ASSET PURCHASE AGREEMENT
By and Among
AMERICAN TOWER CORPORATION,
AMERICAN TOWER, L.P.,
XXXXXX TOWER COMPANY
and
XXXXXX COMMUNICATIONS CORPORATION,
AS THE SOLE VOTING STOCKHOLDER OF
XXXXXX TOWER COMPANY
Dated as of
July 6, 1999
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2 PURCHASE AND SALE OF ASSETS; ASSUMPTION OF LIABILITIES. . . . . . 2
2.1 Assets. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Excluded Assets . . . . . . . . . . . . . . . . . . . . . . 2
2.3 Assumption of Certain Liabilities, Retained Liabilities . . 3
2.4 Required Consents . . . . . . . . . . . . . . . . . . . . . 5
2.5 Consent of Third Parties. . . . . . . . . . . . . . . . . . 5
2.6 Bulk Transfer Laws. . . . . . . . . . . . . . . . . . . . . 5
2.7 Defective Sites . . . . . . . . . . . . . . . . . . . . . . 6
2.8 Rejected Sites. . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 3 PURCHASE PRICE; CLOSING . . . . . . . . . . . . . . . . . . . . . 7
3.1 Purchase Price.. . . . . . . . . . . . . . . . . . . . . . 7
3.2 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF TARGET. . . . . . . . . . . . . 9
4.1 Organization and Business; Power and Authority;
Effect of Transaction.. . . . . . . . . . . . . . . . . . .10
4.2 Intentionally Omitted. . . . . . . . . . . . . . . . . . .11
4.3 Material Statements and Omissions; Absence of Events. . . .11
4.4 Title to Properties; Leases . . . . . . . . . . . . . . . .11
4.5 Compliance with Private Authorizations. . . . . . . . . . .12
4.6 Compliance with Governmental Authorizations and Applicable
Law . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
4.7 Intangible Assets . . . . . . . . . . . . . . . . . . . . .14
4.8 Related Transactions. . . . . . . . . . . . . . . . . . . .14
4.9 Insurance . . . . . . . . . . . . . . . . . . . . . . . . .15
4.10 Tax Matters. . . . . . . . . . . . . . . . . . . . . . . .15
4.11 Employee Retirement Income Security Act of 1974 . . . . . .15
4.12 FIRPTA. . . . . . . . . . . . . . . . . . . . . . . . . . .15
4.13 Employment and Consulting Arrangements. . . . . . . . . . .16
4.14 Material Agreements . . . . . . . . . . . . . . . . . . . .16
4.15 Ordinary Course of Business . . . . . . . . . . . . . . . .16
4.16 Broker or Finder. . . . . . . . . . . . . . . . . . . . . .17
4.17 Environmental Matters . . . . . . . . . . . . . . . . . . .17
4.18 Capital Stock . . . . . . . . . . . . . . . . . . . . . . .19
4.19 Year 2000 Compliant.. . . . . . . . . . . . . . . . . . . .19
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF ATLP. . . . . . . . . . . . . .19
5.1 Organization and Business; Power and Authority;
Effect of Transaction.. . . . . . . . . . . . . . . . . . .19
5.2 ATC SEC Reports.. . . . . . . . . . . . . . . . . . . . . .20
5.3 Material Statements and Omissions; Absence of Events. . . .21
5.4 Broker or Finder. . . . . . . . . . . . . . . . . . . . . .21
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF THE TARGET
STOCKHOLDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
6.1 Organization and Business; Power and Authority;
Effect of Transaction.. . . . . . . . . . . . . . . . . . .22
ARTICLE 7 COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
7.1 Access to Information; Confidentiality. . . . . . . . . .22
7.2 Agreement to Cooperate; Certain Other Covenants. . . . . .24
7.3 Public Announcements. . . . . . . . . . . . . . . . . . . .25
7.4 Notification of Certain Matters.. . . . . . . . . . . . . .25
7.5 No Solicitation.. . . . . . . . . . . . . . . . . . . . . .25
7.6 Conduct of Business by Target Pending the Closing.. . . . .26
7.7 Preliminary Title Reports.. . . . . . . . . . . . . . . . .28
7.8 Environmental Site Assessments. . . . . . . . . . . . . . .28
7.9 Lease of Office Space . . . . . . . . . . . . . . . . . . .28
ARTICLE 8 CLOSING CONDITIONS. . . . . . . . . . . . . . . . . . . . . . . .28
8.1 Conditions to Obligations of Each Party.. . . . . . . . . .28
8.2 Conditions to Obligations of ATLP . . . . . . . . . . . . .29
8.3 Conditions to Obligations of Target . . . . . . . . . . . .31
ARTICLE 9 TERMINATION, AMENDMENT AND WAIVER . . . . . . . . . . . . . . . .32
9.1 Termination.. . . . . . . . . . . . . . . . . . . . . . . .32
9.2 Effect of Termination.. . . . . . . . . . . . . . . . . . .33
ARTICLE 10 INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . .34
10.1 Survival. . . . . . . . . . . . . . . . . . . . . . . . . .34
10.2 Indemnification.. . . . . . . . . . . . . . . . . . . . . .34
10.3 Limitation of Liability.. . . . . . . . . . . . . . . . . .35
10.4 Notice of Claims. . . . . . . . . . . . . . . . . . . . . .35
10.5 Defense of Third Party Claims.. . . . . . . . . . . . . . .36
10.6 Assignment of Rights; Additional Indemnification. . . . . .36
ARTICLE 11 GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . .37
11.1 Waivers; Amendments.. . . . . . . . . . . . . . . . . . . .37
11.2 Fees, Expenses and Other Payments.. . . . . . . . . . . . .38
11.3 Notices.. . . . . . . . . . . . . . . . . . . . . . . . . .38
11.4 Specific Performance; Other Rights and Remedies.. . . . . .39
11.5 Severability. . . . . . . . . . . . . . . . . . . . . . . .39
11.6 Counterparts. . . . . . . . . . . . . . . . . . . . . . . .40
11.7 Section Headings. . . . . . . . . . . . . . . . . . . . . .40
11.8 Governing Law.. . . . . . . . . . . . . . . . . . . . . . .40
11.9 Further Acts. . . . . . . . . . . . . . . . . . . . . . . .40
11.10 Entire Agreement. . . . . . . . . . . . . . . . . . . . . .40
11.11 Assignment. . . . . . . . . . . . . . . . . . . . . . . . .41
11.12 Parties in Interest.. . . . . . . . . . . . . . . . . . . .41
APPENDIX A: Definitions
EXHIBITS:
EXHIBIT A: Form of Deposit Escrow Agreement (Fourth Recital).
EXHIBIT B: Opinion of Xxxxxxx & Xxxxxx, LLP (Section 8.2(b)).
EXHIBIT C: Form of Non-Assignable Contracts Agreement (Section 8.2(g)).
EXHIBIT D: Form of Indemnity Escrow Agreement (Section 8.2(h)).
EXHIBIT E: Form of Master Lease from ATLP to Sygnet (Section 8.2(i)).
EXHIBIT F: Form of Build-to-Suit Agreement (Section 8.2(l)).
EXHIBIT G: Opinion of Xxxxxxxx & Worcester LLP (Section 8.3(b)).
ATTACHMENTS: Target Disclosure Schedule
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ASSET PURCHASE AGREEMENT
Asset Purchase Agreement, dated as of July 6, 1999, by and among American
Tower Corporation, a Delaware corporation, American Tower, L.P., a Delaware
limited partnership ("ATLP"), Xxxxxx Tower Company, an Oklahoma corporation
("Target"), and Xxxxxx Communications Corporation, an Oklahoma corporation, as
the sole voting stockholder of Target (the "Target Stockholder").
W I T N E S S E T H:
WHEREAS, the Board of Directors of Target has determined that the sale of
the assets (the "Purchase") of Target used in Target's tower rental and
ownership business (the "Target Business") to ATLP on the terms and conditions
set forth in this Asset Purchase Agreement (this "Agreement") is consistent with
and in furtherance of the long-term business strategy of Target, and is fair to,
and in the best interests of, Target and its stockholders;
WHEREAS, the Boards of Directors of ATC, ATC GP, Inc., the general partner
of ATLP and Target have approved and adopted this Agreement and, in the case of
Target, have directed that this Agreement be submitted to its sole voting
stockholder for its adoption and approval;
WHEREAS, as a condition of the willingness of ATC and ATLP to enter into
this Agreement, and as an inducement thereto, the Target Stockholder is
delivering its written consent approving and adopting the Purchase and this
Agreement; and
WHEREAS, simultaneously with the execution and delivery of this Agreement,
ATC, Target and Chase Manhattan Trust Company, National Association, as escrow
agent, have entered into an escrow agreement dated as of the date hereof in the
form of Exhibit A attached hereto and made a part hereof (the "Deposit Escrow
Agreement"), and, in accordance with the terms thereof, ATC is making a deposit
(the "Escrow Deposit") in the amount of Three Million Eight Hundred Thousand
Dollars ($3,800,000) pursuant thereto;
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements herein contained and other valuable
consideration, the receipt and adequacy whereof are hereby acknowledged, the
parties hereto hereby, intending to be legally bound, represent, warrant,
covenant and agree as follows:
ARTICLE 1
DEFINED TERMS
As used herein, unless the context otherwise requires, the terms defined in
Appendix A shall have the respective meanings set forth therein. Terms defined
in the singular shall have a
comparable meaning when used in the plural, and VICE VERSA, and the reference
to any gender shall be deemed to include all genders. Unless otherwise
defined or the context otherwise clearly requires, terms for which meanings
are provided in this Agreement shall have such meanings when used in the
Target Disclosure Schedule, and each Collateral Document executed or required
to be executed pursuant hereto or thereto or otherwise delivered, from time
to time, pursuant hereto or thereto. References to "hereof," "herein" or
similar terms are intended to refer to the Agreement as a whole and not a
particular section, and references to "this Section" or "this Article" are
intended to refer to the entire section or article and not a particular
subsection thereof. The term "either party" shall, unless the context
otherwise requires, refer to ATC and ATLP, on the one hand, and Target and
the Target Stockholder, on the other hand.
ARTICLE 2
PURCHASE AND SALE OF ASSETS; ASSUMPTION OF LIABILITIES
2.1 ASSETS. Subject to the terms and conditions of this Agreement, Target
shall grant, convey, sell, assign, transfer and deliver to ATLP on the Closing
Date, and ATLP shall purchase on the Closing Date from Target, all right, title
and interest of Target in and to all of the assets, properties and rights of
Target specifically set forth below in this Section 2.1 (collectively the
"Target Assets"), free and clear of any Liens of any nature whatsoever, except
for Permitted Liens; provided that the Target Assets shall not include any
Excluded Assets:
(a) all Tower Structures;
(b) all of Target's rights to all Tower Sites;
(c) all Tower Related Assets; and
(d) all rights under any Governmental Authorizations (excluding FCC
licenses) and any Private Authorizations held with respect to the ownership or
use of the Tower Structures or Tower Sites, except to the extent such
Governmental Authorizations or Private Authorizations are not transferable to
ATLP and except to the extent (and only to the extent) any such Governmental
Authorizations and Private Authorizations are needed by Target in the operation
of its businesses following the Closing.
2.2 EXCLUDED ASSETS. All assets of Target and its Affiliates (including,
without limitation, Sygnet) not set forth in Section 2.1 shall be excluded from
the Target Assets and retained by Target and its respective Affiliates,
including, without limitation, the following (collectively, "Excluded Assets"):
(a) all equipment shelter foundations used or occupied by Target or
Sygnet; existing equipment cabinets, shelters and buildings used or occupied by
Target or Sygnet; mounting platforms used or occupied by Target or Sygnet;
wiring; coaxial cabling; conduits; microwave antennas and other transport
related equipment and housings; cable; equipment generators; fuel
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tanks; electrical panels; the single power pole at each Tower Site that
serves as the point of demarcation between Target or Sygnet and the utility
service provider; the utility service entrance equipment (including conduits
and wiring) connecting such power pole to any of Target's or Sygnet's
equipment; power protection and connection boxes; antennas and antenna
connection boxes; communications and other radio equipment and amplifiers;
waveguides and ice bridges; provided, that in the event that such Excluded
Assets are used or occupied by any third party tenant as of the Closing Date,
Target will continue to allow, and will use its best efforts to cause Sygnet
to continue to allow, such third party tenant to use or occupy such Excluded
Assets to the extent necessary to convey the Target Assets to ATLP;
(b) the rights that accrue or will accrue to Target under this Agreement
or any of the other Collateral Documents, including the consideration paid or to
be paid to Target hereunder (subject to the provisions of Article 10) and all
accounts receivable, including rents and other amounts under the Tower Leases,
which accrue or are prorated prior to the Closing Date;
(c) all books and records of Target which do not specifically relate to
the Target Assets, subject to the right of ATC to have access and to copy for a
period of three (3) years from the Closing Date; the records described herein
shall further include without limitation all corporate seals, certificates of
incorporation, minute books, stock books, Tax Returns or other records having to
do with the corporate organization of Target;
(d) any claims or rights against third parties arising or relating to
periods prior to the Closing Date except to the extent that such claims or
rights relate to Assumed Liabilities; and
(e) all assets, properties and rights related to Rejected Sites.
2.3 ASSUMPTION OF CERTAIN LIABILITIES, RETAINED LIABILITIES.
(a) ASSUMPTION OF ASSUMED LIABILITIES. Subject to Section 2.3(b), as of
the Closing Date, ATLP shall acquire the Target Assets subject only to, and ATLP
shall undertake, assume, perform and otherwise pay, satisfy and discharge, and
on the terms set forth in Article 10 hold Target harmless from, the following
Liabilities (collectively, the "Assumed Liabilities"):
(i) all Liabilities of Target under all Contracts included within
the Target Assets (including, without limitation, the Site Leases and Tower
Leases), but only to the extent such Liabilities accrue or relate to the
period from and after the Closing;
(ii) the rents, revenues, Taxes, charges and payments that are
apportioned for the account of ATLP pursuant to Section 3.1(b) hereof; and
(iii) all Liabilities, whenever and however incurred or accrued,
which arise in connection with the ownership, lease, use or occupancy of or
under the Target Assets from and after the Closing, except for the Retained
Liabilities and except as may be limited pursuant to the foregoing
provisions of Sections 2.3(a)(i) and (ii).
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Notwithstanding the assumption of the Assumed Liabilities as set forth above,
nothing herein shall be deemed or construed to relieve Target, or to be an
assumption by ATLP, of any Liability arising from any event, condition,
occurrence or other matter which is the subject of a breach by Target of a
representation, warranty or covenant contained in this Agreement or in any
Contract.
(b) LIMITATIONS ON ASSUMPTION OF LIABILITIES. Notwithstanding Section
2.3(a), ATLP is not assuming under this Agreement or any Collateral Document any
Liabilities that are not specifically described in Section 2.3(a) as an Assumed
Liability (each, a "Retained Liability"). On the terms set forth in Article 10,
Target and the Target Stockholder shall hold ATLP harmless from the Retained
Liabilities. By way of example and not limitation, each of the following
represents a Retained Liability: (i) any Liabilities arising out of any actual
or alleged breach or nonperformance by Target (or their respective Affiliates)
prior to the Closing of any provision of any Contract; (ii) any product
liability or similar claim for injury to any Person or property, regardless of
when made or asserted, that arises out of or is based upon any express or
implied representation, warranty, agreement or guarantee made by Target or
alleged to have been made by Target, or which is imposed or asserted to be
imposed by operation of Law in connection with any service performed or product
sold or leased by or on behalf of Target prior to the Closing; (iii) any
federal, state, local or foreign income or other Tax payable with respect to the
Target Assets or other properties or operations of Target or any member of any
affiliated group of which Target was a member for any period, in each case prior
to the Closing; (iv) any Liabilities arising prior to, after or as a result of
the Closing to or with respect to any employees, agents or independent
contractors of Target; (v) any Liabilities of Target arising from or incurred in
connection with the preparation, negotiation, execution and performance of this
Agreement or any Collateral Documents, except as otherwise provided herein and
therein; (vi) any Liabilities, whether known or unknown, arising from or related
to (A) any violation by Target prior to the Closing of any Environmental Laws
relating to the ownership, use or occupancy of the Target Assets, or (B) any
Environmental Condition existing prior to the Closing which Target caused,
whether by action or inaction; (vii) any Liabilities caused by or attributable
to the ownership, possession, occupancy, use or operation of the Target Assets
by Target prior to the Closing; (viii) the rents, revenues, Taxes, chrges and
payments that are apportioned for the account of Target pursuant to Section
3.1(b) hereof; (ix) any Liability arising out of the matters disclosed on
Schedule 4.6(c) or any Liability of Target arising out of any Legal Action that
is pending or threatened in writing to Target as of the Closing Date or any
actual or alleged violation by Target of any Applicable Law prior to the
Closing; (x) any Liability of Target that relates primarily to, or that arises
primarily out of, any Excluded Asset, or that arises out of the ownership by
Target of the Excluded Assets or realization of the benefits of any Excluded
Asset; (xi) any Liability or obligation from or relating to breach of any
warranty or any misrepresentation by Target under this Agreement or any
Collateral Document; (xii) any Liability or obligation from or relating to
breach or violation of, or failure to perform, any of Target's obligations,
covenants, agreements or undertakings set forth in this Agreement or any
Collateral Document, including without limitation Article 7; (xiii) any
Liability or obligation or liability with respect to capitalized lease
obligations or Indebtedness for Money Borrowed; (xiv) any Contract with any
Affiliate of Target; (xv) any Liability arising from the failure of Target or
Sygnet to obtain any necessary third party consents to the transfer of any of
the Target Assets from Sygnet to Target; and (xvi) all other obligations or
liabilities of Target of any nature whatsoever (whether express or implied,
fixed or contingent, known or unknown) other than
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the Assumed Liabilities. All Retained Liabilities shall remain and be the
obligations and liabilities solely of Target.
2.4 REQUIRED CONSENTS. Attached to this Agreement as Section 2.4 of the
Target Disclosure Schedule and made a part hereof by this reference, is a
listing of all of the third party consents which Target reasonably believes are
necessary and desirable in connection with the transfer and assignment to ATLP
by Target of the Target Assets, including, without limitation, Contracts, Site
Leases and Tower Leases (each a "Required Consent"). Target will use all
commercially reasonable efforts to obtain the Required Consents prior to the
Closing Date. To the extent that any such Required Consent is not obtained,
Target will subcontract to ATLP the performance of all obligations and the right
to receive all benefits thereunder; provided, however, that to the extent the
consent of the counterparty to such subcontracting is required under the terms
of any such Contract, Target will only be required to use all commercially
reasonable efforts to obtain such consent; and Target will only subcontract as
described in the immediately preceding sentence in those cases, if any, in which
subcontracting is permitted by the Contract or applicable Law. If (and only if)
such Contract is a Site Lease or Tower Lease, then Target shall notify ATLP in
writing prior to or on August 1, 1999 that it has been unable to obtain such
consent, and Target and ATLP shall cooperate in good faith to continue to
attempt to obtain such consent; provided that the failure to obtain a Required
Consent with respect to such Contract prior to August 31, 1999 shall be deemed
to be a Defect and the Tower Site in question shall be deemed to be a Defective
Site after such time, and such Defect and Defective Site shall be governed by
the applicable provisions of Sections 2.7 and 2.8.
2.5 CONSENT OF THIRD PARTIES. Nothing in this Agreement shall be
construed as an attempt by Target to assign to ATLP pursuant to this
Agreement any Contract, Governmental Authorization, Private Authorization,
franchise, claim or asset included in the Target Assets that is by its terms
or by Law non-assignable without the consent of any other party or parties,
unless such consent or approval shall have been given, or as to which all the
remedies for the enforcement thereof available to Target would not by Law
pass to ATLP as an incident of the assignments provided for by this Agreement
(a "Non-Assignable Contract"). To the extent that any consent in respect of,
or a novation of, a Non-Assignable Contract has not been obtained, Target
shall continue to use commercially reasonable efforts to obtain any such
consent or novation until such time as it shall have been obtained (but in no
event longer than 180 days following the Closing), and Target shall use
commercially reasonable efforts to cooperate with ATLP to provide that ATLP
shall receive the interest of Target in the benefits under such
Non-Assignable Contract, including performance by Target as agent if
commercially reasonable, provided that ATLP shall undertake to pay or satisfy
the corresponding Liabilities under the terms of such Non-Assignable Contract
to the extent that ATLP would have been responsible therefor if such consent
or approval had been obtained. With respect to any Non-Assignable Contract
for which the applicable consent of any Authority or other Person is not
obtained prior to the Closing Date and for which ATLP does not deliver, on or
prior to the Closing Date, a notification to Target in writing that ATLP
consents to the transfer or assignment of such Non-Assignable Contract (an
"Acceptance Notice") despite the failure or inability of ATLP and Target to
obtain the approval or consent of an Authority or other Person, Target and
ATLP shall enter into the Non-Assignable Contracts Agreement.
