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Exhibit 10.12
MEMBERSHIP INTERESTS PURCHASE AGREEMENT
BY AND AMONG
SPECTRASITE COMMUNICATIONS, INC.
AND
XXXXXXX X. XXXXXXX, XXXXX X. XXXXX,
AND
H&K INVESTMENTS, LLC
DATED
DECEMBER 31, 1997
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MEMBERSHIP INTERESTS PURCHASE AGREEMENT
THIS MEMBERSHIP INTERESTS PURCHASE AGREEMENT (together with the
Schedules and Exhibits hereto, the "Agreement"), dated December 31, 1997 and
effective January 1, 1998 (the "Effective Date"), is entered into by and among
SpectraSite Communications, Inc., a Delaware corporation ("SpectraSite"), and
Xxxxxxx X. Xxxxxxx, an individual residing in Xxxxxxx County, Missouri
("Xxxxxxx"), and Xxxxx X. Xxxxx, an individual residing in Xxxxxxx County,
Missouri ("Xxxxx"), and H&K Investments, LLC, a Missouri limited liability
company ("H&K").
WHEREAS, Xxxxxxx and Xxxxx are the owners of all of the membership
interests in H&K (the "Membership Interests"), and Xxxxxxx and Xxxxx are the
sole members of H&K;
WHEREAS, H&K is engaged in the business of owning and leasing space on
telecommunications towers;
WHEREAS, SpectraSite is engaged in all aspects of the
telecommunications tower business; and
WHEREAS, on the "Closing Date," as defined herein, Xxxxxxx and Xxxxx
wish to sell to SpectraSite, and SpectraSite wishes to purchase from Xxxxxxx
and Xxxxx, all of the Membership Interests for the consideration and pursuant
to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements, covenants,
representations, and warranties set forth herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
In addition to the other terms defined herein, the following
definitions will apply throughout this Agreement:
1.1 ACM's. The term "ACM's" has the meaning set forth in Section
3.19(b).
1.2 Affiliate. The term "Affiliate" has the meaning set forth in
Rule 405 of the Securities Act of 1933, as amended.
1.3 Claims. The term "Claims" has the meaning set forth in
Section 3.14.
1.4 Closing. The term "Closing" has the meaning set forth in
Section 9.1.
1.5 Closing Date. The term "Closing Date" has the meaning set
forth in Section 9.1.
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1.6 Deposit. The term "Deposit" has the meaning set forth in
Section 2.3.
1.7 Easements. The term "Easements" has the meaning set forth in
Section 3.9D.
1.8 Effective Date. The term "Effective Date" has the meaning set
forth in the Recitals hereof.
1.9 Escrow Agent. The term "Escrow Agent" has the meaning set
forth in Section 2.3.
1.10 Escrow Agreement. The term "Escrow Agreement" has the meaning
set forth in Section 2.3.
1.11 Environmental Laws. The term "Environmental Laws" has the
meaning set forth in Section 5.19.
1.12 Financial Statements. The term "Financial Statements" has the
meaning set forth in Section 3.6.
1.13 H&K. The term "H&K" has the meaning set forth in the Recitals
hereof.
1.14 H&K Agreements. The term "H&K Agreements" means all
agreements, documents and other instruments executed and delivered by H&K in
connection with the consummation of the transactions contemplated by this
Agreement.
1.15 H&K Indemnified Party. The term "H&K Indemnified Party" has
the meaning set forth in Section 10.2.
1.16 Xxxxxxx. The term "Xxxxxxx" has the meaning set forth in the
Recitals hereof.
1.17 Xxxxxxx Agreements. The term "Xxxxxxx Agreements" means all
agreements, documents and other instruments executed and delivered by Xxxxxxx
in connection with the consummation of the transaction contemplated by this
Agreement.
1.18 Hazardous Materials. The term "Hazardous Materials" has the
meaning set forth in Section 3.19(b).
1.19 Improvements. The term "Improvements" has the meaning set
forth in Section 3.9B.
1.20 Indemnified Party. The term "Indemnified Party" has the
meaning set forth in Section 10.3.
1.21 Indemnity Obligor. The term "Indemnity Obligor" has the
meaning set forth in Section 10.3.
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1.22 Xxxxx. The term "Xxxxx" has the meaning set forth in the
Recitals hereof.
1.23 Xxxxx Agreements. The term "Xxxxx Agreements" means all
agreements, documents and other instruments executed and delivered by Xxxxxxx
in connection with the consummation of the transaction contemplated by this
Agreement.
1.24 Leased Real Property. The term "Leased Real Property" has the
meaning set forth in Section 3.9A.
1.25 Loan Payments. The term "Loan Payments" has the meaning set
forth in Section 6.1.
1.26 Loss. The term "Loss" has the meaning set forth in Section
10.1(a).
1.27 Membership Interests. The term "Membership Interests" has the
meaning set forth in the Recitals hereof.
1.28 PCB's. The term "PCB's" has the meaning set forth in Section
3.19(e).
1.29 Permits. The term "Permits" has the meaning set forth in
Section 3.16.
1.30 Person. The term "person" means any individual, firm,
corporation, limited liability company, partnership, trust, incorporated or
unincorporated association, joint venture, joint stock company, governmental
authority or other entity of any kind, and shall include any successor (by
merger or otherwise) of such entity.
1.31 Promissory Notes. The term "Promissory Notes" has the meaning
set forth in Section 2.3.
1.32 Purchase Price. The term "Purchase Price" has the meaning set
forth in Section 2.2.
1.33 Purchase Price Escrow. The term "Purchase Price Escrow" has
the meaning set forth in Section 2.3.
1.34 Real Property Leases. The term "Real Property Leases" has the
meaning set forth in Section 3.9A
1.35 Receivables. The term "Receivables" has the meaning set forth
in Section 3.12.
1.36 Representatives. The term "Representatives" has the meaning
set forth in Section 6.3.
1.37 Required Consents. The term "Required Consents" has the
meaning set forth in Section 3.5.
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1.38 Revenue Escrow. The term "Revenue Escrow" shall have the
meaning set forth in Section 6.1 hereof.
1.39 Rules. The term "Rules" has the meaning set forth in Section
3.15.
1.40 Specifications. The term "Specifications" has the meaning set
forth in Section 3.9C.
1.41 SpectraSite. The term "SpectraSite" has the meaning set forth
in the Recitals hereof.
1.42 SpectraSite Agreements. The term "SpectraSite Agreements"
means all agreements, documents and other instruments executed and delivered by
SpectraSite in connection with the consummation of the transaction contemplated
by this Agreement.
1.43 SpectraSite Indemnified Party. The term "SpectraSite
Indemnified Party" has the meaning set forth in Section 10.1(a).
1.44 Tax Returns. The term "Tax Returns" has the meaning set forth
in Section 3.18.
1.45 Taxes. The term "Taxes" has the meaning set forth in Section
3.18.
1.46 Tower Attachment Leases. The term "Tower Attachment Leases"
has the meaning set forth in Section 3.10.
1.47 Tower Sites. The term "Tower Sites" has the meaning set forth
in Section 3.9A.
1.48 Towers. The term "Towers" has the meaning set forth in
Section 3.9B.
1.49 Warranties. The term "Warranties" has the meaning set forth
in Section 3.9C.
ARTICLE II
PURCHASE OF SHARES AND PURCHASE PRICE
2.1 Purchase of Membership Interests. At the Closing, Xxxxxxx and
Xxxxx shall sell to SpectraSite, and SpectraSite shall purchase from Xxxxxxx
and Xxxxx, all of the Membership Interests.
2.2 Purchase Price. The aggregate purchase price of the
Membership Interests is $1,400,000.00 (the "Purchase Price")
2.3 Payment of Purchase Price. Simultaneously with the execution
and delivery of this Agreement, SpectraSite shall wire transfer immediately
available funds to H&K in the amount of $100,000.00 (the "Deposit"). H&K shall
hold the Deposit in trust and escrow as security for the performance by
SpectraSite of its obligations hereunder. Simultaneously with the execution
and delivery of this Agreement, the parties hereto and Xxxxxxxxx Bank and Trust
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Company (the "Escrow Agent") shall execute and deliver an Escrow Agreement in
the form attached hereto as Exhibit A (the "Escrow Agreement"). Simultaneously
with the execution and delivery of this Agreement, SpectraSite shall wire
transfer immediately available funds in the amount of $1,200,000.00 (the
"Purchase Price Escrow") to the Escrow Agent and the Escrow Agent shall hold
the Purchase Price Escrow pursuant to the terms and conditions hereof and the
terms and conditions of the Escrow Agreement. At the Closing, the Purchase
Price shall be satisfied and paid by SpectraSite as follows: (a) the Escrow
Agent shall wire transfer immediately available funds in the amount of one-half
(1/2) of the Purchase Price Escrow, less the amount of the Loan Payments, to
each of Xxxxxxx and Xxxxx and (b) SpectraSite shall make and deliver to each of
Xxxxxxx and Xxxxx a promissory note payable to their respective order in the
aggregate principal amount of $50,000.00, which shall bear interest at the rate
of nine percent (9.0%) per annum and shall be in the form attached hereto as
Exhibit B (collectively, the "Promissory Notes"). The Promissory Notes shall
be subject to offset by SpectraSite for indemnification claims pursuant to
Section 10.6 hereof. The amount of the Loan Payments shall be dispersed in
accordance with Sections 9.2(i) and 9.3(d) hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF HAWKINS, KEUCK, AND H&K
Hawkins, Keuck, and H&K jointly and severally represent and warrant to
SpectraSite as follows:
3.1 Organization and Good Standing. H&K is a limited liability
company duly organized and validly existing under the laws of the State of
Missouri. H&K has all requisite power and authority to own, operate, and lease
its assets and to conduct the operations of its business as presently
conducted. H&K is not required to qualify to conduct business as a foreign
corporation in any state. H&K has previously delivered to SpectraSite true and
complete copies of its Articles of Organization and Operating Agreement,
including all amendments thereto. H&K does not have any subsidiaries and does
not own any equity interest or any security convertible, exercisable, or
exchangeable into any equity interest of any Person.
