Exhibit 10.17
ASSET PURCHASE AGREEMENT
By and Between
AMERICAN TOWER SYSTEMS, INC.
and
COMMUNICATION SYSTEMS DEVELOPMENT, INC.
Dated as of
May 27, 1997
TABLE OF CONTENTS
ARTICLE 1 DEFINED TERMS...................................................................................1
ARTICLE 2 SALE AND PURCHASE OF ASSETS.....................................................................2
2.1 Agreement to Sell and Buy..............................................................2
2.2 Assumption of Liabilities and Obligations..............................................2
2.3 Closing; Purchase Price................................................................3
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF CSD...........................................................4
3.1 Organization and Business; Power and Authority; Effect of Transaction..................4
3.2 Materiality............................................................................5
3.3 Title to Properties; Leases............................................................5
3.4 Compliance with Private Authorizations.................................................5
3.5 Compliance with Governmental Authorizations and Applicable Law.........................6
3.6 Intangible Assets......................................................................7
3.7 Insurance..............................................................................7
3.8 Absence of Sensitive Payments..........................................................7
3.9 Inapplicability of Specified Statutes..................................................7
3.10 Material Agreements....................................................................7
3.11 Material and Adverse Restrictions......................................................7
3.12 Broker or Finder.......................................................................8
3.13 Environmental Matters..................................................................8
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF ATS...........................................................8
4.1 Organization and Business; Power and Authority; Effect of Transaction..................8
4.2 Broker or Finder.......................................................................9
4.3 Solvency...............................................................................9
4.4 No Legal Action........................................................................9
ARTICLE 5 COVENANTS.......................................................................................9
5.1 Access to Information; Confidentiality.................................................9
5.2 Agreement to Cooperate................................................................10
5.3 Public Announcements..................................................................11
5.4 Notification of Certain Matters.......................................................11
5.5 No Solicitation.......................................................................11
5.6 Conduct of Business by CSD Pending the Closing........................................12
ARTICLE 6 CLOSING CONDITIONS.............................................................................12
6.1 Conditions to Obligations of Each Party...............................................12
6.2 Conditions to Obligations of ATS......................................................13
6.3 Conditions to Obligations of CSD......................................................14
ARTICLE 7 TERMINATION, AMENDMENT AND WAIVER..............................................................15
7.1 Termination...........................................................................15
7.2 Effect of Termination.................................................................16
ARTICLE 8 INDEMNIFICATION................................................................................17
8.1 Survival..............................................................................17
8.2 Indemnification.......................................................................17
8.3 Limitation of Liability...............................................................18
8.4 Notice of Claims......................................................................18
8.5 Defense of Third Party Claims.........................................................18
8.6 Exclusive Remedy......................................................................18
ARTICLE 9 GENERAL PROVISIONS.............................................................................19
9.1 Amendment.............................................................................19
9.2 Waiver................................................................................19
9.3 Fees, Expenses and Other Payments.....................................................19
9.4 Notices...............................................................................19
9.5 Specific Performance; Other Rights and Remedies.......................................20
9.6 Severability..........................................................................20
9.7 Counterparts..........................................................................21
9.8 Section Headings......................................................................21
9.9 Governing Law.........................................................................21
9.10 Further Acts..........................................................................21
9.11 Entire Agreement......................................................................21
9.12 Assignment............................................................................21
9.13 Parties in Interest...................................................................22
9.14 Mutual Drafting.......................................................................22
APPENDIX A: Definitions
SCHEDULES:
CSD Disclosure Schedule
EXHIBITS:
EXHIBIT A: Form of LLC Agreement (Section 6.2(f) and Section 6.3 (d))
EXHIBIT B: Form of Noncompetition Agreement Section 6.2(h))
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is dated as of May 27,
1997 by and between American Tower Systems, Inc., a Delaware corporation
("ATS"), and Communication Systems Development, Inc., a California corporation
("CSD").
WHEREAS, CSD leases forty-two (42) sites (the "Entitled Sites") for
which CSD has completed all activities related to the acquisition and land use
entitlements and sixteen (16) sites (the "Remaining Sites") for which zoning and
other land use approvals have not been obtained, and on all sixty (60) sites
(the "Sites") it is proposed to construct and operate communication towers (the
"CSD Central Valley Business");
WHEREAS, ATS and CSD desire to form a limited liability company under
the laws of the State of Delaware ("LLC") pursuant to an agreement of limited
liability company substantially in the form of Exhibit A attached hereto and
made a part hereof (the "LLC Agreement");
WHEREAS, ATS desires to purchase from CSD, and CSD desires to sell to
ATS, an undivided seventy percent (70%) interest in the CSD Assets on the terms
and conditions hereinafter set forth;
WHEREAS, ATS and CSD desire to transfer to LLC, and LLC shall assume,
all of their respective right, title and interest in the CSD Assets so that the
CSD Assets will be ultimately owned and operated by LLC; and
WHEREAS, prior to the execution and delivery of this Agreement, ATS and
CSD have entered into an escrow agreement (the "Escrow Agreement") with The Bank
of Stockton, Stockton, California (the "Escrow Agent"), pursuant to which ATS
has made a deposit of $100,000 (the "Escrow Deposit");
NOW, THEREFORE, in consideration of the above premises and the
covenants and agreements contained herein, the parties, intending to be legally
bound, do hereby covenant and agree as follows:
ARTICLE 1
DEFINED TERMS
As used herein, unless the context otherwise requires, the terms
defined in Appendix A shall have the respective meanings set forth therein.
Terms defined in the singular shall have a comparable meaning when used in the
plural, and vice versa, and the reference to any gender shall be deemed to
include all genders. Unless otherwise defined or the context otherwise clearly
requires, terms for which meanings are provided in this Agreement shall have
such meanings when used in the CSD Disclosure Schedule and each Collateral
Document executed or required to be executed pursuant hereto or thereto or
otherwise delivered, from time to time, pursuant hereto or thereto. References
to "hereof", "herein" or similar terms are intended to refer to the Agreement as
a whole and not a particular Section, and references to "this Section" are
intended to refer to the entire Section and not a particular subsection thereof.
The term "either party" shall, unless the context otherwise requires, refer to
CSD and ATS.
ARTICLE 2
SALE AND PURCHASE OF ASSETS
2.1 Agreement to Sell and Buy. Subject to the terms and conditions set
forth in this Agreement, CSD hereby agrees to sell, assign, transfer and deliver
to ATS at the Closing, and ATS agrees to purchase at the Closing, an undivided
seventy percent (70%) interest in the CSD Assets, free and clear of any Liens of
any nature whatsoever except for Permitted Liens. For purposes of this
Agreement, the term "CSD Assets" shall mean all of the Entitled Sites and all of
the Remaining Sites (a true, correct and accurate list of all of which is set
forth in Section 2.1 of the CSD Disclosure Schedule), together with all
Governmental Authorizations, Private Authorizations, Material Agreements and
other Contracts related thereto (a true, correct and complete list or
description of which is set forth in the relevant sections of the CSD Disclosure
Schedule).
2.2 Assumption of Liabilities and Obligations.
(a) At the Closing, LLC shall assume and agree to pay, discharge and
perform any and all obligations and liabilities that are directly associated
with or related to the CSD Assets that become due after the Closing Date,
including, but not limited to, Pro Ratable Taxes and all lease payments that are
due and owing for any of the Entitled Sites and the Remaining Sites (the "CSD
Assumed Obligations"); provided, however, that notwithstanding the foregoing,
ATS shall not assume and agree to pay, and shall not be obligated with respect
to, the CSD Nonassumed Obligations.
(b) LLC shall not assume or become obligated to perform any debt,
liability or obligation of CSD relating to any of the following matters
(collectively, the "CSD Nonassumed Obligations"):
(i) the ownership or operation of the CSD Assets or the
conduct of the CSD Central Valley Business prior to the Closing Date,
including without limitation Taxes (other than Pro Ratable Taxes), any
Legal Actions or other Claims and any obligations or liabilities
relating to Environmental Law;
(ii) any obligations or liabilities under the CSD Assumable
Agreements relating to the period prior to the Closing; and
(iii) those required to be disclosed in the CSD Disclosure
Schedule which are not so disclosed or which, if disclosed, Section
2.2(b)(iii) of the CSD Disclosure Schedule indicates that such
obligation or liability will not be assumed.
All CSD Nonassumed Obligations shall remain and be the obligations and
liabilities solely of CSD.
(c) Anything in this Section or elsewhere in this Agreement to the
contrary notwithstanding, the term "CSD Nonassumed Obligations" shall not
include, and the term "CSD Assumed Obligations" shall include, any liability
arising out of the transfer or assignment to LLC of, or the use or enjoyment of
the benefits by LLC under, any Contract, Governmental Authorization or Private
Authorization the transfer or assignment of which (according to Section 2.2(c)
of the CSD Disclosure Schedule) requires or may require the consent of any
Authority or other third party (collectively, the "Nonassignable Contracts"), if
ATS has, on or prior to the Closing Date, notified CSD in writing (an
"Acceptance Notice") that ATS consents to the transfer or assignment of such
Nonassignable Contract to LLC despite the failure or inability of CSD to obtain
the approval or consent of an Authority or other Person whose approval or
consent is required pursuant to the terms of such Nonassignable Contract, or ATS
elects to have LLC receive the benefits of such
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Nonassumable Contract, in either of which events, if the approval or consent of
an Authority or other Person applicable to transfer of such Nonassignable
Contract is required to be obtained as a condition to ATS' obligations at
Closing pursuant to the provisions of Section 6.1(a), 6.2(d) or 6.2(h), ATS
shall be deemed to have waived such condition with respect to such Nonassignable
Contract. With respect to any Nonassignable Contract for which the applicable
consent of any Authority or other Person is not obtained prior to the
Termination Date and for which ATS does not timely deliver an Acceptance Notice
as described in the preceding sentence, CSD and ATS shall negotiate in good
faith to reach an equitable sharing of the rights and obligations under such
Nonassignable Contracts.
