EXHIBIT 10.3
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made as of the 31st day of July, 1997,
by and between AMERICAN TOWER SYSTEMS, INC., a Delaware corporation (herein
called "Purchaser") and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (herein
collectively called "Shareholders") being all of the shareholders of Southeast
Communications, Inc., and SOUTHEAST COMMUNICATIONS, INC., a Massachusetts
corporation ("Company"). The Shareholders and the Company are collectively
referred to herein as the "Sellers."
Agreement
In consideration of the mutual benefits to be derived therefrom and the
mutual agreements hereinafter contained, Purchaser and Sellers approve and adopt
this Agreement and mutually covenant and agree with each other as follows:
1. Assets to Be Purchased and Purchase Price.
1.1 On the Closing Date (as hereinafter defined) the Sellers shall
transfer to Purchaser certain assets of Company consisting of (a) tower leases
with existing tenants (the "Tenant Leases"), (b) certain owned and leased real
property (the "Realty") and (c) certain items of tangible personal property (the
"Personalty"), all free and clear of any debt or liens whatsoever which in the
aggregate shall represent all of the assets of Company, but not the debt or
other liabilities. The Tenant Leases, Realty and Personalty are collectively
referred to herein as the "Transferred Assets" and are described in Schedules 1
(Tenant Leases), 2 (Realty), and 3 (Personalty) hereto.
1.2 As consideration for the Transferred Assets being transferred
pursuant to Subparagraph 1.1 hereof, Purchaser shall on the Closing Date and
contemporaneously with such transfer of the Transferred Assets, and except as
provided in Subparagraph 5.4 hereof, pay to Sellers U.S. $7,168,370 ("Purchase
Consideration") subject to adjustment and proration for monthly land lease
payments, monthly tenant rental income and real and personal taxes paid to
respective municipalities. Upon execution hereof, Purchaser shall deposit a
$70,000.00 ▇▇▇▇▇▇▇ money deposit ("Deposit") with Perry, Hicks, ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇ ("Escrow Agent"), to be held in escrow pursuant to the terms hereof and
credited toward the Purchase Price at Closing. Escrow Agent shall not disburse
the Deposit without the written consent of Purchaser or Purchaser's attorney.
Sellers shall be solely responsible for allocating the Purchase Consideration
among themselves and shall give Notice of such allocation to Purchaser at least
two (2) days prior to the Closing Date.
2. Representations and Warranties of Sellers.
2.1 Ownership of Stock/Transferred Assets.
(a) Shareholders are the record owners and holders of all of
the shares of Company's common stock as of the date hereof and will continue to
own such shares until the Closing Date. The Company is the rec ord owner and
holder of all of the Transferred Assets listed in Schedules 1 through 3,
inclusive, hereto and will continue to own such Transferred Assets to, on and
through the Closing Date. All such Transferred Assets are or will be on the
Closing Date owned free and clear of all liens, encumbrances, charges and
assessments of every nature, are subject to no restrictions with respect to
transferability, and, where applicable, all consents of any parties to the
Realty and Tenant Leases required for their transfer to Purchaser have or will
be on the Closing Date obtained in writing. The Sellers will have full power and
authority to assign and transfer the Transferred Assets in accordance with the
terms hereof.
(b) Except for Tenant Leases listed in Schedule 1 of this
Agreement, there are no outstanding options, contracts, calls, commitments,
agreement or demands of any character relating to the Transferred Assets.
Sellers shall obtain written Waiver of First Right of Refusals from all Tenants
with such rights of first refusal.
(c) Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Massachusetts, with all
requisite power and authority to own, operate and lease its properties and to
carry on its business as now being conducted, is duly qualified and in good
standing in every jurisdiction in which the property owned, leased or operated
by it or the nature of the Transferred Assets are located. The states in which
Company is qualified to do business are listed in Schedule 4.
(d) Schedule 5 contains a list of the officers, directors and
shareholders of Company; and a list of the articles of incorporation and bylaws
currently in effect of Company, copies of which have been furnished to
Purchaser.
(e) The execution and delivery of this Agreement does not,
and, subject to the approval and adoption by the Shareholders of Company
contemplated hereby, the consummation of the transaction contemplated hereby
will not violate any provision of Company's articles of incorporation or bylaws,
or any provisions of, or result in the acceleration of any obligation under, any
mortgage, lien, lease, agreement, instrument, court order, arbitration award,
judgment or decree to which Company is a party, or by which it is bound, and
will not violate any other restriction of any kind or character to which it is
subject, or cause or result in the filing of a bankruptcy or insolvency
proceeding under state or federal law.
