EXHIBIT 10.7
EXCHANGE AGREEMENT
INVOLVING
SOUTHERN COMMUNICATIONS SERVICES, INC.
AS "SELLER"
AND
PINNACLE TOWERS INC.
AS "PURCHASER"
DATED: JANUARY __, 1998
TABLE OF CONTENTS
Page
1. Purchase and Sale......................................................... 1
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2. Xxxxxxx Money............................................................. 2
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3. Exchange Consideration.................................................... 2
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4. Title to Property......................................................... 5
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5. Inspection................................................................ 7
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6. Protest as to or Election not to Purchase or Sell Sites................... 8
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7. Covenants of Seller....................................................... 9
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8. Leases on Sites........................................................... 9
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9. Closing; Closing Date; Documents.......................................... 9
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10. Closing Expenses; Prorations............................................. 10
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11. Destruction.............................................................. 11
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12. Defaults................................................................. 11
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13. Files and Records........................................................ 12
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14. Option to Construct Additional Towers.................................... 13
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15. Publicity................................................................ 13
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16. Brokers and Agents; Indemnity............................................ 13
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17. Notice................................................................... 13
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18. Assignment............................................................... 14
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19. Time of Essence.......................................................... 15
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20. Successors and Assigns................................................... 15
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21. Multiple Counterparts.................................................... 15
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22. Governing Law............................................................ 15
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23. Survival................................................................. 15
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24. Sole and Entire Agreement................................................ 15
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25. Prohibition Against Recording............................................ 15
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26. Board Approval by Seller................................................. 15
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27. Authority of Parties..................................................... 16
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28. Cross-Default............................................................ 16
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29. Offer to Seller.......................................................... 16
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Exhibit "A" - Owned Sites
Exhibit "B" - Leasehold Sites
Exhibit "C" - General Exceptions to Title
Exhibit "D" - Specific Disclosures as to Sites
Exhibit "E" - Site Values
Exhibit "F-1" - Form of Lease
Exhibit "F-2" - Form of Lease - OPCO
Exhibit "G" - Option Agreement Form
Exhibit "H" - List of Sites Without Current Legal Descriptions
Exhibit "I-1" - Form of Operating Company Ground Lease
i
Exhibit "I-2" - Form of Operating Company Ground Lease - Restricted Access
Exhibit "J" - OPCO Sites
Exhibit "K" - Exchange Property
ii
EXCHANGE AGREEMENT
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THIS EXCHANGE AGREEMENT (the "Agreement"), is made and entered into this
___ day of January, 1998, by and among SOUTHERN COMMUNICATIONS SERVICES, INC.
("Seller") and PINNACLE TOWERS INC. ("Purchaser"), a corporation of the State of
Delaware.
W I T N E S S E T H:
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WHEREAS, Seller is the owner of, has a leasehold interest in or otherwise
has certain rights or interests in or with respect to certain communications
tower sites identified on the attached Exhibits "A" and "B", including all fee,
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ground leasehold interests and easements pertaining to such tower sites
(individually sometimes herein referred to as a "Site", or collectively as the
"Sites"), in the states of Georgia, Alabama, Florida and Mississippi, which
Sites may include, by way of illustration but not limitation, land,
communications towers identified on the attached Exhibits "A" and "B"
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(individually a "Tower" or collectively the "Towers") and various other
improvements serving or used in connection with the operation of the towers
(collectively, including without limitation the "Towers", the "Assets"), and as
further described, limited and defined herein.
WHEREAS, Seller desires to exchange its right, title and interest in and to
said Assets and Sites and certain other property described herein to Purchaser,
and Purchaser desires to purchase the same from Seller, all subject to and upon
the terms and conditions set forth herein, subject to and limited by certain
rights which Seller intends to retain with respect to such Sites and Assets, as
further described herein.
WHEREAS, Seller's "Southern LINC" wireless communication source is critical
to the needs of affiliated electric utility users, as well as commercial
customers that include state, county and municipal government users and
emergency services users, and Seller itself is and shall be an anchor tenant on
the Assets.
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants contained herein and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby expressly acknowledged by
Seller and Purchaser, Seller and Purchaser hereby covenant and agree as follows:
1. Purchase and Sale. (a) Seller hereby agrees to convey to Purchaser,
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and Purchaser hereby agrees to acquire from Seller, subject to and upon the
terms and conditions contained herein, any and all of Seller's right, title and
interest in and to the Assets and Sites, consisting of twenty-eight (28) such
Sites, except as limited herein. If any Asset or Site to which title or
interest is to be conveyed hereunder is currently owned by an affiliate of
Seller, Seller shall acquire the same prior to the "Closing" (as that term is
herein defined). The Assets include, as to the Sites listed on Exhibit "A",
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attached hereto and by this reference incorporated herein, a fee ownership in
the real property associated with such Sites, currently consisting of no such
Sites, and as to the Sites listed on Exhibit "B", attached hereto and by this
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reference incorporated
herein, an assignment of the leasehold interest in and to the Site, consisting
of twenty-eight (28) such Sites. In addition to such interest in real property
or leasehold interest, the Assets also include the tower structures, associated
tower lighting equipment, grounding systems and physical improvements on each
Site, along with any tenant leases, easement rights necessary for access to the
tower and for location of the tower and guy wires associated therewith, security
deposits (if any) and the files and records described in Paragraph 13(a)(i)
through (iv) herein from tenants, and transferable permits associated with the
tower, (if any), but specifically do not include, and Seller shall keep and
maintain its interest, rights and title to, any communications antennae, wiring,
devices or other communications equipment, or any buildings or other structures
housing such equipment, as more fully described in the exhibits to the Leases,
with respect to such Sites and Assets.
(b) Seller shall reserve as a part of any such conveyance of Sites in
the conveyance documents described in Paragraph 9 herein, an irrevocable, non-
exclusive, perpetual easement for access to such Assets and Sites, for the
purpose of maintaining the Assets and Sites, as contemplated in the "Lease" (as
that term is herein defined), and for the purpose of maintaining certain other
improvements which may serve, or be a part of improvements other than the
Assets, so long as such easement is specifically located in a manner that does
not interfere with Purchaser's or tenants use of the Assets and Sites.