3.2 Authority. Hawkins, Keuck, and H&K have the unrestricted
legal right and power to execute and deliver this Agreement, the Xxxxxxx
Agreements, the Xxxxx Agreements, and the H&K Agreements, as the case may be,
and to consummate the transactions contemplated hereby and thereby. The
execution, delivery, and performance of this Agreement and the H&K Agreements,
and the consummation of the transactions contemplated hereby and thereby, have
been duly and validly authorized by all necessary manager and member action.
This Agreement, the Xxxxxxx Agreements, the Xxxxx Agreements, and the H&K
Agreements have been, or with respect to the Xxxxxxx Agreements, the Xxxxx
Agreements, and the H&K Agreements to be executed at the Closing, will be duly
executed and delivered by the Hawkins, Keuck, and H&K, as the case may be, and
each constitutes, or will constitute when executed and delivered, a valid and
binding obligation of Hawkins, Keuck, and H&K, enforceable against Hawkins,
Keuck, and H&K, as the case may be, in accordance with its terms.
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3.3 Membership Interests. Xxxxxxx and Xxxxx are the sole
beneficial and record owners of the Membership Interests, with each owning
fifty percent (50%) of such Membership Interests, free and clear of all
security interests, mortgages, liens, claims, and encumbrances of every kind.
There are no outstanding subscriptions, options, warrants, calls, puts, or
other agreements or instruments which may entitle or obligate Hawkins, Keuck,
H&K, or any other Person to acquire the Membership Interests or any other
membership interest in H&K.
3.4 No Conflict or Breach. The execution, delivery and
performance of this Agreement, the Xxxxxxx Agreements, the Xxxxx Agreements,
and the H&K Agreements does not and will not:
(a) conflict with the Articles of Organization or
Operating Agreement of H&K;
(b) violate any law, statute, judgment, order, decree, or
regulation of any legislative body, court, administrative agency, governmental
authority, or arbitrator applicable to or relating to H&K, the Towers, or the
Improvements;
(c) conflict with, constitute a default under, result in
a breach or acceleration of or, except as set forth on Schedule 3.5, require
notice to or the consent of any third party under any of the Real Property
Leases or the Tower Attachment Leases or any other contract, agreement,
commitment, mortgage, note, license or other instrument or obligation to which
H&K is party or by which it is bound or by which the Towers or the Improvements
are affected; or
(d) result in the creation or imposition of any lien,
charge, or encumbrance of any nature whatsoever on any of the Towers or the
Improvements.
3.5 Consents and Approvals. Schedule 3.5 describes: (a) each
consent, approval, authorization, registration, or filing with any federal,
state or local judicial or governmental authority or administrative agency and
(b) each consent, approval, authorization of or notice to any other third
party, which is required in connection with the valid execution and delivery of
this Agreement or the consummation of the transactions contemplated herein or
therein (the items described in clauses (a) and (b), collectively, the
"Required Consents").
3.6 Financial Statements. H&K has previously delivered to
SpectraSite a true and complete copy of its unaudited Balance Sheet as of
October 31, 1997 (the "Financial Statements"). The Financial Statements: (a)
are true, complete and correct; (b) are in accordance with the books and
records of H&K; (c) present fairly the assets, liabilities and financial
condition of H&K as of the respective dates thereof, and the results of
operations for the periods then ending; and (d) have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis throughout the periods involved.
H&K has no liability or obligation, whether accrued, absolute, or
contingent that is not reflected or reserved against in the Financial
Statements, except for those that are not required by generally accepted
accounting principles to be included therein. Any items of income or expense
which are unusual or of a nonrecurring nature are separately disclosed in the
Financial
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Statements. H&K has not received from any of its certified public accountants
letters to the management of H&K with respect to the Financial Statements.
3.7 Books and Records. The books and records of H&K relating to
its business and assets are true, accurate, and complete in all material
respects.
3.8 Inventory and Personal Property. H&K does not own any
inventory, machinery, equipment, tools, furniture, office equipment, supplies,
materials, vehicles, or any other personal property other than such personal
property as may be included in the Improvements.
3.9 Real Property, Towers, and Improvements.
A. H&K does not own any real property. Schedule 3.9(A)
contains: (i) a complete list of all leases for the real property leased by
H&K (the "Real Property Leases"), true and complete copies of which have been
previously delivered by H&K to SpectraSite and (ii) with respect to each of the
Real Property Leases, a true and complete description of all real property that
is leased by H&K thereunder (the "Leased Real Property"), including a separate
true and complete description of the portion on which each of the Towers and
the Improvements is located (the "Tower Sites"). Each of the Real Property
Leases is valid, binding, and enforceable in accordance with its terms and is
in full force and effect, and there are no offsets or defenses by either
landlord or H&K thereunder. There are no existing defaults, and no events or
circumstances have occurred which, with or without notice or lapse of time or
both, would constitute defaults, under any of the Real Property Leases. The
execution, delivery and performance of this Agreement, the Xxxxxxx Agreements,
the Xxxxx Agreements, and the H&K Agreements does not and will not, with
respect to any such Real Property Lease: (i) permit the landlord to accelerate
the rent or cause the lease terms to be renegotiated; (ii) constitute a default
thereunder; or (iii) require the consent of the landlord thereunder or any
third party.
Other than H&K and the lessees under the Tower Attachment
Leases, there are no parties in possession of any portion of the Leased Real
Property as lessees, subtenants, tenants at sufferance, or trespassers.
B. Schedule 3.9(B) contains: (i) a true and complete
description, including the type and height, of each of the towers that is
located on the Leased Real Property (the "Towers"); (ii) a true and complete
description of all buildings, equipment shelters, fixtures, antenna,
communications equipment, and other improvements located on the Leased Real
Property and the Towers (the "Improvements"); and (iii) a true and complete
description of all Improvements that H&K is required to construct within six
(6) months after the Effective Date pursuant to the Tower Attachment Leases.
H&K is the sole owner of the Towers free and clear of all
security interests, mortgages, liens, claims, and encumbrances of every kind
except those listed on Schedule 3.9(C), all of which shall be removed at or
prior to the Closing.
The lessee under the applicable Tower Attachment Lease is the
owner of the Improvements subject only to customary security interests,
mortgages, liens, claims, and
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encumbrances of every kind. The Improvements are being used, occupied, and
maintained by H&K and the owner thereof in accordance with all applicable
Easements, Real Property Leases, Tower Attachment Leases, permits, insurance
requirements, restrictions, ordinances, zoning laws, building setback lines,
covenants, and reservations.
Each of the Leased Real Properties is serviced by all public
utilities adequate in type and capacity to serve the Towers consistent with
past practice.
None of the Leased Real Properties, nor any portion thereof,
is subject to any pending suit for condemnation or other taking by any public
authority, and to the best knowledge of H&K, Xxxxxxx, and Xxxxx, no such
condemnation or other taking is threatened or contemplated.
Each of the Towers (including guy anchors and wires) and the
Improvements, and any fence surrounding the same, are located wholly within the
Tower Site and do not encroach any other real property. No portion of the
Tower Site has been leased or subleased (except pursuant to the Tower
Attachment Leases), including for grazing purposes. No Tower Site is located
within an area that has been designated by the Federal Insurance
Administration, the Army Corps of Engineers, or the Federal Emergency
Management Administration, or any other governmental authority as being subject
to any special or increases flooding hazards.
H&K has previously delivered to SpectraSite true and complete
copies of all deeds, title opinions, title insurance policies, surveys, and
copies of all reports of engineers, environmental consultants, or other
consultants in its possession that relate to the Leased Real Property.
C. H&K has previously delivered to SpectraSite true and
complete copies of the construction contracts, specifications (the
"Specifications"), and the warranties (the "Warranties") for the Towers and the
Improvements. Each of the Towers and the Improvements was constructed in
accordance with, and as of the date hereof meets and complies with, the
Specifications in all respects. Each of the Towers and the Improvements is free
from structural and mechanical defects and is in good operating order,
condition and ordinary wear and tear excepted, is suitable for immediate use in
the ordinary course of H&K's business, is free from defects, is merchantable
and is of a quality and quantity presently usable in the ordinary course of
H&K's business. None of the Towers or the Improvements is in need of repair or
replacement other than as part of routine maintenance in the ordinary course of
business.
Each of the Warranties is valid, binding, and enforceable in
accordance with its terms and is in full force and effect, and there are no
offsets or defenses by either the party making the Warranty or H&K thereunder.