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2.6 BULK TRANSFER LAWS. ATLP hereby waives compliance by Target with the
provisions of any and all Laws under the uniform commercial codes as adopted in
the states where the Target Assets are located relating to bulk transfer in
connection with the sale of the Target Assets. Target shall indemnify ATLP from
and against any and all Liabilities (including reasonable attorneys' fees)
arising out of noncompliance with such bulk transfer Laws, except with respect
to items which are Assumed Liabilities.
2.7 DEFECTIVE SITES. Target and the Target Stockholder shall have the
right, at any time prior to fifteen (15) days before the date of Closing, to
cure Defects that exist with respect to the Defective Sites. Target and the
Target Stockholder shall provide ATC and ATLP with notice of any cure effected
with respect to a Defective Site (a "Cure Notice"), and shall request ATC's and
ATLP's consent to remove such Defective Site from the adjustments to the
Purchase Price described in Section 3.1(a). The Cure Notice shall describe in
reasonable detail the cure which Target and the Target Stockholder reasonably
believe in good faith should cause the Defective Site to be removed from the
adjustment to the Purchase Price, and shall include a copy of any instrument,
document or other writing which evidences the curative action taken. Within ten
(10) days of receipt of a Cure Notice with respect to a Defective Site, ATC and
ATLP shall: (i) provide Target with written notice that ATC and ATLP have
satisfactorily completed their due diligence investigation of the curative
action taken with respect to such Defective Site and are prepared, subject to
the terms and conditions of this Agreement, to acquire such Target Assets at
Closing subject to the Permitted Liens, in which case such Defective Site shall
be and become an Accepted Site, and such site shall be deemed to be removed from
the adjustment to the Purchase Price described in Section 3.1(a); or (ii)
provide Target with written notice (A) that states that ATC and ATLP have
determined in good faith that the curative action taken is incomplete in a
material way for the purpose of curing the Defect in question and (B) that
describes in reasonable detail the manner in which the Defect remains uncured
and describes the curative action, if any, that would cure such Defect, in which
event the Defect shall continue as such and the site in question shall remain a
Defective Site. A Defect that exists solely by reason of a Required Consent
that needs to be obtained shall be deemed to have been cured by Target obtaining
such Required Consent prior to Closing or, if permitted, by entering into a
subcontracting or similar arrangement pursuant to Section 2.4 or by entering
into the Non-Assignable Contracts Agreement. ATC and ATLP agree that they shall
not unreasonably withhold their consent to removing a Defective Site from the
adjustments to the Purchase Price upon Target effecting a reasonable cure to or
of such Defect.
2.8 REJECTED SITES.
(a) At least thirty (30) days prior to Closing, ATLP shall provide notice
to Target and Target Stockholder as to whether ATLP desires to purchase any
Target Assets that are Defective Sites; any such sites which ATLP desires to
purchase shall be deemed to be accepted by ATLP ("Accepted Sites") and shall be
deemed to be removed from the adjustments to the Purchase Price in Section
3.1(a), and the certificate to be delivered by Target and the Target Stockholder
pursuant to Section 8.2(c) may be modified by Target and the Target Stockholder
to qualify or omit the representations and warranties of Target and the Target
Stockholder with respect to the applicable Defect, with no adjustment to the
Purchase Price. Such Accepted Sites shall be transferred and conveyed at the
Closing subject to both the applicable Defect and any Permitted Liens.
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(b) Immediately prior to Closing, all Defective Sites that have not been
accepted by ATLP pursuant to Section 2.8(a) or whose Defects have not been cured
in accordance with the provisions of Section 2.7 shall be designated as rejected
sites (the "Rejected Sites") and shall be placed on Section 2.8(b) of the Target
Disclosure Schedule, and the Purchase Price shall be adjusted as provided in
Section 3.1(a).
(c) At least thirty-five (35) days prior to the Closing Date, but in any
event by August 31, 1999, Target and the Target Stockholder shall deliver to ATC
and ATLP, a list of those Target Assets (identified by Tower Site) with respect
to which a Defect exists. Such notice shall identify (i) such Target Assets,
(ii) the relevant Defects, and (iii) the specific circumstance ("Circumstance")
which, in the opinion of Target and the Target Stockholder, prevents them from
curing such Defect. ATLP will continue to cooperate in good faith with Target
to obtain any Required Consent which gives rise to the Defect. With respect to
the Target Assets (identified by Tower Site) identified in such notice, the
Defects in which have not been cured pursuant to Section 2.7, ATC and ATLP shall
have the right in accordance with this Section 2.8 to either (A) designate each
such Target Asset (identified by Tower Site) to be a Rejected Site and adjust
the Purchase Price as provided in Section 3.1(a), or (B) acquire such Target
Assets at the Closing without an adjustment to the Purchase Price, in which
event all such sites shall be deemed to be Accepted Sites, and shall be
supplementally added to the notice provided by ATLP pursuant to Section 2.8(a),
and the certificate delivered by Target and the Target Stockholder pursuant to
Section 8.2(c) may be modified by Target and the Target Stockholder to qualify
or omit the representations and warranties with respect to such Target Assets
based upon the Circumstance applicable to such Target Assets.
ARTICLE 3
PURCHASE PRICE; CLOSING
3.1 PURCHASE PRICE.
(1) The purchase price for the Target Assets and the Target Business (the
"Purchase Price") shall be an amount equal to (subject to Section 3.1(b)) Thirty
Eight Million Seven Hundred Sixteen Thousand Nine Hundred Eighty Dollars
($38,716,980), minus an amount equal to $358,490 for each Rejected Site.
(2) CERTAIN APPORTIONMENTS. Notwithstanding any provision to the contrary
in this Section 3.1(b) or elsewhere in this Agreement, at the Closing the
following items shall be apportioned between Target, on the one hand, and ATLP,
on the other hand, with such adjustments to be made as of the Closing Date by
the party that on a net basis owes money to the other party under this Section
3.1(b) by wire transfer of immediately available funds to such accounts as such
other party shall specify in writing: (a) rents and revenues under all Contracts
included in the Target Assets; (b) prepaid expenses relating to the Target
Assets, (c) Pro Ratable Taxes paid or payable with respect to the Target Assets;
and (d) charges and payments under all Contracts included in the Target Assets.
Such apportionments shall be made pro rata on a per diem basis as of the Closing
Date so that all such rents, revenues, Taxes, charges and payments attributable
to the period prior to and
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including the Closing Date are for the account of Target; and all such rents,
revenues, Taxes, charges and payments attributable to the period after the
Closing Date are for the account of ATLP. If any of the aforesaid
apportionments cannot be calculated accurately on the Closing Date, then the
same shall be calculated and adjusted once by Target and ATLP after the
Closing Date in accordance with the following procedures. Within five (5)
business days after the last day of the third full calendar month following
the Closing Date, Target and ATLP shall exchange their respective
post-Closing calculations of such apportionments. Target and ATLP shall in
good faith attempt to agree upon the post-Closing apportionments on or before
the last day of the fourth full calendar month following the Closing Date. If
at the end of such period, Target and ATLP cannot agree on the post-Closing
apportionments, Target and ATLP shall submit to an independent accounting
firm (the "Accounting Firm") for review and resolution any and all matters
which remain in dispute. The Accounting Firm shall be a nationally recognized
independent public accounting firm as shall be agreed upon by Target and ATLP
in writing. The Accounting Firm shall be instructed to, within thirty (30)
days after the submission of any disputed matters, review and resolve all
such disputed matters and to report its resolution thereof to Target and
ATLP, and such report shall be final, binding and conclusive on Target and
ATLP with respect to all such disputed matters. The fees and expenses of the
Accounting Firm incurred pursuant to this Section 3.1(b) shall be borne fifty
percent (50%) by Target on the one hand, and fifty percent (50%) by ATLP, on
the other hand. No other post-Closing apportionments shall be made by the
parties. Either party owing the other party a sum of money based on the
agreed-upon post-Closing apportionments shall pay said sum to the other party
on or before the last day of the fifth full calendar month following the
Closing Date, or sooner if the parties so agree. If payment of any such
amount is not paid when due, interest shall accrue on the past due amount at
a rate equal to the Prime Rate plus two percent (2%) per annum from the due
date to the date of payment. The aforesaid post-Closing adjustment shall be
the only post-Closing adjustment of the items to be apportioned under this
Section 3.1(b). The provisions of this Section 3.1(b) shall not affect the
obligations of Target and ATLP under this Agreement with respect to the
Retained Liabilities and the Assumed Liabilities, respectively.
Nothing contained in this Section 3.1(b) is intended or shall be deemed to
amend or modify the indemnification provisions of Article 10 nor to reallocate
responsibility for the matters set forth herein.
(3) Pursuant to the Indemnity Escrow Agreement, $8,140,000 (subject to
reduction in an amount equal to $75,000 per Rejected Site) of the Purchase Price
to be otherwise paid to Target on the Closing Date shall be deposited into
escrow pursuant to the terms of the Indemnity Escrow Agreement.
(4) The parties shall negotiate in good faith to determine the value of
the various components of the Target Assets. In the event they are unable to
reach agreement, ATLP shall have the right, at its sole discretion, to engage
BIA Consulting, Inc. to conduct and use its reasonable best efforts to complete,
within forty-five (45) days, an appraisal of the Target Assets which shall be
the basis for an allocation schedule (the "Tax Allocation Schedule") pursuant to
which the Purchase Price shall be allocated among the Target Assets. Such
appraisal shall be conducted in a manner which does not interfere with or
inconvenience in any material matter any of the landlords or tenants
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at any of Target's sites and shall not, in any event, affect the Purchase
Price. The cost of such appraisal, if undertaken, shall be borne by ATLP.
Each of Target and ATLP shall report the purchase and sale of the Target
Assets and the Target Business and the other Transactions in accordance with the
Tax Allocation Schedule for purposes of all federal, state and local Tax Returns
and shall not take, and shall cause their respective Affiliates,
representatives, successors and assigns not to take, any position on any
federal, state or local Tax Return or report, inconsistent with such reporting
position. Each of Target and ATLP shall promptly give the other notice of any
disallowance of or challenge to such reporting by any Taxing Authority.
Notwithstanding the provisions of this Section, the parties to this Agreement
will rely solely on their own advisors in determining the tax consequences of
the transactions contemplated by this Agreement and each party is not relying,
and will not rely, on any representations or assurances of any other party
regarding such consequences other than the representations, warranties,
covenants and agreements set forth in writing in this Agreement or furnished
pursuant to the provisions hereof. For purposes of this Section 3.1(d), each of
ATC, ATLP, Target and the Target Stockholder agree that they shall not allocate
any portion of the Purchase Price to the Build-to-Suit Agreement.
3.2 CLOSING. Unless this Agreement shall have been terminated pursuant to
Section 9.1 and subject to the satisfaction or, to the extent permitted by
Applicable Law, waiver of the conditions set forth in Article 8, the closing of
the Purchase (the "Closing") will take place, at 10:00 a.m., on the Closing
Date, at the offices of Xxxxxxxx & Worcester LLP, Xxx Xxxx Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, on the business date that is the fifth (5th)
business day after the date on which all of the conditions set forth in Article
8 (other than those which require delivery of opinions or documents at the
Closing) shall have been satisfied or waived, unless another date, time or place
is agreed to in writing by the parties. The date on which the Closing occurs is
herein referred to as the "Closing Date." At the Closing, each of the parties
shall deliver such bills of sale, assignments, assumptions of liabilities,
opinions and other instruments and documents as are described in this Agreement
or as may be otherwise reasonably requested by the parties and their respective
counsel. The Purchase Price shall be payable by (a) ATC or ATLP instructing the
escrow agent with respect to the Escrow Deposit to deliver the Escrow Deposit
(together with interest and other earnings thereon) to Target, and (b) by wire
transfer of immediately available funds to (i) the escrow agent under the
Indemnity Escrow Agreement in the amount of Eight Million One Hundred Forty
Thousand Dollars ($8,140,000) (subject to reduction in an amount equal to
$75,000 per Rejected Site) and (ii) Target for the balance of the Purchase Price
to such account (or accounts) in the United States as Target shall designate in
written instructions to ATLP delivered not later than two (2) business days
prior to the Closing.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF TARGET
Target and the Target Stockholder, jointly and severally, hereby represent
and warrant to ATC and ATLP as follows:
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4.1 ORGANIZATION AND BUSINESS; POWER AND AUTHORITY; EFFECT OF TRANSACTION.
(1) Target is a corporation duly organized, validly existing and in good
standing under the Laws of its jurisdiction of organization, has all requisite
corporate power and authority to own or hold under lease its properties and to
conduct its business as now conducted and is duly qualified and in good standing
as a foreign corporation in each other jurisdiction (as shown on Section 4.1(a)
of the Target Disclosure Schedule) in which the character of the property owned
or leased by it or the nature of its business or operations requires such
qualification, except for such qualifications the failure of which to obtain,
individually or in the aggregate, has not had and will not reasonably be
expected to have a Material Adverse Effect on Target or the Target Assets.
(2) Target has all requisite corporate power and authority necessary to
enable it to execute and deliver, and to perform its obligations under, this
Agreement and each Collateral Document executed or required to be executed by it
pursuant hereto or thereto and to consummate the Transactions; and the
execution, delivery and performance by Target of this Agreement and each
Collateral Document executed or required to be executed by it pursuant hereto or
thereto have been duly authorized by all requisite corporate and stockholder
action on the part of Target. This Agreement has been duly executed and
delivered by Target and constitutes, and each Collateral Document executed or
required to be executed by it pursuant hereto or thereto or to consummate the
Transactions when executed and delivered by Target will constitute, legal, valid
and binding obligations of Target, enforceable in accordance with their
respective terms, except as such enforceability may be subject to bankruptcy,
moratorium, insolvency, reorganization, arrangement, voidable preference,
fraudulent conveyance and other similar Laws relating to or affecting the rights
of creditors and except as the same may be subject to the effect of general
principles of equity.
(3) Except as set forth in Section 4.1(c) of the Target Disclosure
Schedule, neither the execution and delivery by Target of this Agreement or any
Collateral Document executed or required to be executed by it pursuant hereto or
thereto, nor the consummation of the Transactions, nor compliance with the
terms, conditions and provisions hereof or thereof by Target:
(1) will conflict with, or result in a breach or violation of, or
constitute a default under, any Organic Document of Target or any
Applicable Law, or will conflict with, or result in a breach or violation
of, or constitute a default under, or permit the acceleration of any
obligation or liability in, or but for any requirement of giving of notice
or passage of time or both would constitute such a conflict with, breach or
violation of, or default under, or permit any such acceleration in, any
Contractual Obligation of Target; or
(2) will require Target to make or obtain any Governmental
Authorization, Governmental Filing or Private Authorization, except (A) a
filing under the Xxxx-Xxxxx-Xxxxxx Act and (B) such other Governmental
Authorizations, Governmental Filings, and Private Authorizations the
failure of which to be made or obtained would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect on
Target or the Target Assets.
(4) Target does not have any Subsidiaries.
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4.2 INTENTIONALLY OMITTED.
4.3 MATERIAL STATEMENTS AND OMISSIONS; ABSENCE OF EVENTS. Neither any
representation or warranty made by Target contained in this Agreement or any
certificate, document or other instrument furnished or to be furnished by
Target pursuant to the provisions hereof nor the Target Disclosure Schedule
contains or will contain any untrue statement of a material fact or omits or
will omit to state any material fact required to make any statement contained
herein or therein, in light of the circumstances under which they were made,
not misleading. Since December 24, 1998, there has been no change with
respect to, and there is no Event known to, Target that has had or will
reasonably be expected to have a Material Adverse Effect on Target or the
Target Assets, except (a) to the extent specifically described in Section 4.3
of the Target Disclosure Schedule, (b) for matters affecting the tower
rental, ownership and construction industry generally, and (c) for any Event
arising out of the execution or public announcement of this Agreement.
4.4 TITLE TO PROPERTIES; LEASES.
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(1) Section 4.4(a) of the Target Disclosure Schedule contains a true,
accurate and complete description of all real property owned by Target.
Except as set forth on Section 4.4(a) of the Target Disclosure Schedule,
Target has good indefeasible, marketable and insurable title to all of its
real property (other than easement and leasehold real property) and good
indefeasible and marketable title to all of its other property and assets,
tangible and intangible comprising the Target Assets; all of the Target
Assets are so owned, in each case, free and clear of all Liens, except (i)
Permitted Liens, and (ii) Liens set forth on Section 4.4(a) of the Target
Disclosure Schedule. Except for financing statements evidencing Liens
referred to in the immediately preceding sentence (a true, accurate and
complete list and description of which is set forth in Section 4.4(a) of the
Target Disclosure Schedule), no financing statements under the Uniform
Commercial Code and no other filing which names Target as debtor or which
covers or purports to cover any of the Target Assets is on file in any state
or other jurisdiction, and Target has not signed or agreed to sign any such
financing statement or filing or any agreement authorizing any secured party
thereunder to file any such financing statement or filing. Except as
disclosed in Section 4.4(a) of the Target Disclosure Schedule, to Target's
knowledge, all improvements on the real property owned or leased by Target
are in compliance with applicable zoning, wetlands and land use Laws,
ordinances and regulations and applicable title covenants, conditions,
restrictions and reservations in all respects necessary to conduct the
operations as presently conducted, except for any instances of non-compliance
which do not and will not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect on the use of any Tower Site or on
Target or the Target Assets, as the case may be. Except as disclosed in
Section 4.4(a) of the Target Disclosure Schedule, to Target's knowledge, all
such improvements comply in all aspects with all Applicable Laws,
Governmental Authorizations and Private Authorizations, except where the
failure to so comply would reasonably be expected to have a Material Adverse
Effect on Target or the Target Assets. To Target's knowledge, all of the
transmitting towers, ground radials, guy anchors, transmitting buildings and
related improvements, if any, located on the real property owned or leased by
Target are located entirely on such real property. There is no pending or,
to Target's knowledge, threatened or contemplated action to take by eminent
domain or otherwise to condemn any material part of any real property owned
or leased by Target. To Target's knowledge, such transmitting towers, ground
radials, guy anchors, transmitting buildings and related improvements and
other material items of personal property, including equipment are in a state
of good repair and maintenance and sound operating condition, normal wear and
tear excepted, and have been maintained in a manner consistent with generally
accepted standards of sound engineering practice.
(2) Section 4.4(b) of the Target Disclosure Schedule contains a true,
accurate and complete description of all Leases under which any real property
is leased to Target by any Person or by Target to any Person. Except as
otherwise set forth in Section 4.4(b) of the Target Disclosure Schedule, each
Lease under which Target holds real or personal property constituting a part
of the Target Assets has been duly authorized, executed and delivered by
Target and, to its knowledge, each of the other parties thereto, and is a
legal, valid and binding obligation of Target, and, to its knowledge, each of
the other parties thereto, enforceable in accordance with its terms, except
as such enforceability may be limited by bankruptcy, moratorium, insolvency
and similar Laws affecting the rights and remedies of creditors and
obligations of debtors generally and by general principles of equity. Except
as set forth in Section 4.4(b) of the Target Disclosure Schedule, Target has
a valid leasehold interest in and enjoys peaceful and undisturbed possession
under all Leases pursuant to
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which it holds any such real property or tangible personal property, subject
to the terms of each Lease and Applicable Law. None of the fixed assets or
equipment comprising a part of the Target Assets is subject to contracts of
sale, and none is held by Target as lessee or as conditional sales vendee
under any Lease or conditional sales contract and none is subject to any
title retention agreement. True, accurate and complete copies of each of
such Leases have been made available by Target to ATC and Target has provided
ATC with photocopies of all such Leases requested by ATC (or true, accurate
and complete descriptions thereof have been set forth in Section 4.4(b) of
the Target Disclosure Schedule, with respect to those that are oral). Except
as set forth in Section 4.4(b) of the Target Disclosure Schedule, neither
Target nor, to Target's knowledge, any other party thereto, has failed to
duly comply with all of the terms and conditions of each such Lease or has
done or performed, or failed to do or perform (and no Claim is pending or, to
the knowledge of Target, threatened to the effect that Target has not so
complied, done and performed or failed to do and perform) any act which would
invalidate or provide grounds for the other party thereto to terminate (with
or without notice, passage of time or both) any of such Leases or in any
respect impair the rights or benefits of, or increase the costs to, Target
under any of such Leases in a manner which would reasonably be expected to
have a Material Adverse Effect on Target or the Target Assets.
