PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (the "AGREEMENT") is made as of April 15, 2004,
by and between PINNACLE TOWERS ACQUISITION LLC, a Delaware limited liability
company ("PURCHASER") and XXXXXXXXX COMMUNICATION SERVICES, LLC, a Georgia
limited liability company ("SELLER").
RECITALS
WHEREAS, Purchaser desires to purchase, and Seller desires to sell, the
Property, pursuant to the terms and conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by Purchaser and Seller, and
intending to be legally bound, Purchaser and Seller hereby agree as follows:
1. Definitions. Certain terms used in this Agreement are defined below. When
used herein, such terms shall have the meanings given to them by the language
employed in this Section defining such terms, and the plural includes the
singular and the singular includes the plural, unless the context clearly
indicates otherwise:
A. "AFFILIATE" with respect to any Person means any Person which,
directly or indirectly, through one or more intermediaries, controls
the subject Person or any Person which is controlled by or is under
common control with a Controlling Person. For purposes of this
definition, "control" (including the correlative terms "controlling",
"controlled by" and "under common control with"), with respect to any
Person, means possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities or by
contract or otherwise.
B. "APPLICABLE LAW" means collectively any and all statutes,
regulations, codes or ordinances applicable to the Property or the
Facilities.
C. "ASSUMED OBLIGATIONS" means Seller's obligations under the
Ground Leases, the Intangibles, the Permits and the Tower Leases, in
each case, sold, assigned transferred and delivered to Purchaser at the
Closing, and solely to the extent first arising, first attributable to,
and relating to, events occurring on or after the Closing Date, and not
in existence prior to the Closing Date.
D. "CLOSING DATE" means a date mutually agreed to by the parties
that is before the Termination Date.
E. "EFFECTIVE DATE" shall mean the date upon which the last party
executes this Agreement.
F. "FACILITY" or "FACILITIES" means individually or collectively,
respectively, the communication towers and all Real Property related to
at the Sites.
G. "GROUND LEASES" shall mean, individually or collectively, the
certain ground leases demising the Sites to Seller, as more fully
described on Exhibit "A" attached hereto and made a part hereof.
H. "INSPECTION PERIOD" means the period commencing on the
Effective Date and ending on the Closing Date.
I. "INTANGIBLES" means, collectively, any and all building
permits, zoning applications or approvals, other permits, warranties,
claims, engineering and environmental reports, contracts, lease rights,
correspondence and such other intangibles that are related to the
construction, operation and leasing of the Facilities, including
without limitation, all security deposits and other deposits held by
Seller in connection with the Tower Leases and all warranties and
guaranties held by or given to Seller with respect to the Sites.
J. "NOTAM" means a "Notice to Airman" issued by, and as such term
is used by, the FAA.
K. "PERMITS" means all permits necessary for the construction and
operation of the Facilities including, without limitation all
construction permits, zoning approvals, FAA determinations of no
hazard, FCC Form 854R, NEPA checklist, SHPO authorizations, and any
other approvals required by Applicable Law or Commitments applicable to
the Sites.
L. "PERSON" means any natural person, corporation, limited
liability company, unincorporated organization, partnership,
association, joint-stock company, joint venture, trust or government,
or any agency or political subdivision of any government.
M. "PROPERTY" means, collectively, the Real Property and all,
right, title and interest of Seller in and to the Tower Leases, the
Permits and the Intangibles.
N. "PURCHASE PRICE" means the sum of $1,802,400.00 as adjusted
pursuant to Section 3 hereof.
O. "REAL PROPERTY" means all right, title and interest of Seller
in and to the leasehold interests of Seller created by the Ground
Leases, together with all right, title and interest of Seller in and to
(a) any and all improvements, structures or buildings located on such
real property, including, but not limited to, the communications
towers, fixtures, guy wires, guy anchors and all personal property
situated on the aforesaid lands or otherwise used in the operation
thereof as communications tower sites, and any and all combiners, cable
and antennas owned by Seller and currently utilized by Seller or
tenants pursuant to the Tower Leases and (b) any and all easements,
licenses and agreements belonging to or in any way appertaining to such
real property, including all easements, licenses and agreements
providing access to such real property from public streets, roads and
ways, all easements, licensees and agreements for location,
maintenance, repair and replacement of and for cables, utilities,
utility lines, wires and anchors, and all easements, licenses and
agreements for parking.
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P. "SITE" or "SITES" means, individually or collectively,
respectively, the Tower 1 Site, the Tower 2 Site and the Tower 3 Site.
Q. "TERMINATION DATE" means April 16, 2004.
R. "TOWER CASH FLOW" means the gross rental income due under the
Tower Leases, actually received by Seller from fully installed tenants
whose leases have commenced, less all direct and actual expenses of
operating the Sites, including without limitation, the premiums for
property and liability insurance, utilities, power and light
monitoring, maintenance, site management costs, grass cutting and
security expenses, as reflected on Exhibit "C" attached hereto and made
a part hereof.