There are no existing defaults, and no events or circumstances have occurred
which, with or without notice or lapse of time or both, would constitute
defaults, under any of the Warranties. The execution, delivery and performance
of this Agreement, the Xxxxxxx Agreements, the Xxxxx Agreements, and the H&K
Agreements does not and will not, with respect to any such Warranty: (i)
invalidate such Warranty; (ii) constitute a default thereunder or (iii) require
the consent of the party making the Warranty or any other Person.
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D. Schedule 3.9(D) contains: (i) a complete list of all surface
easements located on or used in connection with the Leased Real Property (the
"Easements"), true and complete copies of the documents creating the Easements
have been previously delivered by H&K to SpectraSite and (ii) with respect to
each of the Easements, the name of the grantor and grantee thereof, the date of
grant thereof, and the term thereof. The Person identified on Schedule 3.9(D)
as the grantee under each of the Easements is the original grantee or has
validly succeeded to the rights of the original grantee thereof and has good
and valid title to such Easement, free and clear of all security interests,
mortgages, liens, claims, and encumbrances of every kind. Each of the
Easements is in full force and effect and has been paid for in full. No events
or circumstances have occurred which, with or without notice of lapse of time
or both, would constitute defaults, under any of the Easements. The execution,
delivery and performance of this Agreement, the Xxxxxxx Agreements, the Xxxxx
Agreements, and the H&K Agreements does not and will not, with respect to any
such Easement: (i) invalidate such Easement; (ii) constitute a default
thereunder or (iii) require the consent of the grantor thereof or any third
party.
Each of the Tower Sites has direct pedestrian and vehicular access to
public roads with the use of any easement, license, or right of way other than
as provided in the Real Property Leases. Such access is the only access that
has been needed by H&K to conduct its business during the twelve (12) month
period prior to the Effective Date.
3.10 Tower Attachment Leases. Schedule 3.10 contains: (i) a
complete list of all leases for the rental of space on the Towers (the "Tower
Attachment Leases"), true and complete copies of which have been previously
delivered by H&K to SpectraSite; (ii) with respect to each of the Tower
Attachment Leases, a true and complete description of all space that is leased
thereunder and all of the equipment that is attached to the Towers pursuant
thereto and (iii) with respect to each of the Tower Attachment Leases, a list
of all monthly rental and other revenue payable to H&K thereunder. Each of the
Tower Attachment Leases is valid, binding, and enforceable in accordance with
its terms and is in full force and effect. There are no existing defaults, and
no events or circumstances have occurred which, with or without notice or lapse
of time or both, would constitute defaults, under any of the Tower Attachment
Leases. The execution, delivery, and performance of this Agreement, the
Xxxxxxx Agreements, the Xxxxx Agreements, and the H&K Agreements does not and
will not, with respect to any Tower Attachment Lease: (i) constitute a default
thereunder, (ii) require the consent of any person or party; or (iii) affect
the continuation, validity and effectiveness thereof or the terms thereof.
3.11 Contracts. Except for the Real Property Leases and the Tower
Attachment Leases, H&K is not a party to, and the Towers and the Improvements
are not bound or affected by, any other contracts, commitments, agreements
(including, without limitation, agreements for the borrowing of money or the
extension of credit, licenses, understandings and obligations) whether written
or oral, except as described on Schedule 3.9(C).
3.12 Receivables. All accounts receivable and trade accounts due
to H&K in connection with its business consist of lease payments due to H&K
under the Tower Attachment Leases all of which are reflected on the Financial
Statements (the "Receivables"). All Receivables owing on the Effective Date
are, and to be owing at the Closing Date will be, legal, valid, and binding
obligations, of the respective lessees under the applicable Tower Attachment
Lease. All Receivables owing on the Effective Date are, and to be owing at the
Closing Date
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will be, collectible in full within the time period set forth in the applicable
Tower Attachment Lease. There are no set-offs, counterclaims, or disputes
asserted with respect to any Receivable and no discount or allowance from any
Receivable has been made or agreed to.
3.13 Intellectual Property. H&K does not own or license from any
Person, and does not use in the conduct of its business, any intellectual
property rights, including: (a) trademarks, service marks, trade names, logos,
and other designations; (b) copyrights; (c) inventions that are the subject of
letters patent or applications therefor; and (d) confidential or proprietary
processes, formulas, technical data, and other information that is of
commercial value to H&K.
3.14 Litigation. There are no claims, actions, suits, arbitration
proceedings, inquiries, hearings, injunctions, or investigations ("Claims")
pending, or to the best knowledge of Hawkins, Keuck, and H&K, threatened,
against H&K, its operations or its business. No Claims have been brought
within the last two years against H&K or its business, or affecting the Towers,
or relating to H&K's ownership, use, or operation of the Towers. There are no
facts or circumstances which could serve as the basis for any Claim against H&K
involving its business or the Towers, or, by virtue of the execution, delivery
and performance of this Agreement, against SpectraSite.
3.15 Compliance with Decrees and Laws. There is no outstanding or,
to the best knowledge of Hawkins, Keuck, and H&K, threatened, order, writ,
injunction, or decree of any court, governmental agency or arbitration tribunal
against or involving H&K or its business or the Towers. H&K is currently, and
has been at all times, in full compliance with all laws, statutes (including,
without limitation, the Federal Communications Act of 1934, as amended, and the
rules and regulations promulgated pursuant thereto), rules, regulations,
orders, and licensing requirements ("Rules") of federal, state, local and
foreign agencies and authorities applicable to the business, properties and
operations of H&K (including, without limitation, those relating to antitrust
and trade regulation, civil rights, labor and discrimination, safety and
health). To the best knowledge of Hawkins, Keuck, and H&K, there has been no
allegation of any violation of any such Rules, and no investigation or review
by any federal, state or local body or agency is pending, threatened or planned
with respect to H&K or its business or the Towers.
3.16 Permits. H&K has obtained all permits, authorizations,
certificates, approvals, licenses, exemptions, and classifications (including
those issued by the Federal Aviation Administration and the Federal
Communications Commission) required for the conduct of its business and the
ownership and operation of the Towers (the "Permits"), all of which are listed
on Schedule 3.16 and true and complete copies of which H&K has previously
delivered to SpectraSite. Each of the permits is in full force and effect, and
H&K has paid all fees and other amounts due and owing in connection with the
Permits. H&K is not in violation of any of the Permits, and no proceedings are
pending or, to the best knowledge of Hawkins, Keuck, and H&K, threatened, to
revoke or limit any of the Permits. There are no existing defaults, and no
events or circumstances have occurred which, with or without notice or lapse of
time or both, would constitute defaults, under any of the Permits. The Permits
are free and clear of all security interests, liens, claims, and encumbrances
of every kind.
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3.17 Customers. No lessee under any of the Tower Attachment Leases
has any present intention to terminate such Tower Attachment Lease or to
otherwise discontinue or materially alter its relationship with H&K as a result
of the consummation of the transactions contemplated by this Agreement or
otherwise.
3.18 Taxes. H&K has properly completed, duly and timely filed in
correct form with the appropriate United States, state, and local governmental
agencies and with the appropriate foreign countries and political subdivisions
thereof, all tax returns, reports and declarations of estimated tax (the "Tax
Returns") required to be filed before the Closing Date. All of the Tax Returns
are accurate, complete, and correct as filed, and H&K has paid in full or made
adequate provision in the Financial Statements for all amounts shown to be due
thereon. All United States, state, and local income, profits, franchise,
sales, use, occupancy, property, severance, excise, value added, withholding
and other taxes, and all taxes owing to any foreign countries and political
subdivisions thereof (including, without limitation, interest, penalties and
any additions to tax) ("Taxes") due from or claimed to be due by each taxing
authority in respect of H&K or its business or the Towers, for all periods
through the Effective Date, have been, and for all periods through the Closing
Date will be, fully paid or adequately provided for in the Financial
Statements. H&K has timely made and will timely make all withholdings of Taxes
required to be made under all applicable United States, state, and local tax
regulations, and such withholdings have either been paid or will be paid to the
respective governmental agencies or set aside in accounts for such purpose or
accrued, reserved against and entered upon the books of H&K. Estimated income
taxes which are not yet due to be paid to the Internal Revenue Service or any
state or local taxing authority have been accrued, reserved against and entered
upon the books of H&K. All Tax Returns required to be filed after the
Effective Date by H&K, shall, in each case, be prepared and filed by H&K in a
manner consistent in all respects (including, without limitation, elections and
accounting methods and conventions) with such Tax Return most recently filed by
H&K, in the relevant jurisdiction prior to the date hereof, except as otherwise
required by law or regulation or agreed to by SpectraSite. If any such Tax
Return required to be filed after the Effective Date shall reflect any new
elections or the adoption of any new accounting methods or conventions or other
similar items, the reflection or adoption of any such items shall, except to
the extent such particular reflection or adoption is required to comply with
any law or regulation, be subject to the prior written approval of SpectraSite.
All deficiencies asserted as a result of any examinations of the Tax Returns
have been paid or adequately provided for in the Financial Statements, and no
issue has been raised by a taxing authority in any such examination which, if
raised with regard to any other period not so examined, would be expected to
result in a proposed deficiency for any other period not so examined. H&K will
not have any liability, either in its own right or as a transferee, for Taxes
in excess of the amount paid or reserved for any period prior to the Closing.