(d) Notwithstanding anything contained in this Agreement to the
contrary, except as set forth in Section 2.2(d) of the CSD Disclosure Schedule,
all items of income and expense (including without limitation with respect to
rent, utility charges, Pro Ratable Taxes and wages, salaries and accrued but
unused vacation of CSD employees) arising from the ownership or operation of the
CSD Assets or the conduct of the CSD Central Valley Business shall be prorated
as of 12:01 a.m., Eastern time, on the Closing Date, with CSD entitled to and
responsible for any such items on or prior to the Closing Date and ATS entitled
to and responsible for any such items relating to any subsequent period. For
these purposes, Pro Ratable Taxes attributable to a period that begins before
and ends after the Closing Date shall be treated on a "closing of the books"
basis as two partial periods, one ending at the close of the Closing Date and
the other beginning on the day after the Closing Date, except that Pro Ratable
Taxes (such as property Taxes) imposed on a periodic basis shall be allocated on
a daily basis. If either party shall have received any such revenues or paid any
such expenses or charges which, pursuant to the terms hereof, the other party is
entitled to or responsible for, it shall furnish the other party with a detailed
statement of any such items as soon as practicable after receipt or payment
thereof. The parties shall use their best efforts to agree upon such items and
other adjustments prior to the Closing Date and, in any event, except as set
forth in Section 2.2(c) of the CSD Disclosure Schedule, within sixty (60) days
thereafter. If the parties are unable within such period to agree upon such
items and other adjustments, CSD and ATS shall, within the following ten (10)
days, jointly designate a nationally known independent public accounting firm to
be retained to review such items and other adjustments. The fees and other
expenses of retaining such independent public accounting firm shall be borne
equally by CSD and ATS. Such firm shall report its conclusions as to such items
and other adjustments pursuant to this Section and such report shall be
conclusive on all parties to this Agreement and not subject to dispute or
review. Upon such agreement or determination by such independent accounting
firm, CSD or ATS, as the case may be, shall promptly reimburse the other party
for any income received or expenses paid by the other party and not previously
reimbursed or any other adjustment required by this Section.
Nothing contained in this Section 2.2(c) is intended or shall be deemed
to amend or modify the indemnification provisions of Article 8 nor to reallocate
responsibility for the matters set forth therein.
2.3 Closing; Purchase Price. The closing of the Transactions (the
"Closing") shall take place at Xxxxxxxx & Worcester LLP, Xxx Xxxx Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, at 10:00 a.m., local time, on May 29, 1997 or such
other date, prior to the Termination Date, as the parties may agree (the
"Closing Date"). At the Closing, each of the parties and LLC shall deliver such
bills of sale, assignments, assumptions of liabilities, opinions and other
instruments and documents as are described in this Agreement or as may be
otherwise reasonably requested by the parties and their respective counsel. The
purchase price for the interest in the CSD Assets being acquired by ATS (the
"Purchase Price") shall be an amount equal to the sum of (a) $790,000, subject
to adjustment as provided in Section 2.2(d), plus an amount equal to the Prepaid
Expenses and minus an amount equal to the sum of (i) the CSD Nonassumed
Obligations, if any, which ATS agrees to assume, and (ii) Prepaid Revenues (the
"Base Purchase Price"), and (b) the Entitled Site Payment. The Base Purchase
Price shall be payable by (a) ATS instructing the Escrow Agent to deliver the
Escrow Deposit (together with interest and other increments thereto) to CSD, and
(b) wire transfer of immediately available funds to CSD for the balance of the
Base Purchase Price to such account (or accounts) as CSD shall
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designate in written instructions to ATS delivered not later than two (2)
business days prior to the Closing. The CSD LLC Interest shall be deliverable by
the execution and delivery of the LLC Agreement at the Closing. ATS agrees to
pay any and all costs incurred by CSD with respect to procuring any construction
permits for each of the Entitled Sites, including, but not limited to, fees and
costs for surveys, geotechnical reports, construction drawings and permit fees.
Such costs are exclusive of and/or in addition to the Entitled Site Payment of
$5,000. The "Entitled Site Payment" shall mean an amount equal to $5,000 for
each of the Entitled Sites and shall be payable, from time to time, by ATS or
LLC within ten (10) business days of the receipt by LLC of notice from all
applicable Authorities that all Governmental Authorizations necessary to
construct a communication tower on the Entitled Site as to which payment is to
be made have been fully approved.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF CSD
CSD hereby represents, warrants and covenants to, and agrees with, ATS
as follows:
3.1 Organization and Business; Power and Authority; Effect of
Transaction.
(a) CSD is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization, has all requisite
power and authority (corporate and other) to own or hold under lease its
properties and to conduct its business as now conducted.
(b) CSD has all requisite corporate power and corporate authority and
has in full force and effect all Governmental Authorizations and Private
Authorizations, except for those set forth in Section 3.1(b) of the CSD
Disclosure Schedule or those the failure of which to obtain do not and will not
have, individually or in the aggregate, any material adverse effect on CSD,
necessary to enable it to execute and deliver, and to perform its obligations
under, this Agreement and each Collateral Document executed or required to be
executed by it pursuant hereto or thereto or to consummate the Transactions; and
the execution, delivery and performance of this Agreement and each Collateral
Document executed or required to be executed by it pursuant hereto or thereto
have been duly authorized by all requisite corporate or other action on the part
of CSD. This Agreement has been duly executed and delivered by CSD and
constitutes, and each Collateral Document executed or required to be executed by
it pursuant hereto or thereto or to consummate the Transactions when executed
and delivered by CSD will constitute, legal, valid and binding obligations of
CSD, enforceable in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, moratorium, insolvency and similar
laws affecting the rights and remedies of creditors and obligations of debtors
generally and by general principles of equity.
(c) Except as set forth in Section 3.1(c) of the CSD Disclosure
Schedule, and except for matters which would have no material adverse effect on
CSD, neither the execution and delivery by CSD of this Agreement or any
Collateral Document executed or required to be executed by it pursuant hereto or
thereto, nor the consummation by CSD of the Transactions, nor compliance with
the terms, conditions and provisions hereof or thereof by CSD:
(i) will conflict with, or result in a breach or violation of,
or constitute a default under, any Organic Document of CSD or any
Applicable Law, or will conflict with, or result in a breach or
violation of, or constitute a default under, or permit the acceleration
of any obligation or liability in, or but for any requirement of giving
of notice or passage of time or both would constitute such a
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conflict with, breach or violation of, or default under, or permit any
such acceleration in, any Contractual Obligation of CSD, other than
those constituting CSD Nonassumed Obligations; or
(ii) will require CSD to make or obtain any Governmental
Authorization, Governmental Filing or Private Authorization including
without limitation under the FCA.
(d) CSD does not have any Subsidiaries.
3.2 Materiality. The representations and warranties set forth in
this Article would in the aggregate be true and correct even without the
materiality exceptions or qualifications contained therein or set forth in the
CSD Disclosure Schedule, except for such exceptions and qualifications including
without limitation those set forth in the CSD Disclosure Schedule which, in the
aggregate for all such representations and warranties, are not and could not
reasonably be expected to be materially adverse to CSD.
3.3 Title to Properties; Leases.
(a) CSD does not own any real property.
(b) Section 3.3(b) of the CSD Disclosure Schedule contains a true,
accurate and complete description of all Leases under which any real property
used in the CSD Central Valley Business is leased. Except as otherwise set forth
in Schedule 3.3(b) of the CSD Disclosure Schedule, each Lease or other occupancy
or other agreement under which CSD holds real or personal property constituting
a part of the CSD Assets has been duly authorized, executed and delivered by CSD
and, to CSD's knowledge, each of the other parties thereto, and is a legal,
valid and binding obligation of CSD, and, to CSD's knowledge, each of the other
parties thereto, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, moratorium, insolvency and similar
laws affecting the rights and remedies of creditors and obligations of debtors
generally and by general principles of equity. CSD has a valid leasehold
interest in and enjoys peaceful and undisturbed possession under all Leases
pursuant to which it holds any such real property or tangible personal property.
All of such Leases are valid and subsisting and in full force and effect;
neither CSD nor, to CSD's knowledge, any other party thereto, is in material
default in the performance, observance or fulfillment of any obligation,
covenant or condition contained in any such Lease. None of the fixed assets or
equipment comprising a part of the CSD Assets is subject to contracts of sale,
and none is held by CSD as lessee or as conditional sales vendee under any Lease
or conditional sales contract and none is subject to any title retention
agreement, except as set forth in Section 3.3(b) of the CSD Disclosure Schedule.
3.4 Compliance with Private Authorizations. Section 3.4 of the CSD
Disclosure Schedule sets forth a true, accurate and complete list and
description of each Private Authorization which individually is material to the
CSD Assets or the CSD Central Valley Business. CSD has obtained all Private
Authorizations which are necessary for the ownership or operation of the CSD
Assets or the conduct of the CSD Central Valley Business which, if not obtained
and maintained, could, individually or in the aggregate, materially adversely
affect CSD. All of such Private Authorizations are valid and in good standing
and are in full force and effect. CSD is not in breach or violation of, or in
default in the performance, observance or fulfillment of, any such Private
Authorization, and no Event exists or has occurred, which constitutes, or but
for any requirement of giving of notice or passage of time or both would
constitute, such a breach, violation or default, under any such Private
Authorization, except for such defaults, breaches or violations as do not and
will not have in the aggregate any material adverse effect on CSD. No such
Private Authorization is the subject of any pending or, to CSD's knowledge,
threatened attack, revocation or termination.
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3.5 Compliance with Governmental Authorizations and Applicable Law.
(a) Section 3.5(a) of the CSD Disclosure Schedule contains a true,
complete and accurate description of each Governmental Authorization required
under Applicable Laws (i) to own and operate the CSD Central Valley Business, as
currently conducted or proposed to be conducted on or prior to the Closing Date,
all of which are in full force and effect or (ii) that is necessary to permit
CSD to execute and deliver this Agreement and to perform its obligations
hereunder. CSD has obtained all Governmental Authorizations which are necessary
for the ownership or operation of the CSD Assets or the conduct of the CSD
Central Valley Business as now conducted and which, if not obtained and
maintained, would, individually or in the aggregate, have any material adverse
effect on CSD. None of the Governmental Authorizations listed in Section 3.5(a)
of the CSD Disclosure Schedule is subject to any restriction or condition which
would limit in any material respect the ownership or operations of the CSD
Assets or the conduct of the CSD Central Valley Business as currently conducted,
except for restrictions and conditions generally applicable to Governmental
Authorizations of such type. The Governmental Authorizations listed in Section
3.5(a) of the CSD Disclosure Schedule are valid and in good standing, are in
full force and effect and are not impaired in any material respect by any act or
omission of CSD or its officers, directors, employees or agents, and the
ownership or operation of the CSD Assets or the conduct of the CSD Central
Valley Business are in accordance in all material respects with the Governmental
Authorizations. All material reports, forms and statements required to be filed
by CSD with all Authorities with respect to the CSD Central Valley Business have
been filed and are true, complete and accurate in all material respects. No such
Governmental Authorization is the subject of any pending or, to CSD's knowledge,
threatened challenge or proceeding to revoke or terminate any such Governmental
Authorization. CSD has no reason to believe that any such Governmental
Authorization would not be renewed in the name of CSD by the granting Authority
in the ordinary course.
