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EXHIBIT 10.13
AGREEMENT REGARDING EULESS II TOWER
THIS AGREEMENT (this "Agreement"), is entered into as of March 5,
1997, among Ultra Towers, L.L.C. ("Ultra"), and American Tower Corporation, a
Delaware corporation ("Buyer").
1. Purchase and Sale. Ultra currently owns the fee interest more
particularly described on Annex A attached hereto and the communication tower
commonly referred to as the Euless II Tower and all other improvements located
on such fee interest (collectively the "Ultra Tower Assets"). Ultra agrees to
sell, transfer and convey and Buyer or its designee agrees to purchase the
Ultra Tower Assets on or before March 11, 1997 on the terms and conditions set
out herein.
2. Conditions to Closing. The obligations of Buyer to purchase
the Ultra Tower Assets are conditioned on Buyer successfully completing its due
diligence review related to the Ultra Assets and being satisfied in its sole
unfettered discretion as to its findings and the condition of the Ultra Assets.
The obligation of both Buyer and Ultra to consummate the transactions
contemplated hereby is conditioned upon simultaneously with the closing of
such transactions the execution and delivery by all parties thereto, of the
Settlement and Release Agreement in the form attached hereto as Attachment No.
1.
3. Consideration. The total consideration to be paid by Buyer to
Ultra for the sale, transfer, assignment, conveyance and delivery of the Ultra
Tower Assets shall be $1,894,326 (the "Purchase Price"). As payment of the
Purchase Price, Buyer will transfer or deliver (i) $894,326 payable by wire
transfer at the closing to an account designated by Ultra to Buyer and (ii)
shares of Buyer's common stock (the "Transferred Shares"). In the event that
Buyer successfully completes its anticipated initial public offering of its
common stock ("IPO"), the number of Transferred Shares shall equal the quotient
of $1,000,000 divided by the the price to the public of Buyer's common stock in
the IPO as set forth on the cover page of the prospectus related thereto. The
delivery of the Transferred Shares shall occur on the date of the IPO.
Notwithstanding the foregoing, in the event that the IPO does not occur within
six months of the date hereof, the number of Transferred Shares shall equal the
quotient of $1,000,000 divided by $750 and such shares shall be deliverable
upon the expiration of such six-month period. Contemporaneously with receiving
the Transferred Shares, Ultra or its designees will enter into Buyer's then
existing form of Securityholders Agreement.
4. Choice of Law. This Agreement shall be construed and
interpreted and the rights of the parties governed by the internal laws of the
State of Texas.
5. Entire Agreement; Amendments and Waivers. This Agreement,
together with all Exhibits and Schedules hereto, constitute the entire
agreement between the parties pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions, whether oral or written, of the parties. No
amendment, supplement, modification or waiver of this Agreement shall be
binding unless executed in writing by all parties hereto.
6. Multiple Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ULTRA:
ULTRA TOWERS, L.L.C.
By:
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Name:
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Title:
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BUYER:
AMERICAN TOWER CORPORATION
By:
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Name:
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Title:
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Attachment No.1
SETTLEMENT AND RELEASE AGREEMENT
This Settlement and Release Agreement (this "Agreement") is entered
into as of this ___ day of March, 1997 by and among Carlyle-Prime Investors,
L.P., Carlyle-Prime Partners I, L.P., Xxxx Xxxxxx, Xxxxxx X. Xxxxxxx, Xxxx
Xxxxxxx, X.X.X.X. Communication Services, Inc., TCG Towers, L.L.C.,
individually and as Agent, ATC Holdings Corp. and Prime Communication Sites
Holding, L. L. C. (now known as ATC-Prime II, L. L.C.)
W I T N E S S E T H:
WHEREAS, the undersigned are parties to that certain Contribution and
Transfer Agreement (Agreement Plan of Merger) dated as of October 11, 1996 (the
"Contribution Agreement");
WHEREAS, the Company and the Transferors have had certain disputes
regarding certain of the Schedule Contracts; and
WHEREAS, the parties desire to settle such disputes and waive and
forever release pursuant to the terms of this Agreement any further claims that
may exist or arise under the Contribution Agreement for breach of
representation.
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
AGREEMENTS
1. Definitions. Capitalized terms used in this Agreement that
are not defined herein shall have the meanings given them in
the Contribution Agreement.
