EXHIBIT 10.91
FIRST AMENDMENT TO PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AGREEMENT (this "First Amendment") is made
and entered into as of April 30, 1999, by and among SBA COMMUNICATIONS
CORPORATION ("Parent"), SBA TOWERS TENNESSEE, INC. ("Subsidiary"), COM-NET
DEVELOPMENT GROUP, L.L.C. ("Com-Net LLC"), XXXXXX X. XXXXXXXX ("Xxxxxx
Xxxxxxxx"), and XXXXX X. XXXXXXXX ("Xxxxx Xxxxxxxx," together with Xxxxxx
Xxxxxxxx, the "Members").
W I T N E S S E T H:
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WHEREAS, Parent, Subsidiary, Com-Net LLC and the Members entered into that
certain Purchase Agreement dated as of March 31, 1999 (the "Purchase
Agreement"); and
WHEREAS, Parent, Subsidiary, Com-Net LLC and the Members desire to amend
certain terms and provisions of the Purchase Agreement; and
WHEREAS, capitalized terms used but not otherwise defined in this First
Amendment shall have the meanings set forth in the Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, the agreements
contained herein and other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the parties hereto agree as
follows:
ARTICLE I
MODIFICATION OF INDEMNIFICATION PROVISIONS
1.1 Section 10.2 of the Purchase Agreement is deleted in its entirety and
replaced with the following:
"10.2 Indemnification by the Members and Com-Net. Each of the Members
and Com-Net LLC will indemnify and hold harmless Parent and Subsidiary (after
the Closing Date) and their respective Representatives, attorneys, officers,
directors, shareholders, controlling persons, and affiliates (collectively, the
"Subsidiary Indemnified Persons") for, and will pay to the Subsidiary
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Indemnified Persons the amount of, any loss, liability, claim, damage (including
incidental and consequential damages), expense (including costs of investigation
and defense and reasonable attorneys' fees) or diminution of value, whether or
not involving a third-party Claim (collectively, "Damages"), arising, directly
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or indirectly, from or in connection with (a) any Breach of any representation
or warranty made by Com-Net LLC or any Member in the Purchase Agreement (without
giving effect to any supplement to the disclosure letter described therein), the
disclosure letter described therein, the supplements to the disclosure letter
described therein, or any other certificate or document delivered by Com-Net LLC
or any Member pursuant to the Purchase Agreement, (b) any Breach of any
representation or warranty made by Com-Net Construction Services Incorporated, a
California corporation ("Com-Net Inc.") or any shareholder in the Agreement and
Plan of Merger, dated as of March 31, 1999, by and among Parent, SBA
Construction Services, Inc., Xxxxxx Xxxxxxxx, Com-Net Inc. and Xxxxxxxx Family
Limited Partnership (the "Merger Agreement") (without giving effect to any
supplement to the
disclosure letter described therein), the disclosure letter described therein,
the supplements to the Disclosure Letter, or any other certificate or document
delivered by Com-Net Inc. or any shareholder pursuant to the Merger Agreement,
(c) any Breach by any Member or Com-Net LLC of any covenant or obligation of
such Member or Com-Net LLC in the Purchase Agreement, (d) any Breach by any
shareholder of Com-Net Inc. or Com-Net Inc. of any covenant of any such
shareholder or Com-Net Inc. in the Merger Agreement, (e) any services provided
or Property (as defined in the Purchase Agreement) owned by Com-Net LLC prior to
the Closing Date, (f) any claim by any Person (as defined in the Purchase
Agreement) for brokerage or finder's fees or commissions or similar payments
based upon any agreement or understanding alleged to have been made by any such
Person with any Member or Com-Net LLC (or any Person acting on their behalf) in
connection with any of the Contemplated Transactions (as defined in the Purchase
Agreement), (g) the Airplane Lease, that certain Assignment, Acceptance and
Waiver, dated April 30, 1999, among Fleet National Bank, Com-Net Inc. and MAC
Aviation LLC (the "Aircraft Agreement") and any documents or obligations related
to the plane leased pursuant to the Airplane Lease (the "Airplane") (such as,
but not limited to any agreements for maintenance, hangar space or pilot
services), (h) the Merger Agreement, (i) the failure of Com-Net LLC to have paid
any personal property taxes, business license fees and taxes, sales taxes,
franchise excise taxes, and ad valorem taxes arising out of or related to the
period of time prior to April 30, 1999, (j) the failure of Com-Net LLC to have
qualified to business in any jurisdiction in which it was doing business in the
period of time prior to April 30, 1999, (k) any failure of Com-Net LLC to have
paid workers compensation insurance or (l) any services performed by Com-Net LLC
for Xxxxxxxx or KLM Partners, LLC. The remedies provided in this Section will
not be exclusive of or limit any other remedies that may be available to any of
the Subsidiary Indemnified Persons. Notwithstanding anything to the contrary set
forth in this Agreement, neither of the Members nor Com-Net LLC shall have any
liability or obligation, and the Subsidiary Indemnified Persons shall have no
rights, with respect to indemnification or otherwise under this Section 10.2
with respect to any damages, claims, losses, liabilities or reasonable expenses
suffered by the Subsidiary Indemnified Persons due to a matter within the scope
of clauses (i) through (k) above until the aggregate damages, claims, losses,
liabilities or reasonable expenses suffered by the Subsidiary Indemnified
Persons due to matters within the scope of clauses (i) through (k) above exceed
the sum of $50,000."