(c) As to the Sites to which Seller has or will have, and will be
conveying to Purchaser at Closing, an assignment of a leasehold interest, and
the lessor thereunder is an affiliate of Seller which is a utility operating
company (an "OPCO"), such leases shall either be in the form attached hereto as
Exhibit "I-1" or Exhibit "I-2", each of which is by this reference incorporated
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herein. The lease as shown in Exhibit "I-2" shall be used for those Sites where
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access shall be restricted. If the OPCO in question does not enter into a lease
with Seller on such form, then at Purchaser's option and as Purchaser's sole
remedy therefor, such election of Purchaser to be evidenced by notice to Seller,
the Site in question shall not be conveyed to Purchaser, and the "Exchange
Consideration" (as herein defined) shall be adjusted as contemplated in
Paragraph 6 herein.
2. Xxxxxxx Money. Contemporaneously with the execution of this Agreement
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by Purchaser, Purchaser shall deliver to Seller by wire transfer to the same
account One Million and No/100 Dollars ($1,000,000.00) (the "Xxxxxxx Money").
The Xxxxxxx Money shall be applied to and credited against the "Exchange
Consideration" at the "Closing" (as those terms are hereinafter defined), or
otherwise disbursed as provided in this Agreement, but shall only be refunded to
Purchaser as set forth in Paragraphs 12 and 26 herein. Seller shall be under no
obligation to segregate the Xxxxxxx Money from any other accounts or funds of
Seller and interest earned on said Xxxxxxx Money, if any, shall belong to
Seller.
3. Exchange Consideration. (a) The exchange consideration (the "Exchange
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Consideration") to be paid by Purchaser to Seller for the conveyance of the
Assets and Sites shall be certain equipment as herein described with a value of
Eleven Million One Hundred Thirty Six Thousand Six Hundred Seventeen and No/100
Dollars ($11,136,617.00) at Closing, as such amount may be reduced as set forth
in Paragraph 6 herein.
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(b) Seller desires, and Purchaser is willing, to effectuate the
conveyance of the Assets and Sites by means of an exchange of "like-kind"
property ("Exchange") which will qualify as such under Section 1031 of the
Internal Revenue Code of 1986, as amended (the "IRC") and the regulations
promulgated thereunder. Purchaser shall acquire like-kind property designated by
Seller ("Exchange Property"), and to cause an Exchange of the Exchange Property
as provided in this Section.
(c) For purposes of the like-kind exchange provided for herein,
Seller designates the Exchange Property as shown on Exhibit "K", attached hereto
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and by this reference incorporated herein.
(d) At the Closing Seller shall convey the Assets and Sites to
Purchaser, and Purchaser shall acquire the Exchange Property but Purchaser shall
have no obligation to acquire the Exchange Property to the extent Purchaser is
not obligated to acquire the Assets under this Agreement. If the cost of the
Exchange Property exceeds the Exchange Consideration as prorated and adjusted in
accordance with the terms of this Agreement, Seller shall pay the amount of such
excess to Purchaser at the Closing. If Purchaser's credit for all Exchange
Property is less than the Exchange Consideration as prorated and adjusted in
accordance with the terms hereof, Purchaser shall pay the amount of such
deficiency to Seller at the Closing as set forth in this Agreement. Said amount
shall be paid in cash, or by wire transfer, to an account designated by Seller
for that purpose. Alternatively, at the option of Seller, said deficiency shall
be paid as set forth in subparagraph (f) below.
(e) Purchaser shall cause the conveyance of the Exchange Property to
Seller by xxxx of sale at the Closing, without representation or warranty or any
kind, on an "as is - where is" basis, but Purchaser shall assign any warranties
it receives on the Exchange Property, without recourse.
(f) If Seller fails to designate any of the Exchange Property by the
date of the Closing, Purchaser shall be obligated to pay the Exchange
Consideration set forth in this Agreement on the date of Closing and Seller
shall instruct Purchaser on said date to make payable all or any portion of the
net cash proceeds of the Exchange Consideration in excess of any credit for any
Exchange Property acquired by Purchaser and conveyed to Seller (such funds being
hereinafter called the "Escrow Fund") to an escrow agent acceptable to Seller
and Purchaser (the "Escrow Agent") but Purchaser shall have no such obligation
to the extent Purchaser is not obligated to acquire the Assets under this
Agreement. The Assets will be conveyed by Seller to Purchaser immediately upon
Purchaser's payment of such amount. The Escrow Fund shall be deposited into an
interest bearing escrow account designated for that purpose. All interest on the
Escrow Fund so deposited shall accrue to the benefit of Seller except that all
such accrued interest shall be paid to Purchaser upon Seller's default under
Paragraph 12. The Escrow Fund shall be held by Escrow Agent. Seller shall,
within forty-five (45) days after the date of the Closing, identify Exchange
Property to be acquired by Purchaser and give notice thereof to Purchaser, and
all such notices shall be deemed to be a part of this Agreement for all
purposes. Upon identification of any Exchange Property by Seller, Purchaser
shall use commercially reasonable efforts to enter into a contract or option to
purchase such parcel or parcels of Exchange Property on terms acceptable to
Seller and Purchaser and approved in
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writing by Seller and Purchaser prior to execution of any such contract or
option by Purchaser and thereafter to acquire such parcel or parcels of Exchange
Property in accordance with the provisions of this Paragraph. Purchaser shall
not execute a contract to acquire any Exchange Property until Seller has
approved the same. The Escrow Fund shall be disbursed and used to acquire any
Exchange Property so identified by Seller, and Seller shall pay the cost of the
acquisition of any Exchange Property in excess of the amount of the Escrow Fund.
Purchaser shall cause the conveyance of the Exchange Property to Seller
simultaneously with Purchaser's acquisition thereof, in accordance with the
provisions of this Paragraph. Purchaser's obligation to acquire Exchange
Property hereunder shall expire on the earlier of (i) any default by Seller
under this Agreement, (ii) that date which is one hundred eighty (180) days
after the date of the Closing, or (iii) the time for filing of Seller's federal
income tax return(s) for the tax year ending December 31, 1998, and any lawful
extension thereof (the "Exchange Deadline"), upon which date the undisbursed
balance of the Escrow Fund shall be promptly paid to Seller. Purchaser and
Seller shall diligently act to cause any Exchange to close and/or escrow funds
to be disbursed prior to the expiration of the Exchange Deadline and agree to
cooperate fully with each other in that regard.