(b) Except as otherwise specifically described in Section 3.5(b) of the
CSD Disclosure Schedule, neither CSD nor any director or officer thereof (in
connection with ownership or operation of the CSD Assets or the conduct of the
CSD Central Valley Business) is in or is charged by any Authority with or, to
CSD's knowledge, at any time since January 1, 1993 has been in or has been
charged by any Authority with, or, to CSD's knowledge, is threatened or under
investigation by any Authority with respect to, breach or violation of, or
default in the performance, observance or fulfillment of, any Governmental
Authorization or any Applicable Law relating to the ownership and operation of
the CSD Assets or the conduct of the CSD Central Valley Business. In particular,
but without limiting the generality of the foregoing, there are no applications,
complaints or Legal Actions pending or, to CSD's knowledge, threatened before or
by any Authority (x) relating to the ownership or operation of the CSD Assets or
the conduct of the CSD Central Valley Business which, individually or in the
aggregate, are reasonably likely to result in the revocation or termination of
any Governmental Authorization or the imposition of any restriction of such a
nature as would adversely affect the ownership or operation of the CSD Assets or
the conduct of the CSD Central Valley Business; (y) involving charges of illegal
discrimination by CSD under any federal or state employment Laws, or (z)
involving Environmental Laws or zoning laws, except as otherwise specifically
described in Section 3.5(b) of the CSD Disclosure Schedule.
(c) Except as otherwise specifically described in Section 3.5(c) of the
CSD Disclosure Schedule, no Event exists or has occurred, which, to CSD's
knowledge, constitutes, or but for any requirement of giving of notice or
passage of time or both would constitute, such a breach, violation or default,
under (i) any Governmental Authorization or any Applicable Law, except for such
breaches, violations or defaults as do not and will not have, individually or in
the aggregate, any material adverse effect on CSD or (ii) any material
requirement of any insurance carrier, applicable to the ownership or operations
of the CSD Assets or the conduct of the CSD Central Valley Business.
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(d) With respect to matters, if any, of a nature referred to in Section
3.5(a), 3.5(b) or 3.5(c) of the CSD Disclosure Schedule, except as otherwise
specifically described in Section 3.5(d) of the CSD Disclosure Schedule, all
such information and matters set forth in the CSD Disclosure Schedule, if
adversely determined against CSD, will not, individually or in the aggregate,
have a materially adversely effect on CSD.
3.6 Intangible Assets. CSD does not own or use any Intangible Assets
(other than Governmental Authorizations and Private Authorizations) relating to
the ownership and operation of the CSD Assets or the conduct of the CSD Central
Valley Business. CSD does not, to its knowledge, wrongfully infringe upon or
unlawfully use any Intangible Assets owned or claimed by another, and CSD has
not received any notice of any claim or infringement relating to any such
Intangible Asset.
3.7 Insurance. CSD maintains, with respect to the CSD Assets and the
CSD Central Valley Business, policies of fire and extended coverage and
casualty, liability and other forms of insurance in such amounts and against
such risks and losses as are set forth in Section 3.7 of the CSD Disclosure
Schedule.
3.8 Absence of Sensitive Payments. Neither CSD nor, to CSD's knowledge,
any of its officers, directors, employees, agents or other representatives, has
with respect to the CSD Assets or the CSD Central Valley Business (a) made any
contributions, payments or gifts to or for the private use of any governmental
official, employee or agent where either the payment or the purpose of such
contribution, payment or gift is illegal under the laws of the United States or
the jurisdiction in which made or (b) established or maintained any unrecorded
fund or asset for any purpose or made any false or artificial entries on its
books.
3.9 Inapplicability of Specified Statutes. CSD is not a "holding
company", or a "subsidiary company" or an "affiliate" of a "holding company", as
such terms are defined in the Public Utility Holding Company Act of 1935, as
amended, or an "investment company" or a company "controlled" by or acting on
behalf of an "investment company", as defined in the Investment Company Act of
1940, as amended, or a "carrier" or a person which is in control of a "carrier",
as defined in section 11301 of Title 49, U.S.C.
3.10 Material Agreements. Listed on Section 3.10 of the CSD Disclosure
Schedule are all Material Agreements relating to the ownership or operation of
the CSD Assets or the conduct of the business of the CSD Central Valley Business
or to which CSD is a party or to which it is bound or which any of the CSD
Assets is subject. True, accurate and complete copies of each of such Material
Agreements have been made available by CSD to ATS and CSD has provided ATS with
photocopies of all such Material Agreements requested by ATS (or true, accurate
and complete descriptions thereof have been set forth in Section 3.10 of the CSD
Disclosure Schedule, with respect to Material Agreements comprised of site
leases and site licenses granted by CSD to third parties and with respect to
Material Agreements that are oral). All of such Material Agreements are valid,
binding and legally enforceable obligations of CSD and, to CSD's knowledge, all
other parties thereto, except as such enforceability may be limited by
bankruptcy, moratorium, insolvency and similar laws affecting the rights and
remedies of creditors and obligations of debtors generally and by general
principles of equity. CSD has duly complied with all of the material terms and
conditions of each such Material Agreement and has not done or performed, or
failed to do or perform (and there is no pending or, to the knowledge of CSD,
Claim threatened in writing that CSD has not so complied, done and performed or
failed to do and perform) any act which would invalidate or provide grounds for
the other party thereto to terminate (with or without notice, passage of time or
both) such Material Agreement or impair the rights or benefits, or increase the
costs, of CSD under any of such Material Agreements in any material respect.
3.11 Material and Adverse Restrictions. CSD is not a party to or
subject to, nor is any of the CSD Assets subject to, any Applicable Law,
Governmental Authorization, Contractual Obligation, Employment Arrangement,
Material Agreement or Private Authorization, or any other obligation or
restriction of any kind
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or character, which now has or, as far as CSD can now reasonably foresee, at any
time in the future, individually or in the aggregate, is likely to have, any
material adverse effect on CSD, except as set forth in Section 3.11 of the CSD
Disclosure Schedule.
3.12 Broker or Finder. No Person assisted in or brought about the
negotiation of this Agreement or the Transactions in the capacity of broker,
agent or finder or in any similar capacity on behalf of CSD.
3.13 Environmental Matters. Except as set forth in Section 3.13 of
the CSD Disclosure Schedule, with respect to the CSD Assets and the CSD Assets,
CSD:
(a) has not been notified that it is potentially liable under,
has not received any request for information or other correspondence
concerning its potential liability with respect to any site or facility
under, and, to CSD's knowledge, is not a "potentially responsible
party" under, the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, the Resource Conservation
Recovery Act, as amended, or any similar state law;
(b) has not entered into or received any consent decree,
compliance order or administrative order issued pursuant to any
Environmental Law;
(c) is not a party in interest or in default under any
judgment, order, writ, injunction or decree issued pursuant to any
Environmental Law;
(d) is in compliance in all material respects with all
Environmental Laws, has obtained all Environmental Permits required
under Environmental Laws, and is not the subject of or, to CSD's
knowledge, threatened with any Legal Action involving a demand for
damages or other potential liability including any Lien with respect to
material violations or material breaches of any Environmental Law; and
(e) has no knowledge of any past or present Event related to
the CSD Central Valley Business or the CSD Assets which Event,
individually or in the aggregate, will interfere with or prevent
continued material compliance with all Environmental Laws, or which,
individually or in the aggregate, will form the basis of any material
Claim for the release or threatened release into the environment, of
any Hazardous Material.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF ATS
ATS represents, warrants and covenants to, and agrees with, CSD as
follows:
4.1 Organization and Business; Power and Authority; Effect of
Transaction.
(a) ATS is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has all
requisite power and authority (corporate and other) to own or hold under lease
its properties and to conduct its business as now conducted.
(b) ATS has all requisite corporate power and corporate authority
necessary to enable it to execute and deliver, and to perform its obligations
under, this Agreement and each Collateral Document executed or required to be
executed by it pursuant hereto or thereto or to consummate the Transactions; and
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the execution, delivery and performance of this Agreement and each Collateral
Document executed or required to be executed by it pursuant hereto or thereto
have been duly authorized by all requisite corporate or other action on the part
of ATS. This Agreement has been duly executed and delivered by ATS and
constitutes, and each Collateral Document executed or required to be executed by
it pursuant hereto or thereto or to consummate the Transactions when executed
and delivered by ATS will constitute, legal, valid and binding obligations of
ATS, enforceable in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, moratorium, insolvency and similar
laws affecting the rights and remedies of creditors and the obligations of
debtors generally and by general principles of equity.
(c) Except for matters which would have not material adverse effect on
ATS, neither the execution and delivery by ATS of this Agreement or any
Collateral Document executed or required to be executed by it pursuant hereto or
thereto, nor the consummation by ATS of the Transactions, nor compliance with
the terms, conditions and provisions hereof or thereof by ATS:
(i) will conflict with, or result in a breach or violation of,
or constitute a default under, any Organic Document of ATS or any
Applicable Law on the part of ATS, or will conflict with, or result in
a breach or violation of, or constitute a default under, or permit the
acceleration of any obligation or liability in, or but for any
requirement of giving of notice or passage of time or both would
constitute such a conflict with, breach or violation of, or default
under, or permit any such acceleration in, any Contractual Obligation
of ATS; or
(ii) will require ATS to make or obtain any Governmental
Authorization, Governmental Filing or Private Authorization including
without limitation under the FCA.
4.2 Broker or Finder. No Person assisted in or brought about the
negotiation of this Agreement or the Transactions in the capacity of broker,
agent or finder or in any similar capacity on behalf of ATS.
4.3 Solvency. As of the execution and delivery of this Agreement, ATS
is, and immediately prior to and after giving effect to the consummation of the
Transactions will be, solvent.
4.4 No Legal Action. There are no Legal Actions pending or, to the
knowledge of ATS, threatened against ATS or any of its Affiliated Entities,
officers or directors, that question or may affect the validity of this
Agreement or the right of ATS to consummate the transactions contemplated
hereunder.
ARTICLE 5
COVENANTS
5.1 Access to Information; Confidentiality.
(a) CSD shall afford to ATS and its accountants, counsel, lenders,
financial advisors and other representatives (the "Representatives") full access
during normal business hours throughout the period prior to the Closing Date to
all of CSD's properties, books, contracts, commitments and records (including
without limitation Tax returns) relating to the CSD Assets and the CSD Central
Valley Business and, during such period, shall furnish promptly upon request (i)
a copy of each report, schedule and other document filed or received by any of
them pursuant to the requirements of any Applicable Law or filed by it with any
Authority in connection with the Transactions or which may have an adverse
effect on the CSD Assets or the CSD Central Valley Business or the businesses,
operations, properties, prospects, personnel, condition (financial or other), or
results of operations thereof, (ii) all financial records, ledgers, work papers
and other sources of
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financial information possessed and controlled by CSD or its accountants deemed
by ATS or its Representatives necessary or useful for the purpose of performing
an audit of the CSD Assets and the CSD Central Valley Business and certifying
financial statements and financial information, and (iii) such other information
in the possession or control of CSD or its accountants concerning any of the
foregoing as ATS shall reasonably request; provided, however, that CSD shall not
be required to permit any such access to the extent same would unreasonably
interfere with CSD's normal business operations. All non-public information
relating to the CSD Assets or the CSD Central Valley Business furnished prior to
the execution, or pursuant to the provisions, of this Agreement, including
without limitation this Section, will be kept confidential and shall not,
without the prior written consent of CSD, be disclosed by ATS in any manner
whatsoever, in whole or in part, and shall not be used for any purposes, other
than in connection with the Transactions. In no event shall ATS or any of its
Representatives use such information to the detriment of CSD. ATS agrees to
reveal such information only to those of its Representatives or other Persons
who need to know such information for the purpose of evaluating the
Transactions, who are informed of the confidential nature of such information
and who shall undertake to act in accordance with the terms and conditions of
this Agreement. From and after the Closing, CSD shall not, without the prior
written consent of ATS, disclose any information with respect to the CSD Assets
or the CSD Central Valley Business, and no such information shall be used for
any purposes, other than in connection with the Transactions or to the extent
required by Applicable Law.