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(f) All Personalty of Company is in good working condition and
repair, and Seller has no notice of any required repairs to the Personalty.
2.2 Changes since December 31, 1996.
Since December 31, 1996, there has not been:
(a) Any material adverse change in the Company's prospects,
financial condition, assets, liabilities, properties or business.
(b) Any mortgage, pledge, lien or encumbrance made on any of
the Transferred Assets.
(c) Any sale, transfer or other disposition of assets of
Company, except in the normal course of business.
(d) Any other event or condition not in the ordinary course of
business.
2.3 Liabilities.
(a) There are no liabilities of Company that relate to the
Transferred Assets, whether accrued, absolute, contingent or otherwise, which
arose or relate to any transaction of Company occurring prior to December 31,
1996, other than mortgage indebtedness that will be discharged or released at
Closing, and obligations under the Tenant Leases and Realty. There are no such
liabilities of Company which have arisen or relate to any transaction of Company
occurring since December 31, 1996, other than normal liabilities incurred in the
normal conduct of Company's business, and none of which have a material adverse
effect on the business or financial condition of the Company. As of the date
hereof, there are no known circumstances, conditions, happenings, events or
arrangements, contractual or otherwise, which may hereafter give rise to
liabilities, except in the normal course of Company's business.
(b) All corporate acts required of Company have been taken and
all reports and returns required to be filed by them with any governmental
agency have been filed. Company has no notice of any claimed violation of any,
and is in compliance with, all applicable federal, state, county, local and
foreign government laws, ordinances or regulations relating to the Transferred
Assets. Company has maintained files and records which contain all
correspondence, notices, applications and other documentation relating to all
federal, state, local and foreign governmental, regulatory agency and other
licenses, approvals, clearances, and investigations, or employees of Company
relating to the Transferred Assets. All such files and records have been
heretofore identified to and made available for review by Purchaser.
(c) There are no legal, administrative or other proceedings,
investigations, inquiries, or claims, judgments, injunctions or restrictions,
either threatened, pending or
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outstanding against or involving Company, or the Transferred Assets, nor does
Company know, or have reasonable grounds to know, of any basis for any such
proceedings, investigations, inquiries, or claims, judgments, injunctions or
restrictions relating to the Transferred Assets.
(d) Company does not have any contract with any governmental
body relating to the Transferred Assets which is subject to renegotiation.
(e) The past and anticipated future operations of the
Transferred Assets do not infringe or violate any patents, patent rights,
trademarks, trade names, copyrights and/or licenses thereof of others.
(f) No claim, demand or notice is pending against the Company
for breach of any of the Tenant Leases or for any similar claim, nor, to the
best of Sellers' knowledge, do any facts exist which may lead to any such claim,
demand or notice being asserted in the future.
(g) All policies of insurance carried by Company are in full
force and all premiums thereon are paid to date. Schedule 6 contains a true and
correct list of all policies of insurance, relating to the Transferred Assets.
(h) All negotiations relative to this Agreement and the
transaction contemplated hereby have been carried on directly by Shareholders
with Purchaser without the intervention of any broker or third party as no
broker is involved in this transaction. The parties shall indemnify each other
for any claims made by a broker or third party.
(i) Neither Company nor any of its Subsidiaries has granted
any license or made any assignment of any of their patents, patent applications,
invention discoveries, trademarks, trade names or copyrights, relating to the
Transferred Assets.
2.4 Taxes.
(a) All federal, state, foreign, county and local income, ad
valorem, excise, profits, franchise, occupation, property, sales, use, gross
receipts and other taxes (including any interest or penalties relating thereto)
and assessments which are due and payable have been duly reported, fully paid
and discharged as reported by Company, and there are no unpaid taxes which are,
or could become a lien on the Transferred Assets. All tax returns of any kind
required to be filed have been filed and the taxes paid or accrued.
(b) Company's federal income tax returns have never been
audited.
(c) The Company has not waived restrictions on assessment or
collection of taxes or consented to the extension of any statute of limitations
relating to any tax. Company has no knowledge of any possible deficiency
assessments in respect to federal income tax returns or other tax returns filed
by it.
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2.5 Tenant Leases and Commitments.
(a) The Company has no commitments relating to the Transferred
Assets (except the Tenant Leases listed in Schedule 1).
