Exhibit 10.38
Portions of this exhibit have been omitted pursuant to a Request for
Confidential Treatment. The symbol, "[*]" is used to indicate where a portion of
this exhibit has been omitted. A complete copy of this exhibit, containing all
of the omitted portions, has been separately filed with the Securities and
Exchange Commission together with the Request for Confidential Treatment.
PURCHASE AND SALE AGREEMENT
By and Among
SBA PROPERTIES, INC.,
SBA TOWERS, INC.,
and
SBA PROPERTIES LOUISIANA, LLC
Sellers,
AND
AAT COMMUNICATIONS CORP.,
Purchaser
Dated as of March 17, 2003
TABLE OF CONTENTS
Page
----
ARTICLE I - DEFINITIONS.................................................................... 1
1.1 Definitions....................................................................... 1
ARTICLE II - PURCHASE AND SALE.............................................................. 14
2.1 Purchase and Sale of Assets....................................................... 14
2.2 Purchase Price and Payment........................................................ 18
2.3 Assumed Liabilities............................................................... 19
2.4 Purchase Price Deposit............................................................ 20
2.5 Allocation........................................................................ 21
2.6 Open Title Assets................................................................. 21
ARTICLE III - INSPECTION PERIOD.............................................................. 21
3.1 Duration.......................................................................... 21
3.2 Entry and Inspection.............................................................. 22
3.3 Due Diligence Materials........................................................... 22
3.4 Inspection Indemnification........................................................ 23
ARTICLE IV - CURE, REPLACEMENT ASSETS, BREAKUP ASSETS....................................... 24
4.1 Cure.............................................................................. 24
4.2 Replacement Assets; Purchase Price Adjustment..................................... 24
4.3 Breakup Assets.................................................................... 24
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF SELLERS...................................... 24
5.1 Sellers' Representations and Warranties........................................... 24
5.2 Survival.......................................................................... 33
ARTICLE VI - REPRESENTATIONS AND WARRANTIES OF PURCHASER.................................... 33
6.1 Purchaser's Representations and Warranties........................................ 33
6.2 Survival.......................................................................... 34
ARTICLE VII - COVENANTS...................................................................... 34
7.1 Covenants of Sellers.............................................................. 34
7.2 Other Covenants................................................................... 38
ARTICLE VIII - CONDITIONS TO PURCHASER'S PERFORMANCE.......................................... 39
8.1 Conditions Precedent.............................................................. 39
8.2 Conditions Precedent for Breakup Closing.......................................... 42
-i-
TABLE OF CONTENTS
(continued)
Page
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ARTICLE IX - CONDITIONS PRECEDENT TO SELLERS' PERFORMANCE............................ 43
9.1 Accuracy of Covenants, Representations and Warranties...................... 43
9.2 Performance................................................................ 43
9.3 Absence of Litigation...................................................... 43
9.4 Execution and Delivery of Documents........................................ 43
9.5 Bank Condition............................................................. 43
ARTICLE X - CLOSINGS................................................................ 43
10.1 Closings................................................................... 43
10.2 Sellers' Obligations at Closings........................................... 44
10.3 Purchaser's Obligations at Closing......................................... 46
10.4 Closing Costs.............................................................. 47
10.5 Prorations and Credits..................................................... 48
ARTICLE XI - INDEMNIFICATION; RISK OF LOSS........................................... 50
11.1 Indemnification by Sellers................................................. 50
11.2 Indemnification by Purchaser............................................... 51
11.3 Notice and Right To Defend Third-Party Claims.............................. 52
11.4 Limitation on Indemnification.............................................. 52
11.5 Indemnity Deposit.......................................................... 52
ARTICLE XII - TERMINATION............................................................. 54
12.1 Termination by Purchaser................................................... 54
12.2 Termination by Sellers..................................................... 55
12.3 Effect of Termination...................................................... 55
ARTICLE XIII - MISCELLANEOUS........................................................... 56