S. "TOWER 1 SITE" means that portion of the Property pertaining to
the communication tower site located in or known as Pet Resort,
Georgia.
T. "TOWER 2 SITE" means that portion of the Property pertaining to
the communication tower site located in or known as Xxxxxx, Georgia.
U. "TOWER 3 SITE" means that portion of the Property pertaining to
the communication tower site located in or known as Longbranch,
Georgia.
V. "TOWER LEASES" means written leases wherein any portion of the
Sites are demised by Seller for the use or occupancy of other parties
as described on Exhibit "B" attached hereto and made a part hereof.
2. Sale and Purchase. Subject to the terms and conditions hereof,
Purchaser hereby agrees to purchase and accept from Seller, and Seller hereby
agrees to sell, convey and assign to Purchaser, the Property, free and clear of
all liens or encumbrances that would have a material adverse impact on the use
of the Property as a communication tower site.
3. Purchase Price; Adjustment and Escrow.
A. Payment of Purchase Price. On the Closing Date, Purchaser shall
wire transfer the Purchase Price to Seller in immediately available
funds to Seller's designated account.
B. Adjustment. The Purchase Price is based upon Seller's
representation of the annualized Tower Cash Flow set forth on Exhibit
"C" attached hereto and made a part hereof. In the event it is
determined prior to the Closing Date, that the actual Tower Cash Flow
as annualized for the twelve (12) month period preceding the month of
the Closing is less than $192,000.00, the Purchase Price shall be
adjusted to equal the product of ten and 1/10 (10.1) and Tower Cash
Flow.
4. Prorations; Costs. All taxes, rental income, utility charges, ground
rents (if applicable) and other items which are customarily prorated in
transactions similar to the transaction contemplated hereby will be prorated as
of the Closing Date. After the Closing Date, promptly upon receipt of any rental
payments under the Tower Leases for periods after the Closing Date, Seller shall
pay over to Purchaser all such cash received by Seller or endorse and deliver to
Purchaser all such checks or other instruments so received by Seller. To the
extent any of the amounts prorated at Closing are based on estimates, or in the
event of any inaccuracy in such amounts, Purchaser shall provide to Seller
evidence of any discrepancy between the
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prorated amounts and the actual amounts shown on the closing statement within
sixty (60) days of the Closing Date, together with the reconciliation reflecting
such actual amounts. To the extent such reconciliation indicates that either
party is due additional prorated amounts, such amounts shall be paid by the
party from whom such amounts are due within ninety (90) days of the Closing
Date. Purchaser and Seller shall each bear one-half the cost of any recordation
deed, mortgage or transfer taxes arising with respect to the sale and/or
recordation of any of the Closing documents, provided that Seller shall not be
responsible for any such taxes or fees in excess of $2,000.00. Purchaser shall
bear the expense of any surveys or other reports or investigations conducted by
Purchaser as well as any mortgage tax.
5. Closing; Execution and Delivery of Closing Documents.
A. Closing. The closing of the transaction contemplated hereby
(the "CLOSING") shall be held on the Closing Date at the offices of
Purchaser or by mail or at such other location as mutually agreed by
the parties. At the Closing, each party shall execute and deliver, or
cause to be executed and delivered, the documents and items described
below and such other appropriate and customary documents as any party
or its counsel reasonably may request for the purpose of consummating
the transaction contemplated by this Agreement. All actions taken at
the Closing shall be deemed to have been taken simultaneously at the
time the last of any such actions is taken or completed.
B. Seller Documents. Seller shall deliver or cause to be delivered
to Purchaser, at Closing, the following documents duly executed and
acknowledged where appropriate: (i) Master Xxxx of Sale, Assignment and
Assumption of Leases and other such documents conveying the Property to
Purchaser, wherein Purchaser shall assume the Assumed Obligations; (ii)
a certificate of Seller, certifying to Purchaser that all
representations and warranties of Seller herein contained are true and
correct as of the Closing Date; (iii) a Non-Competition Agreement
pursuant to Section 9 hereof; (iv) a FIRPTA Certificate (i.e. a
certification of non-foreign status); (v) keys and security access
codes for the Sites, if any; (vi) an estoppel and attornment agreement
from any ground lessor in the form provided to Seller contemporaneously
herewith; (vii) a Non-Disturbance Agreement from any mortgage lender to
any ground lessor of the Real Property in the form provided to Seller
contemporaneously herewith, if applicable; (viii) any consents or
approvals required to be obtained pursuant to the Commitments, the
Ground Leases or the Tower Leases; (ix) such other documents as may be
reasonably required by Purchaser's title company to complete the
Closing of the transaction contemplated herein, including without
limitation, a resolution or other evidence of the authority of Seller
to sell the Property and a Seller's Affidavit and Indemnity in favor of
the title company insuring title to the Real Property; and (x)
originals of all Tower Leases and any Intangibles evidenced in writing.