(b) The Company has not given a power of attorney which is
currently in effect, to any person, firm or, corporation for any purpose
whatsoever.
2.6 Environmental Representations.
(i) That no "Hazardous Substance" (defined below) has:
(A) been disposed of, buried beneath, or percolated
beneath the Property or any improvements thereon; or
(B) been removed from the Property and stored offsite
of the Property.
(ii) That there has been no "Release" (as used in Section
101(22) of CERCLA) of a Hazardous substance on the
Property.
(iii) That the Property and any improvements thereon have
not in the past been used and are not presently being
used for the handling, transportation or disposal of
a Hazardous Substance.
(iv) That neither the Seller, nor any lessee, licensee nor
other party acting at the direction of or with
consent of the Seller, or such lessee or licensee,
has manufactured, treated, stored or disposed of any
Hazardous Substance on the Property or any
improvements thereof.
(v) That the Seller is in material compliance with all
applicable federal, state and local laws,
administrative rulings, and regulations of any county
administrative agency or other governmental or
quasi-governmental authority, relating to the
protection of the environment (including, without
limitation, laws prohibiting the creation of a public
nuisance).
(vi) That the Seller has not received notification that it
is a potentially responsible party under, or that it
has violated, any "Environmental Laws" (defined
below).
(vii) That no Hazardous Substances or wastes contaminate
the Property above levels which exceed the allowable
levels as set forth in the Environmental Laws.
(viii) For the purpose of this paragraph, the term
"Hazardous Substance" means any one or more of the
following: (A) any substance deemed hazardous
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under Section 101(14) of CERCLA, (B) any other
substance deemed hazardous by the Environmental
Protection Agency pursuant to Section 102(a) of
CERCLA, (C) petroleum (including, without limitation,
crude oil or any fraction thereof), (D) any substance
deemed hazardous pursuant to Section 1004(5) of RCRA,
(E) any solid waste identified in Section 1004(27) of
RCA; or (F) any other hazardous or toxic substance,
material, compound, mixture, solution, element,
pollutant, or waste regulated under any federal,
state or local statute, ordinance or regulation.
2.7 Accuracy of All Statements Made by Sellers and Company.
No representation or warranty by Sellers or Company in this Agreement,
nor any statement, certificate, schedule or exhibit hereto furnished or to be
furnished by or on behalf of Sellers or Company pursuant to this Agreement, nor
any document or certificate delivered to Purchaser pursuant to this Agreement or
in connection with actions contemplated hereby, contains or shall contain any
untrue statement of material fact or omits or shall omit a material fact
necessary to make the statement contained therein not misleading. Seller shall
cooperate with an audit conducted by Deloitte & Touche at Seller's expense,
whether such audit is conducted before or after the Closing Date.
3. Representations and Warranties of Purchaser.
Purchaser represents and warrants as follows:
3.1 Organization and Good Standing.
Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts with full power and
authority to enter into and perform the transactions contemplated by this
Agreement.
3.2 Performance of this Agreement.
The execution and performance of this Agreement by Purchaser has been
authorized by the board of directors of Purchaser.
3.3 No Covenant as to Tax Consequences.
It is expressly understood and agreed that neither Purchaser nor its
employees, officers, counsel or agents has made any warranty or agreement,
expressed or implied, as to the tax consequences of the transactions
contemplated by this Agreement or the tax consequences of any action pursuant to
or growing out of this Agreement.
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4. Covenants of Sellers.
Sellers hereby covenant and agree to cause Company to comply with the
following:
4.1 Access to Information.
Purchaser and its authorized representatives shall have full access
during normal business hours to all properties, books, records, Tenant Leases
and documents of Company, and Company shall furnish or cause to be furnished to
Purchaser and its authorized representative all information with respect to its
affairs and business of Company as Purchaser may reasonably request.
4.2 Actions Prior to Closing.
From and after the date of this Agreement and until the Closing Date:
(a) Except with the prior written consent of Purchaser,
Company shall carry on their business diligently and substantially in the same
manner as heretofore, and the Company shall not make or institute any unusual or
novel methods of purchase, sale, management, accounting or operation, except
with the prior written consent of Purchaser.
(b) Company shall not enter into any contract or commitment or
engage in any transaction not in the usual and ordinary course of business and
consistent with Company's business practices without the prior written consent
of Purchaser.
