accordance with the
provisions of this Section 4.7(b), the Party owing money shall pay all such
amounts owed by wire transfer of immediately available funds to such account in
the United States as the other Party shall designate together with, if
applicable, interest from the date any dispute was submitted to arbitration to
the date of payment at a rate equal to the "Prime Rate" set forth in the "Money
Rates" table of the Wall Street Journal on such date immediately prior to
-------------------
payment plus two percent (2%).
(c) ALLTEL agrees, on behalf of ATC and as an administrative convenience
only, to pay the Ground Rent for the payment due on the first day of the month
following the applicable Closing Date and (i) such failure by ATC shall not be
deemed a default hereunder, and (ii) ALLTEL shall be reimbursed for such initial
payment by ATC pursuant to proration adjustments in accordance with this Section
4.7.
28
ARTICLE V
ADDITIONAL AGREEMENTS; COVENANTS
SECTION 5.1. Expenses.
---------------------
(a) Except as otherwise provided herein, all expenses incurred by ATC or
ATC Parent in connection with the negotiations among the parties, and the
authorization, preparation, execution and performance of the Transaction
Documents and the Transactions shall be paid by ATC.
(b) Except as otherwise provided herein, all expenses incurred by any of
the ALLTEL Companies in connection with the negotiations among the parties, and
the authorization, preparation, execution and performance of the Transaction
Documents and the Transactions shall be paid by ALLTEL.
SECTION 5.2. Access to Information; Confidentiality.
---------------------------------------------------
(a) Each Party shall afford to the other Party and its accountants,
counsel, financial advisors and other representatives (the "Representatives")
full access during normal business hours throughout the period prior to the
Closing Date to all of its (and its Affiliates') properties, books, contracts,
insurance policies, studies and reports, environmental studies and reports,
commitments and records (including without limitation Tax Returns) relating to
the Sites and, during such period, shall promptly upon written request make
available for inspection by the requesting Party (i) each report, schedule and
other document filed or received by any Party pursuant to the requirements of
any applicable Law or filed by it with any Governmental Authority in connection
with the Transactions, and (ii) such other information concerning any of the
foregoing as ATC or ALLTEL shall reasonably request.
(b) All Confidential Information furnished pursuant to the provisions of
this Agreement, including without limitation this Section, will be kept
confidential and shall not, without the prior written consent of the Party
disclosing such Confidential Information, be disclosed by the other Party in any
manner whatsoever, in whole or in part, and, except as required by applicable
Law (including without limitation in connection with any registration, proxy or
information statement or similar document filed pursuant to any federal or state
securities Law) shall not be used for any purposes, other than in connection
with the Transactions. Except as otherwise herein provided, each Party agrees to
reveal such Confidential Information only to those of its Representatives whom
it believes need to know such Confidential Information for the purpose of
evaluating and consummating the Transactions. For purposes of this Agreement,
"Confidential Information" shall mean any and all information related to the
business or businesses of ATC and its Affiliates or ALLTEL and its Affiliates,
including any of their respective successors and assigns, other than information
that (i) has been or is obtained from a source independent of the disclosing
Party that, to the receiving Party's knowledge, is not subject to any
confidentiality restriction, (ii) is or becomes generally available to the
public other than as a result of unauthorized disclosure by the receiving Party,
or (iii) is independently developed by the receiving Party without reliance in
any way on information provided by the disclosing Party or a third party
independent of the disclosing Party that, to the receiving Party's knowledge, is
not
29
subject to any confidentiality restriction. Notwithstanding the foregoing,
nothing in this Section 5.2 or in the Confidentiality Agreement shall be deemed
to (i) limit or restrict ATC's right to market the Sites to third parties and to
operate, maintain, license or lease any of the Sublease Interests and Acquired
Interests (including, without limitation, build-to-suit sites and the disclosure
of reasonably necessary information regarding the Sites (other than Excluded
Sites), ALLTEL Equipment, Microwave Equipment, Additional ALLTEL Equipment or
proposed installation or the frequencies which are operated from the Included
Site), (ii) limit or restrict ATC or ALLTEL's right to identify the ALLTEL
Equipment, Microwave Equipment, and/or Additional ALLTEL Equipment at any
Included Site in Governmental Filings or marketing materials, or (iii) prohibit
ATC from providing copies of all Confidential Information with respect to a Site
permitted to be disclosed under clause (i) and (ii) above to existing or
potential tenants at the applicable Site, or (iii) limit or restrict the
disclosure by ATC to any Person of the Required Co-Location Documents, Tower
Data Files and/or Required Oasis Information. Without limiting the foregoing, it
is understood that any violation of the provisions of this Section 5.2 by a
Party's Representatives shall be deemed to be a breach of this Section by such
Party.
(c) Notwithstanding the provisions of Section 5.2(b), (i) each Party may
disclose such information as it may reasonably determine to be necessary in
connection with seeking all Governmental Authorizations or that is required by
applicable Law to be disclosed, including without limitation in any
registration, proxy or information statement or other document required to be
filed under any federal or state securities Law, and (ii) ATC may, with the
prior written consent of any of the officers of ALLTEL designated in Section
5.2(c) of the ALLTEL Disclosure Schedule, which consent shall not be
unreasonably withheld, delayed or conditioned, disclose the subject matter of
this Agreement to Persons with whom an ALLTEL Company has a business or
contractual relationship in connection with ATC's due diligence investigation.
In the event that this Agreement is terminated in accordance with its terms,
each Party shall promptly redeliver all written Confidential Information
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 which shall be bound by the provisions of Section 5.2(b).
(d) No investigation pursuant to this Section or otherwise shall affect any
representation or warranty in this Agreement of any Party or any condition to
the obligations of the Parties hereto.
(e) Notwithstanding anything to the contrary herein, the Confidentiality
Agreement shall remain in full force and effect and shall survive Closing or
termination or expiration of this Agreement. In the event of any conflict
between the terms of the Confidentiality Agreement and this Section 5.2, this
Section 5.2 shall control.
SECTION 5.3. Agreement to Cooperate; Certain Other Covenants.
------------------------------------------------------------
(a) Each of the Parties hereto shall use reasonable business efforts (x) to
take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable
30
under applicable Law to consummate the Transactions, and (y) to refrain from
taking, or cause to be refrained from taking, any action and to refrain from
doing or causing to be done, anything 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 Governmental 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
Governmental Authorities, (ii) to obtain all necessary or appropriate waivers,
consents and approvals, (iii) to effect all necessary registrations, filings and
submissions (including all filings, if any, required under the Xxxx-Xxxxx-Xxxxxx
Act and all other filings necessary for ATC or any of its Affiliates to own and
operate the Sublease Interests or Acquired Interests), (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), (v) to obtain the
satisfaction of the conditions specified in Article X, and (vi) to advise the
other of, in the case of ALLTEL, any changes that would be required in the
ALLTEL Disclosure Schedule if the applicable representations and warranties set
forth in Article VI did not refer to the date of this Agreement. The provisions
of this Section shall apply to all Affiliates of ATC and ALLTEL. Anything in
this Agreement, including without limitation this Section 5.3(a), to the
contrary notwithstanding, ATC Parent and ATC shall not be required, as a
condition to consummation of the Transactions, including satisfaction of the
conditions set forth in Section 10.1, to, or to cause any of its Affiliates to,
agree to divest, hold separate, or otherwise take or commit to take any action
(such as, for example, placing assets in a trust with a trustee that is not
controlled by ATC) that materially limits its or any of their freedom of action
with respect to, or its or any of their ability to retain, communication sites
that ATC Parent or any of its subsidiaries owns, operates, leases or subleases
as of the Effective Date, or has the right to own, acquire, lease or sublease,
including the Sites to be acquired or leased or subleased pursuant to the terms
hereof, if any such Action would require or result in ATC Parent and its
subsidiaries divesting, holding separate or taking any other such action that
materially limits its or any of their freedom of action with respect to, or its
or any of their ability to retain, in the aggregate, a material number of
communications sites.
(b) The parties shall cooperate with one another in the preparation of all
Tax Returns, questionnaires, applications or other documents regarding any Taxes
or transfer, recording, registration or other fees which become payable in
connection with the Transactions that are required to be filed on or before the
Closing Date.
(c) Simultaneously with the execution of this Agreement or with the
execution of a Joinder to Agreement in the form attached hereto as Exhibit C, as
applicable, each of the ALLTEL Companies will execute and deliver a counterpart
of (or Joinder to) the Build-to Suit Agreement.
(d) ALLTEL shall, if required by ATC Parent in order to comply with the
Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as
amended , reasonably cooperate and use its reasonable best efforts to cause its
independent accountants to reasonably cooperate with ATC Parent in order to
enable ATC Parent, in each case at ATC Parent's sole cost and expense, to have
ATC Parent's independent accountants prepare audited financial statements
31
(consisting of balance sheets as of December 31, 2000 and 1999 and statements of
income and cash flow for the three years ended December 31, 2000) with respect
to the Sites and the operation thereof. Without limiting the generality of the
foregoing, such cooperation shall include full access, with the right to make
copies at ATC Parent's expense, to the books and records of ALLTEL with respect
to the Sites and the operation thereof during normal business hours and upon
reasonable prior notice. The provisions of this Section shall survive the Final
Closing and the consummation of the Transactions.
SECTION 5.4. Public Announcements. Until the Final Closing or the
---------------------------------
termination of this Agreement, each Party 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 written approval of the
other. Notwithstanding the foregoing, the Parties acknowledge and agree that
they may, without each other's prior consent, issue such press releases or make
such public statements as may be required by applicable Law or any stock
exchange, in which case the issuing Party shall use all reasonable efforts to
consult with the other Party and agree upon the nature, content and form of such
press release or public statement.
SECTION 5.5. Notification of Certain Matters. Each Party 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 reasonably likely to cause (a)
any representation or warranty made by it contained in this Agreement to be
untrue or inaccurate in any material respect or (b) any failure by it to comply
with or satisfy, or be able to comply with or satisfy, in any material respect,
any covenant, condition or agreement to be complied with or satisfied by it
under this Agreement such that, in any such case, one or more of the conditions
of Closing would not be satisfied; provided, however, that the delivery of any
notice pursuant to this Section shall not limit or otherwise affect the rights
and remedies available hereunder to the Party receiving such notice or the
obligations of the party delivering such notice and shall not, in any event,
affect the representations, warranties, covenants and agreements of the parties
or the conditions to their respective obligations under this Agreement. Such
notice shall specifically identify all representatives, warranties, covenants
and agreements affected by the occurrence or non-occurrence of any such Event.
After the Closing with respect to any Site, ALLTEL shall no longer have an
obligation to notify ATC of any of the matters contemplated by this Section 5.5
that related solely to such Site, except as otherwise provided by the Sublease.
SECTION 5.6. Other Offers; Non-Solicitation. ALLTEL agrees that it and its
-------------------------------------------
Affiliates, officers, directors, employees, agents and representatives
(including without limitation any investment bankers, brokers, financial
advisors, finders, attorneys or accountants) (i) shall not, directly or
indirectly, (A) initiate, solicit, encourage or otherwise facilitate any
inquiries or the making of any proposal or offer that constitutes, or may
reasonably be expected to lead to, an Alternative Transaction, or (B) engage or
participate in any discussions or negotiations or otherwise cooperate or provide
assistance (including by way of furnishing non-public information) relating to
or in contemplation of an Alternative Transaction, (ii) have terminated any
discussions or negotiations with, and the provision of information or data
(whether or not of a non-public nature) to, any Person relating to or in
contemplation of an Alternative Transaction,
32
and (iii) have, or within two (2) Business Days of the Effective Date of this
Agreement will have, requested each Person that has heretofore executed a
confidentiality agreement in connection with its consideration of an Alternative
Transaction to return all confidential information heretofore furnished to such
Person by or on behalf of ALLTEL or any of its Affiliates and will not waive any
"standstill" provision of any such, or any other, agreement. If ALLTEL, any of
its Affiliates, any of its or any of their Representatives receives any inquiry
with respect to an Alternative Transaction while this Agreement is in effect,
such Person shall inform the inquiring party that it is not entitled to enter
into discussions or negotiations relating to an Alternative Transaction. Without
limiting the foregoing, it is understood that any violation of the restrictions
set forth in this Section 5.6 by any director or officer of ALLTEL or any of its
Affiliates or any investment banker, broker, financial advisor, finder,
attorney, accountant or other agent or representative of ALLTEL or any of its
Affiliates, whether or not acting on behalf of ALLTEL or any of its Affiliates,
shall be deemed to be a breach of this Section by ALLTEL. Notwithstanding the
foregoing, this Section 5.6 shall terminate and be of no further force and
effect at any time at which ALLTEL has the right to terminate this Agreement
pursuant to Section 12.1(b), (c), (e), or (f) without regard to whether ALLTEL
shall have exercised such right of termination.
SECTION 5.7. Preliminary Title Reports. Upon ATC's request, ALLTEL shall
--------------------------------------
reasonably cooperate with ATC so that ATC may obtain, at ATC's sole cost
and expense and in its sole discretion, either (i) a standard preliminary title
report dated on or after the Effective Date issued by such title company or
companies as ATC shall choose with respect to each of the Sites; or (ii) copies
of title policies or marked up commitments to issue title policies.
SECTION 5.8. Environmental Site Assessments. ATC may request that ALLTEL
-------------------------------------------
obtain an Environmental Report or other environmental assessment, with
respect to any Site on or before thirty (30) days prior to the contemplated
Closing with respect to such Site (other than Excluded Sites), at ATC's sole
cost and expense. Site assessments shall be conducted by such consultants and
professionals as ALLTEL shall select and in a manner as shall be reasonably
acceptable to ATC and shall be arranged at times mutually convenient to the
Parties. Each of ALLTEL and ATC shall be entitled to have representatives
present at the time such site assessments are conducted and to have copies of
all correspondence with the company preparing such Environmental Reports or
other environmental assessments. Notwithstanding anything to the contrary, all
Environmental Reports or environmental assessments shall be obtained by ALLTEL
in the name of, and for the benefit of, both ALLTEL and ATC. Nothing in this
Section 5.8 shall limit, restrict or supercede ALLTEL's obligation to provide
ATC with an Environmental Report pursuant to the Required Co-Location Documents.
SECTION 5.9. Structural Assessments. As promptly as practicable after the
-----------------------------------
execution of this Agreement, ATC may at its sole cost and expense (and
ALLTEL may at its sole cost and expense) obtain one or more Structural Reports
for a Site (other than Excluded Sites), prepared by one or more structural
engineers or other experts selected by ATC and reasonably acceptable to ALLTEL.
Each of ALLTEL and ATC shall be entitled to have representatives present at the
time such engineers or other experts are inspecting the Towers or other
improvements.
33
SECTION 5.10. Risk of Loss and Insurance. Between the Effective Date and
----------------------------------------
each Closing Date, the risks and obligations of ownership and loss of the
Sublease Interests and Acquired Interests with respect to the Included Sites
subject to such Closing and the correlative rights against insurance carriers
and third parties shall belong to ALLTEL. In the event of the damage or
destruction of all or a substantial portion of any of the Sublease Interests or
any of the Acquired Interests prior to any Closing, the affected Sites shall
become an Excluded Site unless the Parties agree in writing to the contrary.