C. Purchaser Documents. Purchaser shall deliver or cause to be
delivered to Seller, at the Closing, (i) the Purchase Price; (ii) an
Assumption Agreement in a form reasonably acceptable to Seller; (iii) a
certificate of the Purchaser certifying to Seller that all
representations and warranties of Purchaser herein contained are true
and correct in all respects as of the Closing Date; and (iv) a
resolution or other evidence of the authority of Purchaser to acquire
the Property.
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D. Additional Assurances. After the Closing, the parties to this
Agreement shall execute and deliver such additional documents and take
such additional actions as either party or its counsel may reasonably
deem to be practicable and necessary or advisable in order to
consummate the transaction contemplated by this Agreement.
6. Representation and Warranties of Seller. Seller represents and
warrants the following to Purchaser as of the Effective Date, which
representations and warranties shall be true and correct as of the Closing Date:
A. Organization; Power and Authority; Authorization and Validity.
Seller has full power and authority to execute, deliver, and perform
its obligations under this Agreement and all other agreements and
documents Seller is or will be executing in connection with the
transaction contemplated hereby. All limited liability company action
necessary on the part of Seller to authorize the execution and delivery
to Purchaser of this Agreement and the performance and satisfaction of
the obligations of Seller in connection with the transactions
contemplated by this Agreement has been or will have been duly taken
prior to the Closing. This Agreement constitutes the valid and binding
obligation of Seller and is enforceable against Seller in accordance
with its terms, except if such enforcement may be affected by
bankruptcy, moratorium or laws relating to creditor's rights or general
principles of equity.
B. Consents; No Breach. No consent, approval or authorization of,
or designation, declaration or filing with, any governmental authority
on the part of Seller is required in connection with the valid
execution and delivery of this Agreement. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby will not: (i) violate any provision of the organic
documents of Seller; (ii) violate, conflict with or result in the
breach of any of the material terms of, result in a material
modification of, otherwise give any other contracting party the right
to terminate, or constitute (or with notice or lapse of time or both
constitute) a default under, any material contract or other agreement
to which Seller is a party; (iii) violate any order, judgment,
injunction, award or decree of any court, arbitrator or governmental or
regulatory body against, or binding upon, Seller or any Affiliate of
Seller; or (iv) violate any statute, law or regulation of any
jurisdiction applicable to the transactions contemplated herein.
C. No Commitments, Defaults or Litigation. None of the Property is
bound or affected by any: (i) mortgage, deed of trust, loan or other
security agreement that will not be satisfied at Closing or, with
respect to the Real Property subject to Ground Leases, the subject of a
Non-Disturbance Agreement obtained by Seller from the lessor's lender;
(ii) contract to purchase or sell; (iii) noncompetition covenant; (iv)
option or right of first refusal; (v) any prohibition or restriction
that prevents the subleasing of any of the Sites or requires the
consent of any third party in connection with the subleasing of any of
the Sites; or (vi) any other agreement or commitment outside the
ordinary course of business or material to the ownership and operation
of the Sites or the Facilities, or any oral agreements (all of the
foregoing collectively referred to hereinafter as the "COMMITMENTS").
True and complete copies of the Ground Leases, the Tower Leases,
Intangibles and the Permits, as amended, if applicable, that are
evidenced by written documents, have been delivered to Purchaser. There
are no existing material defaults, events of default or events,
occurrences, or acts that, with the giving of notice or lapse of
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time or both, would constitute defaults, and no penalties have been
incurred, with respect to any of the Ground Leases, the Tower Leases,
the Permits or any other contractual obligation; except as disclosed to
Purchaser in writing, none of the foregoing documents require the
consent of any third party to the transactions contemplated hereby.
Seller has not received any rents or other amounts due Seller under the
Tower Leases in respect of any period exceeding thirty (30) days from
the date hereof. All tenants under the Tower Leases have installed
their respective equipment at the Facilities, and, to the Seller's
knowledge, no such tenant intends to exercise any right of termination
set forth in the Tower Leases. Seller has no knowledge of any claim,
litigation or proceedings affecting the Facilities or the Property that
have not been disclosed to Purchaser in writing.
D. No Violation; Restrictions. Neither the execution and
performance of this Agreement or the agreements contemplated hereby,
nor the consummation of the transaction contemplated hereby or
applicable to the Property thereby will violate Applicable Law or any
term of any Permit or give any party the right to revoke any Permit.
Seller has complied in all material respects with all Applicable Law
where the failure to comply is reasonably expected to result in a
liability of Purchaser or affect the Property or the operation of the
Facilities. The Permits constitute all licenses, franchises, permits,
zoning variances, and other authorizations necessary to construct and
operate the Facilities in compliance with Applicable Law and are in
full force and effect.
E. Commissions. Seller has not incurred any obligation for any
real estate commission, finder's, broker's, or agent's fee in
connection with the transaction contemplated hereby.