(g) On receipt of instructions from Purchaser, which have been
approved by Seller, at any time before the Exchange Deadline, the Escrow Agent
shall apply all or any portion of the funds in the Escrow Fund toward the
purchase by Purchaser of Exchange Property. Such disbursements may be made in
one or more payments and to such persons, business entities, title companies, or
otherwise, and as xxxxxxx money deposits or cash due at closing or otherwise, as
Purchaser, with Seller's approval, may instruct. In no event shall Seller have
use or control of the funds deposited in the Escrow Fund pursuant to the
provisions hereof prior to the termination of the Escrow Fund except as
elsewhere expressly provided in this Agreement.
(h) Purchaser shall not be responsible for enforcing any contract or
option to purchase any Exchange Property, but Purchaser shall cooperate with
Seller in bringing any such action and shall permit Seller to use Purchaser's
name in connection therewith, as Seller may reasonably request and at Seller's
sole cost and expense. Purchaser shall not be obligated to expend any sum of
money in connection with the acquisition of any Exchange Property prior to the
date of Closing. All contracts for the acquisition of Exchange Property shall
provide that the xxxxxxx money deposit thereunder will constitute the liquidated
damages and the exclusive remedy of the seller thereunder in the event of a
default by Purchaser thereunder. If the seller under any contract for the
acquisition of Exchange Property fails or refuses to perform according to the
terms thereof, Purchaser shall notify Seller of such failure and, at Seller's
sole option, Purchaser shall assign such agreement to Seller, without any
further obligation or liability in connection therewith. All such contracts and
options for the acquisition of Exchange Property shall contain a provision
permitting Purchaser to freely assign such contracts and options at any time to
Seller.
(i) If the language of any clause in this Paragraph is deemed to
negate a like-kind transfer, neither party will assert a position other than
that such language should be interpreted and applied in order to comply with the
requirements of the IRC, the regulations promulgated thereunder, and the case
law interpreting same.
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(j) Purchaser makes no warranty or representation of any kind
whatsoever that any exchange of property contemplated hereunder will in fact and
law qualify as a like-kind exchange under the IRC. Neither party will assert the
position, however, that failure of any exchange to so qualify will affect the
validity or enforceability of this Agreement for the conveyance of the Assets by
Seller to Purchaser as provided for herein. Seller indemnifies and holds
harmless Purchaser from and against all loss, cost, expense and damages suffered
or incurred by Purchaser at any time by virtue of or arising in connection with
the Seller's use of this Exchange to convey the Assets.
4. Title to Property. (a) Purchaser shall have forty (40) days after the
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date hereof, as to all of the Sites except those Sites identified on Exhibit
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"H", by this reference incorporated herein (the "Open Legal Sites"), and with
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respect to each Open Legal Site Purchaser shall have forty (40) days after
Seller delivers to Purchaser a legally sufficient legal description to Purchaser
on those Open Legal Sites, to (i) examine Seller's title to the Sites and
Seller's files related to such Sites and Assets, as such files are described in
Paragraph 13 herein, to determine whether such title is "marketable title", as
that term is herein defined; and (ii) notify Seller of any objections or defects
(collectively, "Defects") to the title thereto which are disclosed by such
examination, other than those matters set forth in Exhibit "C" attached hereto
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and made a part hereof and the item described in Paragraph 4(d) herein, all or
any of which may encumber or affect a particular Site (the "Permitted
Exceptions"), and which are hereby approved by Purchaser; provided, however,
that to the extent any such Defect does not make the title to the Site in
question not "marketable title" (as defined in Paragraph 4(c)) and does not
currently and may not in the future (as determined by Purchaser in Purchaser's
commercially reasonable judgment) materially and adversely affect Purchaser's
ability to use the Asset and Site in question for the purposes of facilitating
or enhancing wireless communications, or for the purposes the Site and Asset are
currently being used for, and does not prevent Purchaser from obtaining title
insurance for such Site, then such shall not be a Defect which will permit
Purchaser, if such Defect is not cured or otherwise removed, to elect not to
purchase the Site and Asset in question. Seller will undertake to provide
copies of the legal descriptions for the Sites that are not Open Legal Sites no
later than January 12, 1998, and if Seller does not do so for any Site, such
Site shall be an Open Legal Site. If Purchaser's survey of any Site reveals the
need for a guy or access easement, or that the Tower pertaining to such Site is
not located within the boundaries of the legal description for such Site, such
Site will also constitute an Open Legal Site. Purchaser acknowledges that the
title or interest in the Site or Sites, and related Assets, may currently be
held by a subsidiary or affiliate of Seller, but that title to such Site or
Sites and related Assets may, at Seller's election, either be (i) conveyed
directly to Purchaser by such affiliate or subsidiary, or (ii) conveyed to
Seller at or prior to the Closing, so that such Site or Sites can in turn be
conveyed to Purchaser. The fact that title to or a leasehold interest in a Site
is not currently held by Seller is not and shall not be a Defect, as long as
title or leasehold interest, as applicable, in such Site is held by Seller or
otherwise is conveyed to Purchaser on or before the Closing. Seller agrees, in
good faith, within ten (10) days after Purchaser's notice to Seller of such
Defects, to attempt to cure such Defects or otherwise provide marketable title
to a particular Site or Sites as identified by Purchaser, on or before the
"Closing Date" (as hereinafter defined), and to pay off or otherwise remove any
lien encumbering a Site which secures a monetary obligation of and incurred by
Seller or any affiliate of Seller. Seller also agrees to undertake to procure
from all ground lessors of Sites under ground lease that are not affiliates of
Seller
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consent and estoppel certificates and fee mortgagee nondisturbance agreements in
form and substance reasonably satisfactory to Purchaser ("Ground Lessor
Documents"), but failure to obtain such Ground Lessor Documents (other than a
consent to an assignment, where such consent is required to effectuate such
conveyance) shall not permit Purchaser to elect not to purchase such Site.
(b) If Seller fails or refuses to cure a Defect or obtain a consent to
assignment for any Site referenced on Exhibit "B", where such consent is
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required to effectuate such conveyance, on or before the Closing Date, Purchaser
may, notwithstanding any other provisions of this Agreement to the contrary, as
its sole right and remedy therefor (i) terminate this Agreement as to the Site
in question (but not as to any other Sites) by giving written notice thereof to
Seller in which event, except as expressly provided herein to the contrary, this
Agreement shall be of no further force or effect as to the Site in question (but
not as to any other Sites) and Purchaser and Seller shall have no further
rights, liabilities, duties or obligations hereunder, or (ii) waive such Defects
as to the Site in question in which event such Defects shall be included in the
"Permitted Exceptions" and the Site in question shall be conveyed by Seller to
Purchaser "subject to" such Defects as otherwise provided herein, and the
acceptance by Purchaser of such conveyance shall constitute full satisfaction of
Seller's obligations to convey the Site to Purchaser.