2. Settlement Payment. In the settlement of all disputes
currently pending with respect to the Contribution Agreement
and in consideration of the release contained in this
Agreement, the Transferors agree to make a payment to the
Company in an amount equal to $300,000. Such settlement
payment shall be payable by offsetting the outstanding
principal evidenced by the Contingent Transferor Note in an
amount equal to $300,000. Such $300,000 offset shall be
effective as of the Closing Date for purposes of interest
accruals on such note and shall be applied to reduce the
principal payments under the Contingent Transferor Note in the
order such payments become due and payable. The Company will
cause accrued interest to date (after giving effect to the
$300,000 principal offset applied as of the Closing Date) to
be paid on the Transferor Notes and the Contingent Transferor
Note within 2 business days after the execution of this
Agreement by all parties.
3. Mutual Release. In consideration of the Transferors' payment
of the Settlement Amount by means of offset against the
Contingent Transferor Note and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company hereby releases, discharges and
forever acquits the Transferors, their Affiliates and their
respective officers, directors, shareholders,
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partners and employees (the "Transferor Released Parties")
from any and all claims for all matters, obligations or any
breach now existing or hereafter arising, whether known or
unknown, under the Contribution Agreement except for claims
arising from or related to the Transferor Notes the Funding
Instruction Letter or a breach of any of the following:
Sections 2.6, 6.1, 7.1,7.2, 7.3, 7.4, 7.5, 7.7, 7.8, 7.10 and
7.11 of the Contribution Agreement and to the extent necessary
to effect the preceeding sections, Section 10 of the
Contribution Agreement (the claims being released and
intending to be released are referred to as the "Transferor
Released Claims"). In furtherance of the foregoing release,
the Company agrees to indemnify, defend and hold harmless the
Transferor Released Parties from any claim by any person
claiming by, through or under the Company, but not otherwise,
with respect to any Transferor Released Claim. In
consideration of the Company's release set forth above and for
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Transferors
hereby release, discharge and forever acquit the Company, its
Affiliates and their respective officers, directors,
shareholders, partners and employees (the "Company Parties")
from any and all claims for all matters, obligations or any
breach existing or hereafter arising, whether known or
unknown, under the Contribution Agreement except for claims
arising from or related to the Transferor Notes the Funding
Instruction Letter or a breach of Sections 6.1, 7.1 and 7.4,
(the "Company Released Claims"). In furtherance of the
foregoing release, the Transferors agree to indemnify, defend
and hold harmless the Company Parties from any claim by any
person claiming by, through or under the Company, but not
otherwise, with respect to any Company Released Claim.
4. Miscellaneous. This Agreement shall be governed by the laws
of the State of Texas and may be executed in one or more
multiple counterparts (by telecopy or otherwise), which, when
taken together, shall constitute one instrument. Except for
the settlement and release of the Transferor Released Claims
and the Company Released Claims, all rights and obligations of
the parties to the Contribution Agreement shall remain in full
force and effect and shall be unaffected hereby. This
Agreement shall not be effective until all parties hereto have
executed this Agreement. Each party hereto represents to the
other parties hereto that it has obtained all authorizations
necessary (including from directors, shareholders, partners
and/or members, if so required) to enter into this Agreement.
Each party hereto represents to the other parties that this
Agreement constitutes the legal obligation of such party
enforceable against such party in accordance with the terms
hereof.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
CARLYLE-PRIME INVESTORS, L.P.
By: its
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general partner
By:
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Name:
-----------------------
Title:
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CARLYLE-PRIME PARTNERS I, L.P.
By: , its
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general partner
By:
-------------------------
Name:
-----------------------
Title:
----------------------
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XXXX XXXXXX
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XXXXXX X. XXXXXXX
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XXXX XXXXXXX
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X.X.X.X. COMMUNICATIONS SERVICES, INC.
By:
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Name:
-----------------------------------
Title:
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TCG TOWERS, L.L.C., individually and as Agent
By:
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Name:
-----------------------------------
Title:
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ATC HOLDINGS CORP.
By:
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Xxxx X. Xxxxxx
President and CEO
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PRIME COMMUNICATION SITES
HOLDING, L.L.C. (now known as
ATC-Prime II, L.L.C.)
By:
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Name:
--------------------------------
Title:
-------------------------------
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