F. Financial. The Tower Leases and the Ground Leases are valid and
enforceable, except as such enforcement may be affected by bankruptcy,
moratorium or other laws relating to creditor's rights generally or
general principles of equity, and constitute the entirety of the
agreement between Seller and the respective parties thereto, and there
are no unwritten agreements, indirect or undisclosed payments or other
consideration due or which shall become due to the parties to such
agreements except as expressly set forth in the written terms thereof.
Exhibit "B" accurately sets forth, for each Tower Lease, the tenant
name, Site name, contracted rental amount, escalator, frequency of
escalator and number of tenant renewal options. The tower income
calculation set forth on Exhibit "E" attached hereto is true and
correct in all material respects. To Seller's current actual knowledge
there are no adverse costs, expenses, liabilities or claims related to
the Facilities that could reasonably be expected to have a material
adverse affect on the net operating income from the Facilities that has
not been disclosed in writing. The information, reports, financial
statements, exhibits and schedules furnished in writing by or on behalf
of the Seller to Purchaser hereof, to Seller's actual knowledge after
having made due inquiry, do not contain any untrue statement of
material fact or omit to state any material fact necessary to make the
statements herein or therein, in light of the circumstances under which
they were made, not misleading. All written information furnished after
the date hereof by or on behalf of the Seller to Purchaser in
connection with this Agreement and the transaction contemplated hereby
will, to Seller's actual knowledge after having made due inquiry, be
true, complete and accurate in every material respect, or (in the case
of projections) based on reasonable estimates, on the date as of which
such information is stated. There is
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currently no fact actually known to Seller that could reasonably be
expected to have a material adverse effect on the Property or its
operations, that has not been disclosed herein, or in a report,
financial statement, exhibit, schedule, disclosure letter or other
writing furnished to Purchaser for use in connection with the
transaction contemplated hereby.
G. Environmental Matters.
(a) To the knowledge of Seller, Seller is not in violation
of, or involved in any controversy or investigation with respect
to the violation of any environmental laws applicable to the
Property. Further, Seller is not involved in any discussion with
respect to any violations of environmental laws applicable to the
Property, and Seller is not aware of any fact or condition related
to the ownership and operation of the Property that could
reasonably be expected to lead to any environmental liability of
Seller or Purchaser. Seller has complied with all environmental,
health, and safety laws, and Seller is not aware of any action,
suit, proceeding, hearing, investigation, charge, complaint,
claim, demand, or notice which has been filed or commenced against
it alleging any failure to so comply. Without limiting the
generality of the preceding sentence, Seller has obtained and been
in material compliance with all of the terms and conditions of all
permits, licenses, and other authorizations that are required
under, and has materially complied with all other limitations,
restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules, and timetables that are contained in, all
environmental, health, and safety laws;
(b) No underground storage tanks for petroleum or any other
substance, or underground piping or conduits are or, to the
knowledge of Seller have previously been located on the Real
Property, and no asbestos-containing thermal insulation or
products containing PCB, formaldehyde, chlordane, or heptachlor or
other Hazardous Materials have been placed on or in any structure
on the Real Property by Seller or, to the knowledge of Seller, by
any prior owner or user of the Real Property, and there has been
no release of, or contamination by, Hazardous Materials on the
Real Property; and
(c) Seller has provided Purchaser with all environmental
studies, NEPA reports, records and reports in its possession or
control with respect to Property and all correspondence with any
governmental entities concerning environmental or historical
conditions of the Real Property, or which identify underground
storage tanks or otherwise relate to contamination of the soil or
groundwater of the Real Property or effluent into the air. As used
herein, "HAZARDOUS MATERIALS" means any substance designated as
being such under any Applicable Law.
H. Real Estate Matters.
(a) Seller has good and marketable leasehold title to the
Real Property and has peaceful possession of the Real Property it
leases, and there are no outstanding liens or taxes currently due
on the Real Property. Seller has fully paid and satisfied any and
all amounts due to parties in providing services or materials with
respect to the acquisition, construction and development of the
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Sites, and no such party has the xxxxxx or inchoate right to
record a lien or other such encumbrance against the Real Property.
For the five (5) years preceding the date hereof, or for as long
as Seller has leased the Real Property, Seller has filed all
required tax returns and paid all taxes due and owing with respect
to the Real Property.
(b) The Real Property, communication tower and all buildings,
improvements, machinery, tower lighting, equipment, and other
tangible assets owned by Seller and necessary for the operation of
the Facilities, as presently conducted, are in compliance with all
Applicable Laws, and the personal property described on Schedule
1.0 hereof constitutes all of the personal property necessary for
the use and operation of the Facilities as required by the Tower
Leases. There are no outstanding NOTAM's with respect to the
Facilities which have not been properly closed as required by
Applicable Law.