(c) As used herein "marketable title" shall mean marketable title to all
fee and ground leasehold interests and all necessary guy and access easements,
as defined by the law of the state in which the Sites or Assets in question are
located, and any Defects may be cured by Seller in the manner set forth therein,
or by Seller's obtaining the commitment of a title insurance company doing
business in Atlanta, Georgia, to issue on Purchaser's behalf, an owner's title
insurance policy without exception for any such Defect, at no cost to Purchaser
in excess of the "Standard" premium normally charged by such title insurance
company for coverage in the amount of the Exchange Consideration. Such title
insurance policy may include (and not have deleted or excluded) any standard or
pre-printed exceptions to title.
(d) Attached hereto as Exhibit "D", and by this reference incorporated
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herein, is a list of specific disclosures by Seller as to certain aspects of or
conditions which exist with respect to certain of the Sites and Assets,
including existing leases to third-parties which maintain communications
equipment on the Asset (which leases Seller will assign to Purchaser at Closing,
without warranty or recourse). Purchaser acknowledges and agrees to the
conditions as set forth on said Exhibit "D", and Purchaser shall have no claims
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in connection therewith, and no rights to elect not to buy such Site under
Paragraph 6 herein arising out of any such matters or conditions.
(e) Certain of the Sites and Assets in the State of Georgia shall also be
conveyed subject to that certain Indenture dated as of March 1, 1941, as amended
and supplemented, executed by Grantor to The New York Trust Company, as Trustee
(on September 8, 1959, The New York Trust Company merged into Chemical Corn
Exchange Bank, the name of which became Chemical Bank New York Trust Company at
the time of said merger, and said Chemical Bank New York Trust Company merged
into Chemical Bank on February 17, 1969, and said Chemical Bank merged into The
Chase Manhattan Bank on July 15, 1996) or of any substitute or replacement
thereof, if any. Certain of the Sites and Assets in Alabama shall also be
conveyed subject to that certain Indenture dated as of January 1, 1942, between
Alabama Power Company and The Chase Manhattan Bank, as successor trustee, as
supplemented by various supplemental
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indentures from time to time. Certain of the Sites and Assets in Florida shall
also be conveyed subject to that certain Indenture dated as of September 1,
1941, between Gulf Power Company and The Chase Manhattan Bank, as successor
trustee, as supplemented by various supplemental indentures from time to time.
Certain of the Sites and Assets in Mississippi shall also be conveyed subject to
that certain Indenture dated as of September 1, 1941, between Mississippi Power
Company and Bankers Trust Company, as successor trustee, as supplemented by
various supplemental indentures from time to time. All of the aforesaid
instruments are herein sometimes collectively referred to as the "Indenture". As
a condition to Purchaser's obligation to purchase any such Site for which fee
title is being conveyed (but not as to any Site for which an assignment of lease
is being conveyed), Purchaser must be provided a title insurance commitment
without exception for such Indenture, or affirmative coverage over such
Indenture. Seller agrees to have the Sites and Assets encumbered by the
Indenture for which fee title is being conveyed released from the lien of the
Indenture within one hundred eighty (180) days after the date of the Closing. If
Purchaser incurs any loss, cost, or damages arising out of the existence of the
Indenture or Seller's failure to cause the release of such Indenture within the
time period set forth above, then Seller shall indemnify Purchaser and hold
Purchaser harmless against any and all such loss, cost, damage or expense,
including, but not limited to, court costs and attorneys fees, arising by virtue
of the Indenture or otherwise out of such failure by Seller; provided, however,
that Purchaser shall first notify Seller and provide Seller ten (10) days to
attempt to cure such failure, before Purchaser incurs or suffers any costs for
which indemnity would be sought, claimed or be available hereunder.
(f) The Sites as listed on Exhibit "J", by this reference incorporated
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herein (the "OPCO Sites") must be subdivided. Any such Site so created must
contain at least 5,000 square feet, unless Seller, in its reasonable judgment,
cannot provide that amount, in which event Seller shall provide as much real
property as it reasonably is able. Seller and Purchaser shall use all
reasonable efforts to meet on or before January 16, 1998, to determine an
appropriate subdivision of such Sites, and each shall be reasonable in the
creation of the Sites, as subdivided. Each of Seller and Purchaser shall also
agree on such cross-easements for access as are appropriate or necessary for
such Sites.
5. Inspection. (a) Seller hereby grants Purchaser and its agents the
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right and privilege to enter upon and inspect the Assets and Sites for so long
as this Agreement is in full force and effect, such right including, without
limitation, the right to make soil tests, soil test borings, surveys and other
examinations that Purchaser desires to make in planning for its ownership of the
Assets and Sites, all at Purchaser's sole cost and expense; provided however,
that Purchaser shall give Seller at least two (2) business days prior notice of
Purchaser's desire to inspect an individual Site, and Seller may, at its option,
accompany Purchaser on any such inspection. Access to certain Sites may be
limited or impacted by Seller's or Seller's affiliates' adjacent property and
improvements, which may include electrical sub-stations, transmission lines and
the like, and Purchaser shall take such precautions as Seller advises in
inspecting such Sites. All such work and tests performed by or at the request
of Purchaser shall be non-destructive, with all efforts made by Purchaser not to
disrupt or damage any improvements, and Purchaser shall, immediately upon any
request of Seller, restore the Assets and Sites to the condition thereof
existing immediately prior to any such work or tests.
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(b) Purchaser shall be completely responsible and liable for its own
safety and the safety of its agents, and for all acts and omissions of itself
and its agents in exercising such right and privilege of inspection granted in
this Paragraph 5, and Purchaser hereby indemnifies Seller and holds Seller free
and harmless from and against any and all losses, costs, damages and expenses
(including, without limitation, attorney's fees, costs of litigation and the
cost of re moving or bonding any liens affecting the Assets and Sites) ever
suffered or incurred by Seller by reason of or in connection with the exercise
of the rights and privileges granted to Purchaser in this Paragraph 5 or the
breach of Purchaser's covenant to restore contained herein. The indemnity
contained in the immediately preceding sentence shall expressly survive the
Closing or any termination of this Agreement.