There are no outstanding agreements or waivers extending the statutory period
of limitation applicable to any Tax Return, or the period for assessment or
collection of any Taxes. H&K is not a party to any pending action or
proceeding, nor to the best knowledge of H&K, is there threatened any action or
proceeding, by any governmental authority for assessment or collection of
Taxes, and H&K is not currently under audit or review and has not been notified
by any governmental authority that an audit or review of any tax matter is
contemplated. There are no tax liens (other than liens for taxes for current
and subsequent years which are not yet due and payable) upon any of the Towers.
H&K has not agreed, nor is it required, to make any adjustment under Section
481(a) of
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the Code, by reason of a change in accounting method or otherwise. H&K has
not consented to the application to it of Section 341 (f)(2) of the Code.
3.19 Environmental Protection. The existing and prior uses of the
Towers, the Improvements, the Leased Real Property, and the operation of H&K's
business comply with, and at all times have complied with, and H&K is not in
violation of, and has not violated, in connection with the ownership, use,
maintenance, or operation of the Towers, the Improvements, the Leased Real
Property, and the operation of its business, any applicable federal, state,
county or local statues, laws, regulations, rules, ordinances, codes, licenses
or permits of any governmental authorities relating to environmental matters,
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act as amended, the Resource Conservation Recovery
Act as amended, the Clean Air Act, the Clean Water Act, the Occupational Safety
and Health Act, the Toxic Substances Control Act, and "Superfund" or
"Superlien" law, the North Carolina Oil Pollution and Hazardous Substances
Control Act of 1978, or any other federal, state or local statue, law,
ordinance, code, rule, regulation, order, decree or guideline (whether
published or unpublished) regulating, relating to or imposing liability or
standards of conduct concerning any petroleum, petroleum by-product (including
but not limited to crude oil, diesel oil, fuel oil, gasoline, lubrication oil,
oil refuse, oil mixed with other waste, oil sludge, and all other liquid
hydrocarbons, regardless of specific gravity), natural or synthetic gas,
hazardous substance or materials, toxic or dangerous waste, substance or
material, pollutant or contaminant (collectively "Environmental Laws").
Specifically, but not in limitation of the foregoing:
(a) H&K has obtained and is in full compliance with the
terms and provisions of all licenses and permits necessary for compliance with
the Environmental Laws with respect to the Towers, the Improvements, and its
business, all of which are listed on Schedule 3.19;
(b) The Towers, the Improvements, and the Leased Real
Property are free of asbestos containing materials ("ACM's"), and are free of
Hazardous Materials except for current inventories of gasoline, diesel fuel,
fuel oil greases, motor oils and other lubricants. As used in this Agreement,
"Hazardous Material" means and includes asbestos, ACM's, polychlorinated
biphenyls, lead-based paints, any petroleum product, petroleum by-products
(including but not limited to crude oil or any fraction of it, diesel oil, fuel
oil, gasoline, lubrication oil, oil refuse, oil mixed with other wastes, oil
sludge and all other liquid hydrocarbons, regardless of specific gravity),
natural or synthetic gas products and/or hazardous substance or materials,
waste, pollutant or contaminant, and all other material defined as such in (or
for the purposes of) the Environmental Laws.
(c) H&K and its predecessors in interest have operated
the Towers, the Improvements, and the Leased Real Property, and have at all
times received, handled, used, stored, treated and disposed of all Hazardous
Materials, in strict compliance with all Environmental Laws. H&K has not
transported or arranged for the transport of any Hazardous Materials to or from
any of the Leased Real Property.
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(d) No Hazardous Material has been released, deposited,
discharged, placed, disposed of or originated on or under the Leased Real
Property, nor has any of the Leased Real Property been used at any time by any
person as a landfill or a waste disposal site.
(e) There is no electrical equipment, including
transformers, containing polychlorinated biphenyls ("PCB's") included in the
Towers, the Improvements, or the Leased Real Property.
(f) There are no monitoring xxxxx on any of the Leased
Real Property for monitoring any Hazardous Materials.
(g) There are no underground or above-ground tanks
situated on any of the Leased Real Property.
(h) There are no liens on any of the Towers, the
Improvements, or the Leased Real Property resulting from any cleanup or
proposed cleanup under the Environmental Laws.
(i) No part of the Leased Real Property constitutes
"wetlands" as defined under any Environmental Law or other law or regulation.
(j) No Environmental Law, and to the best knowledge of
Xxxxxxx and H&K, no proposed Environmental Law, imposes standards or
requirements, or will impose standards or requirements, which will require the
owner or operator of the Towers, the Improvements, or the lessee of the Leased
Real Property to engage in any work, repairs, construction or capital
expenditures in excess of $5,000.00 in the aggregate in order to comply with
such Environmental Law or such proposed Environmental Law.
(k) No notices of any violation, inquiries or requests
for information relating to any of the matters referred to in Subsections (a)
through (k) above relating to the Towers, the Improvements, or the Leased Real
Property or their use have been received by Hawkins, Keuck, or H&K.
3.20 Insurance. Schedule 3.20 describes all insurance policies
maintained by H&K with respect to the Towers, the Improvements, and its
business. Such policies are valid, binding, and enforceable in accordance with
their terms, are in full force and effect, and all premiums due thereon have
been paid and will be paid through the Closing Date. Such policies provide
adequate coverage for all risks customarily insured against by insured of
similar size and in similar business. H&K has not been refused any insurance
by any insurance carrier during the past two (2) years.
3.21 Labor and Employment Matters. H&K has no employees and does
not pay or provide any retirement, health, welfare, or other benefits of any
kind or description whatsoever.
3.22 Absence of Certain Changes. Except as described in Schedule
3.22, since October 31, 1997, H&K has conducted the operations of its business
only in the ordinary course, and has not:
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(a) Suffered any damage, destruction or loss to any of
the Towers or the Improvements, whether or not covered by insurance;
(b) Sold, transferred, distributed or otherwise disposed
of any assets used in the operation of its business;
(c) Declared, made, or paid any distribution or dividend
to Xxxxxxx or Xxxxx;
(d) Amended or terminated any of the Real Property Leases
or any other contract, lease, license, or commitment relating to the conduct of
its business, the Towers, or the Improvements;
(e) Incurred any obligation or liability (whether
absolute, accrued, contingent or otherwise and whether due or to become due)
except normal trade or business obligations incurred in the ordinary course of
business;
(f) Introduced any new method of management, operations
or accounting;
(g) Suffered any adverse change in the condition
(financial or otherwise), results of operations of its business, the Towers, or
the Improvements, or any other event or condition of any character that might
reasonably be expected to have an adverse effect on its business, the Towers,
the Improvements, or the Tower Attachment Leases; or
(h) Agreed, whether in writing or otherwise, to take any
action described in this Section.
3.23 Product Warranties. There are no continuing or outstanding
warranties applicable to the services provided by H&K or the space on the
Towers leased by H&K pursuant to the Tower Attachment Leases.
3.24 Brokers. No finder, broker, agent or other intermediary has
acted for or on behalf of H&K, Xxxxxxx, or Xxxxx in connection with the
negotiation or consummation of this Agreement, and there are no claims for any
brokerage commission, finder's fee or similar payment due from H&K, Xxxxxxx, or
Xxxxx.
3.25 Disclosure. No representation, warranty, or statement made by
H&K, Xxxxxxx, or Xxxxx in this Agreement, or any document furnished or to be
furnished to SpectraSite pursuant to this Agreement, contains or will contain
any untrue statement of a material fact, or omits or will omit to state any
material fact necessary to make the statements contained herein or therein not
misleading. The fact that H&K has delivered copies of certain documents to
SpectraSite shall not alone constitute disclosure of facts required to be
disclosed on any Schedule to this Agreement, unless such document is expressly
referenced in such Schedule. Receipt by SpectraSite of such documents and
notice of their contents (other than by reference on a Schedule) shall in no
way limit H&K's, Xxxxxxx', or Xxxxx'x other obligations or SpectraSites, other
rights under this Agreement.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SPECTRASITE
SpectraSite represents and warrants to H&K, Xxxxxxx, and Xxxxx as
follows:
4.1 Organization and Good Standing. SpectraSite is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware.
4.2 Authority. SpectraSite has all requisite power and authority
to execute, deliver and perform this Agreement and the SpectraSite Agreements
and transactions contemplated hereby and thereby. The execution, delivery, and
performance of this Agreement and the SpectraSite Agreements, and the
consummation of the transactions contemplated hereby and thereby, have been
duly and validly authorized by all necessary corporate action on the part of
SpectraSite. This Agreement and the SpectraSite Agreements, have been, or,
with respect to the SpectraSite Agreements to be executed at the Closing, will
be duly executed and delivered by SpectraSite and each constitutes, or will
constitute when executed and delivered, a valid and binding obligation of
SpectraSite, enforceable against SpectraSite in accordance with its terms.
4.3 No Conflict or Breach. The execution, delivery and
performance of this Agreement and the SpectraSite Agreements do not and will
not: (a) conflict with or constitute a violation of the Certificate of
Incorporation or Bylaws of SpectraSite or (b) conflict with or constitute a
violation of any statute, judgment, order, decree or regulation of any court,
administrative agency, governmental authority, or arbitrator applicable to or
relating to SpectraSite.