(b) Subject to the terms and conditions of Section 5.1(a), ATS may,
subject to prior consultation with CSD, disclose such information as may be
necessary in connection with seeking all Governmental and Private Authorizations
or that is required by Applicable Law to be disclosed. In the event that this
Agreement is terminated for any reason, ATS shall promptly redeliver all non-
public written material provided pursuant to this Section or any other provision
of this Agreement or otherwise in connection with the Transactions and shall not
retain any copies, extracts or other reproductions in whole or in part of such
written material, other than one copy thereof which shall be delivered to
independent counsel for ATS.
(c) Anything in this Section or elsewhere in this Agreement to the
contrary notwithstanding, either party may disclose information received or
retained by it in accordance with the provisions of this Agreement if it can
demonstrate (i) such information is generally available to or known by the
public from a source other than the party seeking to disclose such information
or (ii) was obtained by the party seeking to disclose such information from a
source other than the other party, provided that such source was not bound by a
duty of confidentiality to the other party or another party with respect to such
information.
(d) No investigation pursuant to this Section or otherwise shall affect
any representation or warranty in this Agreement of either party or any
condition to the obligations of the parties hereto, except as set forth in
Section 8.3(e).
5.2 Agreement to Cooperate.
(a) Each of the parties hereto shall use reasonable business efforts
(x) to take, or cause to be taken, all actions and to do, or cause to be done,
all things necessary, proper or advisable under Applicable Law to consummate the
Transactions, and (y) to refrain from taking, or cause to be taken, any action
and to refrain from doing or causing to be done, any thing which could impede or
impair the consummation of the Transactions, including, in all cases, without
limitation using its reasonable business efforts (i) to prepare and file with
the applicable Authorities as promptly as practicable after the execution of
this Agreement all requisite applications and amendments thereto, together with
related information, data and exhibits, necessary to request issuance of orders
approving the Transactions by all such applicable Authorities, each of which
must be obtained or become final to the extent provided in Section 6.1(a), (ii)
to obtain all necessary or appropriate waivers, consents and approvals,
including without limitation those referred to in Section 6.2(d),
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(iii) to effect all necessary registrations, filings and submissions (including
without limitation all filings necessary for ATS to own and operate the CSD
Assets and conduct the CSD Central Valley Business), (iv) to lift any injunction
or other legal bar to the Transactions (and, in such case, to proceed with the
Transactions as expeditiously as possible), and (v) to obtain the satisfaction
of the conditions specified in Article 6, including without limitation the truth
and correctness as of the Closing Date as if made on and as of the Closing Date
of the representations and warranties of such party and the performance and
satisfaction as of the Closing Date of all agreements and conditions to be
performed or satisfied by such party.
(b) The parties shall cooperate with one another in the preparation,
execution and filing of all Tax returns, questionnaires, applications, or other
documents regarding any real property transfer or gains, sales, use, transfer,
value added, stock transfer and stamp Taxes, any transfer, recording,
registration and other fees, and any similar Taxes which become payable in
connection with the Transactions that are required or permitted to be filed on
or before the Closing Date.
5.3 Public Announcements. Until the Closing, or in the event of
termination of this Agreement, CSD and ATS shall consult with the other before
issuing any press release or otherwise making any public statements with respect
to this Agreement or the Transactions and shall not issue any such press release
or make any such public statement without the prior consent of the other.
Notwithstanding the foregoing, each party acknowledges and agrees that CSD and
ATS may, without its prior consent, issue such press releases or make such
public statements as may be required by Applicable Law, in which case, to the
extent practicable, the party proposing to make such press release or public
statement will consult with the other regarding the nature, extent and form of
such press release or public statement. In addition, subject to the terms and
conditions hereof, ATS may disclose the subject matter of this Agreement to
Persons with whom CSD has a business or contractual relationship in connection
with ATS' due diligence investigation of CSD.
5.4 Notification of Certain Matters. Each party shall give prompt
notice to the other, of the occurrence or non-occurrence of any Event the
occurrence or non-occurrence of which would be likely to cause (i) any
representation or warranty made by it contained in this Agreement to be untrue
or inaccurate in any respect such that one or more of the conditions of Closing
might not be satisfied, or (ii) any covenant, condition or agreement made by it
contained in this Agreement not to be complied with or satisfied, or (iii) any
change to be made in the CSD Disclosure Schedule in any respect such that one or
more of the conditions of Closing might not be satisfied, and any failure made
by it to comply with or satisfy, or be able to comply with or satisfy, any
covenant, condition or agreement to be complied with or satisfied by it
hereunder in any respect such that one or more of the conditions of Closing
might not be satisfied; provided, however, that the delivery of any notice
pursuant to this Section shall not limit or otherwise affect the remedies
available hereunder to the party receiving such notice.
5.5 No Solicitation. CSD shall not, nor shall it knowingly permit any
of its Representatives (including, without limitation, any investment banker,
broker, finder, attorney or accountant retained by it) to, initiate, solicit or
facilitate, directly or indirectly, any inquiries or the making of any proposal
with respect to any Alternative Transaction, engage in any discussions or
negotiations concerning, or provide to any other Person any information or data
relating to, it or any Subsidiary for the purposes of, or otherwise cooperate in
any way with or assist or participate in, or facilitate any inquiries or the
making of any proposal which constitutes, or may reasonably be expected to lead
to, a proposal to seek or effect any Alternative Transaction, or agree to or
endorse any Alternative Transaction. "Alternative Transaction" means a
transaction or series of related transactions (other than the Transactions)
resulting in (i) any merger or consolidation, regardless of whether CSD is the
surviving Entity unless the surviving Entity remains obligated under this
Agreement to the same extent as it was, or (ii) any sale or other disposition of
all or any substantial part of the CSD Assets or the CSD Central Valley
Business. The provisions of this Section shall apply to each of CSD's
Subsidiaries. If CSD or any of its Representatives receives any inquiry with
respect to an Alternative
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Transaction while this Agreement is in effect, CSD shall inform the inquiring
party that it is not entitled to enter into discussions or negotiations relating
to an Alternative Transaction.
5.6 Conduct of Business by CSD Pending the Closing. Except as otherwise
contemplated by this Agreement, after the date hereof and prior to the Closing
Date, unless ATS shall otherwise agree in writing, CSD shall, to the extent
relating to the CSD Central Valley Business or the CSD Assets:
(a) conduct its business in the ordinary and usual course of
business and consistent with past practice, including without
limitation the performance of such maintenance, repairs or replacements
with respect to communication towers, fixtures and Personal Property
comprising the CSD Assets as is consistent with past practice;
(b) use all reasonable business efforts to preserve intact its
business organizations and goodwill, keep available the services of its
present key employees, and preserve the goodwill and business
relationships with customers and others having business relationships
with it;
(c) confer, as and when reasonably requested, on a regular and
frequent basis with one or more representatives of ATS to report
material operational matters and the general status of ongoing
operations;
(d) maintain with financially responsible insurance companies
insurance on its assets and its business in such amounts and against
such risks and losses as are consistent with past practice;
(e) use reasonable business efforts to (i) operate the CSD
Central Valley Business in conformity in all material respects with all
Governmental and Private Authorizations, Leases and Material Agreements
on a basis consistent with past practice and Applicable Law and the
rules and regulations of any Authority with jurisdiction over the CSD
Assets or the CSD Central Valley Business, and (ii) maintain in full
force and effect all such Governmental and Private Authorizations,
Leases and Material Agreements relating to the CSD Central Valley
Business; and
(f) not (i) dispose of any of the CSD Assets owned by CSD or
used in the operation of the CSD Central Valley Business or (ii) modify
or change in any material respect, or enter into, any Lease or Material
Agreement relating to any of the CSD Assets.
With respect to any transaction or act proposed to be entered into or performed
by CSD which, pursuant to Sections 5.1(a) through (f), requires the prior
approval of ATS, ATS shall be deemed to have approved same unless written notice
of disapproval is received by CSD within five (5) business days after receipt by
ATS of a written request for approval made by CSD.
ARTICLE 6
CLOSING CONDITIONS
6.1 Conditions to Obligations of Each Party. The respective obligations
of each party to effect the Transactions shall, except as hereinafter provided
in this Section, be subject to the satisfaction at or prior to the Closing Date
of the following conditions, any or all of which may be waived, in whole or in
part, to the extent permitted by Applicable Law:
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(a) As of the Closing Date, no Legal Action shall be pending
before or threatened in writing by any Authority seeking to enjoin,
restrain, prohibit or make illegal or to impose any materially adverse
conditions in connection with, the consummation of the Transactions, it
being understood and agreed that a written request by any Authority for
information with respect to the Transactions, which information could
be used in connection with such Legal Action, shall not in itself be
deemed to be a threat of any such Legal Action;
(b) All authorizations, consents, waivers, orders or approvals
required to be obtained from all Authorities, and all filings,
submissions, registrations, notices or declarations required to be made
by ATS and CSD with any Authority, prior to the consummation of the
Transactions, shall have been obtained from, and made with, all such
Authorities, except for such authorizations, consents, waivers, orders,
approvals, filings, registrations, notices or declarations as are set
forth in Section 6.1(b) of the CSD Disclosure Schedule or the failure
to obtain or make would not, in the reasonable business judgment of
ATS, have a material adverse effect on the CSD Assets or the CSD
Central Valley Business; and
(c) LLC shall have executed and delivered this Agreement as
set forth below.