4.5 COMPLIANCE WITH PRIVATE AUTHORIZATIONS. Target has obtained all
Private Authorizations that are necessary for the ownership or operation of
the Target Assets or the conduct of the Target Business, as currently
conducted or proposed to be conducted on or prior to the Closing Date, which,
if not obtained and maintained, could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect on Target or the
Target Assets and a true, accurate and complete list and description of each
of such Private Authorizations is set forth in Section 4.5 of the Target
Disclosure Schedule. All of such Private Authorizations are valid and are in
full force and effect. Target is not in material breach or violation of, or
in default in the performance, observance or fulfillment of, any such Private
Authorization, and no Event exists or has occurred which constitutes, or but
for any requirement of giving of notice or passage of time or both would
constitute, such a material breach, violation or default, under any such
Private Authorization. No such Private Authorization is the subject of any
pending or, to Target's knowledge, threatened attack, revocation or
termination.
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4.6 COMPLIANCE WITH GOVERNMENTAL AUTHORIZATIONS AND APPLICABLE LAW.
(1) Section 4.6(a) of the Target Disclosure Schedule contains a true,
complete and accurate description of each Governmental Authorization required
under Applicable Law (i) to own and operate the Target Assets and conduct the
Target Business, as currently conducted or proposed to be conducted on or
prior to the Closing Date, or (ii) that is necessary to permit Target to
execute and deliver this Agreement and to perform its obligations hereunder,
except those Governmental Authorizations the failure of which to obtain would
not reasonably be expected to have a Material Adverse Effect on Target or the
Target Assets. Target has obtained all Governmental Authorizations that are
necessary for the ownership or operation of the Target Assets or the conduct
of the Target Business as now conducted and which, if not obtained and
maintained, could, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect on Target or the Target Assets. Except as
described in Section 4.6(a) of the Target Disclosure Schedule, none of the
Governmental Authorizations listed in Section 4.6(a) of the Target Disclosure
Schedule is subject to any restriction or condition that could limit in any
respect the ownership or operations of the Target Assets or the conduct of
the Target Business as currently conducted, except for restrictions and
conditions generally applicable to Governmental Authorizations of such type
and except for such restrictions which do not or will not in the aggregate
reasonably be expected to have a Material Adverse Effect on Target or the
Target Assets. Except as described in Section 4.6(a) of the Target Disclosure
Schedule, the Governmental Authorizations listed in Section 4.6(a) of the
Target Disclosure Schedule are valid and in good standing, are in full force
and effect and are not impaired in any respect by any act or omission of
Target or its officers, directors, employees or agents, and the ownership and
operation of the Target Assets and the conduct of the Target Business are in
accordanc in all respects with the Governmental Authorizations, except where
(i) the failure of any such Governmental Authorization to be valid, in good
standing and in full force and effect or (ii) any such impairment of such
Governmental Authorizations by any act or omission of Target or its officers,
directors, employees or agents, would not reasonably be expected to have a
Material Adverse Effect on Target or the Target Assets. All material
reports, forms and statements required to be filed by Target with all
Authorities with respect to the Target Business have been filed and are true,
complete and accurate in all respects, except where the failure to be true,
complete and accurate would not reasonably be expected to have a Material
Adverse Effect on Target or the Target Assets. No such Governmental
Authorization is the subject of any pending or, to Target's knowledge,
threatened challenge or proceeding to revoke or terminate any such
Governmental Authorization.
(2) Except as otherwise specifically set forth in Section 4.6(b) of the
Target Disclosure Schedule, since December 24, 1998 (and, to Target's
knowledge, from January 1, 1997 through December 23, 1998), Target has
conducted its business and owned and operated its property and assets in
accordance with all Applicable Laws (excluding Environmental Laws) and
Governmental Authorizations, except for such breaches, violations and
defaults as, individually or in the aggregate, have not had and will not
reasonably be expected to have a Material Adverse Effect on Target or the
Target Assets. Except as otherwise specifically described in Section 4.6(b)
of the Target Disclosure Schedule, Target is not in and is not charged by any
Authority with, and, to Target's knowledge, is not threatened or under
investigation by any Authority with respect to, any breach or violation of,
or default in the performance, observance or fulfillment of, any Applicable
Law relating to the
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ownership and operation of the Target Assets or the conduct of the Target
Business which, individually or in the aggregate, has had or will reasonably
be expected to have a Material Adverse Effect on Target or the Target Assets.
Except as otherwise specifically described in Section 4.6(b) of the Target
Disclosure Schedule, to Target's knowledge, no Event exists or has occurred,
which constitutes, or but for any requirement of giving of notice or passage
of time or both would constitute, such a breach, violation or default, under
any Governmental Authorization or any Applicable Law, except for such
breaches, violations or defaults as, individually or in the aggregate, have
not had and will not reasonably be expected to have a Material Adverse Effect
on Target or the Target Assets. With respect to matters, if any, of a nature
referred to in Section 4.6(b) of the Target Disclosure Schedule, except as
otherwise specifically described in Section 4.6(b) of the Target Disclosure
Schedule, all such information and matters set forth in the Target Disclosure
Schedule, if adversely determined against Target, individually or in the
aggregate, will not reasonably be expected to have a Material Adverse Effect
on Target or the Target Assets.
(3) Except as set forth in Section 4.6(c) of the Target Disclosure
Schedule, there are no Legal Actions of any kind pending or, to Target's
knowledge, threatened, and, to Target's knowledge, there have not been any
Legal Actions during the past three years, at Law, in equity or before any
Authority against Target or any of its officers or directors relating to the
ownership or operation of the Target Assets or the conduct of the Target
Business. Except as set forth in Section 4.6(c) of the Target Disclosure
Schedule, such disclosed Legal Actions, if determined adversely to Target,
individually or in the aggregate, will not reasonably be expected to have a
Material Adverse Effect on Target or the Target Assets.
4.7 INTANGIBLE ASSETS. Section 4.7 of the Target Disclosure Schedule
sets forth a true, accurate and complete description of all material
Intangible Assets (other than Governmental Authorizations and Private
Authorizations) relating to the ownership and operation of the Target Assets
or the conduct of the Target Business held or used by Target, including
without limitation the nature of Target's interest in each and the extent to
which the same have been duly registered in the offices as indicated therein.
Except as set forth in Section 4.7 of the Target Disclosure Schedule, no
Intangible Assets (except Governmental Authorizations, Private
Authorizations, and the Intangible Assets so set forth) are required for the
ownership or operation of the Target Assets or the conduct of the Target
Business as currently owned, operated and conducted or proposed to be owned,
operated and conducted on or prior to the Closing Date. Target does not, to
its knowledge, wrongfully infringe upon or unlawfully use any Intangible
Assets owned or claimed by another which could reasonably be expected to have
a Material Adverse Effect on Target or the Target Assets, and Target has not
received any notice of any claim or infringement relating to any such
Intangible Asset.
4.8 RELATED TRANSACTIONS. Target is not a party or subject to any
Contractual Obligation relating to the ownership or operation of the Target
Assets or the conduct of the Target Business between Target and any of its
officers or directors or, to the knowledge of Target, any member of the
Immediate Family of any thereof, or any Affiliate of any of the foregoing,
including without limitation any Contractual Obligation providing for the
furnishing of services to or by, providing for rental of property, real,
personal or mixed, to or from, or providing for the lending or borrowing of
money to or from or otherwise requiring payments to or from, any such Person,
other than (a)
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Contractual Obligations between Target and any of the foregoing, that will be
terminated, at no cost or expense to Target, prior to the Closing, or (b) as
specifically set forth in Section 4.8 of the Target Disclosure Schedule.
4.9 INSURANCE. Target maintains policies of fire and extended coverage
and casualty, liability and other forms of insurance in such amounts and
against such risks and losses as are set forth in Section 4.9 of the Target
Disclosure Schedule.
4.10 TAX MATTERS.
(1) Target is a member of a consolidated group for tax purposes, and is
a party to a Tax sharing agreement by and among the Target Stockholder and
its subsidiaries. Target has in accordance with all Applicable Laws filed
all Tax Returns which are required to be filed, and has paid, or made
adequate provision for the payment of, all Taxes which have or may become due
and payable pursuant to said Tax Returns and all other governmental charges
and assessments received to date. The Tax Returns of Target have been
prepared in all material respects in accordance with all Applicable Laws.
All Taxes which Target is required by Law to withhold and collect have been
duly withheld and collected, and have been paid over, in a timely manner, to
the proper Authorities to the extent due and payable. Target has not
executed any waiver to extend, or otherwise taken or failed to take any
action that would have the effect of extending, the applicable statute of
limitations in respect of any Tax liabilities of Target for the fiscal years
prior to and including the most recent fiscal year. Target is not a
"consenting corporation" within the meaning of Section 341(f) of the Code.
Target has at all times been Taxable as a Subchapter C corporation under the
Code.
(2) All record and beneficial holders of Target Common Stock are
"United States persons" within the meaning of Section 7701(a)(30) of the Code.
4.11 EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974. Except as set
forth in Section 4.11 of the Target Disclosure Schedule, Target (which for
purposes of this Section shall include any Person that is treated as a single
employer with Target under Sections 414(b), (c), (m) or (o) of the Code or
Section 4001(b)(1) of ERISA) does not currently sponsor, maintain or
contribute to any Plans or Benefit Arrangements. Target does not contribute
to or have an obligation to contribute to, and has not at any time
contributed to or had an obligation to contribute to, (i) an employee pension
benefit plan as defined in Section 3(2) of ERISA, (ii) a Multiemployer Plan,
or (iii) a Plan subject to Section 412 of the Code, Section 302 of ERISA or
Title IV of ERISA. Target has no actual or potential liability under Title
IV of ERISA. Target does not maintain and does not have any obligation or
liability with respect to any Plan or other arrangement that provides for
post-retirement medical, dental, health, hospitalization, disability, life
insurance or other benefits.
4.12 FIRPTA. To Target's knowledge, no Person has beneficially owned
more than five percent (5%) of the then outstanding Target Common Stock at
any time during the part five (5) years, other than Persons who are "United
States persons" within the meaning of Section 7701(a)(30) of the Code.
Target is a "United States person" within the meaning of Section 7701(a)(30)
of the Code.
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4.13 EMPLOYMENT AND CONSULTING ARRANGEMENTS. Target does not have any
employees or consultants (other than with respect to Contracts with
consultants that are terminable at will without penalty). Target has no
obligation or liability, contingent or other, under any Employment
Arrangement.
4.14 MATERIAL AGREEMENTS. Listed on Section 4.14 of the Target
Disclosure Schedule are all Material Agreements (other than Leases) relating
to the ownership or operation of the Target Assets or the conduct of the
Target Business or to which Target is a party or to which it is bound or
which any of the Target Assets is subject. True, accurate and complete
copies of each of such Material Agreements have been made available by Target
to ATC, and Target has provided ATC with photocopies of all such Material
Agreements requested by ATC (or true, accurate and complete descriptions
thereof have been set forth in Section 4.14 of the Target Disclosure Schedule
with respect to Material Agreements that are oral). All of such Material
Agreements are valid, binding and legally enforceable obligations of Target
and, to its knowledge, all other parties thereto, except as such
enforceability may be limited by bankruptcy, moratorium, insolvency and
similar Laws affecting the rights and remedies of creditors and obligations
of debtors generally and by general principles of equity. Neither Target
nor, to its knowledge, any other party thereto, has failed to duly comply
with all of the terms and conditions of each such Material Agreement or has
done or performed, or failed to do or perform (and no Claim is pending or, to
the knowledge of Target, threatened in writing to the effect that Target has
not so complied, done and performed or failed to do and perform) any act
which would invalidate or provide grounds for the other party thereto to
terminate (with or without notice, passage of time or both) any such Material
Agreement or impair in any respect the rights or benefits of, or materially
increase the costs to, Target under any of such Material Agreement, except
such failures or performances as would not reasonably be expected to have a
Material Adverse Effect on Target or the Target Assets.
4.15 ORDINARY COURSE OF BUSINESS. Target, after December 23, 1998 to
the date hereof, except (i) as may be described on Section 4.15 of the Target
Disclosure Schedule or (ii) as may be required by the terms of this Agreement:
(1) has operated its business in all material respects in the normal,
usual and customary manner in the ordinary and regular course of business,
consistent with prior practice;
(2) except in each case in the ordinary course of business, consistent
with prior practice:
(1) has not incurred any obligation or liability (fixed, contingent
or other) individually having a value in excess of $25,000;
(2) has not sold or otherwise disposed of or contracted to sell or
otherwise dispose of any of its properties or assets having a value in
excess of $25,000 (other than Distributions or payments of cash or other
intangible assets to Affiliates, stockholders or lenders under its existing
bank credit facility);
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(3) has not entered into any individual commitment having a value
in excess of $25,000 (other than retaining the services of Xxxxxxx &
Associates, L.P. in connection with the Purchase); and
(4) has not canceled any debts or claims having a value in excess
of $25,000;
(3) has not created or permitted to be created any Lien on any of the
Target Assets, except for Permitted Liens;
(4) has not made or committed to make any additions to its property or any
purchases of equipment, except in the ordinary course of business consistent
with past practice or for normal maintenance and replacements;
(5) has not suffered any material damage, destruction or loss (whether or
not covered by insurance) or any acquisition or taking of property by any
Authority;
(6) has not waived any rights of material value without fair and adequate
consideration;
(7) has not experienced any work stoppage;
(8) except in the ordinary course of business, has not entered into,
amended or terminated any Lease, Governmental Authorization, Private
Authorization, Material Agreement, Plan, Benefit Arrangement or Employment
Arrangement, or any transaction, agreement or arrangement with any officer,
director or Affiliate of Target;
(9) has not issued or sold, or agreed to issue or sell, any shares of
Target Common Stock, other shares of capital stock, Convertible Securities or
Option Securities;
(a) has not made, paid, set aside or declared any Distribution other than
Distributions to Affiliates and preferred stockholders of Target; and
(10) has not entered into any transactions or series of related
transactions which individually or in the aggregate is material to the Target
Assets or the Target Business.
4.16 BROKER OR FINDER. No Person assisted in or brought about the
negotiation of this Agreement or the Purchase in the capacity of broker, agent
or finder or in any similar capacity on behalf of Target or the Target
Stockholder, other than Xxxxxxx & Associates, L.P., whose fees and expenses will
be paid by Target.
4.17 ENVIRONMENTAL MATTERS. Except as set forth in Section 4.17 of the
Target Disclosure Schedule, Target:
(1) has not been notified that it is potentially liable under, has not
received any request for information or other correspondence concerning its
potential liability with respect to any site or facility under, and, to Target's
knowledge, is not a "potentially responsible party" under, the
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Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended, the Resource Conservation Recovery Act, as amended, or any
similar state Law;
(2) has not entered into or received any consent decree, compliance
order or administrative order issued pursuant to any Environmental Law;
(3) is not a party in interest or in default under any judgment, order,
writ, injunction or decree issued pursuant to any Environmental Law;
(4) has, to its knowledge, obtained all Environmental Permits required
under Environmental Laws, and has, to its knowledge, filed all applications,
notices and other documents required to be filed to effect the timely renewal
or issuance of all Environmental Permits for the continued ownership or
operation of the Target Assets or conduct of the Target Business in the
manner currently owned, operated and conducted or proposed to be owned,
operated and conducted prior to the Closing Date;
(5) is in compliance in all material respects with all Environmental
Laws, and is not the subject of or, to Target's knowledge, threatened with
any Legal Action involving a demand for damages or other potential liability,
including any Lien, with respect to violations or breaches of any
Environmental Law;
(6) has not conducted or received any site assessment, audit or other
investigation as to material environmental matters at any property currently
owned, leased, operated or occupied by Target;
(7) has not installed or used any above ground or underground storage
tanks, friable asbestos, polychlorinated biphenyls or urea formaldehyde foam
insulation on any property currently owned, leased or operated by Target and,
to its knowledge, there are no above ground or underground storage tanks,
friable asbestos, polychlorinated biphenyls or urea formaldehyde foam
insulation on any property currently owned, leased or operated by Target; and
(8) has no knowledge of any past or present Event related to Target's
properties, operations or business, which Event, individually or in the
aggregate, could reasonably be expected to interfere with or prevent
continued compliance in all material respects with all Environmental Laws
applicable to the ownership or operation of the Target Assets or to the
conduct of the Target Business substantially in the manner now conducted or
proposed to be conducted on or prior to the Closing Date, or which,
individually or in the aggregate, may form the basis of any material Claim
for or arising out of the release or threatened release into the environment
of any Hazardous Material.
Section 4.17 of the Target Disclosure Schedule sets forth a true,
correct and complete list of all existing Phase I environmental site
assessment reports (an "Environmental Report") on each parcel of real
property owned or leased by Target for which an Environmental Report has
previously been prepared for Target (true, correct and complete copies of
which have heretofore been delivered by Target to ATC).
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4.18 CAPITAL STOCK. The authorized and outstanding capital stock of
Target is as set forth in Section 4.18 of the Target Disclosure Schedule.
All of such outstanding capital stock has been duly authorized and validly
issued, is fully paid and nonassessable and is not subject to any preemptive
or similar rights and is owned of record and, to Target's knowledge,
beneficially as shown in Section 4.18 of the Target Disclosure Schedule.
Target has not granted or issued, nor has Target agreed to grant or issue,
any shares of its capital stock or any Option Security or Convertible
Security, and Target is not a party to or bound by any agreement, put or
commitment pursuant to which it is obligated to purchase, redeem or otherwise
acquire any shares of capital stock or any Option Security or Convertible
Security.
4.19 YEAR 2000 COMPLIANT. Target has reviewed the areas within its
business and operations which Target believes could be adversely affected by
the "Year 2000 Problem" (that is, the risk that computer applications used by
Target may be unable to recognize and perform properly date-sensitive
functions involving certain dates prior to and any date on or after December
31, 1999), and has made related inquiry of material suppliers, vendors and
customers. Based on such review, Target believes that the "Year 2000 Problem"
will not reasonably be expected to have a Material Adverse Effect on Target
or the Target Assets. Except as set forth in Section 4.19 of the Target
Disclosure Schedule, each hardware, software and firmware product
(collectively "Software") used by Target in its business is Year 2000
compliant, except for such noncompliances that, individually or in the
aggregate, have not had and will not reasonably be expected to have a
Material Adverse Effect on Target or the Target Assets. The current status,
projected cost and prognosis of any Year 2000 remedial efforts with respect
to non-compliant Software and with respect to any identified Year 2000 issues
with any material supplier, vendor or customer are listed in Section 4.19 of
the Target Disclosure Schedule.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF ATLP
Each of ATC and ATLP hereby represents and warrants to Target and the
Target Stockholder as follows:
5.1 ORGANIZATION AND BUSINESS; POWER AND AUTHORITY; EFFECT OF TRANSACTION.
(1) ATC is a corporation and ATLP is a limited partnership, and each is
duly organized, validly existing and in good standing under the Laws of its
jurisdiction of organization, has all requisite power and authority (corporate
and other) to own or hold under lease its properties and to conduct its business
as now conducted and is duly qualified and in good standing as a foreign
corporation or foreign limited partnership, as the case may be, in each other
jurisdiction in which the character of the property owned or leased by it or the
nature of its business or operations requires such qualification, except for
such qualifications the failure of which to obtain, individually or in the
aggregate, have not had and will not reasonably be expected to have a material
adverse effect on ATC.