(c) Company shall not create any indebtedness other than short
term indebtedness incurred in the usual and ordinary course of business,
pursuant to existing Tenant Leases disclosed in the Schedules submitted in
connection herewith, and in doing the acts and things contemplated by this
Agreement.
(d) Company shall not amend its articles of incorporation or
bylaws, or make any changes in authorized or issued capital stock interests
without the prior written consent of Purchaser.
(e) Company shall maintain current insurance and such
additional insurance in effect as may be reasonably required by increased
business and risks; and all property shall be used, operated, maintained and
repaired in a normal business manner.
(f) Company shall use is best efforts (without making any
commitments on behalf of Purchaser) to preserve for Purchaser the present
contract relationships of Company, and Company shall notify Purchaser upon the
termination or expiration of any Tenant Leases prior to closing.
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(g) Company shall not do any act or omit to do any act, or
permit any act or omission to act, which will cause a material breach of any
contract.
(h) Company shall duly comply with all applicable laws as may
be required for the valid and effective transfer of the Transferred Assets
contemplated by this Agreement, except that Purchaser hereby waives compliance
with the provisions of any bulk sales act.
(i) Company shall promptly notify Purchaser of any lawsuits,
claims, proceedings or investigations that may be threatened, brought, asserted
or commenced against it, its officers or directors involving in any way the
business, properties or assets of Company.
(j) Company shall be solely responsible for payment of any
liabilities or obligations of Company to its employees, including any salary,
severance pay and/or accrued vacation pay.
This covenant shall survive the Closing.
5. Conditions Precedent to Purchaser's Obligations.
5.1 Truth of Representations and Warranties.
The representations and warranties made by Company and Sellers in this
Agreement or given on its or their behalf hereunder, shall be true and correct
on and as of the Closing Date with the same effect as though such
representations and warranties had been made or given on and as of the Closing
Date.
5.2 Compliance with Covenants.
Sellers shall have performed and complied with all its obligations
under this Agreement which are to be performed or complied with by it prior to
or on the Closing Date, including the delivery of the closing documents
specified in Subparagraph 8.2.
5.3 Absence of Suit.
No action, suit or proceeding before any court or any governmental or
regulatory authority shall have been commenced or threatened and, no
investigation by any governmental or regulatory authority shall have been
commenced, against Purchaser, the Sellers, the Company or any of the affiliates,
associates, officers or directors of any of them, seeking to restrain, prevent
or change the transactions contemplated hereby, or questioning the validity or
legality of any such transactions, or seeking damages in connection with any of
such transactions.
5.4 Receipt of Approvals, etc.
All approvals, consents and/or waivers that are necessary to effect the
transactions contemplated hereby shall have been received, unless the required
receipt of such approvals,
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consents and/or waivers is waived in writing by Purchaser. If the consent to the
assignment of a Contract has not been received by the Closing Date, Purchaser
may withhold a reasonable portion of the Purchase Consideration -- based upon
the value of that Contract -- until such consent shall have been obtained.
5.5 No Material Adverse Change.
As of the Closing Date there shall not have occurred any material
adverse change which materially impairs the ability of Company to conduct their
business or the earning power thereof on the same basis as in the past.
5.6 Accuracy of Financial Statement.
Purchaser and its representatives shall be satisfied as to the accuracy
of all balance sheets, statements of income and other financial statements of
Company furnished to Purchaser in connection herewith.
5.7 Noncompetition Agreements.
Noncompetition agreements referred to in Subparagraph 8.2(f) shall have
been executed.
5.8 Legal Opinion.
Purchaser shall have received an opinion of counsel for Company
referred to in Subparagraph 8.2(f).
5.9 Environmental Assessment.
Purchaser shall have approved an environmental site assessment for each
Land Lease site (the "Site Assessments"). Such Site Assessments shall be
prepared by Purchaser's environmental consultant at Purchaser's sole expense. If
the Site Assessments determine that environmental remediation is required,
Seller hereby agrees to pay the first $350,000.00 toward the remediation
expense, and thereafter Purchaser, at its sole discretion, may either pay the
additional remediation cost, if any, or terminate this Agreement and receive a
full refund of its deposit and all interest earned thereon.
Seller shall perform all such remediation as is required to satisfy
Federal and Massachusetts law (or, if applicable, Rhode Island law) relating to
release of hazardous substances, under the supervision of a licensed site
professional and to the reasonable satisfaction of Purchaser, provided that
Seller shall not be required to expend more than $350,000. If the cost of
required remediation exceeds $350,000, then Purchaser at its option may accept a
credit of $350,000 on the purchase price and complete remediation at its
expense, or terminate the Agreement, in which case all deposits hereunder shall
be forthwith refunded. In the event that Seller has not completed
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remediation required by this section by the closing date, a portion of the
purchase price equal to 120% of the estimated cost of remediation shall be held
in escrow pending such completion.