6.2 Conditions to Obligations of ATS. The obligation of ATS to effect
the Transactions shall be subject to the satisfaction of the following
conditions, any or all of which may be waived, in whole or in part, to the
extent permitted by Applicable Law:
(a) All agreements, certificates, opinions and other documents
required to be delivered pursuant to the provisions of this Agreement
shall be reasonably satisfactory in form, scope and substance to ATS
and its counsel, and ATS and its counsel shall have received all
information and copies of all documents, including records of corporate
proceedings, which they may reasonably request in connection therewith,
such documents where appropriate to be certified by proper Authorities
or corporate officers;
(b) CSD shall have furnished ATS and, at ATS' request, any
bank or other financial institution providing credit to ATS, with a
favorable opinion, dated the Closing Date of Taylor, Scott, Xxxxxxx and
Xxxxxxxxx, counsel for CSD, with respect to the matters set forth in
Sections 3.1(a), (b) and (c), 3.5(b) and 3.9, and such other matters
arising after the date of this Agreement and incident to the
Transactions, as ATS or its counsel or its counsel may reasonably
request or which may be reasonably requested by any such bank or
financial institution or their respective counsel;
(c) The representations and warranties of CSD contained in
this Agreement or otherwise made in writing by it or on its behalf
pursuant hereto or otherwise made in connection with the Transactions
shall be true and correct in all material respects at and as of the
Closing Date with the same force and effect as though made on and as of
such date except those which speak as of a certain date which shall
continue to be true and correct in all material respects as of such
date on the Closing Date (including without limitation giving effect to
any later obtained knowledge of CSD or ATS, except as otherwise
specifically provided herein); each and all of the agreements and
conditions to be performed or satisfied by CSD hereunder at or prior to
the Closing Date shall have been duly performed or satisfied in all
material respects; and CSD shall have furnished ATS with such
certificates and other documents evidencing the truth of such
representations, warranties, covenants and agreements and the
performance of such agreements or conditions as ATS or its counsel
shall have reasonably requested;
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(d) Except to the extent, if any, specifically set forth in
Section 6.2(d) of the CSD Disclosure Schedule, all authorizations,
consents, waivers, orders or approvals required by the provisions of
this Agreement to be obtained from all Persons (other than Authorities)
prior to the consummation of the Transactions, including without
limitation those required by the provisions of this Agreement in order
to vest fully in ATS all right, title and interest in and to all of the
CSD Assets and the CSD Central Valley Business (including without
limitation all Private Authorizations, Leases and Material Agreements
of CSD) and the full enjoyment thereof shall have been obtained,
without the imposition, individually or in the aggregate, of any
condition or requirement which could adversely affect ATS;
(e) CSD shall have delivered or cause to be delivered to ATS
all of the Collateral Documents (including without limitation the LLC
Agreement) and other agreements, documents and instruments required to
be delivered by CSD to ATS at or prior to the Closing pursuant to the
terms of this Agreement;
(f) As of the Closing Date, except as otherwise set forth in
Section 3.7(a) of the CSD Disclosure Schedule, no Legal Action shall be
pending before or threatened in writing by any Authority which might,
in the reasonable business judgment of ATS, based upon the advice of
counsel, have a material adverse effect on the CSD Assets and the CSD
Central Valley Business, it being understood and agreed that a written
request by any Authority for information with respect to the
Transactions, which information could be used in connection with such
Legal Action, shall not be deemed to be a threat of any such Legal
Action;
(g) Each of the individuals named therein shall have executed
and delivered to ATS an agreement substantially in the form of Exhibit
B attached hereto and made a part hereof (the "ATS Noncompetition
Agreements");
(h) CSD shall have delivered to ATS all use permits, consents
or other Governmental Authorizations of and all Leases from the United
States Forest Service, if any, set forth in Section 6.2(h) of the CSD
Disclosure Schedule; and
(i) CSD shall have executed and delivered to ATS an agreement,
in form, scope and substance reasonably satisfactory to ATS (the
"Nonassignable Contracts Agreement"), pursuant to which (i) CSD will
hold (but will have no obligation to perform services thereunder) for
the account of ATS, and remit promptly to ATS all amounts received
pursuant to the provisions of, all of the Nonassignable Contracts as to
which the required approval or consent to the assignment or transfer of
which was not obtained and as to which ATS has delivered an Acceptance
Notice, and (ii) ATS will agree to (A) perform all services required to
be performed under such Nonassignable Contracts, (B) reimburse CSD for
all costs and expenses reasonably incurred pursuant to the
Nonassignable Contracts Agreement and (C) indemnify and hold harmless
CSD with respect to all actions taken by ATS pursuant thereto and all
actions, if any, taken by CSD pursuant thereto other than those
relating to the bad faith, negligence or willful misconduct of CSD or
its officers, directors, stockholders or employees.
6.3 Conditions to Obligations of CSD. The obligation of CSD to effect
the Transactions shall be subject to the satisfaction of the following
conditions, any or all of which may be waived, in whole or in part, to the
extent permitted by Applicable Law:
(a) All agreements, certificates, opinions and other documents
required to be delivered pursuant to the provisions of this Agreement
shall be reasonably satisfactory in form, scope and
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substance to CSD and its counsel, and CSD and its counsel shall have
received all information and copies of all documents, including records
of corporate proceedings, which they may reasonably request in
connection therewith, such documents where appropriate to be certified
by proper Authorities or corporate officers;
(b) ATS shall have furnished CSD and, at CSD's request, any
bank of other financial institution providing credit to CSD, with
favorable opinions, dated the Closing Date of Xxxxxxxx & Worcester LLP,
counsel for ATS, with respect to the matters set forth in Section 4.1
and with respect to such other matters arising after the date of this
Agreement and incident to the Transactions, as CSD or its counsel may
reasonably request or which may be reasonably requested by any such
bank or financial institution or their respective counsel;
(c) The representations and warranties of ATS contained in
this Agreement or otherwise made in writing by it or on its behalf
pursuant hereto or otherwise made in connection with the Transactions
shall be true and correct in all material respects at and as of the
Closing Date with the same force and effect as though made on and as of
such date except those which speak as of a certain date which shall
continue to be true and correct in all material respects as of such
date on the Closing Date (including without limitation giving effect to
any later obtained knowledge of CSD or ATS, except as otherwise
specifically provided herein); each and all of the agreements and
conditions to be performed or satisfied by ATS hereunder at or prior to
the Closing Date shall have been duly performed or satisfied in all
material respects; and ATS shall have furnished CSD with such
certificates and other documents evidencing the truth of such
representations, warranties, covenants and agreements and the
performance of such agreements or conditions as CSD or its counsel
shall have reasonably requested;
(d) ATS shall have delivered or cause to be delivered to CSD
all of the Collateral Documents (including without limitation the LLC
Agreement) and other agreements, documents and instruments required to
be delivered by ATS to CSD at or prior to the Closing pursuant to the
terms of this Agreement; and
(e) ATS shall have executed and delivered to CSD the
Nonassignable Contracts Agreement.
ARTICLE 7
TERMINATION, AMENDMENT AND WAIVER
7.1 Termination. This Agreement may be terminated at any time prior to
the Closing Date:
(a) by mutual consent of CSD and ATS;
(b) by either ATS or CSD if any permanent injunction, decree
or judgment by any Authority preventing the consummation of the
Transactions shall have become final and nonappealable; or
(c) by CSD in the event (i) CSD is not in material breach of
this Agreement and none of its representations or warranties shall have
become and continue to be untrue in any material respect, and (ii)
either (A) the Transactions have not been consummated prior to the
Termination Date, or (B) ATS is in material breach of this Agreement or
any of its representations or warranties
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shall have become and continue to be untrue in any material respect,
and such a breach or untruth exists and is not capable of being cured
by and will prevent or delay consummation of the Transactions by or
beyond the Termination Date; or
(d) by ATS in the event (i) ATS is not in material breach of
this Agreement and none of its representations or warranties shall have
become and continue to be untrue in any material respect, and (ii)
either (A) the Transactions have not been consummated prior to the
Termination Date, or (B) CSD is in material breach of this Agreement or
any of its representations or warranties shall have become and continue
to be untrue in any material respect, and such a breach or untruth
exists and is not capable of being cured by and will prevent or delay
consummation of the Transactions by or beyond the Termination Date.
The term "Termination Date" shall mean July 1, 1997 or such other date
as the parties may, from time to time, mutually agree.
The right of ATS or CSD to terminate this Agreement pursuant to this
Section shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of either party, any Person controlling any
such party or any of their respective Representatives whether prior to or after
the execution of this Agreement.
7.2 Effect of Termination.
(a) Except as provided in Sections 5.1 (with respect to
confidentiality), 5.3 and 9.3 and this Section, in the event of the termination
of this Agreement pursuant to Section 7.1, this Agreement shall forthwith become
void, there shall be no liability on the part of either party, or any of their
respective shareholders, officers or directors, to the other and all rights and
obligations of either party shall cease; provided, however, that such
termination shall not relieve either party from liability for any
misrepresentation or breach of any of its warranties, covenants or agreements
set forth in this Agreement.
(b) In the event this Agreement is terminated by CSD pursuant to the
provisions of Section 7.1(c), then CSD shall be entitled to liquidated damages
of an amount equal to the Escrow Deposit, together with interest and other
earnings thereon, it being agreed that such amount shall constitute full payment
for any and all damages suffered by CSD by reason of ATS' failure to consummate
the Transactions. ATS and CSD agree in advance that actual damages would be
difficult to ascertain and that such liquidated damages is a fair and equitable
amount to reimburse CSD for damages sustained due to ATS' failure to consummate
the Transactions for the above-stated reasons. In the event this Agreement is
terminated by ATS pursuant to the provisions of Section 7.1(d), then ATS shall
be entitled to the amount of the Escrow Deposit, together with interest and
other earnings thereon, without prejudice to ATS' right to pursue damages or
other remedies hereunder. Notwithstanding the foregoing, each party shall have
the right to seek specific performance pursuant to the provisions of Section
9.5.
(c) In the event this Agreement is terminated pursuant to the
provisions of Section 7.1(a), 7.1(b) or 7.1(e), except as provided in Section
7.2(a), neither of the parties shall have any further rights or remedies, except
that ATS shall be entitled to the Escrow Deposit, together with interest and
earnings thereon.
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ARTICLE 8
INDEMNIFICATION
8.1 Survival. The representations and warranties of the parties
contained in or made pursuant to this Agreement or any Collateral Document shall
survive the Closing and shall remain operative and in full force and effect for
a period of (a) two (2) years after the Closing Date or (b) the applicable
statute of limitations in the case of matters of a nature referred to in
Sections 3.1, 3.13 and 4.1, regardless of any investigation or statement as to
the results thereof made by or on behalf of any party hereto. The covenants and
agreements of the parties contained in or made pursuant to this Agreement or any
Collateral Document shall survive the Closing and shall remain operative and in
full force and effect for the statute of limitations applicable to contractual
obligations. The term "Indemnity Period" shall mean the applicable period with
respect to which a representation, warranty, covenant or agreement survives the
Closing as provided in this Section. No claim for indemnification, other than
with respect to fraud or intentional and willful breach or misrepresentation,
may be asserted after the expiration of the Indemnity Period. Notwithstanding
anything herein to the contrary, any representation, warranty, covenant and
agreement which arises and is the subject of a Claim which is asserted in
writing prior to the expiration of the applicable Indemnity Period shall survive
with respect to such Claim or any dispute with respect thereto until the final
resolution thereof.