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(2) Each of ATC and ATLP has all requisite power and authority
(corporate and other) and has in full force and effect all Governmental
Authorizations and Private Authorizations necessary to enable it to execute
and deliver, and to perform its obligations under, this Agreement and each
Collateral Document executed or required to be executed by it pursuant hereto
or thereto and to consummate the Transactions; and the execution, delivery
and performance by ATC and ATLP of this Agreement and each Collateral
Document executed or required to be executed by it pursuant hereto or thereto
have been duly authorized by all requisite corporate or other action on the
part of ATC or ATLP, as the case may be. This Agreement has been duly
executed and delivered by ATC and ATLP and constitutes, and each Collateral
Document executed or required to be executed by each of them pursuant hereto
or thereto or to consummate the Transactions when executed and delivered by
ATC or ATLP, as the case may be, will constitute, legal, valid and binding
obligations of each of ATC and ATLP, enforceable in accordance with their
respective terms, except as such enforceability may be limited by bankruptcy,
moratorium, insolvency and similar Laws affecting the rights and remedies of
creditors and obligations of debtors generally and by general principles of
equity.
(3) Neither the execution and delivery by ATC or ATLP of this Agreement
or any Collateral Document executed or required to be executed by them
pursuant hereto or thereto, nor the consummation of the Transactions, nor
compliance with the terms, conditions and provisions hereof or thereof by ATC
or ATLP:
(1) will conflict with, or result in a breach or violation of, or
constitute a default under, any Organic Document of ATC or ATLP or any
Applicable Law, or will conflict with, or result in a breach or violation
of, or constitute a default under, or permit the acceleration of any
obligation or liability in, or but for any requirement of giving of notice
or passage of time or both would constitute such a conflict with, breach or
violation of, or default under, or permit any such acceleration in, any
Contractual Obligation of ATC or ATLP; or
(2) will require ATC or ATLP to make or obtain any Governmental
Authorization, Governmental Filing or Private Authorization, except (A)
filings under the Xxxx-Xxxxx-Xxxxxx Act, (B) for FCC or FAA approvals, (C)
the filing with the SEC of such reports under Section 13(a) or 15(d) of the
Exchange Act as may be required in connection with this Agreement and the
transactions contemplated hereby, and (D) such other Governmental
Authorizations, Governmental Filings, and Private Authorizations the
failure of which to be made or obtained would not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on ATC.
5.2 ATC SEC REPORTS. ATC has heretofore made available to Target (i)
ATC's Annual Report on Form 10-K for its most recent fiscal year for which
such a report has been filed, (b) its Quarterly Report on Form 10-Q for its
most recent fiscal quarter for which such a report has been filed the
quarter, (c) its most recent Proxy Statement, if any, on Schedule 14A, and
(d) all Current Reports on Form 8-K filed since the end of the most recent
fiscal year for which it has filed its Annual Report on Form 10-K
(collectively, the "ATC SEC Documents"). As of the respective dates thereof,
the ATC SEC Documents were prepared in all material respects in accordance
with the Exchange Act and did not contain any untrue statement of a material
fact or omit to state any
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material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. ATC has timely filed all forms, reports and documents with
the SEC required to be filed by it pursuant to the Securities Act and the
Exchange Act which complied as to form, at the time such form, document or
report was filed, in all material respects with the applicable requirements
of the Securities Act and the Exchange Act. The consolidated financial
statements of ATC included in the ATC SEC Documents (the "ATC Financial
Statements"), including in each case the notes thereto, have been prepared in
accordance with GAAP applied on a consistent basis throughout the periods
covered thereby, except as otherwise noted therein, are true, accurate and
complete in all material respects, and fairly present the consolidated
financial condition and the consolidated results of operations and cash flow
of ATC, on the bases therein stated, as of the respective dates thereof, and
for the respective periods covered thereby subject, in the case of unaudited
financial statements, to normal nonmaterial year-end audit adjustments and
accruals.
5.3 MATERIAL STATEMENTS AND OMISSIONS; ABSENCE OF EVENTS. Neither any
representation or warranty made by ATC or ATLP contained in this Agreement or
any certificate, document or other instrument furnished or to be furnished by
ATC or ATLP pursuant to the provisions hereof nor the ATC SEC Documents
contains or will contain any untrue statement of a material fact or omits or
will omit to state any material fact required to make any statement contained
herein or therein, in light of the circumstances under which they were made,
not misleading. Since the date of the most recent financial statements
constituting a part of the ATC Financial Statements there has been no change
with respect to, and there is no Event known to, ATC that has had or will
reasonably be expected to have a material adverse effect on ATC, except (a)
to the extent set forth in any of the ATC SEC Documents, (b) for matters
affecting the tower rental, ownership and construction industry generally,
and (c) for any Event arising out of the execution or public announcement of
this Agreement. Neither ATC nor ATLP is aware of any impending or
contemplated Event that would cause any of the representations and warranties
made by it in this Article not to be true, correct and complete on the date
of such Event as if made on that date.
5.4 BROKER OR FINDER. No agent, broker, investment banker, financial
advisor other firm or Person engaged by or on behalf of ATC or any of its
Affiliates is or will be entitled to an fee or commission in connection with
the transactions contemplated by this Agreement.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF THE TARGET STOCKHOLDER
The Target Stockholder represents and warrants to ATC and ATLP as follows:
6.1 ORGANIZATION AND BUSINESS; POWER AND AUTHORITY; EFFECT OF TRANSACTION.
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(1) This Agreement has been duly executed and delivered by the Target
Stockholder and constitutes, and each Collateral Document executed or
required to be executed by the Target Stockholder pursuant hereto or thereto
when executed and delivered by the Target Stockholder will constitute, legal,
valid and binding obligations of the Target Stockholder, enforceable in
accordance with their respective terms, except as such enforceability may be
subject to bankruptcy, moratorium, insolvency, reorganization, arrangement,
voidable preference, fraudulent conveyance and other similar Laws relating to
or affecting the rights of creditors and except as the same may be subject to
the effect of general principles of equity.
(2) Except for consents as set forth in Section 2.4 of the Target
Disclosure Schedule, neither the execution and delivery by the Target
Stockholder of this Agreement or any Collateral Document executed or required
to be executed by the Target Stockholder pursuant hereto or thereto, nor the
consummation of the Transactions, nor compliance with the terms, conditions
and provisions hereof or thereof by the Target Stockholder:
(1) will conflict with, or result in a breach or violation of, or
constitute a default under, any Applicable Law, or will conflict with, or
result in a breach or violation of, or constitute a default under, or
permit the acceleration of any obligation or liability in, or but for any
requirement of the giving of notice or passage of time or both would
constitute such a conflict with, breach or violation of, or default under,
or permit any acceleration in, any of its Contractual Obligations;
(2) will result in or permit the creation or imposition of any Lien
upon any property or asset of the Target Stockholder, except for such Liens
as do not and will not reasonably be expected to have, in the aggregate, a
material adverse effect on the Target Stockholder; or
(3) will require any Governmental Authorization or Governmental
Filing or Private Authorization of the Target Stockholder, except as
required by the Xxxx-Xxxxx-Xxxxxx Act.
ARTICLE 7
COVENANTS
7.1 ACCESS TO INFORMATION; CONFIDENTIALITY.
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(1) Target and ATLP shall afford the other and its accountants,
counsel, financial advisors and other representatives (the "Representatives")
full access during normal business hours throughout the period prior to the
Closing Date to all of its (and its Subsidiaries', if any) properties, books,
contracts, insurance policies, studies and reports, environmental studies and
reports, commitments and records (including without limitation Tax Returns)
and, during such period, shall furnish promptly upon written request (i) a
copy of each report, schedule and other document filed or received by any
party pursuant to the requirements of any Applicable Law or filed by it with
any Authority in connection with the Purchase or any other report, schedule
or documents which may have a material effect on the businesses, operations,
properties, prospects, personnel, condition (financial or other), or results
of operations of their respective businesses, (ii) to the extent not provided
for pursuant to the immediately preceding clause, in the case of Target, all
financial records, ledgers, work papers and other sources of financial
information possessed or controlled by it or its accountants deemed by ATLP
or its Representatives necessary or useful for the purpose of performing an
audit of the business and assets of Target, and (iii) such other information
concerning any of the foregoing as ATLP or Target shall reasonably request.
All Confidential Information furnished pursuant to the provisions of this
Agreement, including without limitation this Section, will be kept
confidential and shall not, without the prior written consent of the party
disclosing such Confidential Information, be disclosed by the other party in
any manner whatsoever, in whole or in part, and, except as required by
Applicable Law (including without limitation in connection with any
registration, proxy or information statement or similar document filed
pursuant to any federal or state securities Law) shall not be used for any
purposes, other than in connection with the Purchase. Except as otherwise
herein provided, each party agrees to reveal such Confidential Information
only to those of its Representatives or other Persons whom it believes need
to know such Confidential Information for the purpose of evaluating and
onsummating the Purchase. For purposes of this Agreement, "Confidential
Information" shall mean any and all information related to the business or
businesses of ATLP and its Affiliates or Target and its Affiliates, including
any of their respective successors and assigns, other than information that
(i) has been or is obtained from a source independent of the disclosing party
that, to the receiving party's knowledge, is not subject to any
confidentiality restriction, (ii) is or becomes generally available to the
public other than as a result of unauthorized disclosure by the receiving
party, or (iii) is independently developed by the receiving party without
reliance in any way on information provided by the disclosing party or a
third party independent of the disclosing party that, to the receiving
party's knowledge, is not subject to any confidentiality restrictions.
(2) Notwithstanding the provisions of Section 7.1(a), (i) each party
may disclose such information as it may reasonably determine to be necessary
in connection with seeking all Governmental and Private Authorizations or
that is required by Applicable Law to be disclosed, including without
limitation in any registration, proxy or information statement or other
document required to be filed under any federal or state securities Law, (ii)
ATLP may, with the prior written consent of Target, which consent shall not
be unreasonably withheld, delayed or conditioned, disclose the subject matter
of this Agreement to Persons with whom Target has a business or contractual
relationship in connection with ATLP's due diligence investigation of Target,
and (iii) Target may file this Agreement and the Collateral Documents with
court(s) in connection with the Centerpointe Litigation. In the event that
this Agreement is terminated in accordance with its terms, each party shall
promptly redeliver all written Confidential Information provided pursuant to
this
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Section or any other provision of this Agreement or otherwise in connection
with the Purchase and shall not retain any copies, extracts or other
reproductions in whole or in part of such written material, other than one
copy thereof which shall be delivered to independent counsel for such party
which shall be bound by the provisions of Section 7.1(a).
(3) Anything in this Section or elsewhere in this Agreement to the
contrary notwithstanding, either party may disclose information received or
retained by it in accordance with the provisions of this Agreement if it can
demonstrate (i) such information is generally available to or known by the
public from a source other than the party seeking to disclose such
information or (ii) was obtained by the party seeking to disclose such
information from a source other than the other party, provided that such
source was not, to the knowledge of the disclosing party, bound by a duty of
confidentiality to the other party or another party with respect to such
information.
(4) No investigation pursuant to this Section or otherwise shall affect
any representation or warranty in this Agreement of any party or any
condition to the obligations of the parties hereto.
7.2 AGREEMENT TO COOPERATE; CERTAIN OTHER COVENANTS.
(1) Each of the parties hereto shall use reasonable business efforts
(x) to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or advisable under Applicable Law to
consummate the Purchase and the other Transactions, and (y) to refrain from
taking, or cause to be refrained from taking, any action and to refrain from
doing or causing to be done, anything which could impede or impair the
consummation of the Purchase or the consummation of the other Transactions,
including, in all cases, without limitation using its reasonable business
efforts (i) to prepare and file with the applicable Authorities as promptly
as practicable after the execution of this Agreement all requisite
applications and amendments thereto, together with related information, data
and exhibits, necessary to request issuance of orders approving the Purchase
by all such applicable Authorities, (ii) to obtain all necessary or
appropriate waivers, consents and approvals, (iii) to effect all necessary
registrations, filings and submissions (including without limitation filings
within ten (10) business days of the date of this Agreement under the
Xxxx-Xxxxx-Xxxxxx Act and all filings necessary for ATLP to own and operate
the Target Assets and the Target Business), (iv) to lift any injunction or
other legal bar to the Purchase (and, in such case, to proceed with the
Purchase as expeditiously as possible), (v) to obtain the satisfaction of the
conditions specified in Article 8, and (vi) to advise the other of, in the
case of Target, any changes that would be required in the Target Disclosure
Schedule if the applicable representations and warranties set forth in
Article 4 did not refer to the date of this Agreement. The provisions of
this Section shall apply to all Subsidiaries, if any, of ATC and Target.
(2) The parties shall cooperate with one another in the preparation of
all Tax Returns, questionnaires, applications or other documents regarding
any Taxes or transfer, recording, registration or other fees which become
payable in connection with the Purchase that are required to be filed on or
before the Closing Date.
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(3) ATC and ATLP shall promptly provide to Target all information
(including, without limitation, non-confidential financial information)
reasonably required of parties to Contracts as a condition to their consent
to the Transactions.
(4) Promptly after Closing, but in no event later than 30 days after
the Closing Date, ATLP or ATC shall make all required filings with the FAA
and the FCC to reflect the changed ownership of the Tower Structures.
7.3 PUBLIC ANNOUNCEMENTS. Until the Closing or the termination of this
Agreement, each party shall consult with the other before issuing any press
release or otherwise making any public statements with respect to this
Agreement or the Purchase and shall not issue any such press release or make
any such public statement without the prior written approval of the other.
Notwithstanding the foregoing, the parties acknowledge and agree that they
may, without each other's prior consent, issue such press releases or make
such public statements as may be required by Applicable Law, in which case
the issuing party shall use all reasonable efforts to consult with the other
party and agree upon the nature, content and form of such press release or
public statement; provided, however, that without the prior written approval
of the other parties hereto, no public statement shall be made by either
party until the earlier of (i) five (5) business days after the date of this
Agreement or (ii) the filing of this Agreement and the Collateral Documents
with court(s) in connection with the Centerpointe Litigation.
7.4 NOTIFICATION OF CERTAIN MATTERS. Each party shall give prompt
notice to the other of the occurrence or non-occurrence of any Event the
occurrence or non-occurrence of which would be reasonably likely to cause (a)
any representation or warranty made by it contained in this Agreement to be
untrue or inaccurate in any material respect or (b) any failure by it to
comply with or satisfy, or be able to comply with or satisfy, in any material
respect, any covenant, condition or agreement to be complied with or
satisfied by it under this Agreement in any material respect, such that, in
any such case, one or more of the conditions of Closing would not be
satisfied; provided, however, that the delivery of any notice pursuant to
this Section shall not limit or otherwise affect the rights and remedies
available hereunder to the party receiving such notice or the obligations of
the party delivering such notice and shall not, in any event, affect the
representations, warranties, covenants and agreements of the parties or the
conditions to their respective obligations under this Agreement.
7.5 NO SOLICITATION. Target agrees that it and its officers,
employees, agents and representatives (including without limitation any
investment bankers, brokers, financial advisors, finders, attorneys or
accountants) (a) shall not, directly or indirectly, (i) initiate, solicit,
encourage or otherwise facilitate any inquiries, or the making of any
proposal or offer with respect thereto, that constitutes, or may reasonably
be expected to lead to, an Alternative Transaction, or (ii) engage or
participate in any discussions or negotiations or otherwise cooperate or
provide assistance (including by way of furnishing non-public information)
relating to or in contemplation of an Alternative Transaction, (b) have
terminated any discussions or negotiations with, and the provisions of
information or data (whether or not of a non-public nature) to any Person
relating to or in contemplation of an Alternative Transaction, and (c) have,
or within five (5) business days after the Closing Date will have, requested
in writing, with a copy to ATLP, to each Person that has
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heretofore executed a confidentiality agreement in connection with its
consideration of an Alternative Transaction to return or destroy all
confidential information heretofore furnished to such Person by or on behalf
of Target and will not waive any "standstill" provision of any such, or any
other, agreement. If Target, the Target Stockholder or its or any of their
Representatives receives any inquiry with respect to an Alternative
Transaction while this Agreement is in effect, Target or the Target
Stockholder shall inform the inquiring party that it is not entitled to enter
into discussions or negotiations relating to an Alternative Transaction.
Without limiting the foregoing, it is understood that any violation of the
restrictions set forth in the preceding sentence by any director or officer
of Target or any investment banker, broker, financial advisor, finder,
attorney, accountant or other agent or representative of Target, whether or
not acting on behalf of Target, shall be deemed to be a breach of this
Section by Target.
7.6 CONDUCT OF BUSINESS BY TARGET PENDING THE CLOSING. Except as set
forth in Section 7.6 of the Target Disclosure Schedule or as otherwise
contemplated by this Agreement, after the date hereof and prior to the
Closing Date or earlier termination of this Agreement, unless Target complies
with the last paragraph of this Section 7.6, Target shall:
(1) conduct its business in the ordinary and usual course of business
and consistent with past practice;
(2) not (i) amend or propose to amend its Organic Documents, (ii)
split, combine or reclassify (whether by stock dividend or otherwise) its
outstanding capital stock or issue or authorize the issue of any other
securities in respect of, in lieu of, or in substitution for, shares of its
capital stock, or (iii) declare, set aside, pay or make, or agree to declare,
set aside, pay or make, any Distribution (other than Distributions to
Affiliates and preferred stockholders of Target, consistent with past
practice);
(3) not issue, sell, pledge or dispose of, or agree to issue, sell,
pledge or dispose of, any shares of Target Common Stock, other shares of
capital stock, Convertible Securities or Option Securities;
(4) not (i) incur or become contingently liable with respect to any
Indebtedness for Money Borrowed, other than borrowings (A) to finance
permitted Restricted Transactions, (B) existing Indebtedness outstanding on
the date of this Agreement under Target's existing bank credit facility and
(C) other borrowings not to exceed $2,000,000 in the aggregate outstanding at
any one time, (ii) redeem, purchase, acquire or offer or agree to redeem,
purchase or acquire any shares of its capital stock, Convertible Securities
or Option Securities, or (iii) sell, lease, license, pledge, dispose of or
encumber any properties or assets or sell any businesses other than (x)
non-material assets in the ordinary course of business, (y) Liens arising in
accordance with the provisions of Indebtedness in effect on the date hereof
and in accordance with their present terms, and (z) leases of towers and
shelter space to third-party customers;
(5) not enter or agree to enter into any Restricted Transaction (or
group of related Restricted Transactions), whether for its own account or for
any other Person, if (i) the aggregate amount reasonably expended by Target
in connection with such individual Restricted Transaction
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(together with any group of related Restricted Transactions) exceeds
$500,000, or (ii) the aggregate amount to be expended in connection with all
Restricted Transactions (together with any group of related Transactions)
exceeds $2,000,000; provided, however, that the foregoing restriction shall
not apply to any Restricted Transaction pursuant to agreements which are
described in Section 7.6(e) of the Target Disclosure Schedule;
(6) use reasonable business efforts to preserve intact its business
organization and goodwill, keep available the services of its present
officers and key employees, and preserve the goodwill and business
relationships with customers and others having business relationships with
them and not engage in any action, directly or indirectly, with the intent to
adversely impact the transactions contemplated by this Agreement;
(7) confer on a regular and frequent basis with one or more
representatives of ATLP to report material operational matters and the
general status of ongoing operations;
(8) not adopt, enter into, amend or terminate any employment,
severance, special pay arrangement with respect to termination of employment
or other similar arrangements or agreements with any directors, officers or
key employees;
(9) maintain with financially responsible insurance companies insurance
on the Target Assets and the Target Business in such amounts and against such
risks and losses as are consistent with past practice;
(10) not make any Tax election that could reasonably be expected to have
a Material Adverse Effect on Target or the Target Assets or settle or
compromise any income Tax liability;
(11) except in the ordinary course of business or except as would not be
reasonably expected to have, individually or in the aggregate, a Material
Adverse Effect on Target or the Target Assets, not modify, amend or terminate
any Material Agreement to which Target is a party or by which any of the
Target Assets may be bound or to which any of them may be subject or waive,
release or assign any material rights or claims thereunder;
(12) except in the ordinary course of business and in accordance with
past practices and policies, not enter into any Lease or other agreement with
respect to any antenna site on any of its towers, whether presently owned or
hereafter acquired by Target;
(13) except as set forth in Section 4.15 of the Target Disclosure
Schedules, except in the ordinary course, not enter into, amend in any
material respect or terminate any Governmental Authorization, material
Private Authorization or Material Agreement;
(14) not voluntarily take or permit to be taken any action which if
taken between the end of its most recent fiscal quarter and prior to the date
of this Agreement would have been required to be noted as an exception on
Section 4.15 of the Target Disclosure Schedule, other than pursuant to the
conduct of its business in the ordinary and usual course of business and
consistent with past practice; and
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(15) not authorize or enter into any agreement that would violate any of
the foregoing.