SECTION 5.11. Condemnation. In the event of the occurrence of a Taking of
--------------------------
all or a Substantial Portion of any Site, or a bona fide threat of the
commencement of any such proceedings, prior to any Closing any of which,
individually or in the aggregate, would materially impair the Permitted Use of
the applicable Site or the Tower or other Site Improvements thereon, the
affected Sites shall become Excluded Sites unless the Parties agree in writing
to the contrary.
SECTION 5.12. Recordation of Site Designation Supplements.
---------------------------------------------------------
(a) ATC shall be responsible for effecting the recordation of a short form
memorandum for each Site Designation Supplement on each Included Site, unless
prohibited by Law or by the applicable Ground Lease, and the parties hereto
shall equally share all costs and expenses incurred in connection therewith.
Promptly after effecting such recordation, ATC shall give the ALLTEL written
confirmation of such recordation and copies of the recorded documents.
(b) ALLTEL and, after the applicable Closing, ATC shall each have the right
to place, each at its sole cost and expense, accurate signage on each Included
Site to put third parties on notice of its interest in such Site, subject to
compliance with applicable Laws and any Ground Lease for the Site in question.
(c) Notwithstanding anything to the contrary contained herein, if ATC is
unable to record any unrecorded Ground Lease or memorandum thereof in respect of
any Site and at any time thereafter ALLTEL loses its interest under the Ground
Lease by virtue of a foreclosure of a prior mortgage on the fee interest of such
Site (so long as such mortgage was for the benefit of a Person other than ALLTEL
or any of its Affiliates), ATC will have no claim against ALLTEL in respect
thereof.
(d) Following the applicable Closing, ATC and ALLTEL, with respect to those
Sites that were the subject of a Site Designation Supplement and the Ground
Lease or memorandum that was not recorded, shall continue reasonable efforts to
cause the Ground Lease or a memorandum thereof to be recorded. Such obligation
shall expire on the first anniversary of the Final Closing. If any such Ground
Lease or a memorandum is thereafter recorded in respect of any Site, the Parties
may re-record the Site Designation Supplement for such Site.
SECTION 5.13. Additional Sites; In Progress Sites; Zoned Sites.
--------------------------------------------------------------
(a) To the extent that an update provided under this Agreement relates to
the addition or amendment of Exhibit A-1 or Exhibit A-2, as applicable, with
respect to Sites that were not initially disclosed on Exhibit A-1 or Exhibit A-2
attached hereto (other than as contemplated by
34
Section 5.13(d) with respect to Zoned Sites listed in Exhibit N-1 or N-2
attached hereto) or were acquired by ALLTEL from a third party after the
Effective Date (but excluding In Progress Sites) but prior to the Final Closing,
such Site shall be deemed to be an Excluded Site for all purposes hereunder and
shall not be deemed to be the subject of any representation, warranty or
covenant of any of the ALLTEL Companies hereunder unless such Site is added to
this Agreement by the mutual written agreement of the Parties hereto prior to
the Final Closing ("Additional Site"); provided, however, that ALLTEL and ATC
acknowledge and agree that ATC shall have the right (but not the obligation) to
include any Site acquired by ALLTEL during the foregoing period of time or that
was owned or leased as of the Effective Date but omitted from Exhibit A-1 and
Exhibit A-2 (excluding Sites listed in Exhibits L, N-1, N-2, O-1 and O-2) as an
Included Site in accordance with the terms and conditions of this Agreement and
ALLTEL shall not offer any such Site to any third party nor enter into any
agreement contrary to such ATC rights so long as (i) the affected Site is not
subject to any right or obligation between the seller of such Site and a third
party existing immediately prior to the acquisition of such Site by ALLTEL that
could reasonably result in the acquisition of such Site (or any substantial
portion thereof) or any ownership or operational interest in such Site (other
than rights by a third party to collocate on such Site or a right of first
refusal that is not exercised by such third party and has been waived by such
third party or that has expired) by a third party, or (ii) such Site would have
been listed in Exhibit A-2 had such Site been acquired by ALLTEL on or before
the Effective Date and such acquisition resulted from the acquisition of an
existing third party entity or the creation of a new partnership or joint
venture between ALLTEL and a third party unless the consent or approval of such
third party (in either case) is required to include such Site as an Included
Site and, after the exercise of reasonable and good faith efforts by ALLTEL,
such third party does not grant such required consent or approval. The foregoing
provision shall not survive the Final Closing or earlier termination of this
Agreement.
(b) With respect to any In Progress Site completed after the Effective Date
and/or prior to the Final Closing, upon completion of such In Progress Site,
ALLTEL shall send written notice to ATC (as soon as practicable, but in no event
to exceed twenty (20) days following substantial completion of such In Progress
Site) together with all Required Co-Location Documents (prepared and obtained at
ALLTEL's sole cost and expense), a detailed list of the equipment and property
that ALLTEL intends to install at such In Progress Sites (including location of
such equipment), the aggregate amount of out-of-pocket costs and expenses
associated with or directly related to the acquisition, construction and
development of such In Progress Site and updated ALLTEL Disclosure Schedules
with respect to such Site(s), and ATC shall have the right to acquire ALLTEL's
interest in such Site in accordance with the provisions of Section 3.2 by
providing ALLTEL with written notice hereunder not less than sixty (60) days
following ATC's receipt of such completion notice and the Required Co-Location
Documents and other accompanying information required under this Section 5.13(b)
of ATC's intention to include such In Progress Site as an Included Site. In the
event that ATC does not so notify ALLTEL within the foregoing time period with
respect to an In Progress Site, such Site shall be deemed an Excluded Site for
all purposes hereunder.
(c) Notwithstanding anything to the contrary, ATC and ALLTEL may mutually
agree, in writing, to transfer any In Progress Site not then completed to
ATC pursuant to the terms and
35
conditions of the Build to Suit Agreement and ATC shall complete such Sites in
accordance with the terms and conditions thereof and such Site shall be conveyed
to ATC in accordance with Section 3.2 of this Agreement in consideration for the
applicable Purchase Price notwithstanding the fact that it is not a completed
Site.
(d) Notwithstanding anything to the contrary, ALLTEL shall send written
notice to ATC (as soon as practicable, but in no event to exceed twenty (20)
days following substantial completion of any Zoned Site) together with all
Required Co-Location Documents (prepared and obtained at ALLTEL's sole cost and
expense), a detailed list of the equipment and property that ALLTEL intends to
install at such Zoned Sites (including location of such equipment), and updated
ALLTEL Disclosure Schedules with respect to such Site(s). Upon ATC's receipt of
all of the foregoing, such Zoned Site shall be deemed an Included Site so long
as (i) ALLTEL has completed such Site(s), (ii) ATC does not designate such
Site(s) as an Excluded Site pursuant to the Site Exclusion Criteria
(notwithstanding the expiration of the time period for such designation with
respect to other Sites hereunder) or pursuant to Section 4.6(b) within thirty
(30) days from ATC's receipt of both ALLTEL's notice designating such Zoned
Site(s) as an Included Site hereunder, the Required Co-Location Documents and
updated ALLTEL Disclosure Schedule for such Site, (iii) ATC does not designate
such Zoned Site as an Excluded Site by providing ALLTEL with written notice
hereunder not less than thirty (30) days following the later of (X) ATC's
receipt of such completion notice, the other accompanying information required
under this Section 5.13(d), and (Y) the applicable ATC Delivery Date of ATC's
intention to exclude such Zoned Site as an Excluded Site (A) if ATC reasonably
believes that the Ground Rent or other payments to the Ground Lessor are
substantially above the then-current market rate for the associated geographic
area, or (B) if an available site location which could have reasonably
accommodated the ALLTEL Equipment, and, if applicable, Microwave Equipment is
located within two (2) miles of the Zoned Site, or (C) if the Tower can not
accommodate at least two additional Broadband Equivalent Tenants in addition to
ALLTEL and its Affiliates and Existing Third Party Tenants, if any). In addition
to and subject to the provisions of this Section 5.13(d), all Zoned Sites shall
be governed by the terms and conditions of this Agreement applicable to Sites
listed in Exhibit A-1 and Exhibit A-2 attached hereto.
(e) In the event that any Tower on a Site (other than an Excluded Site) is
not owned by any of the ALLTEL Companies (i.e. is utilized by ALLTEL in whole or
in part pursuant to a lease, license or other right of use agreement), such Site
shall be deemed to be an Excluded Site unless such Site is added to this
Agreement upon written notice by ATC, in ATC's sole discretion, to ALLTEL
received by ALLTEL on or before the applicable ATC Delivery Date of its
intention to include any such Site as an Included Site in accordance with the
terms and conditions of this Agreement. In no event shall this provision be
applicable to any Tower upon which ALLTEL merely leases space for the
installation and operation of its specific equipment located thereon (commonly
known as a co-location site), all of which shall be automatically deemed
Excluded Sites hereunder.
36
SECTION 5.14. ATC Parent's Guaranty.
-----------------------------------
(a) ATC Parent unconditionally guarantees to ALLTEL the full and timely
payment and performance and observance of all of the terms, provisions,
covenants and obligations of ATC under this Agreement, including without
limitation those set forth in Article XI, and other Transaction Documents and
any Affiliate of ATC under any Transaction Documents (the "ATC Obligations").
ATC Parent agrees that if ATC or ATC's Affiliates default at any time in the
performance of any of the ATC Obligations, ATC Parent shall faithfully perform
and fulfill all ATC Obligations and shall pay to ALLTEL all Loss and Expense
incurred by ALLTEL on account of any default by ATC or ATC's Affiliates and on
account of the enforcement of this guaranty.
(b) This guaranty obligation of ATC Parent shall be enforceable by ALLTEL
in an Action against ATC Parent without the necessity of any Action by ALLTEL of
any kind or nature whatsoever against ATC or its Affiliate, without the
necessity of any notice to ATC Parent of ATC's or its Affiliate's default or
breach under this Agreement or any Transaction Documents, and without the
necessity of any other notice or demand to ATC Parent to which ATC Parent might
otherwise be entitled, all of which notices ATC Parent hereby expressly waives.
ATC Parent hereby agrees that the validity of this guaranty and the obligations
of ATC Parent hereunder shall not be terminated, affected, diminished, or
impaired by reason of the assertion or the failure to assert by ALLTEL against
ATC or its Affiliate any of the rights or remedies reserved to ALLTEL pursuant
to the provisions of this Agreement or any Transaction Documents or any other
remedy or right which ALLTEL may have at law or in equity or otherwise.
(c) ATC Parent covenants and agrees that this guaranty is an absolute,
unconditional, irrevocable and continuing guaranty. The liability of ATC Parent
hereunder shall not be affected, modified, or diminished by reason of any
modification or termination of this Agreement and any other Transaction
Documents or any modification or waiver of or change in any of the covenants and
terms of this Agreement or any Transaction Documents by agreement of ALLTEL and
ATC or its Affiliate, or by any unilateral action of either ALLTEL or ATC or its
Affiliate, or by an extension of time that may be granted by ALLTEL to ATC or
its Affiliate or any indulgence of any kind granted to ATC or its Affiliate, or
any dealings or transactions occurring between ALLTEL and ATC or its Affiliate,
including, without limitation, any adjustment, compromise, settlement, accord
and satisfaction, or release, or any bankruptcy, insolvency, reorganization,
arrangement, assignment for the benefit of creditors, receivership, or
trusteeship affecting ATC or its Affiliate. ATC Parent does hereby expressly
waive any suretyship defense it may have by virtue of any Law of any
Governmental Authority.
(d) All of ALLTEL's rights and remedies under this guaranty are intended to
be distinct, separate, and cumulative and no such right and remedy herein is
intended to be the exclusion of or a waiver of any other.
(e) ATC Parent hereby waives, to the extent permitted by applicable Law,
presentment, demand for performance, notice of nonperformance, protest, notice
of protest, notice of dishonor, and notice of acceptance. ATC Parent further
waives any right to require that an action be brought against ATC or its
Affiliate or any other person or to require that resort be had by
37
ALLTEL to any security held by ALLTEL. The provisions of this Section 5.14 shall
survive any termination of this Agreement.
SECTION 5.15. ALLTEL Guaranty.
-----------------------------
(a) The ALLTEL Guarantors, jointly and severally, unconditionally guarantee
to ATC the full and timely payment and performance and observance of all of the
terms, provisions, covenants and obligations of ALLTEL under this Agreement,
including without limitation those set forth in Article XI, and other
Transaction Documents and any Affiliate of ALLTEL under any Transaction
Documents (the "ALLTEL Obligations"). The ALLTEL Guarantors agree that if ALLTEL
or ALLTEL's Affiliate default at any time in the performance of any of the
ALLTEL Obligations, the ALLTEL Guarantors shall faithfully perform and fulfill
all ALLTEL Obligations and shall pay to ATC all Loss and Expense incurred by ATC
on account of any default by ALLTEL or ALLTEL's Affiliate and on account of the
enforcement of this guaranty.
(b) This guaranty obligation of the ALLTEL Guarantors shall be enforceable
by ATC in an Action against the ALLTEL Guarantors, jointly and severally as to
each of the ALLTEL Guarantors, without the necessity of any Action by ATC of any
kind or nature whatsoever against ALLTEL or its Affiliate, without the necessity
of any notice to ALLTEL Inc. of ALLTEL's or its Affiliate's default or breach
under this Agreement or any Transaction Documents, and without the necessity of
any other notice or demand to any of the ALLTEL Guarantors to which the ALLTEL
Guarantors might otherwise be entitled, all of which notices the ALLTEL
Guarantors. hereby expressly waive. The ALLTEL Guarantors hereby agree that the
validity of this guaranty and the obligations of the ALLTEL Guarantors hereunder
shall not be terminated, affected, diminished, or impaired by reason of the
assertion or the failure to assert by ATC against ALLTEL or its Affiliate any of
the rights or remedies reserved to ATC pursuant to the provisions of this
Agreement or any Transaction Documents or any other remedy or right which ATC
may have at law or in equity or otherwise.
(c) The ALLTEL Guarantors covenant and agree that this guaranty is an
absolute, unconditional, irrevocable and continuing guaranty. The liability of
the ALLTEL Guarantors hereunder shall not be affected, modified, or diminished
by reason of any modification or termination of this Agreement and any other
Transaction Documents or any modification or waiver of or change in any of the
covenants and terms of this Agreement or any Transaction Documents by agreement
of ATC and ALLTEL or its Affiliate, or by any unilateral action of either ATC or
ALLTEL or its Affiliate, or by an extension of time that may be granted by ATC
to ALLTEL or its Affiliate or any indulgence of any kind granted to ALLTEL or
its Affiliate, or any dealings or transactions occurring between ATC and ALLTEL
or its Affiliate, including, without limitation, any adjustment, compromise,
settlement, accord and satisfaction, or release, or any bankruptcy, insolvency,
reorganization, arrangement, assignment for the benefit of creditors,
receivership, or trusteeship affecting ALLTEL or its Affiliate. Each of the
ALLTEL Guarantors does hereby expressly waive any suretyship defense it may have
by virtue of any Law of any Governmental Authority.
38
(d) All of ATC's rights and remedies under this guaranty are intended to be
distinct, separate, and cumulative and no such right and remedy herein is
intended to be the exclusion of or a waiver of any other.