(c) The communication towers and all buildings, improvements,
machinery, equipment relating to the use and operation of the Real
Property as a communications tower site, including without
limitation, any climate control, lighting system, electrical
system and other building equipment, owned by Seller have been
maintained in accordance with customary industry practice, are in
good operating condition and repair, reasonable wear and tear,
resulting from ordinary usage excluded, and are suitable for the
purposes for which they are presently used. To Seller's actual
knowledge after due inquiry, there are no structural or latent
defects in the aforesaid communication towers, equipment and
improvements.
(d) Seller has not received notice of, or been served with,
any pending or threatened litigation, claim, condemnation, or sale
in lieu thereof with respect to any portion of the Real Property
relating to or arising out of the ownership of the Real Property
by any governmental instrumentality.
(e) To the knowledge of Seller, there is no proposed material
increase in real property taxes payable on the Property. To the
knowledge of Seller, no exemption from full taxation of any
portion of the Real Property has been claimed in the previous five
(5) years, and the Real Property is not subject to any rollback
taxes. To the knowledge of Seller there are no material pending or
proposed assessments for public improvements, or contemplated
improvements that may lead to an assessment. Any personal and/or
property tax information provided to Purchaser by Seller is true
and correct in all material respects.
(f) Each parcel of Real Property abuts on and has direct
vehicular access to a public road, or has access to a public road
via a permanent, irrevocable, appurtenant easement benefiting the
Real Property, and Seller has no knowledge of any fact or
condition that could result in the termination or reduction of the
current access from the Real Property to existing highways and
roads, or to sewer or other utility services serving the Real
Property. All utilities required for the operation of the
Facilities, enter the Real Property through adjoining public
streets, or, if they pass through an adjoining private tract, do
so in accordance with valid easements.
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(g) No third party has any interest in or has received an
assignment of the Tower Leases or any portion of the rents due
thereunder.
I. No Additional Representations. Seller is not making any
representations or warranty, express or implied, of any nature
whatsoever, except for the representations and warranties in this
Section 6.
7. Representation and Warranties of Purchaser. Purchaser represents and
warrants the following to Seller as of the Effective Date, which representations
and warranties shall be true and correct as of the Closing Date.
A. Organization; Power and Authority; Authorization and Validity.
Purchaser has full power and authority to execute, deliver, and perform
its obligations under this Agreement and all other agreements and
documents Purchaser is or will be executing in connection with the
transaction contemplated hereby. All limited liability company action
necessary on the part of Purchaser to authorize the execution and
delivery to Seller of this Agreement and the performance and
satisfaction of the obligations of Purchaser in connection with the
transaction contemplated by this Agreement has been or will have been
duly taken prior to the Closing. This Agreement constitutes the valid
and binding obligation of Purchaser and is enforceable against
Purchaser in accordance with its terms, except if such enforcement may
be affected by bankruptcy, moratorium or laws relating to creditor's
rights or general principles of equity.
B. Consents; No Breach. No consent, approval or authorization of,
or designation, declaration or filing with, any governmental authority
on the part of Purchaser is required in connection with the valid
execution and delivery of this Agreement. The execution, delivery and
performance of this Agreement and the consummation of the transaction
contemplated hereby will not: (i) violate any provision of the organic
documents of Purchaser; (ii) violate, conflict with or result in the
breach of any of the material terms of, result in a material
modification of, otherwise give any other contracting party the right
to terminate, or constitute (or with notice or lapse of time or both
constitute) a default under, any material contract or other agreement
to which Purchaser is a party; (iii) violate any order, judgment,
injunction, award or decree of any court, arbitrator or governmental or
regulatory body against, or binding upon, Purchaser or any Affiliate of
Purchaser; or (iv) violate any statute, law or regulation of any
jurisdiction applicable to the transaction contemplated herein.
C. Commissions. Purchaser has not incurred any obligations for any
real estate commission, finder's, broker's or agent's fee in connection
with the transaction contemplated hereby.
D. Information. Prior to Closing, Purchaser will be given access
to information concerning the condition, properties, operations and
prospects of the Property and Sites. Purchaser shall have the
opportunity to ask questions of and to receive information from Seller
and persons acting on its behalf concerning the Property, Sites and the
operation of Seller's business. Purchaser acknowledges that prior to
Closing, it shall undertake an independent investigation and
verification of the Property and the ownership and operation of
Seller's communication towers.
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E. Financial Ability of Purchaser. Subject to the applicable terms
of the credit facility, Purchaser has sufficient funds under its line
of credit to consummate the transactions contemplated by this Agreement
and Purchaser shall use commercially reasonable efforts to obtain
financing of the transaction contemplated hereby from its lender.
F. No Additional Representations. Purchaser is not making any
representations or warranty, express or implied, of any nature
whatsoever, except for the representations and warranties in this
Section 7.