In the event that Target desires to take any of the actions prohibited
by the provisions of this Section, it shall give prompt written notice to
ATLP, referring to the provisions of this Section. In the event that ATLP
does not object to the taking of such action (which objection, if any, shall
be reasonable) within ten (10) business days of receipt of such notice and
all material information requested by ATLP with respect thereto, Target shall
have the right to take such action. ATLP's failure to object to the taking
of any such action shall not, in any event, relieve Target from the
obligation to comply with the provisions of this Agreement and shall not be
deemed to be a waiver of any condition of ATLP's obligations to consummate
the Purchase set forth in Section 8.2.
7.7 PRELIMINARY TITLE REPORTS. As promptly as practicable after the
execution of this Agreement, Target shall, at its cost and expense, deliver
or cause to be delivered to ATLP either (i) a standard preliminary title
report (the "Title Report") dated on or after the date of this Agreement
(which may include a Title Report dated prior to the date of this Agreement
if such Title Report is accompanied by an updated report dated on or after
the date of this Agreement) issued by such title company or companies as
Target and ATLP shall mutually reasonably agree with respect to each parcel
of real property owned or leased by Target or, if applicable, any of its
Affiliates; or (ii) copies of title policies or marked up commitments to
issue title policies, with policies to be provided when issued.
7.8 ENVIRONMENTAL SITE ASSESSMENTS. As promptly as practicable after
the execution of this Agreement, ATLP may at its own cost and expense obtain,
and deliver to Target full and complete copies of, an Environmental Report on
each parcel of real property owned or leased by Target or, if applicable, any
of its Affiliates for which an Environmental Report has not heretofore been
delivered by Target to ATLP (or as to which ATLP has heretofore indicated
that the existing Environmental Report raises questions of potential
liability that has had or could reasonably be expected to have a Material
Adverse Effect on Target or the Target Assets). Site assessments shall be
conducted by such consultants and professionals as ATLP shall select and as
shall be reasonably acceptable to Target and shall be arranged at times
mutually convenient to the parties. Each of Target and ATLP shall be
entitled to have representatives present at the time such site assessments
are conducted and shall receive copies of all correspondence with the company
preparing such Environmental Reports, as well as a copy of each such
Environmental Report within five (5) business days of its receipt thereof.
7.9 LEASE OF OFFICE SPACE. Target and the Target Stockholder agree to
use their best efforts to cause Sygnet to lease to ATLP mutually agreed upon
adequate office space without charge to ATLP for a minimum term of one (1)
year from the Closing Date.
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ARTICLE 8
CLOSING CONDITIONS
8.1 CONDITIONS TO OBLIGATIONS OF EACH PARTY. The respective
obligations of each party to consummate the Purchase shall, except as
hereinafter provided in this Section, be subject to the satisfaction at or
prior to the Closing Date of the following conditions, any or all of which
may be waived, in whole or in part, to the extent permitted by Applicable Law:
(1) As of the Closing Date, no Legal Action shall be pending before any
Authority seeking to enjoin, restrain, prohibit or make illegal or to impose
any materially adverse condition in connection with, the consummation of the
Purchase, it being understood and agreed that a written request by any
Authority for information with respect to the Purchase, which information
could be used in connection with such Legal Action, shall not in itself be
deemed to be a Legal Action pending before any such Authority, and it being
further understood that the foregoing shall not include the Centerpointe
Litigation if such Centerpointe Litigation is still pending as of the Closing
Date;
(2) Any waiting period (and any extension thereof) applicable to the
consummation of the Purchase under the Xxxx-Xxxxx-Xxxxxx Act shall have
expired or been terminated; and
(3) Except with respect to the Xxxx-Xxxxx-Xxxxxx Act (which is
addressed in Section 8.1(b)), all authorizations, consents, waivers, orders
or approvals required to be obtained from all Authorities, and all filings,
submissions, registrations, notices or declarations required to be made by
any of the parties with any Authority, prior to the consummation of the
Purchase, shall have been obtained from, and made with, all such Authorities,
except for such authorizations, consents, waivers, orders, approvals,
filings, registrations, notices or declarations the failure to obtain or make
would not, in the reasonable business judgment of ATLP, reasonably be
expected to have a Material Adverse Effect on Target or the Target Assets.
8.2 CONDITIONS TO OBLIGATIONS OF ATLP. The obligation of ATLP to
consummate the Purchase shall be subject to the satisfaction of the following
conditions, any or all of which may be waived, in whole or in part, by ATC
and ATLP to the extent permitted by Applicable Law:
(1) All agreements, certificates, opinions and other documents required
to be delivered pursuant to the provisions of this Agreement shall be
reasonably satisfactory in form, scope and substance to ATLP and its counsel,
and ATLP and its counsel shall have received all information and copies of
all documents, including records of corporate proceedings, which they may
reasonably request in connection therewith, such documents where appropriate
to be certified by proper Authorities or corporate officers;
(2) Target shall have furnished ATLP and, at ATLP's request, any bank
or other financial institution providing credit to ATLP, with a favorable
opinion, dated the Closing Date, of Xxxxxxx & Xxxxxx, LLP, counsel for Target
and the Target Stockholder, substantially in the form attached
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hereto as Exhibit B and made a part hereof, and with respect to such other
matters xarising after the date of this Agreement as ATLP or its counsel may
reasonably request;
(3) (i) The representations and warranties of Target and the Target
Stockholder contained in this Agreement or otherwise made in writing by or on
behalf of it or any of them pursuant hereto or otherwise made in connection
with the Purchase shall be true and correct at and as of the Closing Date
with the same force and effect as though made on and as of such date, except
(x) to the extent such representations and warranties expressly speak as of
an earlier date (in which case such representations and warranties shall be
true and correct as of such earlier date) and (y) to the extent that the
failure of such representations and warranties to be true and correct,
individually or in the aggregate, have not had and will not reasonably be
expected to have a Material Adverse Effect on Target or the Target Assets;
provided, however, that for the purpose of this clause (y) representations
and warranties that are qualified as to materiality (including by reference
to "material adverse effect") shall not be deemed to be so qualified; (ii)
each and all of the agreements and covenants to be performed or satisfied by
Target or the Target Stockholder hereunder at or prior to the Closing Date
shall have been duly performed or satisfied in all material respects; and
(iii) Target and the Target Stockholder shall have furnished ATLP with such
certificates and other documents evidencing the truth of such
representations, warranties, covenants and agreements and the performance of
such agreements or conditions as ATLP or its counsel shall have reasonably
requested;
(4) All (i) Required Consents (other than Required Consents that relate
to Rejected Sites or Accepted Sites) shall have been obtained and (ii) all
other authorizations, consents, waivers, orders or approvals required by the
provisions of this Agreement to be obtained from all Persons (other than
Authorities) prior to the consummation of the Purchase, including without
limitation those required in order for ATLP to continue to own all of the
Target Assets and continue to operate the Target Business as conducted
immediately prior to the Closing shall have been obtained, without the
imposition of any condition or requirement, except such other authorizations,
consents, waivers, orders or approvals the failure of which to obtain would
not reasonably be expected to have a Material Adverse Effect on Target or the
Target Assets;
(5) Between the date of this Agreement and the Closing Date, there
shall not have been any material adverse change in Target or the Target
Assets, and there shall not have been any change in the Target Assets which
could reasonably be expected to have a Material Adverse Effect on the Target
or the Target Assets;
(6) As of the Closing Date, except as otherwise set forth in Section
4.6(c) of the Target Disclosure Schedule, no Legal Action shall be pending
before any Authority (i) that could, individually or in the aggregate, in the
reasonable business judgment of ATLP based upon the advice of counsel,
reasonably be expected to have a Material Adverse Effect on the Target Assets
or the Target Business, or (ii) insofar as it relates to the Purchase,
seeking the potential divestiture by ATC of any material portion of the
Target Assets or the assets of ATC;
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(7) Target shall have executed and delivered to ATLP an agreement
substantially in the form attached hereto as Exhibit C and made a part hereof
(the "Non-Assignable Contracts Agreement");
(8) Target shall have executed and delivered to ATLP an agreement
substantially in the form attached hereto as Exhibit D and made a part hereof
(the "Indemnity Escrow Agreement");
(9) Sygnet shall have executed and delivered to ATLP a master lease
relating to the use by Sygnet of the towers forming part of the Target
Assets, including schedules thereto relating to each such tower,
substantially in the form attached hereto as Exhibit E and made a part hereof
(the "Master Lease");
(10) no more than 20 Defective Sites shall be Rejected Sites;
(11) Each of the agreements listed in Section 8.2(k) of the Target
Disclosure Schedule shall have been terminated by Target, or amended on the
terms and conditions set forth in such Section, in each case, at no cost or
expense to ATC or ATLP; and
(12) Sygnet shall have executed and delivered to ATLP a "build-to-suit"
agreement substantially in the form attached hereto as Exhibit F and made a
part hereof (the "Build-to-Suit Agreement").
8.3 CONDITIONS TO OBLIGATIONS OF TARGET. The obligation of Target to
consummate the Purchase shall be subject to the satisfaction of the following
conditions, any or all of which may be waived, in whole or in part, by Target
to the extent permitted by Applicable Law:
(1) All agreements, certificates, opinions and other documents required
to be delivered pursuant to the provisions of this Agreement shall be
reasonably satisfactory in form, scope and substance to Target and its
counsel, and Target and its counsel shall have received all information and
copies of all documents, including records of corporate proceedings, which
they may reasonably request in connection therewith, such documents where
appropriate to be certified by proper Authorities or corporate officers;
(2) ATLP shall have furnished Target, with favorable opinions, dated
the Closing Date, of Xxxxxxxx & Worcester LLP, counsel for ATLP,
substantially in the form attached hereto as Exhibit G and made a part
hereof, and with respect to such other matters arising after the date of this
Agreement as Target or its counsel may reasonably request; and
(3) (i) The representations and warranties of ATC and ATLP contained in
this Agreement or otherwise made in writing by it or on its behalf pursuant
hereto or otherwise made in connection with the Purchase shall be true and
correct in all material respects at and as of the Closing Date with the same
force and effect as though made on and as of such date, except (x) to the
extent such representations and warranties expressly speak as of an earlier
date (in which case such representations and warranties shall be true and
correct as of such earlier date) and (y) to the extent that the failure of
such representations and warranties to be true and correct, individually or
in the
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aggregate, would not reasonably be expected to have a material adverse effect
on ATC or ATLP; provided, however, that for the purpose of this clause (y)
representations and warranties that are qualified as to the materiality
(including by reference to "material adverse effect") shall not be deemed to
be so qualified; (ii) each and all of the agreements and covenants to be
performed or satisfied by ATC or ATLP hereunder at or prior to the Closing
Date shall have been duly performed or satisfied in all material respects;
and (iii) ATC and ATLP shall have furnished Target with such certificates and
other documents evidencing the truth of such representations, warranties,
covenants and agreements and the performance of such agreements or conditions
as Target or its counsel shall have reasonably requested;
(4) Between the date of this Agreement and the Closing Date, there
shall not have occurred and be continuing any material adverse change in ATC
from that reflected in the most recent ATC Financial Statements;
(5) As of the Closing Date, no Legal Action shall be pending before any
Authority which could, individually or in the aggregate, in the reasonable
business judgment of Target based upon the advice of counsel, reasonably be
expected to have a material adverse effect on ATLP;
(6) ATLP shall, if it has not waived the condition set forth in Section
8.2(g), have executed and delivered the Non-Assignable Contracts Agreement;
(7) ATLP shall have executed and delivered to Sygnet the Master Lease,
including schedules thereto relating to each of the towers forming part of
the Target Assets, and the Build-to-Suit Agreement; and
(8) no more than 20 Defective Sites shall be Rejected Sites.
ARTICLE 9
TERMINATION, AMENDMENT AND WAIVER
9.1 TERMINATION. This Agreement may be terminated at any time prior to
the Closing only pursuant to the following provisions:
(1) by mutual consent of Target and ATLP; or
(2) by ATLP or Target if any injunction, decree or judgment of any
Authority preventing consummation of the Purchase shall have become final and
nonappealable; or
(3) by Target in the event (i) neither Target nor the Target Stockholder
is in material breach of this Agreement and none of its or any of their
representations or warranties shall have become and continue to be untrue in any
manner that would cause the condition set forth in Section 8.2(c) not to be
satisfied, and (ii) either (A) the Termination Date has occurred without the
consummation of the Purchase, or (B) ATC or ATLP is in material breach of this
Agreement or any
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of ATC's or ATLP's representations or warranties shall have been or become
and continue to be untrue in any manner that would cause the conditions set
forth in Section 8.3(c) not to be satisfied, and such a breach or untruth
exists and is not capable of being cured by and will prevent or delay
consummation of the Purchase by or beyond the Termination Date; or
(4) by ATLP in the event (i) neither ATC nor ATLP is in material breach
of this Agreement and none of its or any of their representations or
warranties shall have become and continue to be untrue in any manner that
would cause the condition set forth in Section 8.3(c) not to be satisfied,
and (ii) either (A) the Termination Date has occurred without the
consummation of the Purchase, or (B) Target or the Target Stockholder is in
material breach of this Agreement or any of Target's or the Target
Stockholder's representations or warranties shall have been or become and
continue to be untrue in any manner that would cause the conditions set forth
in Section 8.2(c) not to be satisfied, and such a breach or untruth exists
and is not capable of being cured by and will prevent or delay consummation
of the Purchase by or beyond the Termination Date.
The term "Termination Date" shall mean October 31, 1999 or such other
date as the parties may, from time to time, mutually agree in writing.
The right of ATLP or Target to terminate this Agreement pursuant to this
Section shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any party, any Person controlling any
such party or any of their respective Representatives whether prior to or
after the execution of this Agreement.
9.2 EFFECT OF TERMINATION.
(1) Except as provided in Sections 7.1 (with respect to
confidentiality), 7.3 and 11.2 and this Section, in the event of the
termination of this Agreement pursuant to Section 9.1, this Agreement shall
forthwith become void, there shall be no liability on the part of any party,
or any of their respective stockholders, officers or directors, to the other
and all rights and obligations of any party shall cease; provided, however,
that such termination shall not relieve any party from liability for any
willful or intentional misrepresentation or breach of any of its warranties,
covenants or agreements set forth in this Agreement.
(b) In the event this Agreement is terminated by Target pursuant to the
provisions of Section 9.1(c), then Target shall be entitled to liquidated
damages of an amount equal to the Escrow Deposit, together with interest and
other earnings thereon, it being agreed that such amount shall constitute
full payment for any and all damages suffered by Target by reason of ATLP's
or ATC's failure to consummate the Transactions. ATLP, ATC, Target and the
Target Stockholder agree in advance that actual damages would be difficult to
ascertain and that such liquidated damages is a fair and equitable amount to
reimburse Target for damages sustained due to ATLP's or ATC's failure to
consummate the Transactions for the above-stated reasons.
(c) In the event this Agreement is terminated by ATLP pursuant to the
provisions of Section 9.1(d), then ATLP shall be entitled to the amount of
the Escrow Deposit, together with interest and other earnings thereon,
without prejudice to ATLP's right to pursue damages or other
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remedies hereunder. Notwithstanding the foregoing, each party shall have the
right to seek specific performance pursuant to the provisions of Section 11.4.
(d) In the event this Agreement is terminated pursuant to the
provisions of Section 9.1(a) or 9.1(b), neither of the parties shall have any
further rights or remedies, except that ATLP shall be entitled to the Escrow
Deposit, together with interest and earnings thereon.
ARTICLE 10
INDEMNIFICATION
10.1 SURVIVAL. The representations and warranties of the parties
contained in or made pursuant to this Agreement or any Collateral Document
shall survive the Closing and shall remain operative and in full force and
effect for a period of eighteen (18) months after the Closing Date, except
that in the case of matters of a nature referred to in Sections 4.1, 4.10,
4.11, 4.17, 4.18 and 5.1, and Article 6 which shall survive and remain
operative and in full force and effect for the applicable statute of
limitations, regardless of any investigation or statement as to the results
thereof made by or on behalf of any party hereto. The covenants and
agreements of the parties contained in or made pursuant to this Agreement or
any Collateral Document shall survive the Closing (unless any such covenant
or agreement by its express terms in this Agreement does not so survive) and
shall remain operative and in full force and effect for the statute of
limitations applicable to contractual obligations. The term "Indemnity
Period" shall mean the applicable period with respect to which a
representation, warranty, covenant or agreement survives the Closing as
provided in this Section. No claim for indemnification, other than with
respect to fraud or intentional and willful breach or misrepresentation, may
be asserted after the expiration of the Indemnity Period. Notwithstanding
anything herein to the contrary, any representation, warranty, covenant and
agreement which arises and is the subject of a Claim which is asserted in
writing prior to the expiration of the applicable Indemnity Period shall
survive with respect to such Claim or any dispute with respect thereto until
the final resolution thereof.
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10.2 INDEMNIFICATION.
(1) Target and the Target Stockholder agree, jointly and severally,
that on and after the Closing each shall indemnify and hold harmless ATC,
ATLP and their respective stockholders, directors, officers, employees,
agents and representatives (collectively, the "ATLP Indemnified Parties")
from and against any and all damages, claims, losses, expenses, costs,
obligations, and liabilities including, without limiting the generality of
the foregoing, liabilities for all reasonable attorneys', accountants' and
experts' fees and expenses incurred, including those incurred to enforce the
terms of this Agreement or any Collateral Document (collectively, "Loss and
Expense"), suffered by the ATLP Indemnified Parties by reason of or arising
out of (i) any breach of a representation or warranty made by Target pursuant
to this Agreement or any Collateral Document, (ii) any failure by Target to
perform or fulfill any of its covenants or agreements set forth in this
Agreement or any Collateral Document, (iii) any Loss or Expense resulting
from the pending action entitled XXXXXX TOWER COMPANY V. CENTERPOINTE
COMMUNICATIONS, L.L.C. (Case No. CIV-99-00295-R) and, to the extent such
action effects the Target Assets or the Target Business, the action entitled
CENTERPOINTE COMMUNICATIONS, L.L.C. V. XXXXXX COMMUNICATIONS CORP., ET AL.
(Case No. 499-CV-0328-Y) (collectively, the "Centerpointe Litigation"), and
any and all related appeals or other Legal Actions based on the subject
matter of these Legal Actions, including, without limitation, any Legal
Actions against ATLP or ATC or any of their Affiliates based on the subject
matter of such Legal Actions, (iv) any Retained Liability, and (v) the
matters described in Section 2.6.
(2) The Target Stockholder agrees that on and after the Closing it
shall indemnify and hold harmless the ATLP Indemnified Parties from and
against any and all Loss and Expense suffered by the ATLP Indemnified Parties
by reason of or arising out of any breach of representation or warranty made
by the Target Stockholder pursuant to this Agreement or any failure by the
Target Stockholder to perform or fulfill any of its covenants or agreements
set forth in this Agreement.
(3) ATC and ATLP agree, jointly and severally, that on and after the
Closing each will indemnify Target and the Target Stockholder and hold them
harmless from and against all Loss and Expense suffered by them by reason of
or arising out of (i) any breach of representation or warranty made by ATC
or ATLP pursuant to this Agreement or any Collateral Document, (ii) any
failure by ATC or ATLP to perform or fulfill any of their respective
covenants or agreements set forth in this Agreement or any Collateral
Document, (iii) any Assumed Liability, and (iv) any Non-Assignable Contract
covered by the provisions of the Non-Assignable Contracts Agreement. ATC and
ATLP agree that Sygnet shall be a third party beneficiary of the rights of
Target and the Target Stockholder under this Section 10.
(4) In the absence of fraud, from and after the Closing Date, the sole
and exclusive remedy (except as otherwise provided in Section 11.4) for any
misrepresentation or any breach of a warranty or covenant under or pursuant
to this Agreement or the Collateral Documents or otherwise relating to the
subject matter of this Agreement shall be a claim for indemnification
pursuant to this Article 10.
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10.3 LIMITATION OF LIABILITY.