(e) The ALLTEL Guarantors hereby waive, to the extent permitted by
applicable Law, presentment, demand for performance, notice of nonperformance,
protest, notice of protest, notice of dishonor, and notice of acceptance. The
ALLTEL Guarantors further waive any right to require that an action be brought
against ALLTEL or its Affiliate or any other person or to require that resort be
had by ATC to any security held by ATC. The provisions of this Section 5.15
shall survive any termination of this Agreement.
SECTION 5.16. Delivery of Tower Files. Subject to this Section 5.16,
-------------------------------------
ALLTEL shall (a) deliver complete sets of Required Co-Location Documents to ATC
for each Site (other than Excluded Sites) (including, without limitation, Zoned
Sites) in accordance with Section 4.5(a) and (b) provide information that is
reasonably available and in ALLTEL's then reasonable possession relevant to
ATC's preparation of the Required Oasis Information together with the delivery
of the Required Co-Location Documents. Notwithstanding the foregoing, ALLTEL
shall use its best efforts to deliver the Required Co-Location Documents to ATC
for all Sites (other than Excluded Sites) on or before August 1, 2001. Pursuant
to Section 10.2(a), no Site shall be deemed an Included Site until all Required
Co-Location Documents have been delivered to ATC by ALLTEL, unless such
obligation is expressly waived in writing by ATC, in its sole discretion. With
respect to a Site, in no event shall ALLTEL deliver an incomplete set of
Required Co-Location Documents to ATC unless ATC specifically agrees otherwise
in writing with respect to the affected Site. To the extent that any
Environmental Report or NEPA checklist is not in ALLTEL's, its Affiliates' or a
third party's (on behalf of ALLTEL) possession, ALLTEL shall promptly retain a
qualified consultant or contractor to obtain such data in a manner reasonably
acceptable to ATC at times mutually convenient to the parties, and shall be
obtained in the name of, and for the benefit of, both parties. ALLTEL shall be
solely responsible for all costs associated with completing or obtaining any
information or data required for the Required Co-Location Documents and ATC
shall be solely responsible for all costs associated with completing or
obtaining any information or data required for the Required Oasis Information
(except to the extent in the possession of ALLTEL, its Affiliates or a third
party (on behalf of ALLTEL)).
SECTION 5.17. Conduct of Business by ALLTEL.
-------------------------------------------
Except as otherwise specifically contemplated by this Agreement, after the
Effective Date and prior to the Final Closing or earlier termination of this
Agreement, unless ATC shall otherwise consent in writing, ALLTEL shall, and, if
applicable, shall cause each of its Affiliates to:
(a) conduct its business with respect to the Sites in the ordinary and
usual course of business and consistent with past practice;
(b) use reasonable business efforts to preserve intact its business
organization and goodwill associated with the Sites, keep available the services
of its present officers and key
39
employees who perform services related to the maintenance and operation of the
Sites, and preserve the goodwill and business relationships with customers and
others having business relationships with them relating to the Sites and not
knowingly engage in any action, directly or indirectly, with the intent to
adversely impact the Transactions;
(c) confer on a regular and frequent basis with one or more representatives
of ATC to report material operational matters and the general status of ongoing
operations related to the maintenance, leasing, installations, modifications and
operation of Sites;
(d) maintain with financially responsible insurance companies insurance on
the Sites in such amounts and against such risks and losses as are consistent
with past practice;
(e) not make any Tax election that could reasonably be likely to have an
ALLTEL Material Adverse Effect or settle or compromise any material Tax
liability related to the Sites;
(f) except in the ordinary course of business or except as would not be
reasonably likely to have, individually or in the aggregate, an ALLTEL Material
Adverse Effect, not enter into or modify, amend or terminate any Material
Agreement to which ALLTEL or any of its Affiliates is or may be a party or by
which any of the Sublease Interests and Acquired Interests may be bound or to
which any of them is or may be subject or waive, release or assign any material
rights or claims thereunder;
(g) notwithstanding anything else in this Agreement to the contrary, not
modify, amend or terminate any Ground Lease, Existing Tenant Lease, Swap
Agreement (provided, however, that ALLTEL may freely terminate any Swap
Agreement) or not enter into, modify, amend or terminate any other lease,
license or sublease of any or all space on any Site without, in each case, the
express prior written consent of ATC (which consent shall not be unreasonably
withheld, conditioned or delayed) or in accordance with the provisions of the
Site Management Agreement; provided, however, that ALLTEL may attempt to extend
the expiration date of any Ground Lease or obtain any Required Consents in
accordance with the provisions of Section 3.3 prior to the applicable Closing
Date for the affected Site; and
(h) with respect to Swap Agreements, as lessee, not enter into any lease
agreements or similar arrangements with respect to any of the Sites pursuant to
any Swap Agreement and, as lessor, use its reasonable business efforts to
terminate all existing lease agreements under any Swap Agreement affecting any
Site (other than those in which the other party is a Governmental Authority).
Notwithstanding the foregoing, ATC and ATC Parent agree that ALLTEL may
add, subtract, modify or relocate any of its antennas or equipment from any Site
in the ordinary course of business, and any net additions of antennas or
equipment (i) made prior to the Effective Date shall not constitute a breach of
the foregoing so long as made in the ordinary course of business consistent with
past practices, and (ii) made after the Effective Date on each Site subsequently
included in a Closing shall be subject to the provisions of Section 8 of the
Sublease; provided, however, that prior to the applicable Closing Date for the
affected Site, ALLTEL shall be obligated to provide ATC with written notice no
less than fifteen (15) days following the
40
installation of any Additional ALLTEL Equipment or physical modification of any
ALLTEL Equipment, Microwave Equipment or Additional ALLTEL Equipment (but in no
event less than five days prior to the applicable Closing Date) on any of the
Sites (other than Excluded Sites), in each case performed by ALLTEL or pursuant
to ALLTEL's instruction, in the form of Exhibit K attached hereto (it being
understood that all applicable sections of such form must be complete).
ARTICLE VI
REPRESENTATIONS, WARRANTIES
AND COVENANTS OF ALLTEL
ALLTEL hereby represents and warrants to ATC as follows as of the Effective
Date and, as applicable, as of each Closing Date (except for any representations
and warranties that speak as of a specified date, which shall be made only as of
such date):
SECTION 6.1. Organization and Business; Power and Authority; Effect of
----------------------------------------------------------------------
Transaction.
-----------
(a) ALLTEL is a corporation or other Person duly organized, validly
existing and in good standing under the laws of its respective jurisdiction of
incorporation or formation and has all requisite power and authority (corporate,
limited liability company, partnership and other, as applicable) to own or hold
under lease its properties and to conduct its business as now conducted and as
presently proposed to be conducted. Section 6.1(a) of the ALLTEL Disclosure
Schedule sets forth a true, correct and complete list of each ALLTEL Company
which is made a party hereto and its jurisdiction of organization or
incorporation. ALLTEL is duly qualified to do business and in good standing as a
foreign corporation in each other jurisdiction (as shown on Section 6.1(a) of
the ALLTEL Disclosure Schedule) in which the character of the property owned or
leased by it or the nature of its business or operations requires such
qualification, except in such jurisdictions where the failure to be so qualified
or in good standing, individually or in the aggregate, has not had and will not
reasonably be expected to have an ALLTEL Material Adverse Effect.
(b) ALLTEL has all requisite power and authority (corporate and other) to
execute, deliver and to perform its obligations under this Agreement and each
Transaction Document executed or required to be executed by it pursuant hereto
or thereto and to consummate the Transactions and the other transactions
contemplated hereby and thereby; and the execution, delivery and performance by
ALLTEL of this Agreement and each Transaction 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 ALLTEL, and no corporate,
limited liability company or partnership, as applicable, proceedings (other than
those taken on or before the Effective Date) on the part of ALLTEL are necessary
to authorize this Agreement or the transactions contemplated hereby or to
consummate the Transactions. This Agreement has been duly executed and delivered
by ALLTEL and constitutes, and each Transaction Document executed or required to
be executed by it pursuant hereto or thereto or to consummate the Transactions
when executed and delivered by ALLTEL will constitute, a legal, valid and
binding obligation of ALLTEL, enforceable in accordance with their respective
terms, except as such
41
enforceability may be subject to bankruptcy, moratorium, insolvency,
reorganization, arrangement, voidable preference, fraudulent conveyance and
other similar Laws relating to or affecting the rights of creditors and except
as the same may be subject to the effect of general principles of equity.
(c) The execution, delivery and performance by ALLTEL of this Agreement and
any Transaction Document executed or required to be executed by it pursuant
hereto or thereto do not, and the consummation by ALLTEL of the Transactions and
the other transactions contemplated hereby and thereby, and compliance by ALLTEL
with the terms, conditions and provisions hereof or thereof will not:
(i) except as set forth in Section 6.1(c) of the ALLTEL
Disclosure Schedule, (A) conflict with, or result in a breach or
violation of, or constitute a default under, any Organic Document of
ALLTEL or any Law, or (B) to the knowledge of ALLTEL, conflict with,
or result in a breach or violation of, or constitute a default under,
or permit the termination, cancellation or acceleration of any
obligation or liability (with or without notice, lapse of time or
both) in, or but for any requirement of the 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 termination,
cancellation or acceleration of, or result in any material change in
the rights or obligations of any party under, any Governmental
Authorization, Private Authorization, Ground Lease or Material
Agreement of ALLTEL directly relating to any Site or the Transactions
contemplated hereby; or
(ii) result in or permit the creation or imposition of any
Lien upon any Site except for such creations or impositions that
would not, individually or in the aggregate, reasonably be expected
to have an ALLTEL Material Adverse Effect.
(d) Substantially all of the licenses issued to ALLTEL Inc. and its
Affiliates by the FCC as of the Effective Date for the provision of wireless
communications services (other than any paging related services) are held by the
ALLTEL Guarantors or in partnerships in which the ALLTEL Guarantors are a
general partner.
SECTION 6.2. [RESERVED].
-----------------------
SECTION 6.3. Title to Properties; Leases.
----------------------------------------
(a) Section 6.3(a) of the ALLTEL Disclosure Schedule contains a true and
accurate description of all real property associated with the Owned Sites.
ALLTEL has good indefeasible, marketable and insurable fee title to all such
real property (other than easement and leasehold real property) with respect to
Owned Sites. With respect to all of the Owned Sites and Leased Sites, all of the
Sublease Interests and Acquired Interests are so owned, in each case, free and
clear of all Liens, except (i) Permitted Liens, and (ii) Liens set forth on
Section 6.3(a) of the ALLTEL Disclosure Schedule. To the best of ALLTEL's
knowledge, except as disclosed in Section 6.3(a) of the ALLTEL Disclosure
Schedule, all improvements on the real property owned or leased by ALLTEL or any
of its Affiliates at a Site are in compliance with applicable zoning,
42
wetlands and land use Laws and applicable title covenants, conditions,
restrictions and reservations in all respects necessary to conduct the wireless
communications business of ALLTEL and its Affiliates relating to the Included
Sites (the "ALLTEL Business") as conducted, except for any instances of non-
compliance which do not and will not materially and adversely affect the use of
such Site or, individually or in the aggregate, have an ALLTEL Material Adverse
Effect on the owner or lessee, as the case may be, of such real property
associated with the Site. To the best of ALLTEL's knowledge, except as disclosed
in Section 6.3(a) of the ALLTEL Disclosure Schedule, all such improvements
(including, without limitation, the Towers) comply in all material aspects with
all applicable Laws, Governmental Authorizations and Private Authorizations.
There is no pending or, to ALLTEL's knowledge, threatened or contemplated action
to take by eminent domain or otherwise to condemn any material part of any real
property at an Included Site. Except as set forth in Section 6.3(a) of the
ALLTEL Disclosure Schedule, to the best of ALLTEL's knowledge, all buildings and
Towers are in a state of good repair and maintenance and sound operating
condition, normal wear and tear excepted, have been maintained in a manner
consistent with generally accepted standards of engineering practice, and
currently permit the Included Sites to be operated as communication tower
facilities in all material respects, except where such failure, individually or
in the aggregate, does not or will not reasonably be expected to have an ALLTEL
Material Adverse Effect.
(b) Section 6.3(b) of the ALLTEL Disclosure Schedule contains a true,
accurate and complete description of all Ground Leases under which any real
property is leased to ALLTEL by any Person. Except as otherwise set forth in
Section 6.3(b) of the ALLTEL Disclosure Schedule, each Ground Lease under which
ALLTEL holds real or personal property constituting a part of the Sublease
Interests and Acquired Interests is in full force and effect, has been duly
authorized, executed and delivered by ALLTEL and, to its knowledge, each of the
other parties thereto, and is a legal, valid and binding obligation of ALLTEL
and, to its 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 of creditors and obligations of debtors generally and by general
principles of equity. ALLTEL has a valid leasehold interest in and, to its
knowledge, enjoys peaceful and undisturbed possession under all Ground Leases
pursuant to which it holds any such real property or personal property, subject
to the terms of each Ground Lease and applicable Law. True, accurate and
complete copies of each of such Ground Leases have been made available by ALLTEL
to ATC, and ALLTEL has provided ATC with photocopies of all such Ground Leases
requested by ATC (or true, accurate and complete descriptions thereof have been
set forth in Section 6.3(b) of the ALLTEL Disclosure Schedule, with respect to
those that are oral). Neither ALLTEL or any of its Affiliates nor, to ALLTEL's
knowledge, any other party thereto has failed to duly comply with all of the
material terms and conditions of each such Ground Lease or has done or
performed, or failed to do or perform (and no Claim is pending or, to the
knowledge of ALLTEL, threatened to the effect that ALLTEL or any of its
Affiliates 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) any of such Ground
Leases or in any material respect impair the rights or benefits of, or
materially increase the costs to, ALLTEL under any of such Ground Leases.
43
(c) Section 6.3(c) of the ALLTEL Disclosure Schedule contains a true and
accurate description of all Existing Tenant Leases under which any portion of a
Site is leased by ALLTEL to any Person. Except as otherwise set forth in Section
6.3(c) of the ALLTEL Disclosure Schedule, each Existing Tenant Lease is in full
force and effect, has been duly authorized, executed and delivered by ALLTEL
and, is a legal, valid and binding obligation of ALLTEL and, to its 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 of creditors and
obligations of debtors generally and by general principles of equity. To
ALLTEL's knowledge, neither ALLTEL nor any of its Affiliates nor any other party
thereto has failed to duly comply with all of the material terms and conditions
of each such Existing Tenant Lease or has done or performed, or failed to do or
perform (and no Claim is pending or, to the knowledge of ALLTEL, threatened to
the effect that ALLTEL or any of its Affiliates has not so complied, done and
performed or failed to do and perform) any act which would be reasonably likely
to invalidate or provide grounds for the other party thereto or ALLTEL to
terminate (with or without notice, passage of time or both) any of such Existing
Tenant Leases.
(d) The utility services currently available to each Included Site are
adequate for the present use of such Site by ALLTEL and third party tenants
utilizing the Included Sites as of the Effective Date, are, to ALLTEL's
knowledge, being supplied by utility companies or pursuant to valid and
enforceable contracts or tariffs, and there is no condition, individually or in
the aggregate, which, to ALLTEL's knowledge, will result in the termination of
the present access from such Site to such utility services or would have an
ALLTEL Material Adverse Effect.