4.4 Governmental Approvals. No consent, approval, authorization,
registration, or filing with any federal, state or local judicial or
governmental authority or administrative agency is required in connection with
the valid execution and delivery by SpectraSite of this Agreement and the
SpectraSite Agreements or the consummation by SpectraSite of the transactions
contemplated herein or therein.
4.5 Brokers. No finder, broker, agent or other intermediary has
acted for or on behalf of SpectraSite in connection with the negotiation or
consummation of this Agreement, and there are no claims for any brokerage
commission, finder's fee or similar payment due from SpectraSite.
ARTICLE V
COVENANTS OF HAWKINS, KEUCK, H&K
Hawkins, Keuck, and H&K covenant and agree with SpectraSite as
follows:
5.1 Conduct of Business. Between the Effective Date and the
Closing Date, Hawkins, Keuck, and H&K shall except as otherwise specifically
consented to in writing by SpectraSite:
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(a) Conduct the business and operations of H&K in the
normal and customary manner in the ordinary course of business;
(b) Maintain and keep the Towers and Improvements in good
operating order, repair and condition ordinary wear and tear excepted;
(c) Keep in full force and effect the insurance described
in Section 3.20;
(d) Perform all of its obligations under all of the Real
Property Leases and the Tower Attachment Leases, and not amend, alter or modify
any provision thereof;
(e) Use their best efforts to preserve H&K's organization
intact and maintain their relationships with the landlords under the Real
Property Leases and the lessees under the Tower Attachment Leases;
(f) Promptly advise SpectraSite of any adverse change in
the condition (financial or otherwise) of H&K's business, the Towers, or the
Improvements;
(g) Promptly advise SpectraSite of the occurrence of any
event or circumstance which affects the consummation of the transactions
contemplated by this Agreement or which, if in existence on the date of this
Agreement, would have been required to have been disclosed in a Schedule to
this Agreement;
(h) Not create or permit to exist any security interest,
mortgage, pledge, lien, charge, encumbrance or adverse claim of any kind or
nature with respect to any of the Towers, the Improvements, or the Real
Property Leases;
(i) Not sell or dispose of any of the Towers or the
Improvements;
(j) Not declare, make, or pay any distribution or
dividend; or
(k) Not make any capital improvement or expenditure.
5.2 Access and Information. Between the Effective Date and the
Closing Date, Hawkins, Keuck, and H&K shall permit SpectraSite and its
Representatives full access during normal business hours to all the properties,
assets, books, records, agreements and other documents of H&K. Hawkins, Keuck,
and H&K shall furnish to SpectraSite and its Representatives all information
concerning H&K and its business and assets as SpectraSite may request.
Hawkins, Keuck, and H&K shall permit and facilitate communications between
SpectraSite and the landlords under the Real Property Leases and the lessees
under the Tower Attachment Leases and other persons having relationships with
H&K and its business.
5.3 No Other Solicitations. Until the earlier of the Closing Date
or the termination of this Agreement, Hawkins, Keuck, and H&K and their
respective Representatives shall not, directly or indirectly, initiate contact
with or solicit or encourage any inquiries or proposal from, or solicit,
initiate, encourage or participate in any discussion or negotiations with, or
provide any
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confidential information to, any Person (other than SpectraSite and its
Representatives) in connection with any possible proposal regarding a sale of
the Membership Interests, a sale of all or a substantial portion of the assets
of H&K, a merger of H&K with or into any other Person, or any other transaction
similar to any of the foregoing.
ARTICLE VI
MUTUAL COVENANTS
Each of SpectraSite, Hawkins, Keuck, and H&K covenants and agrees with
the other as follows:
6.1 Revenue Escrow. Hawkins, Keuck, and H&K shall immediately
send to the Escrow Agent all rental and other revenue received by them for the
period beginning on the Effective Date and ending as of the Closing from the
lessees under the Tower Attachment Leases and any leases for the rental of
space on the Towers entered into by H&K after the Effective Date, net of all
amounts due by H&K under the Real Property Leases and H&K's loan from the
Escrow Agent (the "Loan Payments"), to be held and dispersed by the Escrow
Agent pursuant to the terms and conditions of the Escrow Agreement (the
"Revenue Escrow"). Not later than five (5) business days after the end of each
calendar month prior to the Closing, Hawkins, Keuck, and H&K shall submit, by
notice to SpectraSite, a report setting forth the aggregate amount of such
revenue received by them and sent to the Escrow Agent during each such calendar
month, including a list of all amounts paid therefrom under the Real Property
Leases and the Loan Payments.
6.2 Best Efforts. Each of SpectraSite, Hawkins, Keuck, and H&K
shall use its best efforts to make or obtain all consents, approvals,
authorizations, registrations, and filings with all federal, state, or local
judicial or governmental authorities or administrative agencies as are required
in connection with the consummation of the transactions contemplated by this
Agreement. In addition, each of Xxxxxxx and H&K shall use its best efforts to
obtain as promptly as possible all of the Required Consents.
6.3 Confidentiality. In recognition of the confidential nature of
certain of the information which will be provided to any party by the other
parties, each of SpectraSite, Hawkins, Keuck, and H&K agrees to retain in
confidence, and to require its directors, officers, employees, consultants,
professional representatives and agents (collectively, its "Representatives")
to retain in confidence all information transmitted or disclosed to it by any
other party, and further agrees that it shall not use for its own benefit and
shall not use or disclose to any third party, or permit the use or disclosure
to any third party of, any information obtained from or revealed by any other
party, except that each of SpectraSite, Hawkins, Keuck, and H&K may disclose
the information to those of its Representatives who need the information for
the proper performance of their assigned duties with respect to the
consummation of the transactions contemplated hereby. In making such
information available to its Representatives, each of SpectraSite, Hawkins,
Keuck, and H&K shall take any and all precautions necessary to ensure that its
Representatives use the information only as permitted hereby. Notwithstanding
anything to the contrary in the foregoing provisions, such information may be
disclosed: (a) where it is
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necessary to any regulatory authorities or governmental agencies; (b) if it is
required by court order or decree or applicable law; (c) if it is ascertainable
or obtained from public or published information; (d) if it is received from a
third party not known to the recipient to be under an obligation to keep such
information confidential; or (e) if the recipient can demonstrate that such
information was in its possession prior to disclosure thereof in connection
with this Agreement. If any party is required to make disclosure of any such
information by operation of law, such disclosing party will give the other
parties prior notice of the making of such disclosure and will use all
reasonable efforts to afford such other parties an opportunity to contest the
making of such disclosure. In the event that the Closing does not occur, each
of SpectraSite, Hawkins, Keuck, and H&K shall immediately deliver, or cause to
be delivered, to the other (without retaining any copies thereof) any and all
documents, statements or other written information obtained from the other that
contain confidential information.
ARTICLE VII
CONDITIONS PRECEDENT TO SPECTRASITE'S OBLIGATIONS
The obligations of SpectraSite to consummate the transactions
contemplated by this Agreement are subject to the satisfaction of the following
conditions on or before the Closing Date, unless specifically waived in writing
by SpectraSite prior to the Closing Date:
7.1 Representations and Warranties. The representations and
warranties of each of Hawkins, Keuck, and H&K contained in this Agreement shall
have been true and correct on the Effective Date and shall be true and correct
on the Closing Date as though made on and as of the Closing Date.
7.2 Compliance with Covenants. Each of Hawkins, Keuck, and H&K
shall have duly performed and complied with all covenants, agreements, and
obligations required by this Agreement to be performed or complied with by it
on or prior to the Closing.
7.3 Absence of Litigation. No action or proceeding shall be
pending or, in the reasonable opinion of SpectraSite, threatened by or before
any court or other governmental body or agency seeking to restrain, prohibit or
invalidate the transactions contemplated by this Agreement or which would
adversely affect the right of SpectraSite to lease, occupy, operate, or control
the Leased Real Property, the Towers, or the Improvements after the Closing
Date.
7.4 Absence of Changes. Between the Effective Date and the
Closing, no material adverse change shall have occurred in the business,
operations, or financial or other condition of H&K and its business, the Leased
Real Property, the Towers, or the Improvements, nor shall there have occurred
any casualty loss or destruction of, or damage to, any of the Towers or the
Improvements.
7.5 Consents and Approvals. All: (a) Required Consents; (b)
licenses; (c) other orders or notifications of, or registrations, declarations
or filings with, or expiration of waiting periods imposed by, any applicable
governmental or judicial authority; and (d) consents, approvals, authorizations
or notifications of any other third parties, all as required in connection
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with consummation of the transactions contemplated by this Agreement, shall
have been made or obtained or shall have occurred.
7.6 Due Diligence. SpectraSite shall have received all
information requested by it pursuant to Section 5.2 and shall be satisfied with
all aspects of H&K, H&K's business, the Towers, the Improvements, the Real
Property Leases, and the Tower Attachment Leases and no information shall have
been acquired by SpectraSite between the Effective Date and the Closing Date
that could, in the reasonable opinion of SpectraSite, result in a material
adverse change in the business or prospects of H&K or its business after the
Closing.