(1) Notwithstanding the provisions of Section 10.2, after the Closing,
the ATLP Indemnified Parties, on the one hand, and Target and the Target
Stockholder, on the other hand, shall be entitled to recover their Loss and
Expense in respect of any Claim only (i) in the event that the aggregate Loss
and Expense for all Claims exceed, in the aggregate, $100,000, in which event
the indemnified party shall be entitled to recover all such Loss and Expense
only to the extent such aggregate Loss and Expense exceeds such $100,000; and
(ii) to the extent that the aggregate Loss and Expense for all Claims do not
exceed (x) Eight Million One Hundred Forty Thousand Dollars ($8,140,000) in
the case of Target and the Target Stockholder and (y) One Million Dollars
($1,000,000) in the case of ATLP and ATC; provided, however, that the
foregoing provisions and limits of this Section 10.3(a) shall not apply to
any indemnification of the ATLP Indemnified Parties arising under Sections
10.2(a)(iii), 10.2(a)(iv) or 10.2(a)(v) or of Target and the Target
Stockholder arising under Sections 10.2(c)(iii) or 10.2(c)(iv).
(2) In the case any event shall occur which would otherwise entitle any
party to assert a claim for indemnification hereunder, no Loss and Expense
shall be deemed to have been sustained by such party to the extent of any
proceeds received by such party from any insurance policies with respect
thereto.
10.4 NOTICE OF CLAIMS. If an indemnified party believes that it has
suffered or incurred any Loss and Expense, it shall notify the indemnifying
party promptly in writing, and in any event within the applicable Indemnity
Period specified in Section 10.1, describing such Loss and Expense, all with
reasonable particularity and containing a reference to the provisions of this
Agreement in respect of which such Loss and Expense shall have occurred. If
any Legal Action is instituted by a third party with respect to which an
indemnified party intends to claim any liability or expense as Loss and
Expense under this Article, such indemnified party shall promptly notify the
indemnifying party of such Legal Action, but the failure to so notify the
indemnifying party shall not relieve such indemnifying party of its
obligations under this Article, except to the extent such failure to notify
prejudices such indemnifying party's ability to defend against such Claim.
10.5 DEFENSE OF THIRD PARTY CLAIMS. The indemnifying party shall have
the right to conduct and control, through counsel of its own choosing,
reasonably acceptable to the indemnified party, any third party Legal Action
or other Claim, but the indemnified party may, at its election, participate
in the defense thereof at its sole cost and expense; provided, however, that
if the indemnifying party shall fail to defend any such Legal Action or other
Claim within a reasonable time, then the indemnified party may defend,
through counsel of its own choosing, such Legal Action or other Claim, and
(so long as it gives the indemnifying party at least fifteen (15) days'
notice of the terms of the proposed settlement thereof and permits the
indemnifying party to then undertake the defense thereof) settle such Legal
Action or other Claim and to recover the amount of such settlement or of any
judgment and the reasonable costs and expenses of such defense. The
indemnifying party shall not compromise or settle any such Legal Action or
other Claim without the prior written consent of the indemnified party, which
consent shall not unreasonably be withheld, delayed or conditioned if the
terms and conditions of such compromise or settlement proposed by the
indemnifying party and agreed to in writing by the claimant in such Legal
Action or other Claim
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(a) include a full release of the indemnified party from the Legal Action or
other Claim which is the subject of the settlement proposal, and (b) if the
indemnified party is an ATLP Indemnified Party, do not include any term or
condition which would restrict in any material manner the continued ownership
or operations of the Target Assets or the conduct of the Target Business in
substantially the manner then being owned, operated and conducted by ATLP (or
any successor or assign). No matter whether an indemnifying party defends or
prosecutes any third party Legal Action or Claim, the indemnified and
indemnifying parties shall cooperate in the defense or prosecution thereof.
Such cooperation shall include access during normal business hours afforded
to the indemnifying party to, and reasonable retention by the indemnified
party of, records and information which are reasonably relevant to such third
party Legal Action or Claim, and making employees available on a mutually
convenient basis to provide additional information and explanation of any
material provided hereunder, and the indemnifying party shall reimburse the
indemnified party for all its reasonable out-of-pocket expenses in connection
therewith.
10.6 ASSIGNMENT OF RIGHTS; ADDITIONAL INDEMNIFICATION. In the event
that Centerpointe Communications, L.L.C. ("Centerpointe") (or any successor
or assign or any Person making a Claim by, through or on behalf of
Centerpointe) is granted, by a judgment or order of a court or other tribunal
of competent jurisdiction that is not stayed, enjoined or otherwise
prevented, or by a final judgment of a court of competent jurisdiction, not
subject to further appeal, and exercises a right to purchase the Target
Assets or the Target Business as a result of the outcome of the Legal Actions
described or referred to in Section 10.2(a)(iii) or otherwise, or if ATLP is
otherwise ordered to dispose of the Target Assets or the Target Business, and
Target or the Target Stockholder receives any amounts in connection
therewith, Target and the Target Stockholder, jointly and severally, agree as
follows:
(a) that each hereby assigns and agrees to pay over to ATLP all such
amounts received by them (or their successors and assigns), up to amounts not
to exceed, in the aggregate, the Purchase Price. In the event that the
amounts so paid are less than the Purchase Price, Target and the Target
Stockholder, jointly and severally, agree to pay to ATLP an additional
aggregate amount equal to the difference between the Purchase Price and the
amounts so paid; and
(b) regardless of whether or not Target or the Target Stockholder
receives any amounts in connection with Section 10.6(a), to pay to ATLP an
additional amount (if positive) equal to the difference between (x) the
product of twelve times the average monthly gross revenues (determined in
accordance with GAAP) attributable to the Target Business for the three
months ending on the date of such disposition of assets times (A) during the
period through and including the second anniversary of the Closing Date,
fourteen (14) and (B) at any time after the second anniversary of the Closing
Date, twelve (12), minus (y) the Purchase Price; provided, however, that for
purposes of the formula in clause (x) above, twelve times the average monthly
gross revenues (determined in accordance with GAAP) attributable to the
Target Business for the three months ending on the date of such disposition
of assets shall not exceed twelve times the average monthly gross revenues
(determined in accordance with GAAP) attributable to the Target Business for
the three months ending on the Closing Date by more than $750,000 multiplied
by the number of years (prorated for any fraction of a year) between the
Closing Date and the date of such disposition of assets, and shall not in any
event exceed such amount by more than $2,250,000.
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The additional amounts payable pursuant to paragraphs (a) and (b) above may
be paid to ATLP out of funds then available, if any, under the Indemnity
Escrow Agreement or, if no funds are then available thereunder, with such
other cash funds as Target or Target Stockholder designate.
ARTICLE 11
GENERAL PROVISIONS
11.1 WAIVERS; AMENDMENTS. Changes in or additions to this Agreement may
be made, or compliance with any term, covenant, agreement, condition or
provision set forth herein may be omitted or waived (either generally or in a
particular instance and either retroactively or prospectively) with, but only
with, the consent in writing of the parties hereto. No delay on the part of
either party at any time or times in the exercise of any right or remedy
shall operate as a waiver thereof. Any consent may be given subject to
satisfaction of conditions stated therein. The failure to insist upon the
strict provisions of any covenant, term, condition or other provision of this
Agreement or to exercise any right or remedy thereunder shall not constitute
a waiver of any such covenant, term, condition or other provision thereof or
default in connection therewith. The waiver of any covenant, term, condition
or other provision thereof or default thereunder shall not affect or alter
this Agreement in any other respect, and each and every covenant, term,
condition or other provision of this Agreement shall, in such event, continue
in full force and effect, except as so waived, and shall be operative with
respect to any other then existing or subsequent default in connection
therewith.
11.2 FEES, EXPENSES AND OTHER PAYMENTS. All costs and expenses incurred
in connection with any transfer Taxes, sales Taxes, recording or documentary
Taxes, stamps or other charges levied by any Authority in connection with
this Agreement and the consummation of the Purchase shall be borne by ATLP,
all costs of environmental studies undertaken pursuant to the provisions of
Section 7.8 shall be borne by ATLP, all Xxxx-Xxxxx-Xxxxxx filing fees and
expenses, if any, shall be borne by the party making such filing, and all
other costs and expenses incurred in connection with this Agreement and the
consummation of the Purchase, including without limitation fees and
disbursements of counsel, financial advisors and accountants incurred by the
parties hereto, shall, unless otherwise provided herein, be borne solely and
entirely by the party that has incurred such costs and expenses.
11.3 NOTICES. All notices and other communications which by any
provision of this Agreement are required or permitted to be given shall be
given in writing and shall be deemed to have been delivered (a) five (5)
business days after being mailed by first-class or express mail, postage
prepaid, (b) the next day when sent overnight by recognized courier service,
(c) upon confirmation when sent by telex, telegram, telecopy or other form of
rapid transmission, confirmed by mailing (by first class or express mail,
postage prepaid, or by recognized courier service) written confirmation at
substantially the same time as such rapid transmission, or (d) upon delivery
when personally delivered to the receiving party (which if other than an
individual shall be an officer or other responsible party of the receiving
party). All such notices and communications shall be mailed, sent or
delivered as set forth below or to such other person(s), telex or facsimile
number(s)
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or address(es) as the party to receive any such communication or notice may
have designated by written notice to the other party.
(1) If to ATC or ATLP:
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Chief Financial Officer
Telecopier No.: (000) 000-0000
with a copy to (which shall not constitute notice to ATC or ATLP):
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopier No.: (000) 000-0000
(2) If to Target or the Target Stockholder:
c/o Dobson Communication Corporation
00000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
with a copy to (which shall not constitute notice to Target or the
Target Stockholder):
Xxxxxxx & Xxxxxx, LLP
0000 XxxxXxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxxxx X.X. Xxxxx, Esq.
Telecopier No.: (000) 000-0000
11.4 SPECIFIC PERFORMANCE; OTHER RIGHTS AND REMEDIES. Each party
recognizes and agrees that in the event the other party should refuse to
perform any of its obligations under this Agreement or any Collateral
Document, each party shall, in addition to such other remedies as may be
available to it at Law or in equity or as provided in Article 10, be entitled
to injunctive relief and to enforce its rights by an action for specific
performance to the extent permitted by Applicable Law. Nothing herein
contained shall be construed as prohibiting any party from pursuing any other
remedies available to it pursuant to the provisions of this Agreement or
Applicable Law for such breach or threatened breach, including without
limitation the recovery of damages; provided, however, that none of the
parties shall pursue, and each party hereby waives, any punitive, incidental
and
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consequential damages arising out of this Agreement (including without
limitation damages for diminution in value and loss of anticipated profits).
11.5 SEVERABILITY. If any term or provision of this Agreement shall be
held or deemed to be, or shall in fact be, invalid, inoperative, illegal or
unenforceable as applied to any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions or in all cases, because of the
conflicting of any provision with any constitution or statute or rule of
public policy or for any other reason, such circumstance shall not have the
effect of rendering the provision or provisions in question invalid,
inoperative, illegal or unenforceable in any other jurisdiction or in any
other case or circumstance or of rendering any other provision or provisions
herein contained invalid, inoperative, illegal or unenforceable to the extent
that such other provisions are not themselves actually in conflict with such
constitution, statute or rule of public policy, but this Agreement shall be
reformed and construed in any such jurisdiction or case as if such invalid,
inoperative, illegal or unenforceable provision had never been contained
herein and such provision reformed so that it would be valid, operative and
enforceable to the maximum extent permitted in such jurisdiction or in such
case. Notwithstanding the foregoing, in the event of any such determination
the effect of which is to affect materially and adversely any party, the
parties shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible to the
fullest extent permitted by Applicable Law in an acceptable manner to the end
that the Transactions are fulfilled and consummated to the maximum extent
possible.
11.6 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, binding upon all of
the parties. In pleading or proving any provision of this Agreement, it
shall not be necessary to produce more than one set of such counterparts.
11.7 SECTION HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
11.8 GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by, and construed in
accordance with, the applicable Laws of the United States of America and the
Laws of State of New York applicable to contracts made and performed in such
State and, in any event, without giving effect to any choice or conflict of
Laws provision or rule that would cause the application of domestic
substantive Laws of any other jurisdiction. Anything in this Agreement to
the contrary notwithstanding, in the event of any dispute between the parties
which results in a Legal Action, the prevailing party shall be entitled to
receive from the non-prevailing party reimbursement for reasonable legal fees
and expenses incurred by such prevailing party in such Legal Action.
11.9 FURTHER ACTS. Each party agrees that at any time, and from time to
time, before and after the consummation of the transactions contemplated by
this Agreement, it will do all such things and execute and deliver all such
Collateral Documents and other assurances, as any other party or its counsel
reasonably deems necessary or desirable in order to carry out the terms and
conditions of this Agreement and the transactions contemplated hereby or to
facilitate the enjoyment of any of the rights created hereby or to be created
hereunder.
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11.10 ENTIRE AGREEMENT. This Agreement (together with the Target Disclosure
Schedule, the exhibits hereto and the other documents delivered or to be
delivered in connection herewith) constitutes the entire agreement of the
parties with respect to the subject matter hereof and supersedes all prior
agreements, arrangements, covenants, promises, conditions, undertakings,
inducements, representations, warranties and negotiations, expressed or implied,
oral or written, between the parties, with respect to the subject matter hereof,
including without limitation any previously executed confidentiality agreement
and/or letter of intent. Each of the parties is a sophisticated Person that was
advised by experienced counsel and, to the extent it deemed necessary, other
advisors in connection with this Agreement. Each of the parties hereby
acknowledges that (a) none of the parties has relied or will rely in respect of
this Agreement or the transactions contemplated hereby upon any document or
written or oral information previously furnished to or discovered by it or its
representatives, other than this Agreement (or such of the foregoing as are
delivered at the Closing), (b) there are no covenants or agreements by or on
behalf of any party or any of its respective Affiliates or representatives
other than those expressly set forth in this Agreement and the Collateral
Documents, and (c) the parties' respective rights and obligations with respect
to this Agreement and the events giving rise thereto will be solely as set forth
in this Agreement and the Collateral Documents. WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING, EACH PARTY HERETO AGREES THAT, EXCEPT FOR THE REPRESENTATIONS
AND WARRANTIES CONTAINED IN THIS AGREEMENT AND ANY COLLATERAL DOCUMENT, NONE OF
THE PARTIES MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES, AND EACH HEREBY
DISCLAIMS ANY OTHER REPRESENTATIONS OR WARRANTIES MADE BY ITSELF OR ANY OF ITS
OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, FINANCIAL AND LEGAL ADVISORS OR OTHER
REPRESENTATIVES, WITH RESPECT TO THE EXECUTION AND DELIVERY OF THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY, NOTWITHSTANDING THE DELIVERY OR DISCLOSURE
TO THE OTHER OR THE OTHER'S REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER
INFORMATION WITH RESPECT TO ANY ONE OR MORE OF THE FOREGOING.
11.11 ASSIGNMENT. This Agreement shall not be assignable by any party and
any such assignment shall be null and void, except that it shall inure to the
benefit of and be binding upon any successor to any party by operation of Law,
including by way of merger, consolidation or sale of all or substantially all of
its assets, and provided that ATLP may assign its rights and obligations under
this Agreement to any Subsidiary of ATC so long as ATC continues to be a party
to this Agreement or otherwise guarantees the obligations assigned to such
Subsidiary hereunder and, provided further, that ATLP and ATC may each assign
its rights and remedies hereunder to any bank or other financial institution
that has loaned funds or otherwise extended credit to it.
11.12 PARTIES IN INTEREST. This Agreement shall be binding upon and inure
solely to the benefit of each party, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any Person any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement, except as
otherwise provided in Section 10.2(c) and Section 11.11.
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[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have executed this Agreement or caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the date first written above.
American Tower Corporation
By: /s/ XXXXXX X. XXXXXXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President, Northeast Region
American Tower, L.P.
By: ATC GP, Inc., its General Partner
By: /s/ XXXXXX X. XXXXXXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President, Northeast Region
Xxxxxx Tower Company
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
Xxxxxx Communications Corporation
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
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APPENDIX A
DEFINITIONS
ACCEPTANCE NOTICE shall have the meaning given to it in Section 2.2(c).
ACCEPTED SITE shall have the meaning given to it in Section 2.8.
ACCOUNTING FIRM shall have the meaning given to it in Section 3.1(b).
ADVERSE, ADVERSELY, when used alone or in conjunction with other terms
(including without limitation "affect," "change" and "effect") shall mean any
Event which is reasonably likely, in the reasonable business judgment of the
relevant party, to be expected to (a) adversely affect the validity or
enforceability of this Agreement or the likelihood of consummation of the
Purchase, or (b) adversely affect the business, operations, management,
properties or prospects, or the condition, financial or other, or results of
operation of the Target or ATC and its Subsidiaries, taken as a whole, as
applicable, or (c) impair such party's ability to fulfill its obligations under
the terms of this Agreement, or (d) adversely affect the aggregate rights and
remedies of such party under this Agreement. Notwithstanding the foregoing, and
anything in this Agreement to the contrary notwithstanding, any Event generally
affecting the economy or the tower rental, ownership and construction business
shall not be deemed to constitute such a change, affect or effect.
AFFILIATE, AFFILIATED shall mean, with respect to any Person, (a) any other
Person at the time directly or indirectly controlling, controlled by or under
direct or indirect common control with such Person, (b) any other Person of
which such Person at the time owns, or has the right to acquire, directly or
indirectly, five percent (5%) or more of any class of the capital stock or
beneficial interest, (c) any other Person which at the time owns, or has the
right to acquire, directly or indirectly, five percent (5%) or more of any class
of the capital stock or beneficial interest of such Person, (d) any executive
officer or director of such Person, (e) with respect to any partnership, joint
venture or similar Entity, any general partner thereof, and (f) when used with
respect to an individual, shall include any member of such individual's
Immediate Family or a family trust.
AGREEMENT shall mean this Agreement as originally in effect, including,
unless the context otherwise specifically requires, this Appendix A, the Target
Disclosure Schedule, and all exhibits hereto, and as any of the same may from
time to time be supplemented, amended, modified or restated in the manner herein
or therein provided.
ALTERNATIVE TRANSACTION shall mean any proposal or offer relating to a
merger, consolidation, reorganization, tender offer, share exchange, business
combination, recapitalization, liquidation, dissolution or similar transaction
involving, or any purchase of all or any substantial portion of the assets of,
or any issue, purchase or sale of equity securities of Target, or any series of
related transactions of the foregoing nature.
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APPLICABLE LAW shall mean any Law of any Authority, whether domestic or
foreign, including without limitation those regulating the safety and structure
of towers and all federal and state securities and Environmental Laws, to which
a Person is subject or by which it or any of its business or operations is
subject or any of its property or assets is bound.
ASSUMED LIABILITIES shall have the meaning given to it in Section 2.3(a).
ATC shall mean American Tower Corporation, a Delaware corporation that owns
all of the issued and outstanding capital stock of ATC Holding, Inc., a Delaware
corporation that owns all of the outstanding capital stock of ATC GP, Inc., a
Delaware corporation that is the sole general partner of ATLP.
ATC FINANCIAL STATEMENTS shall have the meaning given to it in Section 5.2.
ATC SEC DOCUMENTS shall have the meaning given to it in Section 5.2.
ATLP shall have the meaning given to it in the Preamble.
ATLP INDEMNIFIED PARTIES shall have the meaning given to it in Section
10.2(a).
ATLP'S KNOWLEDGE (or words of similar import) shall mean the actual
knowledge of any director or executive officer of ATLP, as such knowledge exists
on the date of this Agreement, after reasonable review of appropriate ATLP
records and after reasonable inquiry of appropriate ATLP employees.
AUTHORITY shall mean any governmental or quasi-governmental authority,
whether administrative, executive, judicial, legislative or other, or any
combination thereof, including without limitation any federal, state,
territorial, county, municipal or other government or governmental or
quasi-governmental agency, arbitrator, authority, board, body, branch,
bureau, or comparable agency or Entity, commission, corporation, court,
department, instrumentality, mediator, panel, system or other political unit
or subdivision or other Entity of any of the foregoing, whether domestic or
foreign, including without limitation the FCC.
BENEFIT ARRANGEMENT shall mean any material benefit arrangement that is not
a Plan, including (a) any employment or consulting agreement, (b) any
arrangement providing for insurance coverage or workers' compensation benefits,
(c) any incentive bonus or deferred bonus arrangement, (d) any arrangement
providing termination allowance, severance or similar benefits, (e) any equity
compensation plan, (f) any deferred compensation plan, and (g) any compensation
policy and practice, and (h) any retirement benefit, including without
limitation medical, dental, health, disability, hospitalization or life
insurance or reimbursement agreement.