(c) The right of inspection granted by Seller to Purchaser in this
Paragraph 5 is solely an accommodation by Seller to enable Purchaser to plan for
its ownership of the Assets and Sites, and the terms and provisions of this
Paragraph 5 shall not, under any circumstances, be construed or interpreted to
mean that Purchaser has any right to approve the condition of the Assets and
Sites or to terminate this Agreement if Purchaser is not satisfied with the
condition of the Assets and Sites or any other matter related to the Assets and
Sites, except as expressly set forth in Paragraph 4(a) or 6 herein. Purchaser
shall keep all information it obtains in connection with or as a part of such
Site inspections in the strictest confidence, and Purchaser shall not disclose
the results of any such inspections to third-parties, other than its lenders and
investors and Purchaser's and their respective advisors, provided that Purchaser
shall be liable for any disclosure by such persons. Purchaser shall not be
liable for the disclosure of information that (i) is otherwise available to the
general public, or (ii) is required to be disclosed by law. Such inspections
shall also be subject to and governed by the confidentiality agreement
contemplated under Xxxxxxxxx 00 xxxxxx.
(x) Purchaser has fully examined and inspected or will have been given,
prior to the Closing, the opportunity to fully examine and inspect the Assets
and Sites, as provided in Paragraphs 5 and 13 herein. Purchaser is willing to
and shall purchase the Assets and Sites "as is, where is" on the Closing Date,
and, except for the limited warranties of title to be contained in the deed,
Seller has not and shall not make any representations or warranties regarding
the Assets and Sites whatsoever, expressly including, by way of illustration but
not limitation, any representations or warranties as to environmental conditions
or status on or about the Sites, the zoning status or classification of the
Sites, the status or validity of any permitting or other entitlements related to
the Sites, access to the Sites, or, as to the Assets, any implied warranties of
habitability or fitness thereof or the soundness or condition of the structure.
Purchaser is relying solely and exclusively upon Seller's agreements herein and
Purchaser's aforesaid inspection of the Assets and Sites and the files described
in Paragraph 13 herein, in its purchase of the Assets and Sites.
6. Protest as to or Election not to Purchase or Sell Sites. Purchaser or
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Seller shall have the right, as to any individual Site, not to purchase or
convey such Site as a part of this Agreement, by notice given to the other of
the specific Site or Sites not to be purchased or conveyed hereunder, subject to
and conditioned upon the following terms and conditions:
(a) If there is a casualty to the physical improvements on such Site,
as described in Paragraph 11 herein, and Purchaser elects not to purchase such
Site;
8
(b) If there is a Defect in the title to such Site, as described in
Paragraph 4 herein, and Purchaser elects not to purchase such Site;
(c) If a Site owned by an OPCO for which an assignment of lease is
being provided is not on the form of lease attached as Exhibit "I";
-----------
(d) If Seller, in its sole reasonable discretion, elects not to
convey a Site to Purchaser (but Seller may not designate such a Site after
Purchaser has given the notice for Closing as contemplated in Paragraph 9
herein) and Seller may not designate more than fifteen (15) such Sites. Seller
shall, if Seller does so elect not to convey a Site, pay Purchaser all of
Purchaser's out-of-pocket costs which are actually incurred and which are
directly attributable to any such Site.
The Exchange Consideration set forth in Paragraph 3 herein shall be
adjusted to reflect the number of Sites which Purchaser intended to purchase,
but which, in accordance with this Paragraph 6, are not conveyed by Seller.
Such Exchange Consideration shall be reduced by multiplying such number of Sites
not conveyed by the value attributed to such Site, as such value is set forth on
Exhibit "E", attached hereto and by this reference incorporated herein.
-----------
7. Covenants of Seller. (a) Neither Seller nor an affiliate of Seller
-------------------
shall, until the termination of this Agreement, or the Closing, sell any Sites
or Assets to any third party without the consent of Purchaser, which consent may
be withheld for any reason by Purchaser. Notwithstanding the above, Seller
shall be entitled to enter into a lease with a third-party for space on the
tower on any particular Site, so long as the rent thereon is not materially less
than the amounts Seller is receiving as rent on the Asset in question for
facilities of a similar nature as the one which is the subject of the lease in
question.
(b) Neither Seller nor an affiliate of Seller shall negotiate with
any party other than Purchaser for the sale of any of the Assets or Sites as
long as this Agreement is in force and effect.
8. Leases on Sites. In connection with and as a part of the Closing,
---------------
Seller shall lease from Purchaser, and Purchaser shall lease to Seller, as to
each Site, certain rights to keep, use, repair, maintain and enhance certain
existing communications equipment and related facilities and structures on the
Sites and other related facilities, either for Seller's own benefit or for the
benefit of any affiliate or subsidiary of Seller, as Seller may designate prior
to Closing. The form of lease for such Sites shall be as set forth in Exhibit
-------
"F-1", as to leases in which Seller is the tenant thereunder, and Exhibit "F-2",
----- -------------
as to leases in which an OPCO is the tenant thereunder, each of which is
attached hereto and by this reference incorporated herein (the "Lease", or
collectively the "Leases"). The Leases shall be on the terms and conditions as
set forth in the forms on Exhibits "F-1" and "F-2", respectively.
-------------- -----
9. Closing; Closing Date; Documents. (a) The consummation of the
--------------------------------
purchase and sale of the Assets and Sites (the "Closing") shall occur at the
offices of Troutman, Sanders, LLP, at a specific time and date (the "Closing
Date") designated by Purchaser by written notice thereof to Seller at least ten
(10) days prior to the Closing Date specified in such notice; provided, however,
-------- -------
in no event whatsoever shall the Closing Date be any time and date later than
10:00
9
a.m. on March 9, 1998. However, if, as to any of the Open Legal Sites, either
the time period for Seller to examine title to such Open Legal Sites or the time
period for Purchaser to attempt to correct Defects thereto has not expired by
March 9, 1998, then the Closing Date as to such Open Legal Sites only (and not
as to any other Sites being conveyed hereunder) shall be extended to a date
which is ten (10) days after the last date Seller has to attempt to correct the
Defects thereon, as identified by Purchaser in accordance with Paragraph 4(a)
herein. If Seller does not cure the Defects, then Purchaser shall have the
rights as to such Sites and Assets as set forth in Paragraph 4(b) hereof.