8.2 Indemnification. Each of CSD and ATS (the "indemnifying party")
agrees that on and after the Closing it shall indemnify and hold harmless the
other (the "indemnified party") from and against any and all damages, claims,
losses, expenses, costs, obligations and liabilities, including without
limitation liabilities for all reasonable attorneys', accountants' and experts'
fees and expenses including those incurred to enforce the terms of this
Agreement or any Collateral Document executed by it (collectively, "Loss and
Expense"), suffered, directly or indirectly, by the indemnified party by reason
of, or arising out of:
(a) any breach of representation or warranty made by the
indemnifying party pursuant to this Agreement or any Collateral
Document executed by it or any failure by the indemnifying party to
perform or fulfill any of its respective covenants or agreements set
forth in this Agreement or any Collateral Document executed by it; or
(b) any Legal Action or other Claim by any third party
relating to the indemnifying party or, in the case of ATS, the
ownership or operations of the CSD Assets or the conduct of the
business of the CSD Central Valley Business to the extent such Legal
Action or other Claim has also resulted in a breach of representation
or warranty by the indemnifying party pursuant to this Agreement or any
Collateral Document executed by it; or
(c) in the case of CSD as the indemnifying party, the failure
of CSD to comply with Bulk Sales law of the State of California; or
(d) in the case of CSD as the indemnifying party, by reason
of, or arising out of, (i) CSD Nonassumed Obligations or (ii) the
ownership and operation of the CSD Assets and the CSD Central Valley
Business prior to the Closing Date; or
(e) in the case of ATS as the indemnifying party, by reason
of, or arising out of, (i) CSD Assumed Obligations or (ii) the
ownership and operation of the CSD Assets and the CSD Central Valley
Business from and after the Closing Date, except for Events arising
prior to or existing on the Closing Date, unless they are part of the
CSD Assumed Obligations.
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8.3 Limitation of Liability.
(a) Notwithstanding the provisions of Section 8.2, after the Closing,
except as otherwise provided in Section 8.6, each indemnified party's rights to
indemnification shall be subject to the following limitations: (i) the
indemnified party shall be entitled to recover its Loss and Expense in respect
of any Claim only in the event that the aggregate Loss and Expense for all
Claims exceeds, in the aggregate, $25,000, in which event the indemnified party
shall be entitled to recover all such Loss and Expense (including without
limitation such $25,000), and (ii) in no event shall the aggregate amount
required to be paid by each indemnifying party pursuant to the provisions of
this Article exceed $1,000,000, except for any Loss or Expense arising out of
matters of a nature referred to in Sections 3.1 and 4.1 as to which the
limitations set forth in this clause (ii) shall not apply. Notwithstanding
anything to the contrary contained herein, it is expressly agreed to by the
parties that any lease payments due under any Lease for any of the Sites being
acquired which comprise the CSD Assets after the Closing shall not be considered
an item of Loss and Expense for purposes of the limitation of liability set
forth herein.
(b) In the case any event shall occur which would otherwise entitle
either party to assert a claim for indemnification hereunder, no Loss and
Expense shall be deemed to have been sustained by such party to the extent of
any proceeds received by such party from any insurance policies with respect
thereto.
8.4 Notice of Claims. If an indemnified party believes that it has
suffered or incurred any Loss and Expense, it shall notify the indemnifying
party promptly in writing, and in any event within the applicable time period
specified in Section 8.1, describing such Loss and Expense, all with reasonable
particularity and containing a reference to the provisions of this Agreement in
respect of which such Loss and Expense shall have occurred. If any Legal Action
is instituted by a third party with respect to which an indemnified party
intends to claim any liability or expense as Loss and Expense under this
Article, such indemnified party shall promptly notify the indemnifying party of
such Legal Action, but the failure to so notify the indemnifying party shall not
relieve such indemnifying party of its obligations under this Article, except to
the extent such failure to notify prejudices such indemnifying party's ability
to defend against such Claim.
8.5 Defense of Third Party Claims. The indemnifying party shall have
the right to conduct and control, through counsel of their own choosing,
reasonably acceptable to the indemnified party, any third party Legal Action or
other Claim, but the indemnified party may, at its election, participate in the
defense thereof at its sole cost and expense; provided, however, that if the
indemnifying party shall fail to defend any such Legal Action or other Claim,
then the indemnified party may defend, through counsel of its own choosing, such
Legal Action or other Claim, and (so long as it gives the indemnifying party at
least fifteen (15) days' notice of the terms of the proposed settlement thereof
and permits the indemnifying party to then undertake the defense thereof) settle
such Legal Action or other Claim and to recover the amount of such settlement or
of any judgment and the reasonable costs and expenses of such defense. The
indemnifying party shall not compromise or settle any such Legal Action or other
Claim without the prior written consent of the indemnified party, which consent
shall not unreasonably be withheld, delayed or conditioned if the terms and
conditions of such compromise or settlement proposed by the indemnifying party
and agreed to in writing by the claimant in such Legal Action or other Claim
(the "Settlement Proposal") (a) include a full release of the indemnified party
from the Legal Action or other Claim which is the subject of the Settlement
Proposal, and (b) if the indemnified party is ATS, do not include any term or
condition which would restrict in any material manner the continued ownership or
operations of the CSD Assets or the conduct of the CSD Central Valley Business
in substantially the manner then being theretofore owned, operated and conducted
by ATS.
8.6 Exclusive Remedy. Except for fraud or willful or intentional
misrepresentation or breach of warranty, covenant or agreement or as otherwise
provided in Section 9.5, the indemnification provided in
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this Article shall be the sole and exclusive post-Closing remedy available to
either party against the other party for any Claim under this Agreement.
ARTICLE 9
GENERAL PROVISIONS
9.1 Amendment. This Agreement may be amended from time to time by the
parties hereto at any time prior to the Closing Date but only by an instrument
in writing signed by the parties hereto.
9.2 Waiver. At any time prior to the Closing Date, except to the extent
not permitted by Applicable Law, ATS or CSD may extend the time for the
performance of any of the obligations or other acts of the other, subject,
however, to the provisions with respect to the Termination Date, waive any
inaccuracies in the representations and warranties of the other contained herein
or in any document delivered pursuant hereto, and waive compliance by the other
with any of the agreements, covenants or conditions contained herein. Any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
9.3 Fees, Expenses and Other Payments. All costs and expenses, incurred
in connection with any transfer taxes, sales taxes, recording or documentary
taxes, stamps or other charges levied by any Authority in connection with this
Agreement and the consummation of the Transactions shall be borne equally by CSD
and ATS. All other costs and expenses incurred in connection with this Agreement
and the consummation of the Transactions, including without limitation fees and
disbursements of counsel, financial advisors and accountants incurred by the
parties hereto, shall be borne solely and entirely by the party which has
incurred such costs and expenses.
9.4 Notices. All notices and other communications which by any
provision of this Agreement are required or permitted to be given shall be given
in writing and shall be (a) mailed by first-class or express mail, or by
recognized courier service, postage prepaid, (b) sent by telex, telegram,
telecopy or other form of rapid transmission, confirmed by mailing (by first
class or express mail, or by recognized courier service, postage prepaid)
written confirmation at substantially the same time as such rapid transmission,
or (c) personally delivered to the receiving party (which if other than an
individual shall be an officer or other responsible party of the receiving
party). All such notices and communications shall be mailed, sent or delivered
as follows:
(a) If to ATS:
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Chief Financial Officer
Telecopier No.: (000) 000-0000
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with a copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopier No.: (000) 000-0000
(b) If to CSD:
0000 Xxxxxxxxx Xxxxx - Xxxxx X-0
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxx, Chief Executive Officer
Telecopier No.: (000) 000-0000
with a copy to:
Taylor, Scott, Xxxxxxx and Xxxxxxxxx
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxx, Esq.
Telecopier No.: (000) 000-0000
or to such other person(s), telex or facsimile number(s) or address(es) as the
party to receive any such communication or notice may have designated by written
notice to the other party.
9.5 Specific Performance; Other Rights and Remedies. Each party
recognizes and agrees that in the event the other party should refuse to perform
any of its obligations under this Agreement or any Collateral Document, the
remedy at law would be inadequate and agrees that for breach of such provisions,
each party shall, in addition to such other remedies as may be available to it
at law or in equity or as provided in Article 7, be entitled to injunctive
relief and to enforce its rights by an action for specific performance to the
extent permitted by Applicable Law. Each party hereby waives any requirement for
security or the post ing of any bond or other surety in connection with any
temporary or permanent award of injunctive, mandatory or other equitable relief.
Nothing herein contained shall be construed as prohibiting each party from
pursuing any other remedies available to it pursuant to the provisions of, and
subject to the limitations contained in, this Agreement for such breach or
threatened breach.
9.6 Severability. If any term or provision of this Agreement shall be
held or deemed to be, or shall in fact be, invalid, inoperative, illegal or
unenforceable as applied to any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions or in all cases, because of the
conflicting of any provision with any constitution or statute or rule of public
policy or for any other reason, such circumstance shall not have the effect of
rendering the provision or provisions in question invalid, inoperative, illegal
or unenforceable in any other jurisdiction or in any other case or circumstance
or of rendering any other provision or provisions herein contained invalid,
inoperative, illegal or unenforceable to the extent that such other provisions
are not themselves actually in conflict with such constitution, statute or rule
of public policy, but this Agreement shall be reformed and construed in any such
jurisdiction or case as if such invalid, inoperative, illegal or unenforceable
provision had never been contained herein and such provision reformed so that it
would be valid, operative and enforceable to the maximum extent permitted in
such jurisdiction or in such case. Notwithstanding the foregoing, in the event
of any such determination the effect of which is to affect materially and
adversely either party, the parties shall negotiate in good faith to modify this
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Agreement so as to effect the original intent of the parties as closely as
possible to the fullest extent permitted by Applicable Law in an acceptable
manner to the end that the Transactions are fulfilled and consummated to the
maximum extent possible.
9.7 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, binding upon all of the
parties. In pleading or proving any provision of this Agreement, it shall not be
necessary to produce more than one of such counterparts.
9.8 Section Headings. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
9.9 Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by, and construed in accordance
with, the applicable laws of the United States of America and the laws of the
State of California applicable to contracts made and performed in such State
and, in any event, without giving effect to any choice or conflict of laws
provision or rule that would cause the application of domestic substantive laws
of any other jurisdiction. Anything in this Agreement to the contrary
notwithstanding, including without limitation the provisions of Article 8, in
the event of any dispute between the parties which results in a Legal Action,
the prevailing party shall be entitled to receive from the non-prevailing party
reimbursement for reasonable legal fees and expenses incurred by such prevailing
party in such Legal Action.