(e) Except as otherwise provided in Section 6.4(b) of the ALLTEL Disclosure
Schedules and subject to obtaining the Required Consents, ALLTEL has obtained
all easements and rights-of-way that are reasonably necessary to provide
vehicular and pedestrian ingress and egress to and from each of the Included
Sites for the purposes used by ALLTEL in the ordinary course and for the
Permitted Use. No Action is pending or, to ALLTEL's knowledge, threatened which,
individually or in the aggregate, would have the effect of terminating or
limiting such access or would have an ALLTEL Material Adverse Effect.
SECTION 6.4. Compliance with Private Authorizations. Section 6.4(a) of the
---------------------------------------------------
ALLTEL Disclosure Schedule sets forth a true, accurate and complete list and
description of each Private Authorization (other than the Required Consents)
which individually is material to the Sublease Interests and Acquired Interests
and the operation of each Included Site and Section 6.4(b) of the ALLTEL
Disclosure Schedule sets forth a true, accurate and complete list and
description of each Required Consent. ALLTEL has, or shall as of the applicable
Closing Date, obtained all Private Authorizations that are necessary for the
ownership or operation of the Sublease Interests and Acquired Interests, which,
if not obtained and maintained, could, individually or in the aggregate, have an
ALLTEL Material Adverse Effect. All of such Private Authorizations are valid
and in good standing and are in full force and effect. To the best knowledge of
ALLTEL, neither ALLTEL nor or any of its Affiliates is in material 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
44
of giving of notice or passage of time or both would constitute, such a material
breach, violation or default, under any such Private Authorization. No such
Private Authorization is the subject of any pending or, to ALLTEL's knowledge,
threatened attack, revocation or termination.
SECTION 6.5. Compliance with Governmental Authorizations and Applicable
-----------------------------------------------------------------------
Law.
---
(a) Section 6.5(a) of the ALLTEL Disclosure Schedule contains a true,
complete and accurate description of each Governmental Authorization required
under applicable Law to own and operate the Included Sites, as currently
conducted or proposed to be conducted on or prior to the Closing Date (other
than the FCC Authorizations or any Governmental Authorizations obtained by any
third parties under any Existing Tenant Leases). ALLTEL has obtained all
Governmental Authorizations that are necessary for the ownership or operation of
the Included Sites as now conducted and which, if not obtained and maintained,
could, individually or in the aggregate, have an ALLTEL Material Adverse Effect.
To the knowledge of ALLTEL, none of the Governmental Authorizations listed in
Section 6.5(a) of the ALLTEL Disclosure Schedule is subject to any restriction
or condition that could limit in any material respect the ownership or
operations of the Included Sites as currently conducted, except for restrictions
and conditions generally applicable to Governmental Authorizations of such type.
The Governmental Authorizations listed in Section 6.5(a) of the ALLTEL
Disclosure Schedule 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 ALLTEL or
any of its Affiliates or its or any of their officers, directors, employees or
agents, and the ownership and operation of the Included Sites are in accordance
in all material respects with the Governmental Authorizations. All material
reports, forms and statements required to be filed by ALLTEL or any of its
Affiliates with all Governmental Authorities with respect to the Included Sites
have been filed and are true, complete and accurate in all material respects,
except for such failures, that individually or in the aggregate, have not had
and would not reasonably be expected to have an ALLTEL Material Adverse Effect.
No such Governmental Authorization is the subject of any pending or, to ALLTEL's
knowledge, threatened challenge or proceeding to revoke or terminate any such
Governmental Authorization. ALLTEL has no reason to believe that any such
Governmental Authorization will not be renewed in the name of ALLTEL by the
granting Governmental Authority in the ordinary course.
(b) To the knowledge of ALLTEL, except as otherwise specifically set forth
in Section 6.5(b) of the ALLTEL Disclosure Schedule, ALLTEL and each of its
Affiliates has conducted the ALLTEL Business and owned and operated the Included
Sites in accordance, and each of the Included Sites is in compliance, with all
applicable Laws (excluding Environmental Laws) and Governmental Authorizations,
except for such breaches, violations and defaults as, individually or in the
aggregate, have not had and will not have an ALLTEL Material Adverse Effect.
Except as otherwise specifically described in Section 6.5(b) of the ALLTEL
Disclosure Schedule, ALLTEL, its Affiliates or the Included Sites are not
subject to nor are charged by any Governmental Authority with, or, to ALLTEL's
knowledge, is threatened or under investigation by any Governmental Authority
with respect to, any breach or violation of, or default in the performance,
observance or fulfillment of, any applicable Law relating to the ownership, use,
occupancy management, repair, construction, replacement or and operation of the
Included Sites which, individually or in the aggregate, has had or will have an
ALLTEL Material Adverse
45
Effect. To the knowledge of ALLTEL, except as otherwise specifically described
in Section 6.5(b) of the ALLTEL Disclosure Schedule, 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 Governmental Authorization or any applicable Law, except for such
breaches, violations or defaults as, individually or in the aggregate, have not
had and will not have an ALLTEL Material Adverse Effect.
(c) Except as set forth in Section 6.5(c) of the ALLTEL Disclosure
Schedule, there have not been during the past three fiscal years of ALLTEL and
there are no Actions of any kind pending or, to the knowledge of ALLTEL,
threatened at Law, in equity or before any Governmental Authority against ALLTEL
or any of its Affiliates or any of its or their officers or directors relating
to the ownership or operation of the Included Sites or the conduct of ALLTEL's
business thereon that, individually or in the aggregate, would reasonably be
expected to have an ALLTEL Material Adverse Effect.
SECTION 6.6. Related Transactions. Neither ALLTEL nor any of its
---------------------------------
Affiliates is a party or subject to any Contractual Obligation relating to the
ownership or operation of any of the Included Sites or the conduct of ALLTEL's
Business that would have an ALLTEL Material Adverse Effect thereon between
ALLTEL or any of its Affiliates and any of its or any of their executive
officers or directors, to the knowledge of ALLTEL, any member of the Immediate
Family of any thereof, or any Affiliate of any of the foregoing, 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, the
leasing of property to or from, or otherwise requiring payments to or from, any
such Person, other than (a) employment arrangements, (b) Contractual Obligations
between ALLTEL and any of the foregoing that are set forth in Section 6.6(b) of
the ALLTEL Disclosure Schedule and will be terminated, at no cost or expense to
ATC, prior to the applicable Closing, or (c) as specifically set forth in
Section 6.6(c) of the ALLTEL Disclosure Schedule.
SECTION 6.7. Insurance. All material fire and casualty, general liability,
----------------------
business interruption, product liability, and sprinkler and water
damage insurance policies maintained by ALLTEL or any of its Affiliates with
respect to the Included Sites are with reputable insurance carriers, provide
full and adequate coverage for ALLTEL and such Affiliates with respect to the
Included Sites, and are in character and amount at least equivalent to that
carried by Persons engaged in similar businesses and subject to the same or
similar perils or hazards.
SECTION 6.8. Tax Matters. Except as set forth in Section 6.8 of the ALLTEL
------------------------
Disclosure Schedule:
(a) all Taxes relating exclusively to the Included Sites due with respect
to any completed and settled audit, examination or deficiency litigation with
any Taxing Authority have been paid in full, except for Taxes due with respect
to any audit, examination or deficiency litigation with any Taxing Authority,
individually or in the aggregate, that have not had and would not reasonably be
expected to have an ALLTEL Material Adverse Effect;
46
(b) there is no audit, examination or deficiency litigation pending with
respect to any Taxes that relate exclusively to the Included Sites, and during
the past three years no Taxing Authority has given written notice of the
commencement of any audit, examination or deficiency litigation with respect to
any Taxes that relate exclusively to the Included Sites, except for such audits,
examinations or deficiency litigation, individually or in the aggregate, that
have not had and would not reasonably be expected to have an ALLTEL Material
Adverse Effect; and
(c) neither ALLTEL nor any of its Affiliates is bound by any currently
effective private ruling, closing agreement or similar agreement with any Taxing
Authority relating to Taxes that relate exclusively to the Included Sites,
except for such private rulings, closing agreements or similar agreements,
individually or in the aggregate, that have not had and would not reasonably be
expected to have an ALLTEL Material Adverse Effect.
SECTION 6.9. Material Agreements. Listed on Section 6.9 of the ALLTEL
--------------------------------
Disclosure Schedule are all Material Agreements (other than Ground Leases and
Existing Tenant Leases) relating to the ownership or operation of the Included
Sites (other than the direct ownership or operation of ALLTEL's communication
services), or to which any of the Included Sites is subject. ALLTEL has or shall
provide ATC with photocopies of all such Material Agreements requested by ATC
(or true, accurate and complete descriptions thereof have been set forth in
Section 6.9 of the ALLTEL Disclosure Schedule with respect to Material
Agreements that are oral). All of such Material Agreements are valid, binding
and legally enforceable obligations of ALLTEL or one of its Affiliates, 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. To the best of its
knowledge, neither ALLTEL nor any of its Affiliates has failed to duly comply
with all of the material terms and conditions of each such Material Agreement
(and no Claim is pending or, to the knowledge of ALLTEL, threatened in writing
to the effect that ALLTEL or any of its Affiliates 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) any of such Material Agreements or impair in any
material respect the rights or benefits of, or materially increase the costs to,
ALLTEL or any of its Affiliates under any of such Material Agreements.
SECTION 6.10. Broker or Finder. Except Xxxxxxx Xxxxx Xxxxxx Inc. which is
------------------------------
an advisor to ALLTEL, no broker or finder has acted on its behalf in
connection with this Agreement or the Transactions and ALLTEL agrees to
indemnify the ATC Indemnitees from and against any and all claims or demands for
commissions or other compensation by any broker, finder or similar agent
claiming to have been employed by or on behalf of ALLTEL or its Affiliates,
including, without limitation, Xxxxxxx Xxxxx Barney Inc.
SECTION 6.11. Operating and Maintenance. Agreements. Except for the
---------------------------------------
Contracts set forth in Section 6.11 of the ALLTEL Disclosure Schedule, there are
no Contracts to which ALLTEL is a party or subject to presently in effect
associated with the operations or maintenance of any Included Site (or any
portion thereof) that can not be terminated by ALLTEL upon less than one hundred
eighty (180) days prior written notice without penalty.
47
SECTION 6.12. Environmental Matters. With respect to Included Sites only
-----------------------------------
and except as set forth in Section 6.12 of the ALLTEL Disclosure Schedule,
or, with respect to paragraphs (a), (b), (c) and (d)(i), except for such
exceptions as, individually or in the aggregate, have not had and would not
reasonably be expected to have an ALLTEL Material Adverse Effect:
(a) ALLTEL has no knowledge of any written request for information or other
correspondence concerning its potential liability with respect to any Site under
or pursuant to any Environmental Law, and (ii) neither ALLTEL nor any of its
Affiliates is a party to or, to ALLTEL's knowledge, threatened with any Action
involving a demand for damages or other potential liability with respect to
violations or breaches with respect to a Site of any Environmental Law;
(b) neither ALLTEL nor any of its Affiliates has entered into or has
knowledge of any consent decree, compliance order or administrative order issued
pursuant to any Environmental Law with respect to a Site, and (ii) neither
ALLTEL nor any of its Affiliates is a party in interest or, to ALLTEL's
knowledge, in default under any judgment, order, writ, injunction or decree of
any final order issued with respect to a Site pursuant to any Environmental Law;
(c) to ALLTEL's knowledge, each of ALLTEL, its Affiliates and the Sites is
in compliance with all Environmental Laws (to the extent such compliance relates
solely to the Sites), has obtained all Environmental Permits relating to the
Sites that are required under Environmental Laws, and has filed all
applications, notices and other documents required to be filed to effect the
timely renewal or issuance of all Environmental Permits relating to the
ownership or operation of the Sites in the manner owned, operated and conducted
as of the Effective Date or proposed to be owned, operated and conducted prior
to the Closing Date;
(d) to ALLTEL's knowledge, (i) there are no Hazardous Materials present on
a Site as a result of any Releases, including without limitation from
underground storage tanks, and (ii) neither ALLTEL nor any of its Affiliates has
conducted or has knowledge of any Phase II environmental site assessment report
as to material environmental matters relating to any Site;
(e) to the knowledge of ALLTEL, neither ALLTEL nor any of its Affiliates
has installed or used any above ground or underground storage tanks for
Hazardous Materials on any Site and, to ALLTEL's knowledge, there are no above
ground or underground storage tanks for Hazardous Materials on any Site; and
(f) ALLTEL has no knowledge of any past or present Event involving a Site,
which Event, individually or in the aggregate, would reasonably be expected to
have an ALLTEL Material Adverse Effect as a result of any Environmental Law.
SECTION 6.13 Copies of Documents. With respect to any Ground Leases,
--------------------------------
Existing Tenant Leases, or other documents or agreements related to the Included
Sites and provided to ATC hereunder or upon ATC's request, to the knowledge of
ALLTEL, are true, correct and complete in all material respects and include all
amendments, supplements and modifications thereto or material waivers currently
in effect thereunder.
48
ARTICLE VII
REPRESENTATIONS, WARRANTIES
AND COVENANTS OF ATC
ATC hereby represents and warrants to ALLTEL as follows:
SECTION 7.1. Organization and Business; Power and Authority; Effect of
----------------------------------------------------------------------
Transaction.
-----------
(a) ATC is a corporation duly organized, validly existing and in good
standing under the laws of the state of Delaware 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 and as presently proposed to be conducted.
ATC is, or shall be as of the applicable Closing Date, duly qualified to do
business and in good standing as a foreign corporation in each jurisdiction in
which an Included Site is located, except in such jurisdictions where the
failure to be so qualified or in good standing, individually or in the
aggregate, has not had and will not reasonably be expected to have an ATC
Material Adverse Effect.
(b) ATC has all requisite power and authority (corporate and other) to
execute, deliver and to perform its obligations under this Agreement and each
Transaction Document executed or required to be executed by it pursuant hereto
or thereto and to consummate the Transactions and the other transactions
contemplated hereby and thereby; and the execution, delivery and performance by
ATC of this Agreement and each Transaction 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 ATC, and no other corporate
proceedings on the part of ATC are necessary to authorize this Agreement or the
transactions contemplated hereby or to consummate the Transactions. This
Agreement has been duly executed and delivered by ATC and constitutes, and each
Transaction Document executed or required to be executed by it pursuant hereto
or thereto or to consummate the Transactions when executed and delivered by ATC
will constitute, a legal, valid and binding obligation of ATC, enforceable in
accordance with their respective terms, except as such enforceability may be
subject to bankruptcy, moratorium, insolvency, reorganization, arrangement,
voidable preference, fraudulent conveyance and other similar Laws relating to or
affecting the rights of creditors and except as the same may be subject to the
effect of general principles of equity.
(c) The execution, delivery and performance by ATC of this Agreement and
any Transaction Document executed or required to be executed by it pursuant
hereto or thereto do not, and the consummation by ATC of the Transactions and
the other transactions contemplated hereby and thereby, and compliance by ATC
with the terms, conditions and provisions hereof or thereof will not:
(i) (A) except with respect to the ATC Parent Indenture,
conflict with, or result in a breach or violation of, or constitute
a default under, any Organic Document of ATC or any Law, (B)
conflict with, or result in a breach or violation of, or constitute
a default under, or permit the termination, cancellation or
49
acceleration of any obligation or liability (with or without notice,
lapse of time or both) in, or but for any requirement of the 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 termination, cancellation or acceleration of, or result in
any material change in the rights or obligations of any party under,
any Governmental Authorization, Private Authorization or Material
Agreement of ATC, except for such exceptions as individually or in
the aggregate would not have an ATC Material Adverse Effect; or
(ii) require ATC to make or obtain any Governmental
Authorization, Governmental Filing or Private Authorization, except,
if required, for filings under the Xxxx-Xxxxx-Xxxxxx Act.