13.1 Casualty and Condemnation.................................................. 56
13.2 Notices.................................................................... 56
13.3 Entire Agreement........................................................... 58
13.4 Headings................................................................... 58
13.5 Governing Law.............................................................. 58
13.6 Successors and Assigns..................................................... 58
13.7 Assignment................................................................. 58
-ii-
TABLE OF CONTENTS
(continued)
Page
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13.8 Severability...................................................... 59
13.9 Public Announcements.............................................. 59
13.10 Notification of Certain Matters................................... 59
13.11 Counterparts...................................................... 59
13.12 Expenses.......................................................... 59
13.13 Controversies..................................................... 59
13.14 Enforcement....................................................... 60
13.15 Construction...................................................... 60
13.16 Relationship of Parties........................................... 60
ARTICLE XIV - OTHER MATTERS.................................................... 60
14.1 Addendum A........................................................ 60
14.2 New Breakup Assets................................................ 60
-iii-
TABLE OF SCHEDULES AND EXHIBITS
SCHEDULES
Schedule 1.1(a): Included Expenses and Included Revenues
Schedule 1.1(b): New Tenant Lease Amount
Schedule 2.1(b)(i): First Closing Assets with Current TCF and Excluded Assets
Schedule 2.1(b)(ii): Second Closing Assets with Current TCF, Excluded Assets, and Replacement Assets
Schedule 2.1(c): Breakup Assets with Current TCF
Schedule 2.1(d): Initial Assets included in a Subsequent Closing with Current TCF and Excluded
Assets
Schedule 2.1(f): Replacement Assets included in the Replacement Assets Closing with Current TCF,
Replaced Assets and Excluded Assets
Schedule 2.2: Wire Transfer Instructions
Schedule 2.5: Closing Price Allocation
Schedule 3.3(a)(ii): Environmental Reports
Schedule 5.1(a): Sellers and Jurisdictions
Schedule 5.1(c): Conflicts
Schedule 5.1(d): Permits
Schedule 5.1(d)(i): Governmental Laws Precluding Assignment of Permits
Schedule 5.1(d)(ii) Permit Exceptions
Schedule 5.1(f): Exceptions to Representation as to Title Matters
Schedule 5.1(f) Title Issues
Schedule 5.1(f)(i)(A): List of Properties for Initial Assets, Wisconsin Assets, and Breakup Assets
Schedule 5.1(f)(i)(B): List of Properties for Replacement Assets
-iv-
TABLE OF SCHEDULES AND EXHIBITS
Schedule 5.1(f)(i)(C): Liens
Schedule 5.1(f)(iv): Easements
Schedule 5.1(f)(v): Owners
Schedule 5.1(g): Ground Leases and Exceptions
Schedule 5.1(h): Security Deposits
Schedule 5.1(i): Third Party Rights
Schedule 5.1(k)(ii): Excluded Contracts
Schedule 5.1(m): Litigation
Schedule 5.1(n): Seller Contracts and Exceptions
Schedule 5.1(o): Tenant Leases, Master Lease Agreements and Exceptions
Schedule 5.1(q): Tax Matters
Schedule 5.1(r)(i): Environmental Noncompliance
Schedule 5.1(r)(ii): Environmental Licenses
Schedule 5.1(r)(iii): Environmental Reports
Schedule 5.1(r)(iv): Release of Hazardous Materials
Schedule 5.1(r)(v): Environmental Claims
Schedule 5.1(r)(vi): Storage Tanks
Schedule 5.1(s): Utilities Matters
Schedule 5.1(u): Necessary Consents
Schedule 5.1(v): Financial Information
Schedule 5.1(w): Improvements and Defects
-v-
TABLE OF SCHEDULES AND EXHIBITS
Schedule 5.1(x)(i): Access
Schedule 5.1(x)(ii): Condemnation and Eminent Domain Proceedings
Schedule 5.1(z): Continuing Obligations
Schedule 5.1(aa): Tower Lighting Systems and Defects
Schedule 5.1(cc): Removal Bonds
Schedule 5.1(dd)(ii): Landlord Rights to Consent to Subleases
Schedule 5.1(dd)(iii): Discretionary Lessor Terminations under Ground Leases
Schedule 5.1(ff) Aging Report
Schedule 7.2(c): Properties with SBA Broadband Services, Inc. as a Tenant
Schedule 11.5(c) Tenant Excluded for Reconciliation
Schedule Included Pass Through Revenues
-vi-
TABLE OF SCHEDULES AND EXHIBITS
EXHIBITS
Exhibit 2.4: Escrow Agreement
Exhibit 2.6: Form of Asset Management Agreement
Exhibit 7.2(c): Form of Broadband Lease Agreement
Exhibit 7.2(d): Confidentiality Agreement
Exhibit 10.2(a)(x)(A): Form of Assignment and Assumption of Ground Lease
Exhibit 10.2(a)(x)(B) Form of Assignment and Assumption of Tenant Lease
Exhibit 10.2(a)(iv): Form of Assignment and Assumption of Seller Contract
Exhibit 10.2(a)(v): Form of Xxxx of Sale and Assignment
Exhibit 10.2(h): Tower Lighting Services Agreement
Exhibit 10.2(j): Sellers' Legal Opinion Letter
Exhibit 10.3(k): Purchaser's Legal Opinion Letter
Exhibit 11.5(a): Indemnity Escrow Agreement
-vii-
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (the "Agreement") is made as of this
17/th/ day of March, 2003 (the "Effective Date"), by and among SBA PROPERTIES,
INC., a Florida corporation, SBA PROPERTIES LOUISIANA, LLC, a Florida limited
liability company and SBA TOWERS, INC., a Florida corporation, all with an
address of 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000 (each, a
"Seller" and collectively, the "Sellers"), and AAT COMMUNICATIONS CORP., a New
York corporation ("Purchaser").