9.10 Further Acts. Each party agrees that at any time, and from time to
time, before and after the consummation of the transactions contemplated by this
Agreement, it will do all such things and execute and deliver all such
Collateral Documents and other assurances, as any other party or its counsel
reasonably deems necessary or desirable in order to carry out the terms and
conditions of this Agreement and the transactions contemplated hereby or to
facilitate the enjoyment of any of the rights created hereby or to be created
hereunder.
9.11 Entire Agreement. This Agreement (together with the CSD Disclosure
Schedule and the other Collateral Documents delivered in connection herewith),
constitutes the entire agreement of the parties and supersedes all prior
agreements and undertakings, both written and oral, between the parties, with
respect to the subject matter hereof, including without limitation that certain
letter of intent, dated December 19, 1996, between the parties.
9.12 Assignment. This Agreement shall not be assignable by either party
and any such assignment shall be null and void, except that it shall inure to
the benefit of and by binding upon any successor to any party by operation of
law, including by way of merger, consolidation or sale of all or substantially
all of its assets, and ATS may assign its rights and remedies hereunder to any
bank or other financial institution which has loaned funds or otherwise extended
credit to it.
9.13 Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any Person any right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement,
except as otherwise provided in Section 9.12.
9.14 Mutual Drafting. This Agreement is the result of the joint efforts
of CSD and ATS, and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of the parties and there shall be no
construction against either party based on any presumption of that party's
involvement in the drafting thereof.
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9.15 Arbitration of Disputes. Subject to the right of the parties to
seek injunctive relief pursuant to the provisions of Section 9.5, in the event
of any dispute arising from or related to any of the terms or conditions of this
Agreement, ATS, CSD and LLC hereby agree to submit any such dispute to binding
arbitration under the Commercial Rules of the American Arbitration Association
at Sacramento, California.
IN WITNESS WHEREOF, ATS and CSD have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
American Tower Systems, Inc.
By:
Name:
Title:
Communication Systems Development, Inc.
By:
Title:
The undersigned, Communication Systems Development, LLC, a Delaware
limited liability company, hereby executed the above agreement as of May , 1997,
and hereby agrees to be bound by, and understands that it will be entitled to
the benefits of, the above agreement with the same force and effect as though it
were an original party thereto.
Communication Systems Development, LLC
By:
Name:
Title:
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APPENDIX A
DEFINITIONS
As used in this Agreement, unless the context otherwise requires, the
following terms (or any variant in the form thereof) have the following
respective meanings. Terms defined in the singular shall have a comparable
meaning when used in the plural, and vice versa, and the reference to any gender
shall be deemed to include all genders. Unless otherwise defined or the context
otherwise clearly requires, terms for which meanings are provided herein shall
have such meanings when used in the CSD Disclosure Schedule, and each Collateral
Document executed or required to be executed pursuant hereto or thereto or
otherwise delivered, from time to time, pursuant hereto or thereto. References
to "hereof", "herein" or similar terms are intended to refer to the Agreement as
a whole and not a particular Section, and references to "this Section" are
intended to refer to the entire Section and not a particular subsection thereof.
The term "either party" shall, unless the context otherwise requires, refer to
CSD and ATS.
Acceptance Notice shall have the meaning given to it in Section 2.2(c).
adverse, adversely, when used alone or in conjunction with other terms
(including without limitation "affect," "change" and "effect") shall mean any
Event which is reasonably likely, in the reasonable business judgment of ATS, to
be expected to (a) adversely affect the validity or enforceability of this
Agreement or the likelihood of consummation of the Transactions, or (b)
adversely affect the business, operations, management, properties or prospects,
or the condition, financial or other, or results of operation of the CSD Central
Valley Business, or (c) impair CSD's ability to fulfill its obligations under
the terms of this Agreement, or (d) adversely affect the aggregate rights and
remedies of ATS under this Agreement. Notwithstanding the foregoing, and
anything in this Agreement to the contrary notwithstanding, any Event generally
affecting the economy or the tower communications business shall not be deemed
to constitute such a change, affect or effect.
Affiliate, Affiliated shall mean, with respect to any Person, (a) any
other Person at the time directly or indirectly controlling, controlled by or
under direct or indirect common control with such Person, (b) any other Person
of which such Person at the time owns, or has the right to acquire, directly or
indirectly, twenty percent (20%) or more of any class of the capital stock or
beneficial interest, (c) any other Person which at the time owns, or has the
right to acquire, directly or indirectly, twenty percent (20%) or more of any
class of the capital stock or beneficial interest of such Person, (d) any
executive officer or director of such Person, (e) with respect to any
partnership, joint venture or similar Entity, any general partner thereof, and
(f) when used with respect to an individual, shall include any member of such
individual's immediate family or a family trust.
Agreement shall mean this Agreement as originally in effect, including,
unless the context otherwise specifically requires, this Appendix A, the CSD
Disclosure Schedule and all exhibits hereto, and as any of the same may from
time to time be supplemented, amended, modified or restated in the manner herein
or therein provided.
Applicable Law shall mean any Law of any Authority, whether domestic or
foreign, including without limitation the FCA and all federal and state
securities and Environmental Laws, to which a Person is subject or by which it
or any of its business or operations is subject or any of its property or assets
is bound.
ATS shall have the meaning given to it in the Preamble.
ATS' Noncompetition Agreements shall have the meaning given to it in
Section 6.2(i).
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Authority shall mean any governmental or quasi-governmental authority,
whether administrative, executive, judicial, legislative or other, or any
combination thereof, including without limitation any federal, state,
territorial, county, municipal or other government or governmental or quasi-
governmental agency, arbitrator, authority, board, body, branch, bureau, central
bank or comparable agency or Entity, commission, corporation, court, department,
instrumentality, master, mediator, panel, referee, system or other political
unit or subdivision or other Entity of any of the foregoing, whether domestic or
foreign, including without limitation the FCC.
Base Purchase Price shall have the meaning given to it in Section 2.3.
Claims shall mean any and all debts, liabilities, obligations, losses,
damages, deficiencies, assessments and penalties, together with all Legal
Actions, pending or threatened, claims and judgments of whatever kind and nature
relating thereto, and all fees, costs, expenses and disbursements (including
without limitation reasonable attorneys' and other legal fees, costs and
expenses) relating to any of the foregoing.
Closing shall have the meaning given to it in Section 2.3.
Closing Date shall have the meaning given to it in Section 2.3.
Collateral Document shall mean the ATS Noncompetition Agreements, the
Nonassignable Contracts Agreement, the LLC Agreement, bills of sale, assignments
of intangibles, assumption agreements with respect to the CSD Assumed
Obligations, other instruments of conveyance and assignment sufficient to vest
in ATS title to all of the other CSD Assets and the CSD Central Valley Business,
and any other agreement, certificate, contract, instrument, notice, opinion or
other document delivered pursuant to the provisions of this Agreement or any
Collateral Document.
Contract, Contractual Obligation shall mean any agreement, arrangement,
commitment, contract, covenant, indemnity, undertaking or other obligation or
liability which involves the ownership or operation of the CSD Assets or the
conduct of the CSD Central Valley Business.
Control (including the terms "controlled," "controlled by" and "under
common control with") means the possession, directly or indirectly or as trustee
or executor, of the power to direct or cause the direction of the management or
policies of a Person, or the disposition of such Person's assets or properties,
whether through the ownership of stock, equity or other ownership, by contract,
arrangement or understanding, or as trustee or executor, by contract or credit
arrangement or otherwise.
CSD shall have the meaning given to it in the Preamble.
CSD Assumable Agreements shall mean all obligations and liabilities of
CSD under all Leases, Material Agreements, Governmental Authorizations, Private
Authorizations, the other Contractual Obligations not required to be listed on
Section 3.10 of the CSD Disclosure Schedule entered into in the ordinary course
of business and relating to the ownership or operation of any of the CSD Assets
or the conduct of the CSD Central Valley Business, and the letter of intent,
dated, 1997 between CSD and .
CSD Assets shall have the meaning given to it in Section 2.1.
CSD Assumed Liabilities shall have the meaning given to it in Section
2.2(b).
CSD Central Valley Business shall have the meaning given them in the
first Whereas paragraph.
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CSD Disclosure Schedule shall mean the CSD Disclosure Schedule dated as
of the date of this Agreement delivered by CSD to ATS.
CSD Nonassumed Obligations shall have the meaning given to it in
Section 2.2(b).
CSD's knowledge means the actual knowledge of any CSD officer or senior
manager, as such knowledge exists on the date of this Agreement and no later
date, after reasonable review of appropriate CSD records.
Encumber shall mean to suffer, accept, agree to or permit the
imposition of a Lien.
Entitled Site Payment shall have the meaning given to it in Section
2.3.
Entitled Sites shall have the meaning given to it in first Whereas
paragraph.
Entity shall mean any corporation, firm, unincorporated organization,
association, partnership, limited liability company, trust (inter vivos or
testamentary), estate of a deceased, insane or incompetent individual, business
trust, joint stock company, joint venture or other organization, entity or
business, whether acting in an individual, fiduciary or other capacity, or any
Authority.
Environmental Law shall mean any Law relating to or otherwise imposing
liability or standards of conduct concerning pollution or protection of the
environment, including without limitation Laws relating to emissions,
discharges, releases or threatened releases of Hazardous Materials or other
chemicals or industrial pollutants, substances, materials or wastes into the
environment (including, without limitation, ambient air, surface water, ground
water, mining or reclamation or mined land, land surface or subsurface strata)
or otherwise relating to the manufacture, processing, generation, distribution,
use, treatment, storage, disposal, cleanup, transport or handling of pollutants,
contaminants, chemicals or industrial, toxic or hazardous substances, materials
or wastes. Environmental Laws shall include without limitation the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. Section 6901
et seq.), the Hazardous Material Transportation Act (49 U.S.C. Section 1801 et
seq.), the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et
seq.), the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.),
the Clean Air Act (42 U.S.C. Section 7401 et seq.), the Toxic Substances Control
Act (15 U.S.C. Section 2601 et seq.), the Occupational Safety and Health Act (29
U.S.C. Section 651 et seq.), the Federal Insecticide Fungicide and Rodenticide
Act (7 U.S.C. Section 136 et seq.), and the Surface Mining Control and
Reclamation Act of 1977 (30 U.S.C. Section 1201 et seq.), and any analogous
federal, state, local or foreign, Laws, and the rules and regulations
promulgated thereunder all as from time to time in effect, and any reference to
any statutory or regulatory provision shall be deemed to be a reference to any
successor statutory or regulatory provision.
Environmental Permit shall mean any Governmental Authorization required
by or pursuant to any Environmental Law.
Escrow Agent shall have the meaning given to it in the fifth Whereas
paragraph.