7.7 Monthly Rental Revenue. On the Closing Date, the aggregate
gross monthly rental revenue under the Tower Attachment Leases and any new
leases for the rental of space on the Towers entered into by H&K prior to the
Closing Date shall be at least $13,000.00.
7.8 No Arreages. On the Closing Date, H&K shall not be in
arrears in any payments then due under the Real Property Leases or H&K's loan
from the Escrow Agent.
7.9 Landlord Estoppel Certificates. SpectraSite shall have
received from each of the landlords under the Real Property Leases a Landlord
Estoppel Certificate in a form reasonably satisfactory to SpectraSite.
7.10 Lessee Estoppel Certificates. SpectraSite shall have received
from each of the lessees under the Tower Attachment Leases a Lessee Estoppel
Certificate in a form reasonably satisfactory to SpectraSite.
7.11 Legal Opinion. SpectraSite shall have received from Xxxxxx &
Xxxx, counsel to Hawkins, Keuck, and H&K, an opinion, dated the Closing Date,
in a form reasonably satisfactory to SpectraSite.
ARTICLE VIII
CONDITIONS PRECEDENT TO XXXXXXX', XXXXX'X, AND H&K'S OBLIGATIONS
The obligations of Hawkins, Keuck, and H&K to consummate the
transactions contemplated by this Agreement are subject to the satisfaction of
each of the following conditions on or before the Closing Date, unless
specifically waived in writing by Hawkins, Keuck, and H&K prior to the Closing:
8.1 Representations and Warranties. The representations and
warranties of SpectraSite contained in this Agreement shall have been true and
correct on the Effective Date, and shall be true and correct on the Closing
Date as through made on and as of the Closing Date.
8.2 Compliance with Covenants. SpectraSite shall have duly
performed and complied with all covenants, agreements and obligations required
by this Agreement to be performed or complied with by it on or before the
Closing Date.
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8.3 Absence of Litigation. No action or proceeding shall be
pending by or before any court or other governmental body or agency seeking to
restrain, prohibit or invalidate the transactions contemplated by this
Agreement.
8.4 Consents and Approvals. All Required Consents shall have been
obtained prior to or at the Closing.
8.5 Legal Opinion. Hawkins, Keuck, and H&K shall have received
from Xxxxxxxxx & Xxxxx PLLC, counsel to SpectraSite, an opinion, dated the
Closing Date, in a form reasonably satisfactory to them.
ARTICLE IX
CLOSING
9.1 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Xxxxxxxxx & Xxxxx
PLLC, in Raleigh, North Carolina at 10:00 a.m., local time, on May 1, 1998, or
such other date as may be mutually agreed upon by the parties hereto; provided,
however, as follows: (a) if one or more conditions to this Agreement is not
satisfied by such date, the party benefiting from such condition may elect, in
its sole discretion, one or more postponements of the Closing for the purpose
of enabling such condition to be satisfied and (b) notwithstanding the
provisions of the preceding clause (a), in no event may the Closing be
postponed beyond June 1, 1998. The date of the Closing is referred to as the
"Closing Date." For the purposes of passage of title and risk of loss,
allocation of expenses, adjustments and other economic or financial effects of
the transactions contemplated hereby, the Closing when completed shall be
deemed to have occurred at 12:01 a.m., Raleigh, North Carolina time, on the
Closing Date.
9.2 Deliveries by Hawkins, Keuck, and H&K. At the Closing,
Hawkins, Keuck, and H&K shall deliver or cause to be delivered to SpectraSite
or the Escrow Agent, as the case may be, the following:
(a) Assignments of the Membership Interests in a form
satisfactory to SpectraSite.
(b) A certificate of Hawkins, Keuck, and the President of
H&K confirming the satisfaction of the conditions set forth in Sections 7.1 and
7.2 hereof as to representations, warranties, and covenants of Hawkins, Keuck,
and H&K and Section 7.4 hereof as to absence of changes.
(c) A copy of all resolutions of H&K authorizing the
execution, delivery and performance of this Agreement, and the consummation of
the transactions contemplated herein, accompanied by the certification of the
Secretary of H&K to the effect that such resolutions are in full force and
effect and have not been amended, modified or rescinded.
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(d) A Good Standing Certificate from the Secretary of
State of the State of Missouri for H&K.
(e) The legal opinion referred to in Section 7.9.
(f) Evidence of that all Consents have been obtained or
satisfied.
(g) The Landlord Estoppel Certificates referred to in
Section 7.7.
(h) The Lessee Estoppel Certificates referred to in
Section 7.8.
(i) A joint notice with SpectraSite directing the Escrow
Agent to disperse the "Purchase Price Escrow," as defined in the Escrow
Agreement, less the amount of the Loan Payments, to Xxxxxxx and Xxxxx in
accordance with Section 2.3 hereof and the "Revenue Escrow," as defined in the
Escrow Agreement, and the amount of the Loan Payments, to a bank account
designated by SpectraSite.
(j) Evidence, satisfactory to SpectraSite within its sole
discretion, of the removal of the security interests, mortgages, liens, claims,
and encumbrances described on Schedule 3.9(c).
(k) Such other documents and instruments as SpectraSite
may reasonably request to effect and evidence the consummation of the
transaction contemplated by this Agreement.
9.3 Deliveries by SpectraSite. At the Closing, SpectraSite shall
deliver or cause to be delivered to Hawkins, Keuck, and H&K or the Escrow
Agent, as the case may be, the following:
(a) A certificate of the President or Chief Financial
Officer of SpectraSite confirming the satisfaction of the conditions set forth
in Sections 8.1 and 8.2 as to representations, warranties and covenants of
SpectraSite.
(b) A copy of all corporate resolutions authorizing the
execution, delivery, and performance of this Agreement, and the consummation of
the transactions contemplated herein, accompanied by the certification of the
Secretary of SpectraSite to the effect that such resolutions are in full force
and effect and have not been amended, modified or rescinded.
(c) The legal opinion referred to in Section 8.5.
(d) A joint notice with Hawkins, Keuck, and H&K directing
the Escrow Agent to disperse the Purchase Price Escrow to Xxxxxxx and Xxxxx in
accordance with Section 2.3 hereof and the Revenue Escrow and the amount of the
Loan Payments to a bank account designated by SpectraSite.
(e) The Promissory Notes.
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(f) Such other documents and instruments as Xxxxxxx and
H&K may reasonably request to effect and evidence the consummation of the
transactions contemplated by this Agreement.
9.4 Further Assurances. Hawkins, Keuck, and H&K shall, at any
time on or after the Closing Date, take all actions requested by SpectraSite to
effect and evidence the transfer to and reduction of possession of SpectraSite,
or its successors or assigns to the Membership Interests.
ARTICLE X
INDEMNIFICATION
10.1 Indemnification by Hawkins, Keuck, and H&K.
(a) In addition to all other sums due hereunder or
provided for in this Agreement, Hawkins, Keuck, and H&K, jointly and severally,
agree to indemnify and hold harmless SpectraSite and its Affiliates and each of
their respective officers, directors, agents, employees, subsidiaries,
partners, attorneys, accountants, and controlling persons (each, a "SpectraSite
Indemnified Party") to the fullest extent permitted by law from and against any
and all losses, claims, damages, expenses (including, without limitation,
reasonable fees, disbursements, and other charges of counsel incurred by a
SpectraSite Indemnified Party in any action or proceeding between Hawkins,
Keuck, or H&K and such SpectraSite Indemnified Party (or SpectraSite
Indemnified Parties) or between a SpectraSite Indemnified Party (or SpectraSite
Indemnified Parties) and any third party) or other liabilities, losses, or
diminution in value of H&K, or SpectraSite (collectively, "Loss") resulting
from or arising out of any breach of any representation or warranty of Hawkins,
Keuck, or H&K in this Agreement, any breach of any covenant or agreement of
Hawkins, Keuck, or H&K in this Agreement or in any Xxxxxxx Agreement, Xxxxx
Agreement, or H&K Agreement, including, without limitation, the failure to make
payment when due of amounts owing pursuant to this Agreement or any Xxxxxxx
Agreement, Xxxxx Agreement, or H&K Agreement, on the due date thereof (whether
at the scheduled maturity, by acceleration or otherwise) or any legal,
administrative or other actions (including actions brought by SpectraSite or
any equity holders of H&K or derivative actions brought by any Person claiming
through or in H&K's name), proceedings or investigations (whether formal or
informal), or written threats thereof, based upon, relating to or arising out
of this Agreement or any Xxxxxxx Agreement, Xxxxx Agreement, or H&K Agreement,
the transactions contemplated hereby or thereby, or any SpectraSite Indemnified
Party's role therein or in the transactions contemplated thereby, any and all
liabilities and obligations of Hawkins, Keuck, and H&K of any kind or nature
whatsoever, whether accrued, absolute, contingent or otherwise, known or
unknown, that are not set forth on the Financial Statements; or Xxxxxxx' and
Xxxxx'x ownership and operation of the H&K's business, the Towers, and the
Improvements prior to the Closing Date; provided, however, that neither
Hawkins, Keuck, nor H&K shall be liable under this Section 10.1 to a
SpectraSite Indemnified Party: (a) for any amount paid by the SpectraSite
Indemnified Party in settlement of claims by the SpectraSite Indemnified Party
without the consent of Xxxxxxx and Xxxxx (which consent shall not be
unreasonably withheld), (b) to the extent that it is finally judicially
determined that such Loss resulted primarily from the willful misconduct or
gross negligence of such SpectraSite Indemnified Party or (c) to the extent
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that it is finally judicially determined that such Loss resulted primarily from
the breach by such SpectraSite Indemnified Party of any representation,
warranty, covenant or other agreement of such SpectraSite Indemnified Party
contained in this Agreement or any SpectraSite Agreement; provided, further,
that if and to the extent that such indemnification is unenforceable for any
reason, Hawkins, Keuck, and H&K shall make the maximum contribution to the
payment and satisfaction of such Loss which shall be permissable under
applicable laws. In connection with the obligation of Hawkins, Keuck, and H&K
to indemnify for expenses as set forth above, Hawkins, Keuck, and H&K further,
jointly and severally, agree, upon presentation of appropriate invoices
containing reasonable detail, to reimburse each SpectraSite Indemnified Party
for all such expenses (including, without limitation, fees, disbursements and
other charges of counsel incurred by a SpectraSite Indemnified Party in any
action or proceeding between SpectraSite and such SpectraSite Indemnified Party
(or SpectraSite Indemnified Parties) or between a SpectraSite Indemnified Party
(or SpectraSite Indemnified Parties) and any third party) as they are incurred
by such SpectraSite Indemnified Party; provided, however, that if a SpectraSite
Indemnified Party is reimbursed hereunder for any expenses, such reimbursement
of expenses shall be refunded to the extent it is finally judicially determined
that the Loss in question resulted primarily from (i) the willful misconduct or
gross negligence of such SpectraSite Indemnified party or (ii) the breach by
such SpectraSite Indemnified Party of any representation, warranty, covenant,
or other agreement of such SpectraSite Indemnified Party contained in this
Agreement or any SpectraSite Agreement.