(b) At the Closing, Purchaser shall pay the Exchange Consideration,
or convey to Seller the Exchange Property, or Seller's designee, as such
Exchange Consideration, or conveyance to Seller of the Exchange Property, is set
forth in Paragraph 3 hereof, and Seller shall execute and deliver to Purchaser a
deed with only a limited warranty of title (or its local equivalent), conveying
Seller's right, title and interest in and to the Assets and Sites described on
Exhibit "A" to Purchaser, and by a limited assignment of lease (limited only to
-----------
claims arising by or through Seller, but not otherwise) as to the Sites
described on Exhibit "B", all "as is, where is," with no representations or
-----------
warranties whatsoever except for a limited warranty of title. Seller shall also
at Closing assign to Purchaser, without warranty or recourse, any and all
licenses or other such entitlements obtained or issued with respect to such
Sites and Assets, and any and all warranties related to the Assets (collectively
the "Permits"). Seller shall also provide to Purchaser with and duly execute and
deliver a limited warranty xxxx of sale as to any non-real estate Assets to be
conveyed at Closing. Seller shall also execute and deliver an owners affidavit
with respect to Sites, on the title company's standard form of affidavit. Seller
and Purchaser shall also execute and deliver such other documents at Closing as
are required or contemplated herein.
(c) Seller will cooperate reasonably, at no out-of-pocket cost to
Seller, with Purchaser and will make accessible to Purchaser and Purchaser's
accountants, on a reasonable basis, Sellers' financial books and records
regarding the Assets, related to payments made by third-party lessees which
occupy space on the Sites or Assets, in connection with any audits of Purchaser
or its business pertaining to financing done by Purchaser after the Closing.
This right, however, shall be subject to such customary confidentiality
agreements or arrangements as Seller would normally require in such event.
10. Closing Expenses; Prorations. At the Closing, the 1998 ad valorem
----------------------------
taxes affecting the Sites and personal property tax affecting the non-real-
estate Assets, shall be prorated on a daily basis, which proration shall be
based upon the most recent available tax xxxx for the Sites as of the Closing
Date and shall be conclusive between Seller and Purchaser for all purposes. All
other items of income and expense affecting the Sites and the Assets shall be
prorated as of the Closing Date on a daily basis between Seller and Purchaser at
the Closing. Seller shall pay the transfer tax, if any, due with respect to the
particular state in which the Site is located, payable in connection with the
conveyance of the Sites from Seller to Purchaser. Purchaser shall be
responsible for other taxes arising in connection with the sale of the Assets,
excluding taxes on Seller's income. Purchaser shall pay the costs and expenses
connected with recording costs, any surveys, audits ordered or requested by
Purchaser, engineering studies ordered or requested by Purchaser, Purchaser's
attorneys' fees and the title search costs and title insurance premiums for all
title insurance policies obtained by Purchaser. Purchaser and Seller
10
shall allocate between them any costs of Closing not specified above on the
basis of how custom and practice in the State in which such cost is incurred
would normally allocate such costs, but in no event shall one party hereto be
required to pay the other party hereto's legal fees.
11. Destruction. If any substantial portion of any Asset is damaged or
-----------
destroyed by fire or any other casualty prior to the Closing Date such that the
Asset in question at a particular Site cannot be used in any manner for the
purposes intended, Seller shall notify Purchaser thereof and Seller shall have
the right, but not the obligation, to undertake the repair or restoration of the
Asset so damaged or destroyed. If Seller gives Purchaser notice of such
undertaking, such undertaking shall be an obligation of Seller hereunder, and
the purchase and sale of the Asset in question shall be consummated in
accordance with the terms and provisions of this Agreement with no adjustment in
the Exchange Consideration and Seller shall receive any insurance proceeds
payable by reason of such damage or destruction. If the repair or restoration
is not completed by the scheduled Closing Date, then the Closing Date as to such
Asset and Site (but not as to any other Sites or Assets) shall occur ten (10)
days after Seller has completed such repairs and has provided notice Purchaser
of such completion. If Seller notifies Purchaser that it does not elect to
undertake such repair or restoration, Purchaser may, at its election either (a)
terminate this Agreement as to the Site on which the Asset in question is
located (but not as to any other Sites or Assets) by giving written notice
thereof to Seller, in which event, except as expressly provided herein to the
contrary, this Agreement shall be of no further force or effect as to the Site
on which the Asset in question is located (but not as to any other Sites or
Assets) and Purchaser and Seller shall have no further rights, liabilities,
duties or obligations hereunder as to the Asset in question (but not as to any
other Sites or Assets), or (b) Purchaser may require Seller to (i) convey the
Asset and Site in question or the remaining portion thereof as provided herein
for the Exchange Consideration set forth in Paragraph 3 hereof, and (ii)
transfer and assign all of Seller's right, title and interest in and to any and
all insurance proceeds paid (but not yet expended), payable or to be paid in
connection with such damage or destruction, and the transaction contemplated
herein shall otherwise be consummated as provided in this Agreement. If Seller
so notifies Purchaser that it does not undertake to so repair or restore the
Asset and Site in question, Purchaser shall notify Seller in writing of its
election pursuant to the immediate preceding sentence within five (5) days after
such notice from Seller, and if Purchaser fails to so notify Seller within said
five (5) day period, Purchaser shall be deemed to have elected to purchase the
Asset and Site in question pursuant to (b) immediately above.
12. Defaults. If before Closing Seller breaches or fails to perform or
--------
comply with any of its covenants, duties, agreements, or obligations as set
forth in this Agreement, Purchaser shall elect as its sole rights and remedies
therefore, pursue any one or more of the following remedies (a) terminate this
Agreement by giving written notice thereof to Seller, in which event Seller
shall deliver the Xxxxxxx Money to Purchaser and, except as expressly set forth
herein to the contrary, this Agreement shall be of no further force or effect,
and Seller and Purchaser shall not have any further rights, liabilities, duties
or obligations hereunder, (b) seek and obtain specific performance by Seller of
its covenants, agreements and obligations to sell the Sites and Assets to
Purchaser as expressly set forth in this Agreement, or (c) xxx Seller for
Purchaser's actual damages arising out of such failure of Seller up to, but not
in excess of, One Million and No/100 Dollars ($1,000,000.00). If before Closing
Purchaser breaches or fails to perform or comply with any of its covenants,
duties, agreements, or obligations as set forth in this Agreement, Seller's
11
obligation to sell the Sites and Assets hereunder and Purchaser's right to
purchase the Property hereunder shall, at the option of Seller and upon notice
thereof to Purchaser, immediately terminate, and Seller shall be entitled to (i)
retain the Xxxxxxx Money as liquidated damages therefor whereupon, except as
expressly provided to the contrary herein, this Agreement shall be of no further
force or effect, and Seller and Purchaser shall not have any further rights,
liabilities, duties or obligations hereunder, or (ii) pursue any and all rights
and remedies therefor to which Seller may be entitled in equity, including,
without limitation, specific performance of the covenants and agreements of
Purchaser contained herein. Seller and Purchaser expressly agree that the actual
damages for any such breach or default by Purchaser are now and probably in the
future will be impossible to ascertain with certainty, and the foregoing
liquidated damages provision represents a reasonable estimate of the probable
extent of such damages and is not intended as a penalty. Notwithstanding any of
the foregoing provisions of this Paragraph 12 to the contrary, nothing contained
in this Agreement shall in any manner limit the liability of an indemnifying
party or any of an indemnified party's rights and remedies at law or in equity
against an indemnifying party arising by reason of any express indemnification
provided herein.