5.10 Proceedings and Instruments Satisfactory; Certificates.
All proceedings, corporate or otherwise, to be taken in connection with
the transactions contemplated by this Agreement shall have occurred and all
appropriate documents incident thereto as Purchaser may request shall have been
delivered to Purchaser. Company and the Sellers shall have delivered
certificates in such detail as Purchaser may request as to compliance with the
conditions set forth in this Article 5.
6. Conditions Precedent to Sellers' Obligations.
6.1 Truth of Representations and Warranties.
Purchaser's representations and warranties contained in this Agreement
shall be true at and as of the Closing Date as though such representations and
warranties were made at and as of the Closing Date.
6.2 Purchaser's Compliance with Covenants.
Purchaser shall have performed and complied with its obligations under
this Agreement which are to be performed or complied with by it prior to or on
the Closing Date.
7. Indemnification.
7.1 Requirement of Indemnification.
Seller and each Seller, jointly and severally, shall indemnify
Purchaser for any loss, cost, expense or other damage (including, without
limitation, reasonable attorneys' fees and expenses) suffered by Purchaser
resulting from, arising out of, or incurred with respect to the falsity or the
breach of any representation, warranty or covenant made by Shareholders herein,
and any claims arising from actions by Company or Subsidiaries prior to the
Closing Date. Purchaser shall indemnify and hold the Sellers harmless from and
against any loss, cost, expense or other damage (including, without limitation,
reasonable attorneys' fees and expenses) resulting from, arising out of, or
incurred with respect to, or alleged to result from, arise out of or have been
incurred with respect to, the falsity or the breach of any representation,
covenant, warranty or agreement made by Purchaser herein, and any claims arising
from actions of Company or Subsidiaries from and after the Closing Date.
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7.2 Notice and Resolution of Claim.
An indemnified party hereunder shall promptly give "Notice" (as
hereinafter defined) to the indemnifying party after obtaining knowledge of any
claim against the indemnified party as to which recovery may be sought against
the indemnifying party because of the indemnity set forth above, and, if such
indemnity shall arise from the claim of a third party, shall permit the
indemnifying party to assume the defense of any such claim or any litigation
resulting from such claim. Failure by the indemnifying party to give Notice to
the indemnified party of its election to defend any such claim or action by a
third party within fifteen (15) days after Notice thereof shall have been given
to the indemnifying party shall be deemed a waiver by the indemnifying party of
its right to defend such claim or action. If the indemnifying party assumes the
defense of such claim or litigation resulting therefrom, the obligations of the
indemnifying party hereunder as to such claim shall include taking all steps
necessary in the defense or settlement of such claim or litigation resulting
therefrom and holding the indemnified party harmless from and against any and
all losses, damages and liabilities including, without limitation, attorneys'
fees and expenses, caused by or arising out of any settlement approved by the
indemnifying party or any judgment in connection with such claim or litigation
resulting therefrom. The indemnifying party shall not, in the defense of such
claim or any litigation resulting therefrom, consent to entry of any judgment
except with the prior written consent of the indemnified party, or enter into
any settlement (except with the prior written consent of the indemnified party).
Notwithstanding the foregoing, any such judgment or settlement shall contain as
an unconditional term thereof the giving by the claimant or the plaintiff to the
indemnified party a release from all liability in respect of such claim or
litigation.
7.3 Defense of Third-Party Claim.
If the indemnifying party shall not assume the defense of any such
claim by a third party or litigation resulting therefrom, the indemnified party
may defend against such claim or litigation in such manner as it may deem
appropriate and, unless the indemnifying party shall deposit with the
indemnified party a sum equivalent to the total amount demanded in such claim or
litigation plus the indemnified party's estimate of the cost of defending the
same, the indemnified party may settle such claim or litigation on such terms as
it may deem appropriate and the indemnifying party shall within thirty (30) days
of Notice from the indemnified party reimburse the indemnified party for the
amount of such settlement and for all losses or expenses, legal or otherwise,
incurred by the indemnified party in connection with the defense against or
settlement of such claim or litigation.