SECTION 7.2. [RESERVED].
-----------------------
SECTION 7.3. Compliance with Governmental Authorizations and Applicable
-----------------------------------------------------------------------
Law. ATC and each of its Affiliates has conducted its business and
---
owned and operated its property and assets in accordance with all applicable
Laws and Governmental Authorizations, except for such breaches, violations and
defaults as, in the aggregate, have not had and will not have an ATC Material
Adverse Effect. Neither ATC nor any of its Affiliates is in or is charged by any
Governmental Authority with, or, to ATC's knowledge, is threatened or under
investigation by any Governmental Authority with respect to, any breach or
violation of, or default in the performance, observance or fulfillment of, any
applicable Law which, in the aggregate, has had or will have an ATC Material
Adverse Effect. 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 Governmental Authorization or any
applicable Law, except for such breaches, violations or defaults as, in the
aggregate, have not had and will not have an ATC Material Adverse Effect.
SECTION 7.4. Broker or Finder. No broker or finder has acted on its behalf
-----------------------------
in connection with this Agreement or the transactions contemplated herein and
ATC agrees to indemnify the ALLTEL Indemnitees from and against any and all
claims or demands for commissions or other compensation by any broker, finder or
similar agent claiming to have been employed by or on behalf of ATC or any of
its Affiliates.
SECTION 7.5. Sufficient Funding. ATC has made available to ALLTEL copies of
-------------------------------
the ATC Parent Indenture pursuant to which ATC will, at the time of each
Closing, have funds sufficient to consummate the Transactions to be consummated
at such Closing and to pay the related fees and expenses of ATC. ATC will, at
the time of each Closing, have sufficient funds available to consummate the
Transactions to be consummated at such Closing, including, without limitation,
sufficient funds to pay the Rent to ALLTEL in respect of all of the Sublease
Interests being leased or subleased at such Closing.
50
ARTICLE VIII
REPRESENTATIONS, WARRANTIES AND COVENANTS OF ATC Parent
ATC Parent hereby represents and warrants to ALLTEL as follows:
SECTION 8.1. Organization and Business; Power and Authority; Effect of
----------------------------------------------------------------------
Transaction.
-----------
(a) ATC Parent is a corporation duly organized, validly existing and in
good standing under the laws of the state of Delaware 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 and as presently
proposed to be conducted.
(b) ATC Parent has all requisite power and authority (corporate and other)
to execute, deliver and to perform its obligations under this Agreement and each
Transaction Document executed or required to be executed by it pursuant hereto
or thereto and to consummate the Transactions and the other transactions
contemplated hereby and thereby; and the execution, delivery and performance by
ATC Parent of this Agreement and each Transaction 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 ATC Parent, and no other
corporate proceedings on the part of ATC Parent are necessary to authorize this
Agreement or the transactions contemplated hereby or to consummate the
Transactions. This Agreement has been duly executed and delivered by ATC Parent
and constitutes, and each Transaction Document executed or required to be
executed by it pursuant hereto or thereto or to consummate the Transactions when
executed and delivered by ATC Parent will constitute, a legal, valid and binding
obligation of ATC Parent, enforceable in accordance with their respective terms,
except as such enforceability may be subject to bankruptcy, moratorium,
insolvency, reorganization, arrangement, voidable preference, fraudulent
conveyance and other similar Laws relating to or affecting the rights of
creditors and except as the same may be subject to the effect of general
principles of equity.
(c) The execution, delivery and performance by ATC Parent of this Agreement
and any Transaction Document executed or required to be executed by it pursuant
hereto or thereto do not, and the consummation by ATC Parent of the Transactions
and the other transactions contemplated hereby and thereby, and compliance by
ATC Parent with the terms, conditions and provisions hereof or thereof will not:
(i) (A) except as may be required pursuant to the ATC Parent
Indenture, conflict with, or result in a breach or violation of, or
constitute a default under, any Organic Document of ATC Parent or
any Law, (B) conflict with, or result in a breach or violation of,
or constitute a default under, or permit the termination,
cancellation or acceleration of any obligation or liability (with or
without notice, lapse of time or both) in, or but for any
requirement of the 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 termination, cancellation or
51
acceleration of, or result in any material change in the rights or
obligations of any party under, any Governmental Authorization,
Private Authorization or Material Agreement of ATC Parent, except
for such exceptions as individually or in the aggregate would not
have an ATC Material Adverse Effect; or
(ii) require ATC Parent to make or obtain any Governmental
Authorization, Governmental Filing or Private Authorization, except
for (x) filings under the Xxxx-Xxxxx-Xxxxxx Act, if required, and
the Securities and Exchange Act of 1934, as amended, and with the
New York Stock Exchange, and (y) such exceptions as individually or
in the aggregate would not have an ATC Material Adverse Effect.
SECTION 8.2. [RESERVED].
-----------------------
SECTION 8.3. Compliance with Governmental Authorizations and Applicable
-----------------------------------------------------------------------
Law. ATC and each of its Affiliates has conducted its business and owned and
---
operated its property and assets in accordance with all applicable Laws and
Governmental Authorizations, except for such breaches, violations and defaults
as, in the aggregate, have not had and will not have an ATC Material Adverse
Effect. Neither ATC nor any of its Affiliates is in or is charged by any
Governmental Authority with, or, to ATC's knowledge, is threatened or under
investigation by any Governmental Authority with respect to, any breach or
violation of, or default in the performance, observance or fulfillment of, any
applicable Law which, in the aggregate, has had or will have an ATC Material
Adverse Effect. 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 Governmental Authorization or any
applicable Law, except for such breaches, violations or defaults as, in the
aggregate, have not had and will not have an ATC Material Adverse Effect.
SECTION 8.4. Broker or Finder. No broker or finder has acted on its behalf
-----------------------------
in connection with this Agreement or the transactions contemplated herein and
ATC Parent agrees to indemnify the ALLTEL Indemnitees from and against any and
all claims or demands for commissions or other compensation by any broker,
finder or similar agent claiming to have been employed by or on behalf of ATC
Parent or any of its Affiliates.
SECTION 8.5. Sufficient Funding. ATC has made available to ALLTEL copies
-------------------------------
of the ATC Parent Indenture pursuant to which ATC will, at the time of each
Closing, have funds sufficient to consummate the Transactions to be consummated
at such Closing and to pay the related fees and expenses of ATC. ATC will, at
the time of each Closing, have sufficient funds available to consummate the
Transactions to be consummated at such Closing, including, without limitation,
sufficient funds to pay the Rent to ALLTEL in respect of all of the Sublease
Interests being leased or subleased at such Closing.
SECTION 8.6. ATC Representations and Warranties. The representations and
-----------------------------------------------
warranties of ATC set forth in Article VII are true and correct.
52
ARTICLE IX
[INTENTIONALLY OMITTED]
ARTICLE X
CONDITIONS TO OBLIGATIONS OF ALLTEL AND ATC
SECTION 10.1. Conditions to Obligations of Each Party. The respective
-----------------------------------------------------
obligations of each Party to consummate the Transactions, on each Closing Date,
shall, except as hereinafter provided in this Section, be subject to the
satisfaction at or prior to each 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) As of the Closing Date, no Action shall be pending before any
Governmental Authority that has resulted or is reasonably likely to result in
any judgement, order or decree enjoining, restraining, prohibiting or making
illegal the consummation of the Transactions contemplated at that Closing, taken
as a whole, it being understood and agreed that a written request by any
Governmental Authority for information with respect to the Transactions, which
information could be used in connection with such Action, shall not in itself be
deemed to be a Action pending before any such Governmental Authority;
(b) The waiting period (and any extension thereof), if any, applicable to
the consummation of the Transactions under the Xxxx-Xxxxx-Xxxxxx Act shall have
expired or been terminated; and
(c) Except with respect to the Xxxx-Xxxxx-Xxxxxx Act, all authorizations,
consents, waivers, orders or approvals required to be obtained from all
Governmental Authorities, and all filings, submissions, registrations, notices
or declarations required to be made by any of the parties with any Governmental
Authority, prior to the consummation of the Transactions contemplated at that
Closing, shall have been obtained from, and made with, all such Governmental
Authorities, except for such authorizations, consents, waivers, orders,
approvals, filings, registrations, notices or declarations the failure to obtain
or make would not, individually or in the aggregate, reasonably be expected to
have an ALLTEL Material Adverse Effect or an ATC Material Adverse Effect, as the
case may be.
(d) All Required Consents and all Private Authorizations required pursuant
to Section 6.4 shall have been obtained from all Persons (other than
Governmental Authorities) prior to the applicable Closing (including without
limitation, at the cost and expense of ALLTEL, all modifications, if any, of
Ground Leases, Existing Tenant Leases, Site Maintenance Agreements, and Material
Agreements) and shall have been obtained, without the imposition, individually
or in the aggregate, of any condition or requirement that has had or would be
reasonably likely to have an ALLTEL Material Adverse Effect or an ATC Material
Adverse Effect, as the case may be, and in accordance with the provisions of
Sections 3.3 and 4.6; provided, however, that to the extent any such Required
Consents or Private Authorizations have not been obtained with respect
53
to a Site, the Closing for such Site shall be postponed until a subsequent
Closing unless such Closing is the Final Closing in accordance with Section 4.6.
SECTION 10.2. Conditions to Obligations of ATC. The obligation of ATC
----------------------------------------------
to consummate the Transactions, on each Closing Date, shall be subject to the
satisfaction at or prior to each such Closing Date of the following conditions,
any or all of which may be waived, in whole or in part, by ATC and ATC Parent to
the extent permitted by applicable Law:
(a) All agreements, certificates, opinions and other documents required to
be delivered to ATC pursuant to the provisions of this Agreement shall have been
delivered to ATC (including, with respect to each Included Site, the Tower File
Data on or before fifteen (15) days prior to the applicable Closing Date,
provided, however, that the delivery of the Required Co-Location Documents shall
be governed by the terms and conditions of Section 5.16);
(b) Subject to Section 4.6, (i) the representations and warranties of
ALLTEL contained in this Agreement shall be true and correct at and as of the
Closing Date with the same force and effect as though made on and as of such
date, except (x) to the extent such representations and warranties expressly
speak as of an earlier date (in which case such representations and warranties
shall be true and correct as of such earlier date) and (y) to the extent that
the failure of such representations and warranties to be true and correct,
individually or in the aggregate, have not had and will not be reasonably likely
to have an ALLTEL Material Adverse Effect; (ii) each and all of the agreements
and covenants to be performed or satisfied by ALLTEL hereunder at or prior to
the Closing Date shall have been duly performed or satisfied in all material
respects; and (iii) ALLTEL shall have furnished ATC with a certificate signed by
an executive officer of ALLTEL stating that the conditions of this Section
10.2(b)(i) and (ii) have been satisfied;
(c) On or prior to the Initial Closing Date, ALLTEL shall have (i) executed
and delivered to ATC the Sublease and the same shall have become effective as of
the Initial Closing Date and shall remain in effect as of the applicable Closing
Date, and (ii) delivered an opinion, dated as of the Initial Closing Date, of
Xxxxx Xxxx LLP, counsel for ALLTEL, in the form attached hereto as Exhibit G and
made a part hereof.
(d) On or prior to the applicable Closing Date with respect to a Site,
ALLTEL shall have executed and delivered to ATC the following:
(i) A certificate as of the applicable Closing Date
setting forth (A) any additions or deletions of antennas on each
Tower included in such Closing since the Effective Date, and (B)
any amendments, extensions or terminations of, or any new licenses,
leases or subleases with any other Person (including, without
limitation, Ground Leases, Existing Tenant Leases, and Site
Maintenance Agreements) related to the applicable Included Sites;
(ii) A complete and accurate Site Designation Supplement
or site schedule, as applicable, for each Included Site and the
same shall have become effective as of the applicable Closing Date;
provided, however, that ATC may elect, in its sole discretion, to
waive this obligation to Closing with respect to any
54
Site and in such event the Parties thereto mutually agree to
resolve, in good faith and in accordance with Section 4.5, the
complete and accurate form of such Site Designation Supplement or
site schedule, as applicable, and execute such form no more than
forty (40) days following the applicable Closing Date; and
(iii) If applicable, each ALLTEL Entity that executes a
Joinder to Agreement hereto shall have executed a similar joinder
to the Sublease, BTS Agreement, and Site Management Agreement in
accordance with the terms therein.
SECTION 10.3. Conditions to Obligations of ALLTEL. The obligation of ALLTEL
-------------------------------------------------
to consummate the Transactions, on each Closing Date, shall be subject to the
satisfaction at or prior to each such Closing Date of the following conditions,
any or all of which may be waived, in whole or in part, by ALLTEL to the extent
permitted by applicable Law:
(a) All agreements, certificates, opinions and other documents required to
be delivered to ALLTEL pursuant to the provisions of this Agreement shall have
been delivered to ALLTEL;
(b) The representations and warranties of ATC and ATC Parent contained in
this Agreement 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 (x) to the extent such representations and warranties expressly
speak as of an earlier date (in which case such representations and warranties
shall be true and correct as of such earlier date) and (y) to the extent that
the failure of such representations and warranties to be true and correct,
individually or in the aggregate, have not had and will not be reasonably likely
to have ATC Material Adverse Effect; (ii) each and all of the agreements and
covenants to be performed or satisfied by ATC or ATC Parent hereunder at or
prior to the Closing Date shall have been duly performed or satisfied in all
material respects; and (iii) ATC and ATC Parent shall have furnished ALLTEL with
a certificate signed by an executive officer of ATC and ATC Parent respectively
stating that the conditions of this Section 10.3(b)(i) and (ii) have been
satisfied;
(c) On or prior to the Initial Closing Date, ATC Parent and ATC shall have
(i) executed and delivered to ALLTEL the Sublease and the same shall have become
effective as of the Initial Closing Date and shall remain in effect as of the
applicable Closing Date, and (ii) delivered an opinion, dated as of the Initial
Closing Date, of Xxxxxxxx & Worcester LLP, counsel for ATC, in the form attached
hereto as Exhibit H and made a part hereof; and
(d) On or prior to the applicable Closing Date with respect to a Site, ATC
shall have executed and delivered to ALLTEL a Site Designation Supplement or
site schedule, as applicable, for each Included Site and the same shall have
become effective as of the applicable Closing Date; provided, however, that in
the event that ATC elects to exercise its right to waive this obligation as a
condition to Closing with respect to any Site pursuant to Section 10.2(d)(ii),
ALLTEL shall also have been deemed to have waived such obligation hereunder and
in such event the Parties thereto mutually agree to resolve, in good faith and
in accordance with Section 4.5, the complete and accurate form of such Site
Designation Supplement or site schedule, as
55
applicable, and execute such form no more than forty (40) days following the
applicable Closing Date.