8. Management of Facilities Before Closing Date. During the period
pending the Closing, except as otherwise permitted or required by this
Agreement, Seller shall (i) conduct the operations of the Facilities in the
ordinary and usual course of business consistent with past and current
practices; and shall not make any material changes to the Property or its
operation without obtaining the prior written consent of Purchaser; (ii) notify
Purchaser of material changes or adverse conditions with respect to the
operation of the Property; (iii) maintain casualty and liability insurance
amounts and coverages as required by the Commitments, Ground Leases and Tower
Lease; (iv) not enter into any leases or licenses of the Sites without the prior
written approval of the Purchaser; (v) not solicit or authorize any person to
solicit, or encourage, any inquiry or proposal for the sale of financing of all
or any material part of the Property or enter into negotiations for any such
proposal; (vii) use its best reasonable efforts to obtain such ground lease
estoppels and nondisturbance agreements as reasonably required by Purchaser or
its Lender; and (vii) remedy, at the sole expense of Seller, all liens, claims
or impairments to the marketability of title to the Real Property that would
have a material adverse impact on the use of the Property as a communication
tower site; (viii) not enter into any Commitment or transaction that could
reasonably be expected to materially or adversely affect the Facilities or the
Property.
9. Noncompetition; Rights of First Refusal. Seller and its undersigned
principals, who joins in this Agreement intending to be bound by the terms of
this Section, covenant and agree that the proprietary information Seller and its
undersigned principal have acquired regarding the Facilities will enable Seller
and its undersigned principal to injure Purchaser and diminish the value of the
investment in the Property by Purchaser if Seller or its undersigned principal
should compete with Purchaser. Therefore, Seller and its undersigned principal
hereby agree that, without the prior written consent of Purchaser, neither
Seller nor its undersigned principal, shall for two (2) years from the Closing
Date, directly or indirectly, as a director, officer, agent, employee,
consultant or independent contractor or in any other capacity, (a) invest (other
than investments in publicly owned companies which constitute not more than ten
(10%) percent of the voting securities of any such company) or engage in any
business or activity that competes with the Facilities within a two (2) mile
radius of the Real Property (the "TERRITORY"); (b) contact, solicit or attempt
to solicit or accept business from any tenants of the Facilities for the purpose
of, or having the effect of, causing such tenants to terminate their business
relationship with Purchaser with respect to the Facilities after Closing; or (c)
or operate a communications tower facility within the Territory that competes
with the Facility.
10. Inspection by Purchaser. During the Inspection Period Seller shall
permit Purchaser and its authorized representatives reasonable access to, and
make available for inspection, all of the Property and the business premises of
Seller and its employees, and furnish Purchaser all books, records, documents,
corresponding engineering and environmental reports,
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contracts, property and sale tax records, Commitments and information with
respect to the Property and the affairs of Seller. Seller shall (i) provide to
Purchaser financial statements and information related to the Property that is
kept or that should be kept in the ordinary course of Seller's business as is
required by Purchaser's lender so long as the documented third party
out-of-pocket administrative costs incurred by Seller in connection with such
delivery are at Purchaser's sole cost and expense, and (ii) cooperate with
Purchaser to provide to Purchaser's lender other financial statements and
information as is required by Purchaser's lender so long as such other financial
statements and information are generated by or on behalf of Purchaser at
Purchaser's sole cost and expense. Further, Purchaser shall have the right to
contact all tenants and prospective tenants under Tower Leases, the lessor under
the Ground Lease and such other parties as Purchaser reasonably determines in
connection with the inspection of the Property. Following the Closing Date,
Purchaser may be required to conduct audits of its business and any business it
has acquired in connection with additional financing of Purchaser, and Seller
agrees to cooperate with Purchaser in any such post-closing audits, as
reasonably requested by Purchaser, at Purchaser's sole cost and expense.
11. Conditions Precedent of Purchaser. Notwithstanding any provision to
the contrary set forth herein, and except as may be waived in writing by
Purchaser, the obligations of Purchaser hereunder are subject to the fulfillment
at or before the Closing of each of the following conditions, and Purchaser
shall have the right to terminate this Agreement in its entirety, at Purchaser's
option, in the event all of the following conditions are not satisfied on or
before the Closing Date: (i) Purchaser has verified to its reasonable
satisfaction that each representation and warranty of Seller contained herein is
true and correct in all material respects and shall be true and correct in all
material respects as of the Closing; (ii) Seller shall have performed and
complied with all covenants or conditions required by this Agreement to be
performed and complied with by Seller at or before the Closing, including,
without limitation, delivery of all documents and items described in Section
5.B; (iii) Purchaser's receipt and approval of all Permits; (iv) no facts,
conditions or circumstances have arisen which could reasonably result in a
material adverse affect on the use and operation of the Facilities; (v)
Purchaser's receipt and approval of a Phase I Environmental Assessment and NEPA
report as to each Site; and (vi) Purchaser shall have received an ALTA Owner's
Title Insurance Policy insuring title to the Real Property, in form and
substance reasonably satisfactory to Purchaser and its lender.