7.4 Payment.
The indemnifying party shall promptly reimburse the indemnified party
for the amount of any judgment rendered with respect to any claim by a third
party in such litigation and for all losses and expenses, legal or otherwise,
incurred by the indemnified party in connection with the defense against such
claim or litigation, and for any other loss suffered or incurred with respect
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to the falsity or the breach of any representation, warranty, covenant or
agreement (whether or not arising out of the claim of a third party).
7.5 Effect of Taxes.
The determination of any indemnified loss, cost or expense shall take
into account any tax benefit derived by Purchaser or any affiliated companies.
To the extent that any deficiency for state, local, or federal income taxes
which may be established against Company for any year ended on or prior to
December 31, 1997, is occasioned by a determination by the Internal Revenue
Service or state or local departments of revenue that any increase in income for
the year gives rise to a deduction or deductions from ordinary income of Company
in the same aggregate amount for a subsequent taxable year or years, such
deficiency shall be assumed by Purchaser and shall not be a breach of any of
Company or Shareholders' warranties, representations and covenants in this
Agreement.
7.6 Time Limit on Indemnification.
No claim for indemnification may be asserted by Purchaser after the
second anniversary of the Closing Date, as hereinafter defined, except for (i)
state or federal sales or income taxes for any period ending on or prior to
December 31, 1997, which may be asserted at any time the applicable State
Departments of Revenue or Internal Revenue Service may still assert a
deficiency, and which indemnification is subject to the provisions of
Subparagraph 7.5 above, and (ii) claims arising out of a representation,
warranty or covenant that a Seller knew at the date of this Agreement was false
or which arises out of a claim later known to a Seller which Seller failed to
disclose to Purchaser prior to the Closing Date.
7.7 Amount Limit on Indemnification.
Notwithstanding any other provision to the contrary, neither
Shareholders nor Purchaser shall be charged with any such indemnified loss, cost
or expense which in the aggregate does not exceed Five Thousand dollars
($5,000.00).
8. Closing.
8.1 Time and Place.
The closing of this transaction ("Closing") shall take place by mail
with the escrow documents to be delivered to the offices of Moyle, Flanigan,
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., in West Palm Beach, Florida, at 10:00
a.m., Palm Beach County, Florida, time on September 2, 1997, or at such other
time and place as the parties hereto shall agree upon. Such date is referred to
in this Agreement as the "Closing Date."
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8.2 Documents To Be Delivered by Sellers.
At the closing Sellers shall deliver to Purchaser the following
documents:
(a) Duly executed assignments of the Land Leases and Tenant
Leases, together with all required estoppels, waivers and consents thereto, in
form and substance satisfactory to Purchaser.
(b) The originals or copies of the Land Leases and Tenant
Leases.
(c) A duly executed ▇▇▇▇ of sale absolute as to the Personalty
with full warranties of title and no liens, in form and substance acceptable to
Purchaser.
(d) A certificate signed by the Sellers that the
representations and warranties made by them in this Agreement are true and
correct on and as of the Closing Date with the same effect as through such
representations and warranties had been made on or given on and as of the
Closing Date and that Sellers have performed and complied with all its
obligations under this Agreement which are to be performed or complied with by
or prior to or on the Closing Date.
(e) A written opinion from counsel for Sellers dated as of the
Closing Date addressed to the Purchaser and its counsel satisfactory in form and
substance to Purchaser to the effect that:
(1) The corporate existence and good standing and
qualification of Company is as stated in Subparagraph 2.1;
(2) This Agreement has been duly executed and
delivered by Sellers and constitutes a legal, valid and binding obligation of
them enforceable in accordance with its terms except as such enforceability may
be limited by bankruptcy and other laws affecting creditors' rights generally
and by the availability of equitable remedies;
(3) The Company has all requisite power and authority
to own its property and operate its business as and where it is now being
conducted;
(4) The Company has title to all of the Transferred
Assets free and clear of all mortgages, liens, leases, pledges, charges,
security interests, or encumbrances of any nature whatsoever except as set forth
in such opinion;
(5) To such counsel's knowledge after due
investigation, this Agreement is the legal, valid and binding obligation of the
Company enforceable in accordance with its terms, except insofar as such
enforceability may be limited by bankruptcy and other laws affecting creditors'
rights generally and by the availability of equitable remedies;
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(6) Counsel has no knowledge of any of the proceedings
stated in Subparagraph 2.3(c);
(7) To the best of counsel's actual knowledge without
any investigation required, Company is in compliance with all statutes,
regulations, rules and executive orders of all government authorities;
(8) To the best of counsel's knowledge Seller's
representations and warranties in Subparagraph 2 are true and correct; and
(9) The Noncompetition Agreement provided for herein
to be entered into between all or certain of the Sellers and Purchaser or
Company, as the case may be, are valid and binding individual obligations of the
Sellers who are parties to such agreements, enforceable against each of them in
accordance with the terms of such provisions.