13. Files and Records. (a) Seller has made and will continue to make
-----------------
available to Purchaser, and Purchaser shall to Purchaser's satisfaction, review,
at the offices of Xxxxxxxx Xxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, XX, Xxxxx 0000,
Xxxxxxx, Xxxxxxx 00000-0000, with respect to the Sites and Assets certain
material, including the following:
(i) Files as to Seller's title to or interest in the Sites;
(ii) Files as to any warranties which exist as to the Assets on
or a part of the Sites;
(iii) Files as to any Permits issued with respect to or in
connection with the Sites;
(iv) Files as to the engineering data, drawings and
specifications with respect to the Assets on the Sites;
and
(v) Files as to the environmental conditions on or related to
the Sites.
(b) These files are being made available in connection with
Purchaser's inspection rights under Paragraph 5 herein. Purchaser shall keep all
information obtained in connection with or as a part of such review of files in
strict confidence until the Closing, as set forth in Paragraph 5(c). Purchaser
shall, at Seller's option, execute and cause any agents acting on behalf of
Purchaser to execute a confidentiality agreement with respect to such files.
Purchaser shall have the right to make copies of any such files, at Purchaser's
cost and expense, subject to Seller's right to prohibit such copying for any
matters or items which Seller believes, in its reasonable judgment, to be
confidential, proprietary or not appropriate for public dissemination. After the
Closing, Purchaser shall no longer be obligated to keep such material
confidential, except for those items which Seller in good faith has marked as
"confidential" (or the equivalent).
12
(c) Seller makes no representations or warranties as to the
completeness of such files. Seller shall, to the extent reasonable, assist
Purchaser in Purchaser's due diligence efforts and in acquiring additional
information on Sites, on the basis of such written requests as Purchaser shall
from time to time deliver to Seller.
14. Option to Construct Additional Towers. Seller and Purchaser shall,
-------------------------------------
with the consummation of the Closing, duly enter into and deliver an agreement
in the form as set forth on Exhibit "G", by this reference incorporated herein
-----------
(the "Option Agreement"), related to Seller's option to cause Purchaser to
construct certain additional towers on certain sites determined and selected, or
to be determined and selected, by Seller, in Seller's sole discretion, all as
further described in and subject to the Option Agreement.
15. Publicity. The parties acknowledge that neither Seller nor Purchaser
---------
desires to publicize or advertise this transaction. Neither party shall have the
right to publicize or otherwise make public statements or press releases
concerning this transaction or the Closing, or advertise the consummation of
this transaction or the Closing, without the express prior, written consent of
the other, which consent may be withheld for any or no reason.
16. Brokers and Agents; Indemnity. Seller represents and warrants that
-----------------------------
Seller has not employed or engaged any real estate brokers or agents in
connection with this Agreement or the purchase and sale of the Assets and Sites
contemplated herein. Purchaser represents and warrants to Seller that Purchaser
has not employed or engaged any real estate brokers or agents in connection with
this Agreement or the purchase and sale of the Assets and Sites contemplated
herein. Purchaser hereby indemnifies Seller and agrees to hold Seller free and
harmless from and against any and all loss, cost, damages and expenses
(including, without limitation, attorneys' fees and costs of litigation) ever
suffered or incurred by Seller by reason of any claim or demand by any broker or
agent for any commissions, fees or other compensation in connection with this
Agreement or the purchase and sale of the Assets and Sites. Seller hereby
indemnifies Purchaser and agrees to hold Purchaser free and harmless from and
against any and all losses, costs, damages and expenses (including, without
limitation, attorneys' fees and costs of litigation) ever suffered or incurred
by Purchaser by reason of any claim or demand by any broker or agent for any
commissions, fees or other compensation in connection with this Agreement or the
purchase and sale of the Assets and Sites. The express indemnities contained in
this Paragraph 16 shall expressly survive the Closing or any termination of this
Agreement.
17. Notice. All notices and other communications permitted or required
------
hereunder shall be in writing and shall be personally delivered by a recognized
overnight delivery service (such as, by way of illustration but not limitation,
United Parcel Service), to Seller at the following address:
Mr. Xxxxxx Xxxxxx
Southern Communications Services, Inc.
00 Xxxxxxxxx Xxxxxx Xxxx
0xx Xxxxx - Xxx #000X
Xxxxxxx, XX 00000
13
with a copy to:
Southern Company Services, Inc.
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Mr. Xxxxxxx Xxxxxx
and a copy to:
Xxxxxx Xxxxxxxx, Esq.
Xxxxxxxx Xxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000-0000
and to Purchaser at:
Pinnacle Towers Inc.
0000 Xxxxxxxx Xxxxxxxxx-Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxx
with a copy to:
Xxxx Xxxxx, Esq.
Holland & Knight, LLP
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000-0000
or to such other addresses as the parties hereto may designate to the others by
notice as set forth herein. All such notices and other communications shall be
deemed received and effective on the first (1st) business day after the sending
thereof.
18. Assignment. (a) Purchaser shall not transfer, assign or delegate any
----------
of its rights, duties, obligations, covenants, or agreements hereunder, except
as contemplated in Paragraph 18(b) below. Any such transfer, assignment or
delegation by Purchaser shall, at the option of Seller, be null and void ab
--
initio and no such transfer, assignment or delegation shall relieve or discharge
------
Purchaser from any of its covenants, agreements, duties, obligations or
liabilities hereunder.
(b) Purchaser has collaterally assigned its interest under this
Agreement to NationsBank, in connection with Purchaser's general credit
facility. If for any reason Purchaser defaults under any general credit
facility of Purchaser, such that NationsBank (or any successor or replacement
creditor) is the "Purchaser" hereunder, then Seller shall have no obligation to
convey the Assets or Sites to such party, and Seller may, without penalty or
premium, elect, in
14
Seller's sole discretion, by a notice to such party, elect not to consummate the
Closing, in which event Seller shall retain the Xxxxxxx Money as Seller's sole
remedy.