12. Casualty; Condemnation. In the event of casualty damage or
condemnation (or notice thereof) of a material portion of any Site occurs prior
to Closing, Purchaser shall have the right to (i) either terminate this
Agreement in its entirety; or (ii) proceed to Closing, in which event Seller
shall assign to Purchaser any insurance proceeds or damages received by Seller
with respect to such casualty or condemnation and/or any rights to recover same.
13. Confidentiality. Without the prior written consent of Purchaser,
Seller will not disclose, and will not permit its representatives to disclose,
to any person other than its officers, directors and advisors (i) the fact that
discussions or negotiations are taking place concerning the transaction
contemplated hereby, or (ii) any of the terms, conditions or other facts with
respect to the transaction, including the status thereof, except to the extent
that Seller has, prior to any such disclosure, determined in good faith, after
consultation with counsel, that such disclosure is required by Applicable Law.
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14. Indemnity by Seller. From and after the Closing Date, each of
Seller and its undersigned principal hereby agrees to indemnify, defend, and
hold harmless Purchaser and its officers, directors, shareholders, agents, and
attorneys for, from, and against all damages, claims, loss, costs (including
attorneys fees) asserted against or incurred by any of them by reason of, or
resulting from: (i) any breach by Seller of any representation, warranty, or
covenant contained herein or in any agreement executed pursuant hereto; (ii) all
liabilities of Seller not expressly assumed by Purchaser pursuant to the terms
hereof; (iii) the construction, operation and ownership of the Property through
the Closing Date (collectively, "DAMAGES"). Without limiting the generality of
the foregoing, the indemnification provided by this paragraph shall specifically
cover capital, operating, and maintenance costs, incurred in connection with any
investigation or monitoring of site conditions, any clean-up, containment,
remedial, removal, or restoration work required or performed by any federal,
state, or local governmental agency or political subdivision or performed by any
nongovernmental entity or person because of the presence, suspected presence,
release, or suspected release of any Hazardous Material in or into the air,
soil, groundwater, or surface water at, on, about, under, or within the Real
Property. Notwithstanding the foregoing, Seller's liability shall be limited to
the amounts paid to Seller hereunder.
15. Indemnity by Purchaser. From and after the Closing Date Purchaser
shall indemnify, defend and hold harmless Seller and its officers, directors,
shareholders, agents, and attorneys for, from, and against all Losses asserted
against or incurred by any of them by reason of, or resulting from the failure
of Purchaser to comply with (i) any covenants or other commitments made by
Purchaser in this Agreement, (ii) such covenants and commitments set forth in
the Ground Leases and Tenant Leases that are expressly assumed by Purchaser,
provided that such Losses result from matters arising after the Closing Date.
15.1 Indemnity Procedures. Promptly after receipt by an indemnified
party under Sections 14 and 15 of notice of the commencement of any action for
which indemnification may be available under Section 14 or 15, such indemnified
party shall, if a claim in respect thereof is to be made against an indemnifying
party under such Section, give notice to the indemnifying party of the
commencement thereof, but the failure so to notify that indemnifying party shall
not relieve it of any liability that it may have to any indemnified party,
except to the extent the indemnifying party demonstrates that the defense of
such action is prejudiced thereby. In case any such action shall be brought
against an indemnified party and it shall give notice to the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall elect, to assume the
defense thereof with counsel of its choice and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such Section for any fees of other counsel or any other expenses, in
each case incurred by such indemnified party in connection with the defense
thereof. If an indemnifying party assumes the defense of such an action, (a) no
compromise or settlement thereof may be effected by the indemnifying party
without the indemnified party's consent (which shall not be unreasonably
withheld, delayed or conditioned) unless (i) there is no finding or admission or
any violation of law or any violation of the rights of any person and no effect
on any other claims that may be made against the indemnified party and (ii) the
sole relief provided is monetary damages that are paid in full by the
indemnifying
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party and (b) the indemnifying party shall have no liability with respect to any
compromise or settlement thereof effected without its consent (which shall not
be unreasonably withheld).
16. Remedies. If Seller fails to comply with this Agreement for any
reason other than Purchaser's failure to perform its obligations under this
Agreement, Purchaser shall be entitled to, subject to the remainder of this
Paragraph 16, either (i) enforce specific performance of Seller's obligations
hereunder or (ii) terminate this Agreement, and recover any damages incurred by
Purchaser. Seller acknowledges that a breach of the terms hereof by Seller, or
refusal by Seller to consummate the transaction contemplated hereby will cause
irrevocable harm to Purchaser, for which there may be no adequate remedy at law
and for which the ascertainment of damages would be difficult. For this reason,
Seller has agreed that in the event of a default by Seller, Purchaser shall be
entitled to specific performance or injunctive relief in addition to other
remedies at law, without having to prove the inadequacy thereof and without
being required to post bond or other security therefor. In the event Purchaser
fails to consummate the transaction herein contemplated by the Termination Date,
and provided that (i) the representations and warranties of Seller set forth
herein are true and correct on such date; (ii) all conditions precedent to
closing have been satisfied; and (iii) Seller has complied with all of its
obligations hereunder, Seller shall have the right to terminate this Agreement
after the Closing Date upon three (3) days prior written notice to Purchaser.