(10) The transaction contemplated by this Agreement
shall not cause or result in the filing of a bankruptcy or insolvency proceeding
under state or federal law.
(f) Noncompetition agreements between the Seller, each of ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and the Purchaser, in satisfactory form to
Purchaser. Such agreements shall specify that, for a five year term after
Closing, the Seller and/or Shareholders shall not thereafter, directly or
indirectly, construct, participate in site development for, acquire any interest
in, or provide financing for an antenna site within ten (10) miles of any of the
Transferred Assets, without the prior written consent of Purchaser. Purchaser
shall not unreasonably withhold consent to development or participation in
development or financing by Seller and/or Shareholders of an antenna site, but
shall not consent if such development may, in the opinion of Purchaser, have a
potentially material adverse impact on the use of or demand for tower space for
any Transferred Asset. Purchaser shall provide Seller and/or Shareholders with
Purchaser's determination of whether Purchrchaser, Purchaser shall have the
exclusive option to purchase any tower constructed within such ten (10) mile
radius, to be exercised at any time after the twelfth (12th) month following the
commencement of construction of the tower. The purchase price of the tower shall
be the sum of the prior 12 months trailing cash flow multiplied by ten. This
Noncompetition Agreement shall exclude other interests currently constructed and
held by the Sellers and not sold hereby. Purchaser hereby consents to the
development of the Mattapoisett antenna site.
(g) Copies of the Articles of Incorporation and good standing
certificate certified by the secretary of state.
(h) Incumbency certificate relating to all parties executing
documents relating to any of the transactions contemplated hereby.
(i) General releases in form and substance satisfactory to
Purchaser of all claims that any officer, director or partner of Company may
have to the date of closing against Purchaser.
(j) Duly executed Massachusetts Quitclaim Deed for the Old
County Road site in Wareham and a title insurance commitment and final policy in
favor of Purchaser, in a form and substance acceptable to Purchaser.
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(k) Such other documents of transfer, certificates of
authority and other documents as Purchaser may reasonably request.
8.3 Documents To Be Delivered by Purchaser.
At the closing Purchaser shall deliver to Sellers the following
documents:
(a) Cash, cashiers check, wire transfer of immediately
available federal funds, or Purchaser's attorneys' trust account check in the
amount of the Purchase Consideration provided for in Subparagraph 1.2 hereof.
(b) A certified copy of the duly adopted resolutions of
Purchaser's board of directors or executive committee authorizing or ratifying
the execution and performance of this agreement and authorizing or ratifying the
acts of its officers and employees in carrying out the terms and provisions
thereof.
8.4 Closing Expenses.
All title insurance fees or premiums, state transfer taxes or other
fees payable as a result of this transaction shall be paid by Seller. Seller
shall pay all invoices, fees, charges, taxes, expenses or other obligations
which are accrued but unbilled at the Closing Date.
9. Law Governing/Jurisdiction/Venue.
This Agreement and all transactions contemplated by this Agreement
shall be governed by and construed and enforced in accordance with the internal
laws of the State of Massachusetts without regard to principles of conflicts of
laws. The parties acknowledge that a substantial portion of negotiations and
anticipated performance of this Agreement occurred or shall occur in Palm Beach
County, Florida, and that, therefore, without limiting the jurisdiction or venue
of any other federal or state courts, each of the parties irrevocably and
conditionally (i) agrees that any suit, action or other legal proceeding arising
out of or relating to this Agreement may be brought in the courts of record of
the State of Florida in Palm Beach County, or the courts of the United States,
Southern District of Florida; (ii) consents to the jurisdiction of each such
court in any such suit, action or proceeding; and (iii) waives any objection
which it may have to the laying of venue of any such suit, action or proceeding
in any such court, provided, however, that the parties agree that any action to
determine entitlement to the Deposit shall occur in Massachusetts.