(b) Notwithstanding the foregoing, from and after the
Closing Date, Xxxxxxx and Xxxxx shall be primarily responsible for the
obligations under this Article X and shall have no right of contribution or
other rights against H&K with respect to such obligations.
10.2 Indemnification by SpectraSite. In addition to all other sums
due hereunder or provided for in this Agreement, SpectraSite agrees to
indemnify and hold harmless Hawkins, Keuck, and H&K and each of their
respective officers, directors, agents, employees, partners, attorneys,
accountants and controlling persons (each, a "H&K Indemnified Party") to the
fullest extent permitted by law from and against any and all losses, claims,
damages, expenses (including, without limitation, reasonable fees,
disbursements and other charges of counsel incurred by a H&K Indemnified Party
in any action or proceeding between SpectraSite and such H&K Indemnified Party
(or H&K Indemnified Parties) or between a H&K Indemnified Party (or H&K
Indemnified Parties) and any third party) or other liabilities, losses, or
diminution in value (collectively, "Loss") resulting from or arising out of any
breach of any representation or warranty, covenant or agreement of SpectraSite
in this Agreement or in any SpectraSite Agreement, including, without
limitation, the failure to make payment when due of amounts owing pursuant to
this Agreement or any SpectraSite Agreement, on the due date thereof (whether
at the scheduled maturity, by acceleration or otherwise) or any legal,
administrative or other actions (including actions brought by SpectraSite, or
any equity holders of SpectraSite or derivative actions brought by any Person
claiming through or in SpectraSite's name), proceedings or investigations
(whether formal or informal), or written threats thereof, based upon, relating
to or arising out of this Agreement or any SpectraSite Agreement, the
transactions contemplated hereby or thereby; provided, however, that
SpectraSite shall be liable under this Section 10.2 to a H&K Indemnified Party:
(a) for any amount paid by the H&K Indemnified Party in settlement of claims by
the H&K Indemnified Party without the consent of SpectraSite (which consent
shall not be unreasonably withheld), (b) to the extent that it is finally
judicially determined that such Loss resulted primarily from the willful
misconduct or gross
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negligence of such H&K Indemnified Party or (c) to the extent that it is
finally judicially determined that such Loss resulted primarily from the breach
by such H&K Indemnified Party of any representation, warranty, covenant or
other agreement of such H&K Indemnified Party contained in this Agreement or
any H&K Agreement; provided, further, that if and to the extent that such
indemnification is unenforceable for any reason, SpectraSite shall make the
maximum contribution to the payment and satisfaction of such Loss which shall
be permissible under applicable laws. In connection with the obligation of
SpectraSite to indemnify for expenses as set forth above, SpectraSite further
agrees, upon presentation of appropriate invoices containing reasonable detail,
to reimburse each H&K Indemnified Party for all such expenses (including,
without limitation, fees, disbursements and other charges of counsel incurred
by a H&K Indemnified Party in any action or proceeding between Hawkins, Keuck,
and H&K and such H&K Indemnified Party (or H&K Indemnified Parties) or between
a H&K Indemnified Party (or H&K Indemnified Parties) and any third party) as
they are incurred by such H&K Indemnified Party; provided, however, that if a
H&K Indemnified Party is reimbursed hereunder for any expenses, such
reimbursement of expenses shall be refunded to the extent it is finally
judicially determined that the Loss in question resulted primarily from (i) the
willful misconduct or gross negligence of such H&K Indemnified Party or (ii)
the breach by such H&K Indemnified Party of any representation, warranty,
covenant or other agreement of such H&K Indemnified Party contained in this
Agreement or any H&K Agreement.
10.3 Notification. Each party entitled to indemnification under
this Article X (an "Indemnified Party") shall, promptly after the receipt of
notice of the commencement of any action, investigation, claim, or other
proceeding against such Indemnified Party in respect of which indemnity may be
sought from any other party under this Article X (the "Indemnity Obligor"),
notify the Indemnity Obligor in writing of the commencement thereof. The
omission of any Indemnified Party so to notify the Indemnity Obligor of any
such action shall not relieve any Indemnity Obligor from any liability which it
may have to such Indemnified Party (a) other than pursuant to this Article X or
(b) under this Article X unless, and only to the extent that, such omission
results in the Indemnity Obligor's forfeiture of material substantive rights or
defenses. In case any such action, claim or other proceeding shall be brought
against any Indemnified Party and it shall notify the Indemnity Obligor of the
commencement thereof, the Indemnity Obligor shall be entitled to assume the
defense thereof at their own expense, with counsel satisfactory to such
Indemnified Party in its reasonable judgment; provided, however, that any
Indemnified Party may, at its own expense, retain separate counsel to
participate in such defense. Notwithstanding the foregoing, in any action,
claim or proceeding in which any Indemnity Obligor, on the one hand, and an
Indemnified Party, on the other hand, is, or is reasonably likely to become, a
part, such Indemnified Party shall have the right to employ separate counsel at
the Indemnity Obligor's expense and to control its own defense of such action,
claim or proceeding; if, in the reasonable opinion of counsel to such
Indemnified Party, a conflict or potential conflict exists between any
Indemnity Obligor, on the one hand, and such Indemnified Party, on the other
hand, that would make such separate representation advisable; provided,
however, that in no event shall the Indemnity Obligors be required to pay fees
and expenses under this Article X for more than one firm of attorneys in any
jurisdiction in any one legal action or group of related legal actions. The
Indemnity Obligors jointly and severally agree that they will not, without the
prior written consent of the Indemnified Parties, settle, compromise or consent
to the entry of any judgment in any pending or threatened claim, action or
proceeding relating to the matters contemplated hereby (if any Indemnified
Party is a party thereto or has been actually threatened to be made a party
thereto) unless such settlement, compromise or consent includes an
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unconditional release of the Indemnified Party and each other Indemnified Party
from all liability arising or that may arise out of such claim, action or
proceeding. No Indemnity Obligor shall be liable for any settlement of any
claim, action or proceeding effected against an Indemnified Party without its
written consent, which consent shall not be unreasonably withheld. The rights
accorded to Indemnified Parties hereunder shall be in addition to any rights
that any Indemnified Party may have at common law, by separate agreement or
otherwise.
10.4 Survival of Representations and Warranties. All of the
representations and warranties made herein shall survive the execution and
delivery of this Agreement until the fifth annual anniversary of the Closing
Date.
10.5 Other Remedies. The foregoing indemnification provisions are
in addition to, and not in derogation of, any statutory, equitable or common
law remedy any party may have as a result of a Loss.
10.6 Right to Offset. Subject to the limitations set forth in
Article X, Xxxxxxx, Xxxxx and H&K agree that, if SpectraSite should suffer any
Loss described in Section 10.1 above, then, in addition to and without
limitation of any other rights or remedies to which SpectraSite may be entitled
as a result of such Loss, SpectraSite shall have the unconditional right to
offset (dollar for dollar) the amount of such Loss against the principal amount
and accrued interest owed pursuant to the Promissory Notes.