BUILD-TO-SUIT AGREEMENT shall have the meaning given to it in Section
8.2(l).
CENTERPOINTE shall have the meaning given to it in Section 10.6.
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CENTERPOINTE LITIGATION shall have the meaning given to it in Section
10.2(a).
CIRCUMSTANCE shall have the meaning given to it in Section 2.8(c).
CLAIMS shall mean any and all debts, liabilities, obligations, losses,
damages, deficiencies, assessments and penalties, together with all Legal
Actions, pending or threatened, claims and judgments of whatever kind and nature
relating thereto, and all fees, costs, expenses and disbursements (including
without limitation reasonable attorneys' and other legal fees, costs and
expenses) relating to any of the foregoing.
CLOSING shall have the meaning given to it in Section 3.2.
CLOSING DATE shall have the meaning given to it in Section 3.2.
CODE shall mean the Internal Revenue Code of 1986, and the rules and
regulations thereunder, all as from time to time in effect, or any successor
law, rules or regulations, and any reference to any statutory or regulatory
provision shall be deemed to be a reference to any successor statutory or
regulatory provision.
COLLATERAL DOCUMENTS shall mean the Deposit Escrow Agreement, the Indemnity
Escrow Agreement, the Non-Assignable Contracts Agreement, the Master Lease, the
Build-to-Suit Agreement and any other agreement, certificate, contract,
instrument, notice, opinion or other document delivered or required to be
delivered pursuant to the provisions of this Agreement or any Collateral
Document.
CONFIDENTIAL INFORMATION shall have the meaning given to it in Section
7.1(a).
CONTRACT, CONTRACTUAL OBLIGATION shall mean any agreement, arrangement,
commitment, contract, covenant, indemnity, instrument, lease, license for tower
space, undertaking or other commitment, obligation or liability that is related
to the Target Assets and is binding on any Person or its property under
applicable Law.
CONTROL (including the terms "controlled," "controlled by" and "under
common control with") means the possession, directly or indirectly or as trustee
or executor, of the power to direct or cause the direction of the management or
policies of a Person, or the disposition of such Person's assets or properties,
whether through the ownership of stock, equity or other ownership, by contract,
arrangement or understanding, or as trustee or executor, by contract or credit
arrangement or otherwise.
CONVERTIBLE SECURITIES shall mean any evidences of indebtedness, shares of
capital stock (other than common stock) or other securities directly or
indirectly convertible into or exchangeable for shares of common stock, whether
or not the right to convert or exchange thereunder is immediately exercisable or
is conditioned upon the passage of time, the occurrence or non-occurrence or
existence or non-existence of some other Event, or both.
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CURE NOTICE shall have the meaning given to it in Section 2.7.
DEFECT shall mean, with respect to any Target Assets, the occurrence and
continuation of any of the following:
(a) the failure of Target to obtain a Required Consent;
(b) the Environmental Reports prepared pursuant to the provisions of
Section 7.8 shall have raised questions of potential liability that have had or
could reasonably be expected to have a Material Adverse Effect on such Target
Assets, or any Event or Events shall have occurred subsequent to the date
hereof, that, individually or in the aggregate, would cause the representations
and warranties of Target set forth in Section 4.17 (without regard to knowledge)
with respect to such Target Assets to be inaccurate or incomplete in any respect
that has or could reasonably be expected to have a Material Adverse Effect on
such Target Assets (an "Environmental Condition");
(c) ATLP shall have received, at its cost and expense, a report with
respect to each of the towers included in the Target Assets of such structural
engineers as are reasonably satisfactory to ATLP that shall indicate that any of
the Target Assets (i) is not structurally sound and in good operating condition,
(ii) is not in compliance in all respects with all Applicable Laws, Governmental
Authorizations and Private Authorizations, or (iii) requires any structural or
other repairs, except where any of conditions described in the foregoing
subsections (i), (ii) and (iii) has not had and could not reasonably be expected
to have a Material Adverse Effect on such Target Assets;
(d) any of the representations and warranties contained in Article 4
cannot be given and the absence of such representations and warranties has or
could reasonably be expected to have a Material Adverse Effect on such Target
Assets;
(e) in the case of the Site Leases for the Tower Sites known as Boardman I
(site number 84 in Section 4.4(b) of the Target Disclosure Schedule) and
Boardman II (site number 85 in Section 4.4(b) of the Target Disclosure Schedule)
located in Boardman, Ohio, the retail space covered by the applicable Site Lease
that does not relate to the business or operations of such Tower Site has not
been removed from the coverage of such Site Lease;
(f) Target shall have failed to deliver evidence reasonably satisfactory
to ATLP of the satisfaction of any Liens affecting, or security interests
encumbering, such Target Assets, except for Permitted Liens and except for such
Liens or security interests that have not had and could not reasonably be
expected to have a Material Adverse Effect on such Target Assets;
(g) a commitment to issue standard ALTA title insurance (obtained by ATLP
at its expense) insuring Target's and, if applicable, each of its Affiliates'
fee and leasehold interest in the parcels of land on which each of the towers
included in the Target Assets are located and the improvements located thereon
discloses any exception, other than Permitted Liens and other than exceptions
that have not had and could not reasonably be expected to have a Material
Adverse Effect on such Target Assets; or
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(h) any combination of the conditions described in subparagraphs (b), (c),
(d), (f) and/or (g) above shall have occurred and such conditions in the
aggregate have had or could reasonably be expected to have a Material Adverse
Effect on such Target Assets, even if no single condition in any such
subsection, taken individually, has had or could reasonably be expected to have
a Material Adverse Effect on such Target Assets.
DEFECTIVE SITE shall mean any Tower Site with a Defect.
DEPOSIT ESCROW AGREEMENT shall have the meaning given to it in the fourth
Whereas clause.
DISTRIBUTION shall mean, with respect to any Person, (a) the declaration or
payment of any dividend (except dividends payable in common stock of such
Person) on or in respect of any shares of any class of capital stock of such
Person or any shares of capital stock of any Subsidiary owned by a Person other
than such Person or a Subsidiary of such Person, (b) the purchase, redemption or
other retirement of any shares of any class of capital stock of such Person or
any shares of capital stock of any Subsidiary of such Person owned by a Person
other than such Person or a Subsidiary of such Person, and (c) any other
distribution on or in respect of any shares of any class of capital stock of
such Person or any shares of capital stock of any Subsidiary of such Person
owned by a Person other than such Person or a Subsidiary of such Person.
EMPLOYMENT ARRANGEMENT shall mean, with respect to Target, any employment,
consulting, retainer, severance or similar contract, agreement, plan,
arrangement or policy (exclusive of any which is terminable within thirty (30)
days without liability, penalty or payment of any kind by Target or any of its
Affiliates), or providing for severance, termination payments, insurance
coverage (including any self-insured arrangements), workers compensation,
disability benefits, life, health, medical, dental or hospitalization benefits,
supplemental unemployment benefits, vacation or sick leave benefits, pension or
retirement benefits or for deferred compensation, profit-sharing, bonuses, stock
options, stock purchase or appreciation rights or other forms of incentive
compensation or post-retirement insurance, compensation or benefits, or any
collective bargaining or other labor agreement, whether or not any of the
foregoing is subject to the provisions of ERISA, but only to the extent that it
covers or relates to any officer, employee or other Person involved in the
ownership or operation of the Target Assets or the conduct of the Target
Business.
ENTITY shall mean any corporation, firm, unincorporated organization,
association, partnership, limited liability company, trust (inter vivos or
testamentary), estate of a deceased, insane or incompetent individual, business
trust, joint stock company, joint venture or other organization, entity or
business, whether acting in an individual, fiduciary or other capacity, or any
Authority.
ENVIRONMENTAL CONDITION shall have the meaning given to it in the
definition of "Defect".
ENVIRONMENTAL LAW shall mean any Law relating to or otherwise imposing
liability or standards of conduct concerning pollution or protection of the
environment, including without limitation Laws relating to emissions,
discharges, releases or threatened releases of Hazardous Materials or other
chemicals or industrial pollutants, substances, materials or wastes into the
environment (including, without limitation, ambient air, surface water, ground
water, mining or
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reclamation or mined land, land surface or subsurface strata) or otherwise
relating to the manufacture, processing, generation, distribution, use,
treatment, storage, disposal, cleanup, transport or handling of pollutants,
contaminants, chemicals or industrial, toxic or hazardous substances,
materials or wastes. Environmental Laws shall include without limitation the
Comprehensive Environmental Response, Compensation and Liability Act (42
U.S.C. Section 9601 ET SEQ.), the Hazardous Material Transportation Act (49
U.S.C. Section 1801 ET SEQ.), the Resource Conservation and Recovery Act (42
U.S.C. Section 9601 ET SEQ.), the Federal Water Pollution Control Act (33
U.S.C. Section 1251 ET SEQ.), the Clean Air Act (42 U.S.C. Section 7401 ET
SEQ.), the Toxic Substances Control Act (15 U.S.C. Section 2601 ET SEQ.), the
Occupational Safety and Health Act (29 U.S.C. Section 651 ET SEQ.), the
Federal Insecticide Fungicide and Rodenticide Act (7 U.S.C. Section 136 ET
SEQ.), and the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.
Section 1201 ET SEQ.), and any analogous federal, state, local or foreign
Laws, and the rules and regulations promulgated thereunder all as from time
to time in effect, and any reference to any statutory or regulatory provision
shall be deemed to be a reference to any successor statutory or regulatory
provision.
ENVIRONMENTAL PERMIT shall mean any Governmental Authorization required by
or pursuant to any Environmental Law.
ENVIRONMENTAL REPORT shall have the meaning given to it in Section 4.17.
ERISA shall mean the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, all as from time to time in effect, or any
successor law, rules or regulations, and any reference to any statutory or
regulatory provision shall be deemed to be a reference to any successor
statutory or regulatory provision.
ESCROW DEPOSIT shall have the meaning given to it in the fourth Whereas
clause.
EVENT shall mean the existence or occurrence of any act, action, activity,
circumstance, condition, event, fact, failure to act, omission, incident or
practice, or any set or combination of any of the foregoing.
EXCHANGE ACT shall mean the Securities Exchange Act of 1934, and the rules
and regulations thereunder, all as from time to time in effect, or any successor
law, rules or regulations, and any reference to any statutory or regulatory
provision shall be deemed to be a reference to any successor statutory or
regulatory provision.
EXCLUDED ASSETS shall have the meaning given to it in Section 2.2.
FAA shall mean the Federal Aviation Administration and shall include any
successor Authority
FCC shall mean the Federal Communications Commission and shall include any
successor Authority.
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GAAP shall mean generally accepted accounting principles applied on a
consistent basis, (i) as set forth in Opinions of the Accounting Principles
Board of the American Institute of Certified Public Accountants ("AICPA") and/or
in statements of the Financial Accounting Standards Board that are applicable in
the circumstances as of the date in question, (ii) when not inconsistent with
such opinions and statements, as set forth in other AICPA publications and
guidelines and/or (iii) that otherwise arise by custom for the particular
industry, all as the same shall exist on the date of this Agreement.
GOVERNMENTAL AUTHORIZATIONS shall mean all approvals, concessions,
consents, franchises, licenses, permits, plans, registrations and other
authorizations of all Authorities, including without limitation the United
States Forest Service, the FAA and the FCC, in connection with the ownership or
operation of the Target Assets or the conduct of the Target Business.
GOVERNMENTAL FILINGS shall mean all filings, including franchise and
similar Tax filings, and the payment of all fees, assessments, interest and
penalties associated with such filings, with all Authorities.
XXXX-XXXXX-XXXXXX ACT shall mean the Xxxx-Xxxxx-Xxxxxx Improvement Act of
1976, as from time to time in effect, or any successor law, and any reference to
any statutory provision shall be deemed to be a reference to any successor
statutory provision.
HAZARDOUS MATERIALS shall mean and include any substance, material, waste,
constituent, compound, chemical, natural or man-made element or force (in
whatever state of matter): (a) the presence of which requires investigation or
remediation under any Environmental Law; or (b) that is defined as a "hazardous
waste" or "hazardous substance" under any Environmental Law; or (c) that is
toxic, explosive, corrosive, etiologic, flammable, infectious, radioactive,
carcinogenic, mutagenic or otherwise hazardous and is regulated by any
applicable Authority or subject to any Environmental Law; or (d) the presence of
which on the real property owned or leased by such Person causes or threatens to
cause a nuisance upon any such real property or to adjacent properties or poses
or threatens to pose a hazard to the health or safety of persons on or about any
such real property; or (e) the presence of which on adjacent properties could
constitute a trespass by such Person; or (f) that contains gasoline, diesel fuel
or other petroleum hydrocarbons, or any by-products or fractions thereof,
natural gas, polychlorinated biphenyls ("PCBs") and PCB-containing equipment,
radon or other radioactive elements, ionizing radiation, electromagnetic field
radiation and other non-ionizing radiation, sonic forces and other natural
forces, lead, asbestos or asbestos-containing materials ("ACM"), or urea
formaldehyde foam insulation.
IMMEDIATE FAMILY shall mean, with respect to any individual, his or her
spouses, past or present, children, parents and siblings, and any of the spouses
of the foregoing, past or present, in all cases whether related by blood, by
adoption or by marriage.
INDEBTEDNESS shall mean, with respect to any Person, (a) all items, except
items of capital stock or of surplus or of general contingency or deferred tax
reserves or any minority interest in any Subsidiary of such Person to the extent
such interest is treated as a liability with indeterminate term on the
consolidated balance sheet of such Person, which in accordance with GAAP would
be
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included in determining total liabilities as shown on the liability side of a
balance sheet of such Person, (b) all obligations secured by any Lien to
which any property or asset owned or held by such Person is subject, whether
or not the obligation secured thereby shall have been assumed, and (c) to the
extent not otherwise included, all Contractual Obligations of such Person
constituting capitalized leases and all obligations of such Person with
respect to Leases constituting part of a sale and leaseback arrangement.
INDEBTEDNESS FOR MONEY BORROWED shall mean, with respect to Target, money
borrowed and Indebtedness represented by notes payable and drafts accepted
representing extensions of credit, all obligations evidenced by bonds,
debentures, notes or other similar instruments, the maximum amount currently or
at any time thereafter available to be drawn under all outstanding letters of
credit issued for the account of such Person, all Indebtedness upon which
interest charges are customarily paid by such Person, and all Indebtedness
(including capitalized lease obligations) issued or assumed as full or partial
payment for property or services, whether or not any such notes, drafts,
obligations or Indebtedness represent Indebtedness for money borrowed, but shall
not include (a) trade payables, (b) expenses accrued in the ordinary course of
business, (c) customer advance payments and customer deposits received in the
ordinary course of business, or (d) conditional sales agreements not prohibited
by the terms of this Agreement.
INDEMNITY ESCROW AGREEMENT shall have the meaning given to it in Section
8.2(h).
INTANGIBLE ASSETS shall mean all assets and property lacking physical
properties the evidence of ownership of which must customarily be maintained by
independent registration, documentation, certification, recordation or other
means, and shall include, without limitation, concessions, copyrights,
franchises, license, patents, permits, service marks, trademarks, trade names,
and applications with respect to any of the foregoing, technology and know-how.
KNOWLEDGE OF TARGET shall have the same meaning as Target's knowledge.
LAW shall mean any (a) administrative, judicial, legislative or other
action, code, consent decree, constitution, decree, directive, enactment,
finding, law, injunction, interpretation, judgment, order, ordinance, policy
statement, proclamation, promulgation, regulation, requirement, rule, rule of
law, rule of public policy, settlement agreement, statute, or writ of any
Authority, domestic or foreign; (b) the common law, or other legal precedent; or
(c) arbitrator's, mediator's or referee's award, decision, finding or
recommendation.
LEASE shall mean any lease of property, whether real, personal or mixed,
and all amendments thereto, and shall include without limitation all use or
occupancy agreements.
LEGAL ACTION shall mean, with respect to any Person, any and all litigation
or legal or other actions, arbitrations, counterclaims, investigations,
proceedings, requests for material information by or pursuant to the order of
any Authority or suits, at law or in arbitration, equity or admiralty, whether
or not purported to be brought on behalf of such Person, affecting such Person
or any of such Person's business, property or assets.
A-8
LIABILITY means any direct or indirect liability, indebtedness, obligation,
cost, expense, claim, loss, damage, deficiency, guaranty or endorsement of
(other than endorsements for collection or deposits in the ordinary course of
business) or by any Person.
LIEN shall mean any of the following: mortgage; lien (statutory or other);
or other security agreement, arrangement or interest; hypothecation, pledge or
other deposit arrangement; assignment; charge; levy; executory seizure;
attachment; garnishment; encumbrance (including any easement, exception,
reservation or limitation, right of way, and the like); conditional sale, title
retention or other similar agreement, arrangement, device or restriction;
preemptive or similar right; any financing lease involving substantially the
same economic effect as any of the foregoing; the filing of any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction; restriction on sale, transfer, assignment, disposition or other
alienation; or any option, equity, claim or right of or obligation to, any other
Person, of whatever kind and character.
LOSS AND EXPENSE shall have the meaning given to it in Section 10.2(a).
MASTER LEASE shall have the meaning given to it in Section 8.2(i).
MATERIAL, MATERIALLY OR MATERIALITY for the purposes of this Agreement,
shall, unless specifically stated to the contrary, be determined without regard
to the fact that various provisions of this Agreement set forth specific dollar
amounts.
MATERIAL ADVERSE EFFECT means (i) an adverse effect on the Target Assets or
an increase in the Assumed Liabilities, in each case by more than $50,000 taken
on a per Tower Site basis, or (ii) a material adverse effect on Target or the
Target Assets, taken as a whole (without considering any calculation derived
from the per Tower Site dollar amount referred to above), rather than on a per
Tower Site basis, except any such effect resulting from or arising in connection
with (a) this Agreement or the Transactions contemplated hereby or (b) changes
or conditions (including without limitation changes in technology, law, or
regulatory or market environment) generally affecting the industry in which the
owners or users of communications tower structures operate.
MATERIAL AGREEMENT shall mean, with respect to Target, any Contractual
Obligation that (a) was not entered into in the ordinary course of business, (b)
was entered into in the ordinary course of business which (i) involved the
purchase, sale or lease of goods or materials, or purchase of services,
aggregating more than $25,000 during any of the last three fiscal years, (ii)
extends for more than three (3) months, (iii) is not terminable on thirty (30)
days or less notice without penalty or other payment, or (iv) involves the
leasing of space on any tower of Target, (c) involves a capitalized lease
obligation or Indebtedness for Money Borrowed, (d) is or otherwise constitutes a
written agency, broker, dealer, license, distributorship, sales representative
or similar written agreement, (e) accounted for more than one percent (1%) of
the revenues of Target in any of the last three fiscal years or is likely to
account for more than one percent (1%) of revenues of Target during the current
fiscal year, (f) is with the United States Forest Service or any other
Authority, or (g) involves the management by Target of any communication tower
of any other Person.
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MULTIEMPLOYER PLAN shall mean a Plan which is a "multiemployer plan" within
the meaning of Section 4001(a)(3) of ERISA.
NON-ASSIGNABLE CONTRACT shall have the meaning given to it in Section 2.5.
NON-ASSIGNABLE CONTRACTS AGREEMENT shall have the meaning given to it in
Section 8.2(g).
OPTION SECURITIES shall mean all stock appreciation rights, rights, options
and warrants, and calls or commitments evidencing the right, to subscribe for,
purchase or otherwise acquire shares of capital stock or Convertible Securities,
whether or not the right to subscribe for, purchase or otherwise acquire is
immediately exercisable or is conditioned upon the passage of time, the
occurrence or non-occurrence or the existence or non-existence of some other
Event.
ORGANIC DOCUMENT shall mean, with respect to a Person which is a
corporation, its charter, its by-laws and all shareholder agreements, voting
trusts and similar arrangements applicable to any of its capital stock and, with
respect to a Person which is a partnership, its agreement and certificate of
partnership, any agreements among partners, and any management and similar
agreements between the partnership and any general partners (or any Affiliate
thereof).