10. Assignment.
This Agreement shall not be assigned by any party without the prior
written consent of the other parties which consent may be withheld for any
reason and any attempted assignment without such written consent shall be null
and void and without legal effect, except that this Agreement
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may be freely assigned by Purchaser to any corporation wholly-owned by
Purchaser. This Agreement shall be binding upon and inure to the benefit of the
respective parties hereto and their successors, assigns, heirs, executors,
administrators, and personal representatives (if the consent required by this
Article 10 is properly secured if required).
11. Amendment and Modification.
Purchaser and Sellers may amend, modify and supplement this Agreement
in such manner as may be agreed upon by them in writing.
12. Termination and Abandonment.
This Agreement may be terminated and the transaction provided for by
this agreement may be abandoned without liability on the part of any part to any
other, at any time before the Closing Date:
(a) By mutual consent of Purchaser and Company;
(b) By Purchaser:
(1) If any of the conditions provided for in Article 5 of this
Agreement have not been met and have not been waived in writing by Purchaser.
(c) By Sellers:
(1) If any of the conditions provided for in Article 6 of this
Agreement have not been met and have not been waived in writing by Sellers.
In the event of termination and abandonment by any party as above
provided in this Article 12, Notice shall forthwith be given to the other party,
and each party shall pay its own expenses incident to preparation for the
consummation of this Agreement and the transactions contemplated hereunder.
13. Survival.
The covenants, agreements, indemnifications, representations and
warranties of the parties hereto shall survive the closing of the transactions
contemplated by this Agreement but shall expire when the indemnification claims
period expires pursuant to Subparagraph 7.6 hereof.
14. Default.
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14.1 If this transaction does not close due to a default by Purchaser,
then Sellers may retain the Deposit as agreed upon and liquidated damages.
14.2 If this transaction does not close due to a default by Sellers or
Company, the Purchaser may receive a return of its Deposit or, in the
alternative, Purchaser may proceed in equity to specifically enforce Purchaser's
rights hereunder, including the right of specific performance.
15. Notices.
All notices, requests, demands and other communications hereunder
("Notices") shall be deemed to have been duly given, if delivered by hand or
mailed, certified or registered mail with postage prepaid:
(a) If to Sellers, to ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇-▇, ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ; or to such other person
and place as Sellers shall furnish to Purchaser by Notice; or
(b) If to Purchaser, to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq. at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, Esquire, Moyle, Flanigan, ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, or to such other person and place as Purchaser shall furnish to
Seller by Notice.
16. Announcements.
Announcements concerning the transactions provided for in this
agreement by Company, Sellers, or Purchaser shall be subject to the approval of
the others in all essential respects, except that Company's or Sellers' approval
of form shall not be required as to any statements and other information which
Purchaser may submit to the Securities and Exchange Commission, the New York
Stock Exchange or Purchaser's shareholders or be required to make pursuant to
any rule or regulation of the Securities and Exchange Commission or the New York
Stock Exchange.
17. Entire Agreement.
This instrument embodies the entire agreement between the parties
hereto with respect to the transactions contemplated herein, and there have been
and are no agreements, representations or warranties between the parties other
than those set forth or provided for herein.
18. Counterparts.
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This Agreement may be executed in two or more partially or fully
executed counterparts, each of which shall be deemed an original and shall bind
the signatory, but all of which together shall constitute but one and the same
instrument, provided that Purchaser shall have no obligations hereunder until
all shareholders have become signatories hereto.
19. Headings.
The headings in the Articles and Paragraphs of this Agreement are
inserted for convenience only and shall not constitute a part hereof.
20. Further Documents.
Purchaser and Sellers agree to execute any and all other documents and
to take such other action or corporate proceedings as may be necessary or
desirable to carry out the terms hereof.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed all as of the day and year first above written.
WITNESSES: SELLERS:
(1)______________________________ ___________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
(2)______________________________
As to ▇▇▇▇▇▇▇▇▇▇
(1)______________________________ ___________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(2)______________________________
As to Harkins
SOUTHEAST COMMUNICATIONS, INC.
(1)______________________________ By:________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, President
(2)______________________________
As to Southeast Communications, Inc.
PURCHASER:
AMERICAN TOWER SYSTEMS, INC.
(1)______________________________ By:________________________________
Name: ________________________
(2)______________________________ Its: _________ President
As to Purchaser
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SCHEDULES
1. Tenant Leases.
2. Realty.
3. Personalty.
4. States in which Company is qualified to do business.
5. Names of officers, directors and shareholders, of Company.
6. Insurance.
7. Current or Anticipated Development Projects of Company.