ARTICLE XI
TERMINATION
11.1 Termination. This Agreement may be terminated at any time
prior to the Closing:
(a) By the mutual written consent of all of the parties
to this Agreement;
(b) By Hawkins, Keuck, and H&K (if they are not then in
breach of any term of this Agreement), if SpectraSite: (i) fails to perform in
any material respect its agreements contained herein required to be performed
on or prior to the Closing Date or (ii) materially breaches any of its
representations or warranties contained herein, which failure or breach is not
cured within ten days after Hawkins, Keuck, and H&K have notified SpectraSite
of their intent to terminate this Agreement pursuant to this subparagraph;
(c) By SpectraSite (if SpectraSite is not then in breach
of any term of this Agreement), if Hawkins, Keuck, or H&K: (i) fails to
perform in any material respect its agreements contained herein required to be
performed on or prior to the Closing Date, or (ii) materially breaches any of
its representations or warranties contained herein , which failure or breach is
not cured within ten days after SpectraSite has notified them of its intent to
terminate this Agreement pursuant to this subparagraph;
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(d) By any of the parties, if there is any order, writ,
injunction or decree of any court or governmental or regulatory agency binding
on such party which prohibits or restrains such party from consummating the
transactions contemplated hereby; or
(e) By any of the parties, if the Closing has not
occurred by June 1, 1998, for any reason other than delay or nonperformance of
the party seeking such termination.
11.2 Effect on Obligations. Termination of this Agreement pursuant
to this Article shall terminate all obligation of the parties hereunder, except
for the obligations under Sections 12.3 (with respect to expenses), 12.4 (with
respect to publicity), and 6.2 (with respect to confidentiality); provided,
however, that termination pursuant to subparagraphs (b) or (c) of Section 11.1
will not relieve the defaulting or breaching party from any liability to the
other party hereto. In the event of termination under subsection (c),
SpectraSite shall have the rights and remedies with respect to specific
performance as set forth in Section 12.15 hereof, in addition to any other
remedies that may be available at law or in equity.
11.3 Release of Deposit and Escrow. If this Agreement is
terminated pursuant to Section 11.1(a), 11.1(d), or 11.1(e), the parties shall
deliver to the Escrow Agent a joint notice directing the Escrow Agent to
disperse the Purchase Price Escrow and the Revenue Escrow to a bank account
designated by SpectraSite, and H&K shall retain the Deposit. If this Agreement
is terminated pursuant to Section 11.1(b), the parties shall deliver to the
Escrow Agent a joint notice directing the Escrow Agent to disperse the Purchase
Price Escrow to a bank account designated by SpectraSite and the Revenue Escrow
to a bank account designated by H&K, and H&K shall retain the Deposit. In such
event, the amount of the Revenue Escrow and the Deposit shall constitute
liquidated damages accepted by Hawkins, Keuck, and H&K in full and complete
satisfaction and settlement of all claims that Hawkins, Keuck, and H&K may then
have or thereafter may assert against SpectraSite as a result of such
termination and the transactions contemplated in this Agreement. If this
Agreement is terminated pursuant to Section 11.1(c), the parties shall deliver
to the Escrow Agent a joint notice directing the Escrow Agent to disperse the
Purchase Price Escrow and the Revenue Escrow to a bank account designated by
SpectraSite, and H&K shall immediately return the Deposit to SpectraSite. In
such event, the amount of the Revenue Escrow shall constitute liquidated
damages accepted by SpectraSite in full and complete satisfaction and
settlement of all claims that SpectraSite may then have or thereafter may
assert against Hawkins, Keuck, and H&K as a result of such termination and the
transactions contemplated in this Agreement.
ARTICLE XII
MISCELLANEOUS
12.1 Survival of Representations. All representations and
warranties of the parties hereto contained in this Agreement or otherwise made
in writing in connection with the transactions contemplated hereby shall
survive the execution and delivery of this Agreement and the Closing hereunder
for the period described in Section 10.4. All of the other covenants and
agreements of the parties hereto contained in this Agreement or otherwise made
in writing in
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connection with the transactions contemplated hereby shall survive the
execution and delivery of this Agreement and the Closing hereunder.
12.2 Risk of Loss. The risk of loss, damage or condemnation of any
of the Towers and the Improvements from any cause whatsoever shall be borne by
Hawkins, Keuck, and H&K at all times prior to the completion of the Closing. In
the event of any loss, damage or condemnation of any of the Towers or the
Improvements prior to completion of the Closing, SpectraSite shall have the
option, in its sole discretion, to:
(a) terminate this Agreement by written notice to
Hawkins, Keuck, and H&K;
(b) postpone the Closing for a period of up to ninety
(90) days to permit Xxxxxxx and H&K to repair, replace or restore such Towers
and Improvements to their prior condition; or
(c) proceed to close this Agreement and complete the
restoration and replacement of such damaged Tower or Improvements after the
Closing Date, in which event Xxxxxxx and H&K shall assign to SpectraSite the
right to receive all insurance proceeds payable in connection with such damage.
12.3 Expenses. All costs and expenses incurred in connection with
this Agreement and the transactions contemplated hereby shall be paid by the
party incurring such costs and expenses, whether or not the transactions
contemplated by this Agreement are consummated.
12.4 Publicity. Each of the parties agrees it will not make any
press releases or other announcements prior to the Closing with respect to the
transactions contemplated hereby, except as required by applicable law, without
the prior approval of the other parties.
12.5 Best Efforts. Each party hereto agrees to use its best
efforts to satisfy the conditions to the Closing set forth in this Agreement
and otherwise to consummate the transactions contemplated by this Agreement.
12.6 Notices. All notices, demands and other communications made
hereunder will be in writing and shall be given either by personal delivery, by
nationally recognized overnight courier (with charges prepaid) or by telecopy
(with telephone confirmation), and will be deemed to have been given or made
when personally delivered, the day following the date deposited with such
overnight courier service or when transmitted to telecopy machine and confirmed
by telephone, addressed to the respective parties at the following addresses
(or such other address for a party as shall be specified by like notice):
If to Hawkins, Keuck, or H&K:
Xxxxxxx X. Xxxxxxx
24005 Xxxxxxxxxx
Xxx'x Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
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Telecopy: (000) 000-0000
Xxxxx X. Xxxxx
00000 Xxxxx Xxxx Xxxxxxxxx
Xxxx Xxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx & Hall
Attention: L. Xxxx Xxxxxx, Esq.
0000 Xxxxx Xxxxxxxx
Xxx Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to SpectraSite:
SpectraSite Communications, Inc.
Attention: Xxxxx X. Xxxxxx
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxxxxx & Xxxxx PLLC
Attention: Xxxxxxx X. Xxxxx, Esq.
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
12.7 Obligations of the Parties. All of the obligations of
Hawkins, Keuck, and H&K hereunder shall be joint and several.
12.8 Knowledge. All references to the knowledge of a party or to
facts known by a party means the actual knowledge of such party, if such party
is a natural person, and the actual knowledge of the Chairman, Chief Executive
Officer, President or Chief Financial Officer of such party, if such party is
not a natural person.
12.9 Governing Law. This agreement will be governed by the laws of
the State of North Carolina without regard to its rules regarding choice of
law.
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12.10 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
12.11 Assignment. This Agreement will be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns. Neither this Agreement nor any of the rights, interest or obligations
hereunder may be assigned by any of the parties hereto without the prior
written consent of all other parties hereto, and any purported assignment
without such consent shall be void.
12.12 Third Party Beneficiaries. None of the provisions of this
Agreement or any document contemplated hereby is intended to grant any right or
benefit to any person or entity which is not a party to this Agreement.
12.13 Headings. The Article and Section headings contained in this
Agreement are solely for the purpose of reference, are not part of this
Agreement and shall not in any way affect the meaning or interpretation of this
Agreement.
12.14 Amendments. Any waiver, amendment, modification or supplement
of or to any term or condition of this Agreement will be effective only if in
writing and signed by all parties hereto, and the parties hereto waive the
right to amend the provisions of this Section orally.
12.15 Specific Performance. Hawkins, Keuck, and H&K acknowledge
that the Membership Interests are unique and that if Hawkins, Keuck, and H&K
fail to consummate the transactions contemplated by this Agreement such failure
will cause irreparable harm to SpectraSite for which there will be no adequate
remedy at law. SpectraSite shall be entitled, in addition to its other
remedies at law or at equity, to specific performance of this Agreement if
Hawkins, Keuck, and H&K will, without cause, refuse to consummate the
transactions contemplated by this Agreement.
12.16 Severability. In the event that any provision in this
Agreement shall be determined to be invalid, illegal or unenforceable in any
respect, the remaining provisions of this Agreement will not be in any way
impaired, and the illegal, invalid or unenforceable provision shall be fully
severed from this Agreement and there will be automatically added in lieu
thereof a provision as similar in terms and intent to such severed provision as
may be legal, valid and enforceable.
12.17 Entire Agreement. This Agreement and the Schedules and
Exhibits hereto constitute the entire agreement between the parties hereto
pertaining to the subject matter hereof, and supersede all prior and
contemporaneous agreements and understandings between the parties with respect
to such subject matter, including without limitation, the letter of intent,
dated October 9, 1997, between SpectraSite and Xxxxxxx which is hereby
expressly terminated.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed by its duly authorized officer as of the date first
above written.
SPECTRASITE COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Xxxxx X. Xxxxxx
Chief Financial Officer
/s/ Xxxxxxx X Xxxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxx X Xxxxx
------------------------------------------
Xxxxx X. Xxxxx
H&K INVESTMENTS, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
President
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