OWNED SITES means the Tower Sites designated as Owned Sites in Section
4.4(a) of the Target Disclosure Schedule (excluding any Rejected Sites) for
which a fee ownership is held by Target.
PERMITTED LIENS shall mean (a) Liens for current taxes not yet due and
payable, (b) Liens or other matters disclosed in the title policies,
commitments, searches and reports delivered to ATLP pursuant to this Agreement,
which Liens or other matters do not have and could not reasonably be expected to
have a Material Adverse Effect on the applicable property, (c) worker's,
carrier's and materialman's liens not yet due and payable, (d) with respect to
Tower Sites, any Liens or other matters placed upon such real property by the
owners thereof, other than to secure obligations or liabilities of Target or its
Affiliates, (e) easements, rights of way or similar grants of rights to a third
party for access to or across any real property or granted to any utility or
similar entity in connection with the provision of electric, water, sewage,
telephone, gas or similar services, (f) any Assumed Liabilities, and (g) such
imperfections of title, easements, encumbrances and mortgages or other Liens, if
any, as are not, individually or in the aggregate, substantial in character,
amount or extent and do not detract from the value, or interfere with the
present use of the property subject thereto or affected thereby, in a way that
would reasonably be expected to result in a Material Adverse Effect on the
Target Assets.
PERSON shall mean any natural individual or any Entity.
PERSONAL PROPERTY shall mean all of the machinery, equipment, tools,
vehicles, furniture, leasehold improvements, office equipment, plant, inventory,
spare parts and other tangible personal property which are owned or leased by
Target and used or useful as of the date hereof in the conduct of the business
or operations of the Target Business, plus such additions thereto and deletions
therefrom arising in the ordinary course of business between the date hereof and
the Closing Date.
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PLAN shall mean, with respect to any Person and at a particular time, any
employee benefit plan which is covered by ERISA and in respect of which such
Person or an ERISA Affiliate is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA, but only to the extent that it covers or relates to any
officer, employee or other Person involved in the ownership and operation of the
Target Assets or the conduct of the business of the Target Business.
PRIVATE AUTHORIZATIONS shall mean all approvals, concessions, consents,
franchises, licenses, permits, and other authorizations of all Persons (other
than Authorities) including without limitation those with respect to Intangible
Assets.
PRO RATABLE TAXES shall mean real estate and other property Taxes, ad
valorem taxes, gross receipts Taxes and similar taxes, but shall not include
federal, state or local income Taxes, franchise Taxes or other Taxes measured by
or based upon income or gain on sale or other disposition of property or assets.
PURCHASE shall have the meaning given to it in the first Whereas paragraph.
PURCHASE PRICE shall have the meaning given to it in Section 3.1.
REAL PROPERTY shall mean all of the fee estates and buildings and other
fixtures and improvements thereon, leasehold interest, easements, licenses,
rights to access, right-of-way, and other real property interest which are owned
or used by Target as of the date hereof, in the operations of the Target
Business, plus such additions thereto and deletions therefrom arising in the
ordinary course of business between the date hereof and the Closing Date.
REJECTED SITES shall have the meaning given to it in Section 2.8(b).
REPRESENTATIVES shall have the meaning given to it in Section 7.1(a).
REQUIRED CONSENTS shall have the meaning given to it in Section 2.4.
RESTRICTED TRANSACTION shall mean any (i) acquisition or agreement to
acquire (x) by merging or consolidating with, or by purchasing a substantial
portion of the assets of, or by any other manner, any business or any Person or
other business organization or division thereof or (y) any assets (other than in
the ordinary course of business), or (ii) undertaking or agreement to undertake
the construction of one or more towers.
RETAINED LIABILITIES shall have the meaning given to it in Section 2.3(b).
SEC shall mean the Securities and Exchange Commission and shall include any
successor Authority.
SECURITIES ACT shall mean the Securities Act of 1933, and the rules and
regulations thereunder, all as from time to time in effect, or any successor
law, rules or regulations, and any
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reference to any statutory or regulatory provision shall be deemed to be a
reference to any successor statutory or regulatory provision.
SITE LEASES means the ground leases, licenses, easements, or other
agreements for use or occupancy of a Tower Site identified in Section 4.4(b) of
the Target Disclosure Schedule (except for ground leases, licenses, easements or
other agreements with respect to Rejected Sites) pursuant to which the leasehold
interests of Target in the Target Assets are derived.
SOFTWARE shall have the meaning given to it in Section 4.19.
SUBSIDIARY shall mean, with respect to a Person, any Entity a majority of
the capital stock ordinarily entitled to vote for the election of directors of
which, or if no such voting stock is outstanding, a majority of the equity
interests of which, is owned directly or indirectly, legally or beneficially, by
such Person or any other Person controlled by such Person.
SYGNET shall mean Sygnet Communications, Inc., an Ohio corporation, all of
whose issued and outstanding capital stock is owned by Sygnet Wireless, Inc., an
Ohio corporation, all of whose issued and outstanding capital stock is in turn
owned by Xxxxxx/Sygnet Communications Company, an Oklahoma corporation, all of
whose issued and outstanding capital stock is in turn owned by the Target
Stockholder.
TARGET shall have the meaning given to it in the Preamble.
TARGET ASSETS shall have the meaning given to it in Section 2.1.
TARGET BUSINESS shall have the meaning given to it in the first Whereas
clause.
TARGET COMMON STOCK mean the common stock, par value $1.00 per share, of
Target.
TARGET DISCLOSURE SCHEDULE shall mean the Target Disclosure Schedule dated
as of the date hereof and heretofore delivered by Target to ATLP.
TARGET FINANCIAL INFORMATION shall have the meaning given to it in Section
4.2.
TARGET STOCKHOLDER shall have the meaning given to such terms in the
Preamble.
TARGET'S KNOWLEDGE (or words of similar import) shall mean the actual
knowledge of the executive officers and the directors of Target and the Target
Stockholder and of Xxxxxxx X. Xxxxx, as such knowledge exists on the date of
this Agreement, after a review of all records of Target and Sygnet in the
possession of the Target Stockholder, Target, Sygnet, or any of their respective
Subsidiaries.
TAX (and "Taxable", which shall mean subject to Tax), shall mean, with
respect to any Person, (a) all taxes (domestic or foreign), including without
limitation any income (net, gross or other including recapture of any tax items
such as investment tax credits), alternative or add-on
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minimum tax, gross income, gross receipts, gains, sales, use, leasing, lease,
user, ad valorem, transfer, recording, franchise, profits, property (real or
personal, tangible or intangible), fuel, license, withholding on amounts paid
to or by such Person, payroll, employment, unemployment, social security,
excise, severance, stamp, occupation, premium, environmental or windfall
profit tax, custom, duty or other tax, or other like assessment or charge of
any kind whatsoever, together with any interest, levies, assessments,
charges, penalties, additions to tax or additional amount imposed by any
Taxing Authority, (b) any joint or several liability of such Person with any
other Person for the payment of any amounts of the type described in (a), and
(c) any liability of such Person for the payment of any amounts of the type
described in (a) as a result of any express or implied obligation to
indemnify any other Person.
TAX ALLOCATION SCHEDULE shall have the meaning given to it in Section
3.1(d).
TAX RETURN OR RETURNS shall mean all returns, consolidated or otherwise
(including without limitation information returns), required to be filed with
any Authority with respect to Taxes.
TAXING AUTHORITY shall mean any Authority responsible for the imposition of
any Tax.
TITLE REPORT shall have the meaning given to it in Section 7.7.
TERMINATION DATE shall have the meaning given to it in Section 9.1.
TOWER LEASES means the leases or other Contracts or rights to use spaces on
the Tower Structures located on Tower Sites that are identified in Sections
4.4(a) and 4.4(b) of the Target Disclosure Schedule (except for leases or other
Contracts or rights with respect to Rejected Sites).
TOWER RELATED ASSETS shall mean (i) the Tower Leases and security deposits
(if any) from tenants under the Tower Leases, (ii) the Site Leases, (iii) the
Contracts, (iv) any Intangible Assets relating solely to the ownership or
operation by Target of the Tower Structures, the Tower Sites, the Tower Leases,
the Site Leases or the Contracts; (v) all rights to any casualty insurance
proceeds payable after the execution of this Agreement and with respect to
events occurring prior to the Closing with regard to the Target Assets (but only
to the extent the casualty to which the proceeds relate has not been repaired or
restored by Target at its cost prior to the Closing), and all rights to any
warranties held by Target with respect to the Tower Structures or Tower Related
Assets to the extent such rights are assignable, including those assignable with
consent to the extent such consents are received, or, to the extent not so
received, all amounts received by Target with respect to claims made after the
Closing Date with respect to such unassigned rights to any warranties, (vi)
copies of, or extracts from, all current files and records of Target to the
extent that such files or records contain information related to the design,
construction, management, operation, maintenance, ownership, occupancy or
leasing of the Target Assets, and (vii) the originals of the Tower Leases and
Site Leases, and the originals of any files and records referred to in the
preceding subparagraph which relate solely to the information described in such
subparagraph, provided the originals of such information are in the possession
of Target or are under any of its control and are not needed by Target in the
operation of its businesses after the Closing. To the extent the files and
records described in subparagraph (vi) do not relate solely to the design,
construction, management,
A-13
operation, maintenance, ownership, occupancy or leasing of the Target Assets,
Target may retain the originals or copies of such files and records, subject
to any agreements among any of th parties to this Agreement to keep such
files and records confidential.
TOWER SITES shall mean all real property interests of Target in the up to
108 sites on or appurtenant to which the Tower Structures (excluding any
Rejected Sites) are located, including all fee, ground leasehold interests,
rights-of-way and easements (to the extent owned by Target) pertaining to such
Tower Sites, and shall include a fee ownership in the Owned Sites, and the
leasehold interest in and to the real property associated with the Target Assets
pursuant to the terms of the Site Leases.
TOWER STRUCTURES shall mean communications tower structures situated at the
locations that are identified in Sections 4.4(a) and 4.4(b) of the Target
Disclosure Schedule (excluding any Rejected Sites), and owned by Target, and all
of Target's right, title and interest therein or appurtenant thereto, including
rights to all attached tower lighting equipment; grounding systems; storage or
other buildings exclusively for third party tenants and not utilized by Target
or Sygnet; and physical improvements on each Tower Site, including without
limitation fencing; along with any tenant leases in Tower Related Assets,
easement rights or rights of way necessary for access to the Tower Structure and
for location of the Tower Structure and guy wires, if any, associated therewith;
provided however, such term does not include any Excluded Assets or any
equipment, property or other assets placed upon the Tower Structures or Tower
Sites by third parties pursuant to Tower Leases or other Contracts or by Sygnet.
TRANSACTIONS shall mean the transactions contemplated to be consummated on
or prior to the Closing Date, including without limitation the Purchase and the
execution, delivery and performance of the Collateral Documents.
A-14
AMENDMENT NO. 1
TO
ASSET PURCHASE AGREEMENT
THIS AMENDMENT No. 1 TO ASSET PURCHASE AGREEMENT is made as of
October 15, 1999, by and among American Tower Corporation, a Delaware
corporation ("ATC"), American Tower, L.P., a Delaware limited partnership
("ATLP"), Xxxxxx Tower Company, an Oklahoma corporation ("Target"), and
Xxxxxx Communications Corporation, an Oklahoma corporation, as the sole
voting stockholder of Target (the "Target Stockholder").
W I T N E S S E T H:
WHEREAS, ATC, ATLP, Target and the Target Stockholder are parties to
an Asset Purchase Agreement dated as of July 6, 1999 (the "Original
Agreement"); and
WHEREAS, ATC, ATLP, Target and the Target Stockholder have agreed to
amend the Original Agreement as set forth herein pursuant to Section 11.1 of
the Original Agreement;
WHEREAS, capitalized terms used herein without definition which are
defined in the Original Agreement shall have the same meaning that such terms
have when used in the Original Agreement unless the context clearly requires
otherwise.
NOW, THEREFORE, in consideration of the foregoing, the parties
hereto, intending to be legally bound, agree as follows:
1. Article 2 of the Original Agreement is hereby amended by
inserting the following new Section 2.9:
"2.9 ESCROWED SITES
(a) At the Closing, ATLP shall purchase the Accepted Sites
listed on EXHIBIT H attached hereto (the "Escrowed Sites") subject to
the condition that Target or the Target Stockholder shall cure all
applicable Defects listed on said EXHIBIT H opposite each Escrowed Site
(the "Applicable Defects") within thirty (30) days following the
Closing Date. Such Escrowed Sites shall be transferred and conveyed at
the Closing subject to the Applicable Defects, with no adjustment to
the Purchase Price; provided however, that a portion of the Purchase
Price equal to Three Hundred Fifty-Eight Thousand Four Hundred Ninety
Dollars ($358,490) for each Escrowed Site will deposited into escrow
pursuant to Section 3.1(c). Thirty (30) days following the Closing Date
(the "Escrow Release Date"), ATLP and Target shall instruct the escrow
agent under the Indemnity Escrow Agreement to release to Target an
amount equal to Three Hundred Thirty-Nine Thousand Nine Hundred Ninety
Dollars ($339,990) per Escrowed Site (the
-2-
"Escrow Release Amount") whose Applicable Defects have been cured and
accepted pursuant to Section 2.9(b).
(b) Target and Target Stockholder shall provide ATC and ATLP
with a Cure Notice for any cure effected with respect to an Escrowed
Site and shall request ATC's and ATLP's written confirmation that the
Applicable Defects with respect to such Escrowed Site have been cured.
Within five (5) days of receipt of a Cure Notice with respect to an
Escrowed Site, ATC and ATLP shall: (i) provide Target with written
notice that ATC and ATLP have satisfactorily completed their due
diligence investigation of the curative action taken with respect to
such Escrowed Site and are prepared, subject to the terms and
conditions of this Agreement, to accept such Escrowed Site and include
such Escrowed Site in the calculation of the Escrow Release Amount; or
(ii) provide Target with written notice (A) that states that ATC and
ATLP have determined in good faith that the curative action taken is
incomplete in a material way for the purpose of curing the Defect in
question and (B) that describes in reasonable detail the manner in
which the Defect remains uncured and describes the curative action, if
any, that would cure such Defect, in which event the Defect shall
continue as such and the site in question shall remain an Escrowed
Site.
(c) Any representations and warranties of Target and the
Target Stockholder that were omitted or qualified with respect to the
Applicable Defects for each of the Escrowed Sites shall no longer be so
qualified or omitted from and after the date that ATC and ATLP accept
an Escrowed Site pursuant to Section 2.9(b)(i). On the Escrow Release
Date, Target and the Target Stockholder shall furnish ATC and ATLP with
such certificates and other documents evidencing the truth of such
representations and warranties with respect to the Escrowed Sites as
ATLP or its counsel shall have reasonably requested. Notwithstanding
the foregoing, the survival period of such omitted or qualified
representations and warranties of Target and the Target Stockholder
with respect to Escrowed Sites whose Applicable Defects are cured will
be governed by the provisions of Section 10.1 as if such
representations and warranties had been given as of the Closing Date.
(d) In the event that Target and the Target Stockholder are
unable to cure all Applicable Defects with respect to any Escrowed Site
By the Escrow Release Date, ATC and ATLP shall have the right, in their
sole and absolute discretion, provided that such Applicable Defects
constitute a Defect at such time (i) to extend the time for Target and
the Target Stockholder to cure the Applicable Defects for such Escrowed
Site or (ii) to declare such Escrowed Site to be a Rejected Site and
reconvey such Escrowed Site to Target. In the event that any Escrowed
Sites are declared pursuant to the foregoing clause (ii) by ATC and
ATLP to be Rejected Sites, ATLP shall reconvey to Target title to such
Rejected Sites of at least the same quality as the title conveyed by
Target to ATLP on the Closing Date, and ATLP will provide Target with
such documents necessary to reconvey such Rejected Sites and such
certificates evidencing the title of such reconveyed Escrowed Sites as
Target or its counsel shall have reasonably requested. Simultaneously
with the reconveyance of any Escrowed Sites, ATLP and Target agree to
instruct the escrow agent under the Indemnity Escrow Agreement to
release to ATLP an amount
-3-
equal to Three Hundred Fifty-Eight Thousand Four Hundred Ninety
Dollars ($358,490) per reconveyed Escrowed Site. For purposes of this
Agreement, any Escrowed Sites that are reconveyed to Target pursuant
to this Section 2.9(d) shall be deemed to be Rejected Sites under
Section 2.8 as if such Escrowed Sites had never been transferred and
conveyed to ATLP."
2. Article 3 of the Original Agreement is hereby amended by replacing
Section 3.1(c) in its entirety with the following:
"(c) Pursuant to the terms of the Indemnity Escrow Agreement,
Two Million Dollars ($2,000,000) (subject to (i) reduction in an amount
equal to Eighteen Thousand Five Hundred Dollars ($18,500) per Rejected
Site and (ii) increase in an amount equal to Three Hundred Thirty-Nine
Thousand Nine Hundred Ninety Dollars ($339,990) per Escrowed Site) of
the Purchase Price to be otherwise paid to Target on the Closing Date
shall be deposited into escrow."
3. Section 4.4(a) of the Original Agreement is hereby amended by
inserting the words "or held by Target under valid easements" after the words
"located entirely on such real property" at the end of the third to the last
sentence thereof.
4. The Original Agreement is hereby further amended by deleting EXHIBIT
D thereto in its entirety and inserting in lieu thereof a new EXHIBIT D thereto
substantially in the form of EXHIBIT D hereto.
5. Each of ATC, ATLP, Target and the Target Stockholder represents and
warrants that all requisite corporate action necessary for the valid execution
and delivery of this Amendment No. 1 has been duly and effectively taken.
6. The Original Agreement as amended hereby is ratified and confirmed
in all respects and shall continue in full force and effect. Without limiting
the generality of the foregoing, the term Agreement as used in the Original
Agreement shall be deemed to be the Original Agreement as amended by this
Amendment No. 1.
7. This Amendment No. 1 may be executed in several counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument, binding upon all of the parties. In pleading or
proving any provision of this Amendment No. 1, it shall not be necessary to
produce more than one set of such counterparts.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 or
caused this Agreement to be executed by their respective officers thereunto duly
authorized as of the date first written above.
American Tower Corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President, Northeast Region
American Tower, L.P.
By: ATC GP, Inc., its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President, Northeast Region
Xxxxxx Tower Company
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
Xxxxxx Communications Corporation
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
EXHIBIT H
ESCROWED SITES APPLICABLE DEFECTS
-------------- ------------------
--------------------------------------- ---------------------------------------------------
2. Columbiana (Fairfield TWP), Ohio Environmental problem
--------------------------------------- ---------------------------------------------------
10. Harborcreek, Pennsylvania Environmental problem
--------------------------------------- ---------------------------------------------------
21. Bolivar, New York MOL for Access Problem
--------------------------------------- ---------------------------------------------------
41. Carton, Pennsylvania Leasehold in Horizon to be assigned to Xxxxxx
--------------------------------------- ---------------------------------------------------
42. Dicksonberg, Pennsylvania Estate issues to be addressed
--------------------------------------- ---------------------------------------------------
46. Sheffield TWP, Pennsylvania MOL for guy wire easements and access
--------------------------------------- ---------------------------------------------------
48. Warren, Pennsylvania MOL and survey
--------------------------------------- ---------------------------------------------------
52. East Xxxxx, Pennsylvania Copy of site plan or survey to locate leased area
and graveyard
--------------------------------------- ---------------------------------------------------
55. Emlenton, Pennsylvania MOL for guy wire easements and NDA for coal lease
--------------------------------------- ---------------------------------------------------
56. Freeport, Pennsylvania Leasehold in Horizon to be assigned to Xxxxxx
MOL for guy wire easements
--------------------------------------- ---------------------------------------------------
58. New Bethlehem Pennsylvania NDA for coal lease
--------------------------------------- ---------------------------------------------------
66. Brookville, Pennsylvania MOL for leased area and leasehold interest
--------------------------------------- ---------------------------------------------------
68. Curwinsville, Pennsylvania NDA from oil and gas lessee and coal lessee
--------------------------------------- ---------------------------------------------------
71. Xxxxxx Center, Pennsylvania MOL for guy wire easements
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91. Canfield 2, Ohio Environmental problems
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99. Lordstown, Ohio Consent to be obtained
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101. New Springfield, Ohio Environmental problems
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EXHIBIT D
FORM OF INDEMNITY ESCROW AGREEMENT