Escrow Agreement shall have the meaning given to it in the fifth
Whereas paragraph.
Escrow Deposit shall have the meaning given to it in the fifth Whereas
paragraph.
Event shall mean the existence or occurrence of any act, action,
activity, circumstance, condition, event, fact, failure to act, omission,
incident or practice, or any set or combination of any of the foregoing.
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FCA shall mean the Communication Act of 1934, and the rules and
regulations thereunder, all as from time to time in effect, or any successor
law, rules or regulations, and any reference to any statutory or regulatory
provision shall be deemed to be a reference to any successor statutory or
regulatory provision.
FCC shall mean the Federal Communications Commission and shall include
any successor Authority.
Governmental Authorizations shall mean all approvals, concessions,
consents, franchises, licenses, permits, plans, registrations and other
authorizations of all Authorities, including without limitation the United
States Forest Service and the Federal Aviation Administration, in connection
with the ownership or operation of the CSD Assets or the conduct of the CSD
Central Valley Business.
Governmental Filings shall mean all filings, including franchise and
similar Tax filings, and the payment of all fees, assessments, interest and
penalties associated with such filings, with all Authorities.
Hazardous Materials shall mean and include any substance, material,
waste, constituent, compound, chemical, natural or man-made element or force (in
whatever state of matter): (a) the presence of which requires investigation or
remediation under any Environmental Law, or (b) that is defined as a "hazardous
waste" or "hazardous substance" under any Environmental Law; or (c) that is
toxic, explosive, corrosive, etiologic, flammable, infectious, radioactive,
carcinogenic, mutagenic or otherwise hazardous and is regulated by any
applicable Authority or subject to any Environmental Law; or (d) the presence of
which on the real property owned or leased by such Person causes or threatens to
cause a nuisance upon any such real property or to adjacent properties or poses
or threatens to pose a hazard to the health or safety of persons on or about any
such real property; or (e) the presence of which on adjacent properties could
constitute a trespass by such Person; or (f) that contains gasoline, diesel fuel
or other petroleum hydrocarbons, or any by-products or fractions thereof,
natural gas, polychlorinated biphenyls ("PCBs") and PCB-containing equipment,
radon or other radioactive elements, ionizing radiation, electromagnetic field
radiation and other non-ionizing radiation, sonic forces and other natural
forces, lead, asbestos or asbestos-containing materials ("ACM"), or urea
formaldehyde foam insulation.
Intangible Assets shall mean all assets and property lacking physical
properties the evidence of ownership of which must customarily be maintained by
independent registration, documentation, certification, recordation or other
means, and shall include, without limitation, concessions, copyrights,
franchises, license, patents, permits, service marks, trademarks, trade names,
and applications with respect to any of the foregoing, technology and know-how.
Intellectual Property shall mean any and all research, information,
inventions, designs, procedures, developments, discoveries, improvements,
patents and applications therefor, trademarks and applications therefor, service
marks, trade names, copyrights and applications therefor, logos, trade secrets,
drawing, plans, systems, methods, specifications, computer software programs,
tapes, discs and related data processing software (including without limitation
object and source codes) owned by such Person or in which it has an ownership
interest and all other manufacturing, engineering, technical, research and
development data and know-how made, conceived, developed and/or acquired by such
Person, which relate to the manufacture, production or processing of any
products developed or sold by such Person or which are within the scope of or
usable in connection with such Person's business as it may, from time to time,
hereafter be conducted or proposed to be conducted.
Law shall mean any (a) administrative, judicial, legislative or other
action, code, consent decree, constitution, decree, directive, enactment,
finding, guideline, law, injunction, interpretation, judgment, order, ordinance,
policy statement, proclamation, promulgation, regulation, requirement, rule,
rule of law, rule of
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public policy, settlement agreement, statute, or writ of any Authority, domestic
or foreign; (b) the common law, or other legal or quasi-legal precedent; or (c)
arbitrator's, mediator's or referee's award, decision, finding or
recommendation; including, in each such case or instance, any interpretation,
directive, guideline or request, whether or not having the force of law
including, in all cases, without limitation any particular section, part or
provision thereof.
Lease shall mean any lease of property, whether real, personal or
mixed, and all amendments thereto.
Legal Action shall mean, with respect to any Person, any and all
litigation or legal or other actions, arbitrations, counterclaims,
investigations, proceedings, requests for material information by or pursuant to
the order of any Authority or suits, at law or in arbitration, equity or
admiralty, whether or not purported to be brought on behalf of such Person,
affecting such Person or any of such Person's business, property or assets.
Lien shall mean any of the following: mortgage; lien (statutory or
other); or other security agreement, arrangement or interest; hypothecation,
pledge or other deposit arrangement; assignment; charge; levy; executory
seizure; attachment; garnishment; encumbrance (including any easement,
exception, reservation or limitation, right of way, and the like); conditional
sale, title retention or other similar agreement, arrangement, device or
restriction; preemptive or similar right; any financing lease involving
substantially the same economic effect as any of the foregoing; the filing of
any financing statement under the Uniform Commercial Code or comparable law of
any jurisdiction; restriction on sale, transfer, assignment, disposition or
other alienation; or any option, equity, claim or right of or obligation to, any
other Person, of whatever kind and character.
LLC shall have the meaning given to it in the second Whereas paragraph.
LLC Agreement shall have the meaning given to it in the second Whereas
paragraph.
Loss and Expense shall have the meaning given to it in Section 8.2.
Material, materially or materiality for the purposes of this Agreement,
shall, unless specifically stated to the contrary, be determined without regard
to the fact that various provisions of this Agreement set forth specific dollar
amounts.
Material Agreement shall mean, with respect to CSD, any Contractual
Obligation which (a) was not entered into in the ordinary course of business,
(b) was entered into in the ordinary course of business which (i) involved the
purchase, sale or lease of goods or materials, or purchase of services,
aggregating more than $20,000 during any of the last three fiscal years, (ii)
extends for more than three (3) months, or (iii) is not terminable on thirty
(30) days or less notice without penalty or other payment, (c) involves a
capitalized lease obligation or Indebtedness for Money Borrowed, (d) is or
otherwise constitutes a written agency, broker, dealer, license,
distributorship, sales representative or similar written agreement, (e)
accounted for more than three percent (3%) of the revenues of the CSD Central
Valley Business in any of the last three fiscal years or is likely to account
for more than three percent (3%) of revenues of the CSD Central Valley Business
during the current fiscal year, (f) is with the United States Forest Service or
any other Authority, or (g) involves the lease by CSD of any Site.
Nonassignable Contracts shall have the meaning given to it in Section
2.2(c).
Nonassignable Contracts Agreement shall have the meaning given to it in
Section 6.2(i).
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Organic Document shall mean, with respect to a Person which is a
corporation, its charter, its by-laws and all shareholder agreements, voting
trusts and similar arrangements applicable to any of its capital stock and, with
respect to a Person which is a partnership, its agreement and certificate of
partnership, any agreements among partners, and any management and similar
agreements between the partnership and any general partners (or any Affiliate
thereof).
Permitted Liens shall mean (a) Liens for current taxes not yet due and
payable, (b) such imperfections of title, easements, encumbrances and mortgages
or other Liens, if any, as are not, individually or in the aggregate,
substantial in character, amount or extent and do not materially detract from
the value, or materially interfere with the present use, of the property subject
thereto or affected thereby, or otherwise materially impair the conduct of the
CSD Central Valley Business, and (c) such other Liens as are permitted by the
provisions of this Agreement to be in place on the Closing Date.
Person shall mean any natural individual or any Entity.
Prepaid Expense shall mean any item which in accordance with GAAP would
be treated as an expense and which has been paid by CSD prior to the Closing and
relates to a period subsequent to the Closing.
Prepaid Revenue shall mean any item which in accordance with GAAP would
be treated as revenue and which has been received by CSD prior to the Closing
and relates to a period subsequent to the Closing.
Private Authorizations shall mean all approvals, concessions, consents,
franchises, licenses, permits, and other authorizations of all Persons (other
than Authorities) including without limitation those with respect to
Intellectual Property.
Pro Ratable Taxes shall mean real estate and other property Taxes, ad
valorem Taxes, gross receipts Taxes and similar Taxes, but shall not include
federal, state or local income Taxes, franchise Taxes or other Taxes measured by
or based upon income or gain on sale or other disposition of property or assets.
Purchase Price shall have the meaning given to it in Section 2.3.
Real Property shall mean all of the fee estates and buildings and other
fixtures and improvements thereon, leasehold interest, easements, licenses,
rights to access, right-of- way, and other real property interest which are
owned or used by CSD as of the date hereof, in the operations of the CSD Central
Valley Business, plus such additions thereto and deletions therefrom arising in
the ordinary course of business between the date hereof and the Closing Date.
Regulations shall mean the federal income tax regulations promulgated
under the Code, as such Regulations may be amended from time to time. All
references herein to specific sections of the Regulations shall be deemed also
to refer to any corresponding provisions of succeeding Regulations, and all
references to temporary Regulations shall be deemed also to refer to any
corresponding provisions of final Regulations.
Remaining Sites shall have the meaning given to it in the first Whereas
paragraph.
Representatives shall have the meaning given to it in Section 5.1(a).
Sites shall have the meaning given to it in the first Whereas
paragraph.
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Subsidiary shall mean, with respect to a Person, any Entity a majority
of the capital stock ordinarily entitled to vote for the election of directors
of which, or if no such voting stock is outstanding, a majority of the equity
interests of which, is owned directly or indirectly, legally or beneficially, by
such Person or any other Person controlled by such Person.
Tax (and "Taxable", which shall mean subject to Tax), shall mean, with
respect to any Person, (a) all taxes (domestic or foreign), including without
limitation any income (net, gross or other including recapture of any tax items
such as investment tax credits), alternative or add-on minimum tax, gross
income, gross receipts, gains, sales, use, leasing, lease, user, ad valorem,
transfer, recording, franchise, profits, property (real or personal, tangible or
intangible), fuel, license, withholding on amounts paid to or by such Person,
payroll, employment, unemployment, social security, excise, severance, stamp,
occupation, premium, environmental or windfall profit tax, custom, duty or other
tax, or other like assessment or charge of any kind whatsoever, together with
any interest, levies, assessments, charges, penalties, addition to tax or
additional amount imposed by any Taxing Authority, (b) any joint or several
liability of such Person with any other Person for the payment of any amounts of
the type described in (a) and (c) any liability of such Person for the payment
of any amounts of the type described in (a) as a result of any express or
implied obligation to indemnify any other Person.
Termination Date shall have the meaning given to it in Section 7.1.
Transactions shall mean the transactions contemplated to be consummated
on or prior to the Closing Date, including without limitation the purchase and
sale of the interest in the CSD Assets, and the execution, delivery and
performance of the Collateral Documents.
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