ARTICLE XI
INDEMNIFICATION
SECTION 11.1. Survival. The representations and warranties of the Parties
----------------------
contained in or made pursuant to this Agreement or any Transaction Document
shall survive the applicable Closing and shall remain operative and in full
force and effect for a period of eighteen (18) months after the applicable
Closing Date, except that in the case of matters of a nature referred to in
Sections 6.1, 7.1, and 8.1 which shall survive and remain operative and in full
force and effect for the applicable statute of limitations, regardless of any
investigation thereof made by or on behalf of any Party hereto. The covenants
and agreements of the parties contained in or made pursuant to this Agreement or
any Transaction Document shall survive any Closing (unless any such covenant or
agreement by its express terms in this Agreement does not so survive or survives
for a lesser period) and shall remain operative and in full force and effect for
the statute of limitations applicable to contractual obligations. The term
"Indemnity Period" shall mean the applicable period with respect to which a
representation, warranty, covenant or agreement survives any Closing as provided
in this Section. No claim for indemnification may be asserted after the
expiration of the Indemnity Period. 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 applicable Indemnity Period shall survive with respect to such Claim or
any dispute with respect thereto until the final resolution thereof.
SECTION 11.2. Indemnification.
-----------------------------
(a) Each of the ALLTEL Companies agrees, severally and not jointly, that it
shall indemnify, defend and hold harmless the ATC Indemnitees from and against
any and all damages, claims, losses, expenses, costs, obligations, and
liabilities including, without limiting the generality of the foregoing,
liabilities for all reasonable attorneys', accountants' and experts' fees and
expenses incurred, including those incurred to enforce the terms of this
Agreement or any Transaction Document (collectively, "Loss and Expense"),
suffered by the ATC Indemnitees by reason of or arising out of (i) any breach of
representation or warranty made by the applicable ALLTEL pursuant to this
Agreement, and (ii) any failure by the applicable ALLTEL to perform or fulfill
any of its covenants or agreements set forth in this Agreement.
(b) ATC agrees that it shall indemnify, defend and hold harmless the ALLTEL
Indemnitees from and against all Loss and Expense suffered by any of them by
reason of or arising out of (i) any breach of representation or warranty made by
ATC or ATC Parent pursuant to this Agreement, and (ii) any failure by ATC or ATC
Parent to perform or fulfill any of its covenants or agreements set forth in
this Agreement.
56
SECTION 11.3. Limitation of Liability.
-------------------------------------
(a) Notwithstanding the provisions of Section 11.2, the ATC Indemnitees, on
the one hand, and the ALLTEL Indemnities, on the other hand, shall be entitled
to recover their Loss and Expense in respect of any Claim pursuant to the
provisions of Sections 11.2(a)(i) and (b)(i), as the case may be, only (i) in
the event that the aggregate Loss and Expense for all Claims exceed, in the
aggregate, one percent (1%) of the sum of (x) the aggregate Rent payable by ATC
with respect to all of the Included Sites and (y) the aggregate Purchase Price
payable by ATC with respect to all of the Included Sites, in which event the
indemnified party shall only be entitled to recover all such Loss and Expense in
excess of that amount; and (ii) to the extent that the aggregate Loss and
Expense for all Claims does not exceed twenty-nine percent (29%) of the sum of
(x) the aggregate Rent payable by ATC with respect to all of the Included Sites
and (y) the aggregate Purchase Price payable by ATC with respect to all of the
Included Sites.
(b) In the case any event shall occur which would otherwise entitle any
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.
(c) Except in the event of fraud, intentional misrepresentation or
intentional breach of warranty, covenant or agreement or as otherwise provided
in Section 13.5 (solely with respect to the remedy of specific performance set
forth therein) and notwithstanding any other provision of this Agreement
(including, without limitation, the provisions of Section 13.5 (other than the
remedy of specific performance set forth therein)), the sole and exclusive
remedy of ATC or its Affiliates before or after any Closing or termination of
this Agreement with respect to the Site Exclusion Criteria under Sections
4.6(a)(ii) through (vi) or with respect to the ALLTEL Disclosure Schedules under
Section 4.6(b) is to cause the applicable Site, at ATC's option, to be
designated as an Excluded Site or to defer the Closing for such Site to a later
Closing Date.
SECTION 11.4. 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
Indemnity Period specified in Section 11.1, 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 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 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.
SECTION 11.5. Defense of Third Party Claims. The indemnifying party shall
-------------------------------------------
have the right to conduct and control, through counsel of its own choosing,
reasonably acceptable to the indemnified party, any third party 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 Action or other Claim, then the
indemnified
57
party may defend, through counsel of its own choosing, such 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 Action or
other Claim and to recover from the indemnifying party 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 Action
or other Claim without the prior written consent of the indemnified party, which
consent shall not unreasonably be withheld, delayed or conditioned if the terms
and conditions of such compromise or settlement proposed by the indemnifying
party and agreed to in writing by the claimant in such Action or other Claim (a)
include a full release of the indemnified party from the Action or other Claim
which is the subject of the settlement proposal, and (b) if the indemnified
party is an ATC Indemnitees, do not include any term or condition which would
restrict in any material manner rights and remedies of ATC under the Sublease or
the continued ownership or operations of the Sublease Interests and Acquired
Interests or the conduct of any other business of ATC or any of its Affiliates)
in substantially the manner then being owned, operated and conducted by ATC or
any of its Affiliates (or any successor or assign). No matter whether an
indemnifying party defends or prosecutes any third party Action or Claim, the
indemnified and indemnifying parties shall cooperate in the defense or
prosecution thereof. Such cooperation shall include access during normal
business hours afforded to the indemnifying party to, and reasonable retention
by the indemnified party of, records and information which are reasonably
relevant to such third party Action or Claim, and making employees available on
a mutually convenient basis to provide additional information and explanation of
any material provided hereunder, and the indemnifying party shall reimburse the
indemnified party for all its reasonable out-of-pocket expenses in connection
therewith.
SECTION 11.6. Exclusive Remedy. Except for fraud, intentional
------------------------------
misrepresentation or intentional breach of warranty, covenant or agreement or as
otherwise provided in Section 13.5 (solely with respect to the remedy of
specific performance set forth therein) or as may be provided for in any other
Transaction Document, the indemnification provided in this Article shall be the
sole and exclusive post-Final Closing remedy available to any Party against any
other party for any Claim under this Agreement.
ARTICLE XII
TERMINATION, AMENDMENT AND WAIVER
SECTION 12.1. Termination. This Agreement may be terminated at any time
-------------------------
only pursuant to the following provisions:
(a) by mutual consent of ALLTEL and ATC; or
(b) by ATC or ALLTEL if any permanent injunction, decree or judgment of any
Governmental Authority preventing consummation of the Transactions, taken
as a whole, shall have become final and nonappealable; or
58
(c) by ALLTEL in the event (i) none of the ALLTEL Companies is in material
breach of this Agreement and none of any of their representations or warranties
shall have become and continue to be untrue in any manner that would cause the
condition set forth in Section 10.2(b) not to be satisfied, and (ii) ATC is in
material breach of this Agreement or any of its representations or warranties
shall have been or become and continue to be untrue in any manner that would
cause the conditions set forth in Section 10.3(b) not to be satisfied, and such
a breach or untruth exists and is capable of being cured and is not cured on or
prior to, or is not capable of being cured by and will prevent or delay
consummation of the Final Closing by or beyond, the Termination Date; or
(d) by ATC in the event (i) neither ATC nor ATC Parent is in material
breach of this Agreement and none of either of its representations or warranties
shall have become and continue to be untrue in any manner that would cause the
condition set forth in Section 10.3(b) not to be satisfied, and (ii) any of the
ALLTEL Companies is in material breach of this Agreement or any of the ALLTEL
Companies' representations or warranties shall have been or become and continue
to be untrue in any manner that would cause the conditions set forth in Section
10.2(b) not to be satisfied, and such a breach or untruth exists and is capable
of being cured and is not cured on or prior to, or is not capable of being cured
by and will prevent or delay consummation of the Final Closing by or beyond, the
Termination Date; or
(e) by either ATC or ALLTEL, (i) if all of the conditions to ATC's or
ALLTEL's obligations (as the case may be) to consummate the Initial Closing set
forth in Sections 10.1 and 10.2 (in the case of ATC) and 10.1 and 10.3 (in the
case of ALLTEL) shall not have been satisfied or waived on or before the last
day of the six (6) -month period commencing on the Effective Date, or (ii) on or
after the Termination Date, in either case for any reason other than a breach or
default by such terminating Party of its respective representations, warranties,
covenants, agreements or other obligations hereunder such that the conditions to
the non-terminating Party's obligations to consummate the Initial Closing or
other applicable Closing, as the case may be, set forth in Section 10.3(b) or
Section 10.2(b), as the case may be, would not be satisfied; or
(f) by ALLTEL in the event (i) none of the ALLTEL Companies is in material
breach of this Agreement and none of any of their representations or warranties
shall have become and continue to be untrue in any manner that would cause the
condition set forth in Section 10.2(b) not to be satisfied, and (ii) ATC or ATC
Parent is, at the time of any Closing, in breach of the representations and
warranties set forth in Section 7.5 or 8.5, respectively.
The term "Termination Date" shall mean eight months (8) following the
Initial Closing Date or such other date as the Parties may, from time to time,
mutually agree. The right of ATC or the ALLTEL Companies 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 any Party, any
Person controlling any such Party or any of their respective Representatives
whether prior to or after the execution of this Agreement. The right of ATC or
the ALLTEL Companies to terminate this Agreement pursuant to this Section shall
be exercised by written notice to the non-terminating Parties.
59
If this Agreement is terminated by ALLTEL pursuant to Section 12.1(c),
Section 12.1(e) or Section 12.1(f) (but only if at the time of such termination,
ATC is in material breach of this Agreement or any of its representations and
warranties shall have been untrue in any manner that would cause the conditions
in Section 10.3(b) not to be satisfied), then ALLTEL shall be entitled to and
ATC Parent shall pay ALLTEL, at ALLTEL's election, within ten (10) business days
of delivery to ATC by ALLTEL of a written demand therefor at any time after the
date of such termination, a termination fee in the amount of fifty million
dollars ($50,000,000) ("Termination Fee") by wire transfer of immediately
available funds to an account in the United States designated in writing by
ALLTEL. Any election by ALLTEL to receive the Termination Fee under this
paragraph shall constitute its sole and exclusive remedy in the event of such
termination of this Agreement, except for the provisions of Article XI with
respect to prior Closings.
SECTION 12.2. Effect of Termination. Except as provided in Sections 4.3,
-----------------------------------
5.1, 5.2 (with respect to confidentiality), 5.4, 5.14, 5.15 and 12.1 and this
Section and Article XIII, in the event of the termination of this Agreement
pursuant to Section 12.1, this Agreement shall forthwith become void, there
shall be no liability on the part of any Party, or any of their respective
stockholders, partners, members, officers or directors, to the other and all
rights and obligations of any Party shall cease; provided, however, that, (i)
such termination shall not, except in the case ALLTEL has elected to receive and
has received the Termination Fee pursuant to the provisions of Section 12.1
(other than in the event of any fraud, willful misrepresentation or willful
breach by ATC or ATC Parent), relieve any Party from liability for any fraud,
intentional misrepresentation or intentional breach of any of its warranties,
covenants or agreements set forth in this Agreement, and (ii) no termination of
this Agreement shall result in the rescission of any Closing theretofore
consummated hereunder or affect or terminate the rights, remedies and
obligations of the Parties (including without limitation Article XI) with
respect to such previously consummated Closing. Notwithstanding the foregoing,
each party shall have the right to seek specific performance of this Agreement
pursuant to the provisions of Section 13.5.
ARTICLE XIII
GENERAL PROVISIONS
SECTION 13.1. Waivers; Amendments. Changes in or additions to this
---------------------------------
Agreement may be made, or compliance with any term, covenant, agreement,
condition or provision set forth herein may be omitted or waived (either
generally or in a particular instance and either retroactively or prospectively)
with, but only with, the consent in writing of the Parties hereto. No delay on
the part of either Party at any time or times in the exercise of any right or
remedy shall operate as a waiver thereof. Any consent may be given subject to
satisfaction of conditions stated therein. The failure to insist upon the
strict provisions of any covenant, term, condition or other provision of this
Agreement or to exercise any right or remedy hereunder shall not constitute a
waiver of any such covenant, term, condition or other provision thereof or
default in connection therewith. The waiver of any covenant, term, condition or
other provision hereof or default hereunder shall not affect or alter this
Agreement in any other respect, and each and every
60
covenant, term, condition or other provision of this Agreement shall, in such
event, continue in full force and effect, except as so waived, and shall be
operative with respect to any other then existing or subsequent default in
connection herewith.
SECTION 13.2. ALLTEL References. Anything in this Agreement to the
-------------------------------
contrary notwithstanding, each of the ALLTEL Companies acknowledges and agrees
that (a) all of the representations and warranties of ALLTEL set forth in
Article VI, and (b) each of the covenants and agreements of ALLTEL set forth in
this Agreement, including without limitation Articles III, IV, V and XI, are
intended to apply, and shall apply, to each of the ALLTEL Companies with respect
to the applicable Sites with the same force and effect as though each were
specifically named therein.
SECTION 13.3. 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 deemed to have been delivered (a) five (5) business days
after being mailed by first-class or express mail, postage prepaid, (b) the next
day when sent overnight by a nationally recognized courier service, (c) upon
confirmation when sent by telex, telegram, telecopy or other form of rapid
transmission, confirmed by mailing (by first class or express mail, postage
prepaid, or by a nationally recognized courier service) written confirmation at
substantially the same time as such rapid transmission, or (d) upon delivery
when 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 set forth below 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.
If to ATC or ATC Parent:
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Financial Officer and General Counsel
Telecopier No.: (000) 000-0000
61
with a copy to (which shall not constitute notice to ATC or ATC
Parent):
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopier No.: (000) 000-0000
If to ALLTEL:
ALLTEL Communications, Inc.
Xxx Xxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: President and General Counsel
Telecopier No.: (000) 000-0000
SECTION 13.4. Power of Attorney. Each and every one of the ALLTEL Companies
-------------------------------
other than ALLTEL Inc. hereby irrevocably constitutes and appoints ALLTEL Inc.
as its and their agent and attorney-in-fact to modify, amend or otherwise change
or waive any and all terms, conditions and other provisions of this Agreement
and any other of the Transaction Documents, to exercise on behalf of the ALLTEL
Companies any options or elections granted to ALLTEL hereunder, to take all
actions and execute all documents necessary or desirable to effect the terms
hereof and thereof, to take all actions and execute all documents which may be
necessary or desirable in connection therewith, to give and receive all consents
and all notices hereunder, to negotiate, settle and compromise claims for
indemnification hereunder, and to perform any other act arising out of or
pertaining to this Agreement. ALLTEL Inc. hereby accepts the foregoing
appointment. Nothing herein shall be deemed to make ALLTEL Inc. liable to any
of the ALLTEL Companies because of service in the foregoing capacity as agent
and attorney-in-fact. In performing any of its duties under this Section,
ALLTEL Inc. shall not incur any Liability whatsoever to any of the ALLTEL
Companies or its Affiliates. It is expressly understood and agreed that this
power of attorney and the agency created hereby is coupled with an interest of
the respective Parties hereto and shall be binding and enforceable on and
against the respective successors and assigns of ALLTEL Inc., and each of them,
and this power of attorney shall not be revoked or terminated and shall continue
to be binding and enforceable in the manner provided herein.