ARTICLE II
TITLE TO AND TRANSFER OF ASSETS
2.1 As contemplated by Section 4.17 of the Merger Agreement, Com-Net Inc.
has assigned and transferred certain of the Property to Com-Net LLC prior to the
Closing. The Members will, from time to time, execute, acknowledge and deliver
such further instruments, and perform such additional acts, as Parent or
Subsidiary may reasonably request in order to more fully effectuate such
transfer.
2.2 In accordance with Section 4.17 of the Merger Agreement, Com-Net Inc.
represented and warranted that it had good title to certain of the Property free
and clear of all liens and encumbrances, excepting only the Permitted
Exceptions. In the conduct of due diligence, Parent and Subsidiary have
determined that certain actions may need to be taken in
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order to vest good and marketable title to certain of the Property in Com-Net
LLC in connection with the transfer referred to above. The Members will, from
time to time, execute, acknowledge and deliver such further instruments, and
perform such additional acts, as Parent or Subsidiary may reasonably request in
order to vest good and marketable title in such Property in Com-Net LLC.
ARTICLE III
MISCELLANEOUS
3.1 This First Amendment may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
3.2 Except as amended and modified hereby, the Purchase Agreement is
unmodified and is in full force and effect.
3.3 The captions and headings of the various Sections of this First
Amendment are for convenience only and are not to be considered as defining or
limiting in any way the scope or intent of the provisions hereof.
3.4 The parties acknowledge that Com-Net Inc. is a directly wholly owned
subsidiary of Parent rather than an indirectly wholly owned subsidiary of Parent
as described in the Merger Agreement but that it contemplated that Com-Net Inc.
will become an indirectly wholly owned subsidiary of Parent following the
Closing.
3.5 Parent and Subsidiary acknowledge and agree that Com-Net LLC and the
Members delivered the disclosure letter contemplated by the Purchase Agreement
concurrent herewith rather than within ten (10) days following the execution of
the Purchase Agreement and Parent and Subsidiary waive any claims against Com-
Net LLC or the Members arising out of or related to the delivery of the
disclosure letter concurrent herewith rather than within ten (10) days following
the execution of the Purchase Agreement.
3.6 As promptly as possible following the execution of this Amendment, the
Members will cause the transaction contemplated by the Aircraft Agreement to be
consummated. Pending such consummation, the Members hereby agree to assume, pay
and perform all duties and obligations of Com-Net Inc. under the Lease and any
documents related thereto and to pay all costs and expenses arising out of or
related to the Airplane. The Members shall take such actions as are necessary
to keep the Lease and any documents related thereto in full force and effect and
without default and will permit the Airplane to be used only by Xxx Xxxxxxxx in
the performance of his duties as an officer and employee of Subsidiary.
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THIS FIRST AMENDMENT TO PURCHASE AGREEMENT has been executed by each
Member, Com-Net LLC, Parent and Subsidiary on the dates set forth below.
MEMBERS:
/s/ Xxxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX
/s/ Xxxxx X. Xxxxxxxx
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XXXXX X. XXXXXXXX
COM-NET LLC:
COM-NET DEVELOPMENT GROUP,
L.L.C., a Tennessee limited liability
company
/s/ Xxxxxx X. Xxxxxxxx
By: ______________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Chief Manager
SUBSIDIARY:
SBA TOWERS TENNESSEE,
INC., a Florida corporation
/s/ Xxxxxxx X. Xxxxxx
By: ______________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
PARENT:
SBA COMMUNICATIONS CORPORATION, a Florida
corporation
/s/ Xxxxxxx X. Xxxxxx
By: ______________________________________
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
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