19. Time of Essence. Time is of the essence in this Agreement, and
---------------
whenever a date or time is set forth in this Agreement, the same has entered
into and formed a part of the consideration for this Agreement.
20. Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of Seller and Purchaser and their respective heirs, legal
representatives, successors and permitted assigns.
21. Multiple Counterparts. This Agreement may be executed in multiple
---------------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute the same agreement; the signature of any party to any
counterpart shall be deemed to be a signature of, and may be appended to, any
other counterpart hereof.
22. Governing Law. This Agreement shall be governed by, construed under
-------------
and interpreted and enforced in accordance with the laws of the State of
Georgia, and whose laws shall prevail in the event of any conflict of laws.
23. Survival. The express indemnities contained in this Agreement shall
--------
survive the consummation of the subject transaction and any termination of this
Agreement. All other provisions of this Agreement shall not survive the Closing
and shall merge into the conveyances of the Assets and Sites from Seller to
Purchaser. Seller and Purchaser agree to ratify and affirm the survival of such
indemnities in writing at the Closing.
24. Sole and Entire Agreement. This Agreement (including the exhibits
-------------------------
hereto), and the "Other Agreement" (as that term is herein defined) constitutes
the sole and entire agreement of Seller and Purchaser regarding the purchase and
sale of the Assets and Sites. This Agreement supersedes all prior discussions,
negotiations, representations and agreements between Purchaser and Seller with
respect to the purchase and sale of the Assets and Sites and all other matters
related thereto, including, without limitation, the letter of intent between
Seller and Purchaser dated December 23, 1997 (the "LOI"). This Agreement may not
be modified or amended unless such modification or amendment is set forth in
writing and properly signed by Seller and Purchaser.
25. Prohibition Against Recording. Purchaser shall not record this
-----------------------------
Agreement or any version, summary or memorandum hereof in any real estate public
records.
26. Board Approval by Seller. Seller's obligations under this Agreement
------------------------
shall in all events and under all circumstances be subject to approval by the
Board of Directors of Seller (the "Board"), at a 1998 meeting of the Board, to
be held on or before February 4, 1998. If the Board does not approve such sale,
then, and only then (except for a default by Seller under Paragraph 12
hereunder), Seller shall refund to Purchaser the Xxxxxxx Money set forth in
Paragraph 2 herein, and the parties hereto shall have no further rights
hereunder, except for those rights which expressly survive termination.
15
27. Authority of Parties.
--------------------
(a) Purchaser represents and warrants to Seller that Purchaser has
the full power and authority to execute, deliver and perform the terms and
conditions of this Agreement and has taken all necessary action to do so. This
Agreement and all documents to be executed by Purchaser hereto constitute the
legal, valid and binding obligations of Purchaser, enforceable in accordance
with their respective terms.
(b) Seller represents and warrants to Purchaser that upon the
approval of the Board as contemplated above, Seller has the full power and
authority to execute, deliver and perform the terms and conditions of this
Agreement and has taken all necessary action to do so. This Agreement and all
documents to be executed by Seller hereto constitute the legal, valid and
binding obligations of Seller, enforceable in accordance with their respective
terms.
28. Cross-Default. Seller and Purchaser are, as of the date hereof,
-------------
entering into a Purchase and Sale Agreement (the "Other Agreement"), related to
certain other agreements involving Assets and Sites. Any default by either party
under the Other Agreement shall be a default hereunder, which shall permit the
non-defaulting party to, at its sole option, exercise all rights under Paragraph
12 hereunder as if a default had occurred hereunder.
29. Offer to Seller. This Agreement has been executed first by Purchaser
---------------
in four (4) counterparts, as an offer to Seller, which offer shall remain open
for acceptance by Seller until 5:00 P.M. on January 9, 1998, and if such offer
is not accepted by Seller (as evidenced by the delivery of two (2) fully and
properly executed and dated counterparts of this Agreement by Seller, before
5:00 P.M. on January 9, 1998), this offer shall automatically terminate without
any notice whatsoever being required from Purchaser and this Agreement shall be
of no force or effect whatsoever and Seller and Purchaser shall have no rights,
liabilities, duties or obligations hereunder. The date of this Agreement shall,
for all purposes, be the date Seller executes this Agreement, which date shall
be inserted in the caption hereof at the time of such execution.
IN WITNESS WHEREOF, Purchaser and Seller have caused this Agreement to be
properly executed by duly authorized representatives, under seal, as of the day
and year first above written.
"SELLER"
Southern Communications Services, Inc.
By: ____________________________________
Its: _______________________________
Attest: ________________________________
Its: _______________________________
(CORPORATE SEAL)
16
"PURCHASER"
Pinnacle Towers Inc., a Delaware
corporation
By: ____________________________________
Its: _______________________________
Attest: ________________________________
Its: _______________________________
(CORPORATE SEAL)
17
EXHIBIT "A"
-----------
OWNED SITES
-----------
NONE
EXHIBIT "B"
-----------
LEASEHOLD SITES
---------------
[TO BE SUPPLIED BY SELLER]
EXHIBIT "C"
-----------
PERMITTED EXCEPTIONS
--------------------
1. Real estate ad valorem taxes for 1998 and subsequent years.
2. General utility, roadway and other such easements serving the Sites
and Assets.
3. Riparian rights of owners adjoining the Sites and Assets.
4. Rights of Tower tenants under written leases.
5. Agricultural leases terminable on not less than sixty (60) days
notice.
6. Rights of OPCO's to attached facilities to the Assets under written
agreements.
7. Subject to the rights of Purchaser under Paragraph 4 of the Agreement,
as to Sites where an interest in a ground lease is being assigned to
Purchaser, the terms of the relevant ground lease.
EXHIBIT "D"
-----------
SPECIFIC DISCLOSURES AS TO SITES
--------------------------------
NONE
EXHIBIT "E"
-----------
SITE VALUES
-----------
OWNED SITES $436,802 per Site
LEASEHOLD SITES $397,736 per Site
EXHIBIT "F"
-----------
FORM OF LEASE
-------------
[TO BE SUPPLIED BY SELLER]
EXHIBIT "G"
-----------
OPTION AGREEMENT FORM
---------------------
[TO BE SUPPLIED BY SELLER]