SECTION 13.5. 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 Transaction 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 XI, 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 any Party from
pursuing any other remedies available to it pursuant to the provisions
62
of this Agreement or applicable Law for such breach or threatened breach,
including without limitation the recovery of damages, subject to the terms and
conditions of Section 13.15.
SECTION 13.6. 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 Law, 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 Law, but this
Agreement shall be reformed and construed in any such jurisdiction 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.
Notwithstanding the foregoing, in the event of any such determination the effect
of which is to affect materially and adversely any 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.
SECTION 13.7. 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 set of such counterparts.
SECTION 13.8. 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.
SECTION 13.9. 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 state of Delaware 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.
SECTION 13.10. Further Acts. Each Party agrees that at any time, and from
---------------------------
time to time, before and after the consummation of the Transactions, it will do
all such things and execute and deliver all such Transaction 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 or to facilitate the enjoyment of any of the rights created
hereby or to be created hereunder.
SECTION 13.11. Entire Agreement. This Agreement (together with the ALLTEL
-------------------------------
Disclosure Schedule, the Exhibits hereto, and the other documents delivered or
to be delivered in connection herewith) constitutes the entire agreement of the
Parties with respect to the subject
63
matter hereof and supersedes all prior agreements, arrangements, covenants,
promises, conditions, undertakings, inducements, representations, warranties and
negotiations, expressed or implied, oral or written, between the Parties, with
respect to the subject matter hereof. Each of the Parties is a sophisticated
Person that was advised by experienced counsel and, to the extent it deemed
necessary, other advisors in connection with this Agreement. Each of the Parties
hereby acknowledges that (a) none of the Parties has relied or will rely in
respect of this Agreement or the Transactions upon any document or written or
oral information previously furnished to or discovered by it or its
representatives, other than this Agreement (or such of the foregoing as are
delivered at the Closing), (b) there are no covenants or agreements by or on
behalf of any Party or any of its respective Affiliates or representatives other
than those expressly set forth in this Agreement and the Transaction Documents,
and (c) the Parties' respective rights and obligations with respect to this
Agreement and the events giving rise thereto will be solely as set forth in this
Agreement and the Transaction Documents. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, EACH PARTY HERETO AGREES THAT, EXCEPT FOR THE RESPECTIVE
REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLES VI, VII, AND VIII OF THIS
AGREEMENT, NONE OF THE PARTIES MAKES AND EACH HEREBY DISCLAIMS ANY OTHER
REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, AND EACH HEREBY DISCLAIMS ANY OTHER
REPRESENTATIONS OR WARRANTIES MADE BY ITSELF OR ANY OF ITS OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS, FINANCIAL AND LEGAL ADVISORS OR OTHER REPRESENTATIVES, WITH
RESPECT TO THE EXECUTION AND DELIVERY OF THIS AGREEMENT OR THE TRANSACTIONS,
NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO THE OTHER OR THE OTHER'S
REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION WITH RESPECT TO ANY
ONE OR MORE OF THE FOREGOING.
SECTION 13.12. Assignment. Neither ATC nor any ALLTEL Company nor any
-------------------------
ALLTEL Guarantor may assign its rights and obligations under, or grant a
security interest in, this Agreement to any Person without the consent of the
other Parties hereto except that it shall inure to the benefit of and be binding
upon any successor to any Party by operation of Law, including by way of
mergers, consolidation or sale, transfer or other disposition of all or
substantially all of its assets, including without limitation pursuant to any
liquidation or dissolution; provided, however, that (a) ATC may assign all of
its rights and obligations hereunder to one or more wholly-owned subsidiaries of
ATC Parent and to Permitted Subleasehold Mortgagees (as defined in the Sublease)
without the consent of any ALLTEL Company so long as (i) ATC fully, irrevocably
and unconditionally guarantees all such obligations, and (ii) in the case of any
wholly-owned subsidiary of ATC Parent, such assignee becomes a party hereto and
bound by the provisions hereof, and (b) any ALLTEL Company or ALLTEL Guarantor
may assign its rights and obligations hereunder, in whole or in part, to any
Affiliate of such ALLTEL Company without the consent of ATC so long as (i) the
assigning ALLTEL Company or ALLTEL Guarantor fully, irrevocably and
unconditionally guarantees all such obligations and (ii) such assignee becomes a
party hereto and bound by the provisions hereof. All references herein to any
Party shall be deemed to include any successor (including a
64
corporate successor) to such Party. In the event that ATC Parent assigns any of
its rights or interest in or to this Agreement, ATC Parent shall not be released
from its liability and obligations under this Agreement.
SECTION 13.13. 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.
SECTION 13.14. Mutual Drafting. This Agreement is the result of the joint
--------------
efforts of ALLTEL and ATC, and each provision hereof has been subject to the
mutual consultation, negotiation and agreement of the Parties and there shall be
no construction against any Party based on any presumption of that Party's
involvement in the drafting thereof.
SECTION 13.15. [RESERVED].
-------------------------
SECTION 13.16. Excluded Damages. NOTWITHSTANDING THE PROVISIONS OF SECTION
-------------------------------
11 OR ANY OTHER PROVISION TO THE CONTRARY, EACH PARTY HERETO HEREBY WAIVES THE
RIGHT TO RECOVER AND NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL (INCLUDING BUT NOT LIMITED TO
LOST PROFITS), PUNITIVE, EXEMPLARY AND SIMILAR DAMAGES AND THE MULTIPLIED
PORTION OF DAMAGES, HOWEVER ARISING, EVEN IF A PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
SECTION 13.17. Expenses. The phrase "ATC and ALLTEL shall share or bear
-----------------------
equally the cost" and other similar expressions that appear throughout this
Agreement shall mean that ATC, on the one hand, bears fifty percent (50%) of the
applicable cost, and ALLTEL, on the other hand, bears fifty percent (50%) of
such cost.
SECTION 13.18. Agents. In no event will either Party to this Agreement be
---------------------
deemed to be or constitute the agent or representative of the other Party to
this Agreement.
SECTION 13.19. Several Liability. Notwithstanding any other provision of
--------------------------------
this Agreement to the contrary, and notwithstanding any liability or obligation
that ALLTEL would have as a general partner of any of the other ALLTEL Companies
under this Agreement or any Site Designation Supplement (in each case, whether
or not expressly set forth herein or therein), by operation or law or otherwise,
(i) the obligations of any ALLTEL Company (other than the ALLTEL Guarantors
pursuant to Section 5.15) under this Agreement are several and not joint, and
(ii) each of the ALLTEL Companies (other than the ALLTEL Guarantors pursuant to
Section 5.15) will have no personal liability for the payment or performance of
any obligation of any of the other ALLTEL Companies under this Agreement.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
(Remainder of Page Intentionally Left Blank)
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their duly authorized representatives, all effective as of the day and year
first written above.
ATC:
American Towers, Inc., a Delaware corporation
By: _________________________________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President and Chief Development
Officer
ATC PARENT:
American Tower Corporation, a Delaware corporation
By: _________________________________________________
Name: Xxxxx X. Xxxxxxxxxx
Title: Executive Vice President and Chief Development
Officer
ALLTEL INC.:
ALLTEL Communications, Inc., a Delaware corporation
By: _________________________________________________
Name: Xxxxx X. Xxxx
Title: President
ALLTEL ENTITIES:
360(degrees) Communications Company
360(degrees) Communications Company of Charlottesville
360(degrees) Communications Company of Florida
360(degrees) Communications Company of Ft. Xxxxxx Beach
Limited Partnership, by 360(degrees) Communications
Company of Florida, its general partner
360(degrees) Communications Company of Hickory Limited
Partnership by 360 Communications Company of Hickory
No. 1, its general partner
360(degrees) Communications Company of Lynchburg
360(degrees) Communications Company of Nevada Limited
Partnership by ALLTEL Communications, Inc., its general
partner
360(degrees) Communications Company of New Mexico
360(degrees) Communications Company of North Carolina No. 1
360(degrees) Communications Company of Ohio No. 4
360(degrees) Communications Company of South Carolina No. 1
360(degrees) Communications Company of Texas Limited
Partnership by 360 Communications Company, its general
partner
360(degrees) Communications Company of Virginia
360(degrees) Communications Company Tennessee No. 2
Aliant Cellular, Inc.
ALLTEL Alabama Limited Partnership
by ALLTEL Corporate Services, Inc., its general partner
ALLTEL Mobile Communications of the Carolinas, Inc.
ALLTEL Ohio Limited Partnership
by 360(degrees) Communications Company of Petersburg,
its general partner
ALLTEL Wireless Holdings, L.L.C.
Florida RSA 9 Limited Partnership
by ALLTEL Communications, Inc., its general partner
Georgia RSA 14 Cellular Partnership
by ALLTEL Communications, Inc., its general partner
Greenville MSA Limited Partnership
by TeleSpectrum, Inc., its general partner
Kansas RSA 15 Limited Partnership
by 360(degrees) Communications Company of Nebraska, its
general partner
Liberty Cellular, Inc.
New York NewCo Subsidiary, Inc.
North Carolina RSA 15 North Sector Limited Partnership
by 360(degrees) Communications Company, its general
partner
North Carolina RSA 6 Limited Partnership
by 360(degrees) Communications Company of North
Carolina No. 1, its general partner
Ohio Cellular RSA Limited Partnership
by 360(degrees) Communications Company of Ohio No. 3,
its general partner
Radiofone, Inc.
RCTC Wholesale Corporation
TeleSpectrum, Inc.
TeleSpecturm of Virginia, Inc.
Tennessee RSA 8 Limited Partnership
by 360(degrees) Communications Company of Tennessee No.
1, its general partner
Texas RSA #10B-2 Limited Partnership
by 360(degrees) Communications Company of Texas No.2,
its general partner
Texas RSA 10B4 Limited Partnership
by 360(degrees) Communications Company, its general partner
Texas RSA 9B3 Limited Partnership
by 360(degrees) Communications Company, its general partner
Virginia Metronet, Inc.
Virginia RSA 1 Limited Partnership
by 360(degrees) Communications Company of Virginia No. 1, its
general partner
By:__________________________________________________________________
Name: Xxxxx X. Xxxx
Title: President
ALLTEL GUARANTORS:
Each of the undersigned Affiliates of ALLTEL Inc. hereby executes and
delivers this Agreement as an ALLTEL Guarantor solely for the purpose
of guaranteeing, jointly and severally, the ALLTEL Obligations in
accordance with the terms and conditions of Sections 5.15, 6.1(d), and
13.19, and each agrees to be bound by the provisions of Sections 5.15,
6.1(d), 13.12 and 13.19 with the same force and effect as if each were
specifically named as an ALLTEL Guarantor in the above Agreement, such
guaranty being in addition to its rights and obligations as an ALLTEL
Entity, if applicable.
360(degrees) Communications Company
360(degrees) Communications Company of Charlottesville
360(degrees) Communications Company of Florida
360(degrees) Communications Company of Ft. Xxxxxx Beach Limited
Partnership
360(degrees) Communications Company of Hickory Limited Partnership
360(degrees) Communications Company of Lynchburg
360(degrees) Communications Company of Nevada Limited Partnership
360(degrees) Communications Company of New Mexico
360(degrees) Communications Company of North Carolina No. 1
360(degrees) Communications Company of Ohio No. 4
360(degrees) Communications Company of South Carolina No. 1
360(degrees) Communications Company of Texas Limited Partnership
by 360(degrees) Communications Company, its general partner
360(degrees) Communications Company of Virginia
360(degrees) Communications Company Tennessee No. 2
Aliant Cellular, Inc.
ALLTEL Alabama Limited Partnership
by ALLTELL Corporate Services, Inc., its general partner
ALLTEL Mobile Communications of the Carolinas, Inc.
ALLTEL Ohio Limited Partnership
by 360(degrees) Communications Company of Petersburg, its general
partner
ALLTEL Wireless Holdings, L.L.C.
Florida RSA 9 Limited Partnership
by ALLTELL Communications, Inc., its general partner
Georgia RSA 14 Cellular Partnership
by ALLTELL Communications, Inc., its general partner
Greenville MSA Limited Partnership
by TeleSpectrum, Inc., its general partner
Kansas RSA 15 Limited Partnership
by 360(degrees) Communications Company of Nebraska, its general
partner
Liberty Cellular, Inc.
New York NewCo Subsidiary, Inc.
North Carolina RSA 15 North Sector Limited Partnership
by 360(degrees) Communications Company, its general partner
North Carolina RSA 6 Limited Partnership
by 360(degrees) Communications Company of North Carolina No. 1,
its general partner
Ohio Cellular RSA Limited Partnership
by 360(degrees) Communications Company of Ohio No.3, its general
partner
Radiofone, Inc. (a Louisiana corporation)
Radiofone, Inc. (a Tennessee corporation)
RCTC Wholesale Corporation
TeleSpectrum, Inc.
TeleSpecturm of Virginia, Inc.
Tennessee RSA 8 Limited Partnership
by 360(degrees) Communications Company of Tennessee No.1, its
general partner
Texas RSA #10B-2 Limited Partnership
by 360(degrees) Communications Company of Texas No.2, its general
partner
Texas RSA 10B4 Limited Partnership
by 360(degrees) Communications Company, its general partner
Texas RSA 9B3 Limited Partnership
by 360(degrees) Communications Company, its general partner
Virginia Metronet, Inc.
Virginia RSA 1 Limited Partnership
by 360(degrees) Communications Company of Virginia No. 1, its general
partner
360(degrees) Communications Company of Ohio No. 1
360(degrees) Communications Company of Ohio No. 2
360(degrees) Communications Company of Ohio No. 3
360(degrees) Communications Company of Pennsylvania No. 1
Petersburg Cellular Telephone Company, Inc.
360(degrees) Communications Company of South Carolina No. 2
360(degrees) Communications Company of Texas No. 1
360(degrees) Communications Company of Texas No. 3
360(degrees) Communications Company of Virginia No. 1
By:________________________________________________________
Name: Xxxxx X. Xxxx
Title: President
EXHIBIT A-1
LIST OF EXISTING SITES
SEE ATTACHED.
EXHIBIT A-2
LIST OF POTENTIAL EXISTING SITES
SEE ATTACHED.
EXHIBIT B
LIST OF ALLTEL ENTITIES
360(degrees) Communications Company
360(degrees) Communications Company of Charlottesville
360(degrees) Communications Company of Florida
360(degrees) Communications Company of Ft. Xxxxxx Beach Limited Partnership
360(degrees) Communications Company of Hickory Limited Partnership
360(degrees) Communications Company of Lynchburg
360(degrees) Communications Company of Nevada Limited Partnership
360(degrees) Communications Company of New Mexico
360(degrees) Communications Company of North Carolina No. 1
360(degrees) Communications Company of Ohio No. 4
360(degrees) Communications Company of South Carolina No. 1
360(degrees) Communications Company of Texas Limited Partnership
360(degrees) Communications Company of Virginia
360(degrees) Communications Company Tennessee No. 2
Aliant Cellular, Inc.
ALLTELL Alabama Limited Partnership
ALLTELL Mobile Communications of the Carolinas, Inc.