17. Reliance on and Survival of Agreement. Each of the parties to this
Agreement shall be entitled to rely upon the representations and warranties of
the other party contained in this Agreement or any other agreement, document or
other instrument delivered pursuant hereto, and upon the representations of the
other party at Closing as to compliance with or performance of any covenants
made by it herein or therein and as to satisfaction of any conditions precedent
to the obligations of such party hereunder. All covenants, representations and
warranties in this Agreement or in any agreement, document, or other instrument
delivered by or on behalf of a party pursuant hereto and the indemnification
obligations of the parties hereto relating to such representations and
warranties shall survive and continue in effect for a period of eighteen (18)
months after the Closing.
18. Remedies Not Exclusive. The remedies provided in this Agreement
shall not be exclusive of any other rights or remedies available by one party
against the other, either at law or in equity, including without limitation, the
right of any party prevailing in litigation arising from this Agreement to
recover its attorneys fees and costs.
19. Efforts to Consummate. Subject to the terms and conditions of this
Agreement, each party hereto shall use commercially reasonable efforts to take
or cause to be taken all actions and do or cause to be done all things required
under applicable law in order to consummate the transactions contemplated
hereby, including, without limitation, (i) obtaining all permits,
authorizations, consents and approvals of any authority or other person which
are required for the consummation of the transactions contemplated hereby and by
the other documents, (ii) taking any and all reasonable actions necessary to
satisfy all of the condition to such party's obligations hereunder, and (iii)
executing and delivering all agreements and documents required by the terms
hereof to be executed and delivered by such party on or prior to the Closing.
20. Assignment. Only Purchaser shall have the right to assign its
rights under this Agreement on written notice to Seller.
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21. Notices. Any notice or other communication to be given under this
Agreement by any party to any other party shall be in writing and shall be
either (a) personally delivered, (b) delivered by overnight express delivery
service or same-day local courier service, or (c) delivered by telex or
facsimile transmission, to the address set forth below the signature line of
each party hereto, or to such other address as may be designated by the parties
from time to time in accordance with this section. Notices delivered personally,
by overnight express delivery service or by local courier service shall be
deemed given as of actual receipt. Notices delivered by facsimile transmission
shall be deemed given upon receipt by the sender of the transmission
confirmation.
22. Miscellaneous. This Agreement and the Exhibits attached hereto
supersede all prior agreements and understandings relating to the subject matter
hereof, except that the obligations of any party under any agreement executed
pursuant to this Agreement shall not be affected by this paragraph, and this
Agreement may be amended only in writing executed by the parties hereto or their
authorized representatives. This Agreement and the rights and obligations of the
parties hereto shall be governed by and construed and enforced in accordance
with the laws of the State of Georgia. This Agreement and the rights, interests
and obligations hereunder shall be binding upon and shall inure to the benefit
of the parties hereto and their respective heirs, personal representatives,
estates, devisees, successors and permitted assigns. The captions in this
Agreement are for convenience of reference only and shall not limit or otherwise
affect any of the terms or provisions hereof. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
23. Costs, Expenses, and Legal Fees. Each party hereto agrees to pay
the costs and expenses, including reasonable attorneys' fees, incurred by the
prevailing party in litigation or in an administrative proceeding to enforce or
interpret any of the terms of this Agreement.
24. Severability. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws effective during
the term hereof, the provision shall be fully severable and this Agreement shall
be construed and enforced as if such illegal, invalid, or unenforceable
provision were never a part hereof; and the remaining provisions hereof shall
remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance herefrom.
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EXECUTED as of the date first written above.
PURCHASER:
PINNACLE TOWERS ACQUISITION LLC
000 X. Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Fax No. (000) 000-0000
By: Global Signal Services LLC,
its Manager
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Executive Vice President,
Corporate Development and
Operations
SELLER:
XXXXXXXXX COMMUNICATION SERVICES, LLC
0000 X. Xxxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Fax No. (000) 000-0000
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Member
PRINCIPAL OF SELLER, SOLELY WITH RESPECT
TO SECTIONS 9 AND 14 HEREOF
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Member
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Member
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Member
By: /s/ Xxxxx X. Xxxxxxx, Xx.
-------------------------------------
Name: Member
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Member
15
ATTACH:
------
EXHIBITS
EXHIBIT "A" - DESCRIPTION OF REAL PROPERTY
EXHIBIT "B" - TOWER LEASES
EXHIBIT "C" - TOWER INCOME CALCULATION
2