ALLTELL Ohio Limited Partnership
ALLTELL Wireless Holdings, L.L.C.
Florida RSA 9 Limited Partnership
Georgia RSA 14 Cellular Partnership
Greenville MSA Limited Partnership
Kansas RSA 15 Limited Partnership
Liberty Cellular, Inc.
New York NewCo Subsidiary, Inc.
North Carolina RSA 00 Xxxxx Xxxxxx Xxxxxxx Xxxxxxxxxxx
Xxxxx Xxxxxxxx RSA 6 Limited Partnership
Ohio Cellular RSA Limited Partnership
Radiofone, Inc.
RCTC Wholesale Corporation
TeleSpectrum, Inc.
TeleSpectrum of Virginia, Inc.
Tennessee RSA 8 Limited Partnership
Texas RSA #10B-2 Limited Partnership
Texas RSA 10B4 Limited Partnership
Texas RSA 9B3 Limited Partnership
Virginia Metronet, Inc.
Virginia RSA 1 Limited Partnership
360(degrees) Communications Company of North Carolina Limited Partnership
ALLTEL Cellular Associates of Arkansas Limited Partnership
ALLTEL Cellular Associates of South Carolina Limited Partnership
ALLTEL Central Arkansas Cellular Limited Partnership
ALLTEL Missouri RSA #14 Limited Partnership
ALLTEL Northern Arkansas RSA Limited Partnership
Arkansas RSA #2 (Xxxxxx County) Cellular Limited Partnership
Baton Rouge Cellular Telephone Company
Charleston-North Charleston MSA Limited Partnership
Fayetteville MSA Limited Partnership
Florida RSA #1B (Naples) Limited Partnership
Georgia RSA 12 Cellular Partnership
Georgia RSA 8 Cellular Partnership
Las Cruces Cellular Telephone Company
Missouri RSA #15 Limited Partnership
Missouri RSA #2 Partnership
Missouri RSA #4 Limited Partnership
North Carolina RSA #15 Limited Partnership
North Carolina RSA #5 Cellular Partnership
Northwest Arkansas RSA Limited Partnership
Ohio RSA #3 Limited Partnership
Ohio RSA 2 Limited Partnership
Ohio RSA 5 Limited Partnership
Ohio RSA 6 Limited Partnership
Oklahoma RSA #4 South Partnership
Pennsylvania RSA No. 6(1) Limited Partnership
Petersburg Cellular Partnership
Raleigh-Durham MSA Limited Partnership
South Carolina RSA #3 Cellular General Partnership
South Carolina RSA #7 Cellular General Partnership
South Carolina RSA #9 Cellular General Partnership
South Carolina RSA No. 2 Cellular General Partnership
South Carolina RSA No. 4 Cellular General Partnership
South Carolina RSA No. 5 Cellular General Partnership
South Carolina RSA No. 6 Cellular General Partnership
South Carolina RSA Xx. 0 Xxxxxxxx Xxxxxxx Xxxxxxxxxxx
Xxxxx XXX #00X Limited Partnership
Texas RSA 7B2 Limited Partnership
Toledo MSA Limited Partnership
Tuscon 21 Limited Partnership
Tyler/Longview/Xxxxxxxx MSA Limited Partnership
Virginia RSA 2 Limited Partnership
Youngstown-Xxxxxx MSA Limited Partnership
EXHIBIT C
FORM OF JOINDER TO AGREEMENT
This Joinder to that certain Agreement to Sublease dated December 19, 2000 by
and among ALLTEL Communications, Inc., the ALLTEL Entities (as defined therein),
and American Towers, Inc. and American Tower Corporation ("Agreement") is
executed by the undersigned in accordance with the provisions of the Agreement.
The undersigned hereby joins in the execution and delivery of the Agreement,
makes the applicable representations set forth in the Agreement, and agrees that
the undersigned shall be deemed to be one of the ALLTEL Companies for all
purposes under the Agreement. The undersigned agrees to be bound by all terms,
covenants and conditions contained in the Agreement, as one of the ALLTEL
Companies, as if the undersigned were an original party to the Agreement.
Date: ___________________________________
___________________________________
By:
Name:
Title:
AGREED TO AND ACKNOWLEDGED BY: AGREED TO AND ACKNOWLEDGED BY:
____________________________ ___________________________________
____________________________ ___________________________________
By: By:
Name: Name:
Title: Title:
EXHIBIT D
FORM OF SUBLEASE
See attached.
EXHIBIT E
FORM OF ASSIGNMENT OF GROUND LEASES
ASSIGNMENT AND ASSUMPTION OF GROUND LEASE
THIS ASSIGNMENT AND ASSUMPTION OF GROUND LEASE ("Assignment") is made
and entered into as of this _____ day of ________________, _____ ("Transfer
Date") by ____________________________("Assignor") and American Towers, Inc.
("Assignee").
PRELIMINARY STATEMENT
On the ____ day of ____, ____, ____________________, ("Ground
Lessor"), as lessor, and Assignor, as lessee, entered into that certain
____________________ ("Ground Lease") for that certain parcel of real property
("Real Property") located in the County of _______, State of ____, which Real
Property is more particularly described in Exhibit "A" attached hereto.
-----------
In consideration of the mutual covenants contained in this Assignment,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Assignor and Assignee hereby agree as follows:
1. ASSIGNMENT. As of the Transfer Date, Assignor hereby assigns and
----------
transfers all of its rights, title, claim and interest in, to and under the
Ground Lease to Assignee and its successors and assigns.
2. ACCEPTANCE OF ASSIGNMENT. Assignee, as of the Transfer Date,
------------------------
hereby accepts the foregoing assignment of the Ground Lease and assumes all of
the Assignor's liabilities, obligations and duties under the Ground Lease that
arise or relate to the period after the Transfer Date.
3. BINDING EFFECT. This Assignment will be binding on and inure to
--------------
the benefit of the parties herein, their heirs, executors, administrators,
successors-in-interest and assigns.
4. GOVERNING LAW. This Assignment will be governed by and construed
-------------
in accordance with the internal laws of the State in which the Real Property is
located without regard to principles of conflicts of laws.
5. COUNTERPARTS. This Assignment may be executed in two or more
------------
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
6. SUPERSEDING AGREEMENTS. In the event any term hereof conflicts
----------------------
with the terms of the Agreement to Sublease dated as of December 19, 2000, by
and among ALLTEL Communications, Inc, the ALLTEL Entities, Assignee and American
Tower Corporation (the "Agreement to Sublease"), the terms of the Agreement to
Sublease shall prevail.
7. CAPITALIZED TERMS. For purposes of this Assignment, all
-----------------
capitalized terms not otherwise defined herein shall have the meaning ascribed
to them in the Agreement to Sublease.
THIS ASSIGNMENT has been executed by Assignor and Assignee on the
Transfer Date.
ASSIGNOR:
________________________________
By:_____________________________
Printed Name:___________________
Title:__________________________
ASSIGNEE:
AMERICAN TOWERS, INC.
By:_____________________________
Printed Name:___________________
Title:__________________________
[Add appropriate notary]
EXHIBIT F
FORM OF ASSIGNMENT OF EXISTING TENANT LEASES
ASSIGNMENT AND
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ASSUMPTION OF EXISTING TENANT LEASES
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THIS AGREEMENT ("Agreement") dated as of this ___ day of __________, _____
is entered into by and among _____________________, a _____________________
("Assignor"), and AMERICAN TOWERS, INC., a Delaware corporation ("Assignee").
Recitals:
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WHEREAS, in accordance with the terms and conditions of that certain
Agreement to Sublease dated as of December 19, 2000, by and among ALLTEL
Communications, Inc, the ALLTEL Entities, Assignee and American Tower
Corporation (the "Agreement to Sublease"), Assignee agreed to sublease from
Assignor certain Sites and certain associated assets used and useful in the
operation of the Sites and agreed to assume certain obligations of Assignor.
Agreement:
---------
NOW, THEREFORE, in accordance with the Agreement to Sublease and for good
and valuable consideration, receipt of which is hereby acknowledged, the parties
agree as follows:
1. For purposes of this Agreement, all capitalized terms not otherwise
defined herein shall have the meaning ascribed to them in the Agreement to
Sublease.
2. Assignor does hereby irrevocably transfer and assign to Assignee all
of the rights, interest, liabilities, obligations and duties of Assignor under
the Existing Tenant Leases described in Schedule A attached hereto and Assignee
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hereby assumes and agrees to pay, perform and discharge when due all of the
liabilities, obligations, and duties of Assignor under the Existing Tenant
Leases described in Schedule A attached hereto arising on or after the date
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hereof.
3. The parties hereto do hereby agree to perform, execute and/or deliver
or cause to be performed, executed and/or delivered any and all such further
agreements and assurances as either of the parties hereto may reasonably require
to consummate the transactions contemplated
hereunder.
4. In the event any term hereof conflicts with the terms of the Agreement
to Sublease, the terms of the Agreement to Sublease shall prevail.
IN WITNESS WHEREOF, each party has caused this Agreement to be duly
executed and delivered in its name and on its behalf, as of the date first above
written.
ASSIGNOR
By: ____________________________________
AMERICAN TOWERS, INC.
By: ____________________________________
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK
On ___________, before me, the undersigned notary public, personally
appeared _____________________, to me personally known, who, by me duly
sworn (or affirmed) did say that he is Vice President of American Towers,
Inc. and that the instrument was signed on behalf of said corporation by
authority of its board of directors and said ___________________
acknowledged said instrument to be the free act and deed of such
corporation.
WITNESS my hand and official seal.
SIGNATURE: _____________________________________
Notary Public
My Commission expires _______________________
STATE OF _________________
COUNTY OF _________________
On ___________, before me, the undersigned notary public, personally
appeared _____________________, to me personally known, who, by me duly
sworn (or affirmed) did say that he is ____________________ of
______________________________, [the general partner of __________________]
and that the instrument was signed on behalf of said corporation by
authority of its board of directors and said _______________________
acknowledged said instrument to be the free act and deed of such
corporation.
WITNESS my hand and official seal.
SIGNATURE: _____________________________________
Notary Public
My Commission expires _______________________
EXHIBIT G
FORM OF OPINION LETTER FROM ALLTEL'S COUNSEL
See attached.
EXHIBIT H
FORM OF OPINION LETTER FROM ATC'S COUNSEL
See attached.
EXHIBIT I
FORM OF REQUIRED OASIS INFORMATION
See attached.
EXHIBIT J
FORM OF ASSUMPTION OF CONTRACTUAL OBLIGATIONS
ASSIGNMENT AND
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ASSUMPTION OF CONTRACTS AGREEMENT
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THIS AGREEMENT ("Agreement") dated as of this ___ day of _______, _____ is
entered into by and between ____________________, a ________________ corporation
("Assignor"), and AMERICAN TOWERS, INC., a Delaware corporation ("Assignee").
Recitals:
--------
WHEREAS, in accordance with the terms and conditions of that certain
Agreement to Sublease dated as of December 19, 2000, by and among ALLTEL
Communications, Inc, the ALLTEL Entities, Assignee and American Tower
Corporation (the "Agreement to Sublease"), Assignee agreed to sublease from
Assignor certain Sites and certain associated assets used and useful in the
operation of the Sites and agreed to assume certain obligations of Assignor.
Agreement:
---------
NOW, THEREFORE, in accordance with the Agreement to Sublease and for good
and valuable consideration, receipt of which is hereby acknowledged, the parties
agree as follows:
1. For purposes of this Agreement, all capitalized terms not otherwise
defined herein shall have the meaning ascribed to them in the Agreement to
Sublease.
2. Assignor does hereby irrevocably transfer and assign to Assignee all
of the rights, interest, liabilities, obligations and duties of Assignor under
the Contracts described in Schedule A attached hereto and Assignee hereby
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assumes and agrees to pay, perform and discharge when due all of the
liabilities, obligations, and duties of Assignor under the Contracts described
in Schedule A attached hereto arising on or after the date hereof.
----------
3. The parties hereto do hereby agree to perform, execute and/or deliver
or cause to be performed, executed and/or delivered any and all such further
agreements and assurances as
either of the parties hereto may reasonably require to consummate the
transactions contemplated hereunder.
4. In the event any term hereof conflicts with the terms of the Agreement
to Sublease, the terms of the Agreement to Sublease shall prevail.
IN WITNESS WHEREOF, each party has caused this Agreement to be duly
executed and delivered in its name and on its behalf, as of the date first above
written.
ASSIGNOR
By: ____________________________________
AMERICAN TOWERS, INC.
By: ____________________________________
EXHIBIT K
FORM OF
NOTICE OF MODIFICATION OR ADDITION OF ALLTEL EQUIPMENT
TO: AMERICAN TOWER
______________
______________
Attn: _______
In accordance with ALLTEL's obligations under Section 5.17 of the Agreement to
Sublease dated December 19, 2000 by and among ALLTEL Communications, Inc., the
ALLTEL Entities, American Tower Corporation, and American Towers, Inc. ("ATC"),
this letter serves as notice to ATC that on _________________ ALLTEL completed
certain changes, modifications or additions of ALLTEL equipment at the following
Site:
Site Name: ____________________
Site Address: _________________
Site Coordinates: _______________
ALLTEL Site Number (if any): ______
Exhibit 1 attached hereto describes the ALLTEL equipment installed at such Site
prior to the recent change, modification, or addition (which Exhibit must be
completed in full by ALLTEL where applicable).
Exhibit 2 attached hereto describes the ALLTEL equipment installed currently at
such Site following such change, modification, or addition on the date
identified above (which Exhibit must be completed in full by ALLTEL where
applicable).
The work performed by ALLTEL at this Site was: (PLEASE CHECK ONE)
___ a physical modification of existing equipment on the Site (this
Notice is not required for replacements with identical equipment
or simple adjustments to existing equipment as long as the
location of the equipment is not changed --for example, no Notice
is required for downtilting)
___ a replacement of existing equipment on the Site (Tower, shelter
or other parts of the Site other than replacements with identical
equipment)
___ addition of new equipment (other than within ALLTEL's existing
buildings or shelters)
IS ALLTEL THE ONLY USER OF THIS SITE/TOWER: (Check one) ____ YES or ____ NO
For additional information, please contact the following ALLTEL Representative:
Name: _______________________________________
Address: ____________________________________
Phone: ______________________________________
Fax: ________________________________________
Email: ______________________________________
ALLTEL:
________________________________
By: ____________________________
Name: __________________________
Title: _________________________
Date: __________________________
EXHIBIT 1
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ALLTEL EQUIPMENT EXISTING PRIOR TO MODIFICATION OR ADDITION
SEE ATTACHED
EXHIBIT 2
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ALLTEL EQUIPMENT FOLLOWING MODIFICATION OR ADDITION
SEE ATTACHED
EXHIBIT L
EXCLUDED SITES
See attached.
EXHIBIT M
[RESERVED]
EXHIBIT N-1
SITES TO BE COMPLETED BY ALLTEL (ZONED SITES)
See attached.
EXHIBIT N-2
POTENTIAL SITES TO BE COMPLETED BY ALLTEL (ZONED SITES)
See attached.
EXHIBIT O-1
LIST OF IN PROGRESS SITES
See attached.
EXHIBIT O-2
LIST OF POTENTIAL IN PROGRESS SITES
See attached.