WHEREAS, Sellers desire to sell and assign to Purchaser, and Purchaser
desires to purchase and assume, subject to the terms set forth herein, all of
the Assets and the Assumed Liabilities (as defined herein).
NOW, THEREFORE, in consideration of the mutual covenants, provisions,
representations and warranties contained herein Sellers and Purchaser agree as
follows:
ARTICLE I - DEFINITIONS
1.1 Definitions. As used in this Agreement, the following terms shall
have the following meanings:
"Accounting Firm" shall have the meaning ascribed to in Section
10.5(e).
"Adjustments" shall have the meaning ascribed to it in Section 10.5(a).
"Affiliate" shall mean, with respect to any specified Person, any other
Person that directly or indirectly controls, is directly or indirectly
controlled by or is directly or indirectly under common control with such
specified Person, with "control" for such purpose meaning the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting
securities or voting interests, by contract or otherwise.
"Agreement" shall have the meaning ascribed to it in the introductory
paragraph hereof.
"AM Study" means, with respect to any Tower, all reports on any and all
disturbances in close proximity to the Tower of any AM broadcast station antenna
patterns (commonly referred to as an "AM Detune Screening") and if such report
indicates that the Tower is in close proximity to an AM broadcast station. "AM
Study" will be deemed to include a subsequent report on the radial-based
measurements of such Tower before and after its construction.
"Applicable Multiple" shall mean (i) [*], with respect to Initial
Assets and Replacement Assets transferred to Purchaser at any Closing and such
Managed Assets, if any, the aggregate TCF Product of which is $[*], (ii) [*],
with respect to all other Assets transferred to Purchaser hereunder and Managed
Assets (other than those accounted for in clause (i) above), and (iii) [*],
with respect to Breakup Assets. In the event that any Wisconsin Asset is
transferred to Purchaser pursuant to Section 2.1(b)(i)(C), then the Applicable
Multiple for each such Asset shall be [*].
"Apportionment Time" shall have the meaning ascribed to it in Section
10.5(a).
"Assets" shall mean, individually and collectively, the Initial Assets,
Illinois Assets, Louisiana Assets, Wisconsin Assets, Replacement Assets and
Breakup Assets, as the context so requires, in each case, excluding the Excluded
Assets.
"Assumed Liabilities" shall have the meaning ascribed to it in Section
2.3(a).
"Bank Condition" shall have the meaning ascribed to it in Section
8.1(g).
"Bank Documents" shall have the meaning ascribed to it in Section
8.1(g).
"Breakup Assets" shall mean the Initial Assets located in the State of
California and which are identified with the prefix "CA" in the Site Code in
Schedule 5.1(f)(i)(A).
"Breakup Closing" shall mean the closing of the transactions
contemplated by this Agreement that is to take place in accordance with Section
10.1(e).
"Breakup Closing Date" shall mean the Closing Date on which the Breakup
Closing occurs.
"Breakup Event" shall mean the failure of Sellers to satisfy or meet
the Bank Condition as set forth in Section 8.1(g).
"Broadband" shall have meaning ascribed to it in Section 7.2(c).
"Broadband Lease Agreement" shall have the meaning ascribed to it in
Section 7.2(c).
"Business Day" shall mean any day other than Saturday, Sunday or a day
on which banking institutions in Boca Raton, Florida or New York, New York are
required or authorized to be closed.
"Cap" shall have the meaning ascribed to it in Section 11.4.
"Closing" shall mean each of the First Closing, Second Closing,
Subsequent Closing, Replacement Assets Closing and/or Breakup Closing, as
applicable.
"Closing Date" shall mean the date on which a Closing occurs.
"Closing Price" shall have the meaning ascribed to it in Section
2.2(a).
"Closing Schedule" shall have the meaning ascribed to it in Section
2.1(e).
"Closing Statement" shall have the meaning ascribed to it in Section
10.5(c).
"COBRA" has the meaning set forth in Section 5.1(p)(i).
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Communications Equipment" shall mean equipment used in a
communications system located on any Properties or Improvements owned by any
Person other than Purchaser, including, without limitation, wireless
communications antennas, coaxial cables, wireless communications equipment
boxes, wireless communications transmission equipment, shelters (other than
shelters that are included in Improvements), electronic equipment and microwave
dishes installed, and any other real or personal property.
"Condition Precedent" shall have the meaning ascribed to it in Section
8.1.
"Continuing Obligations" means the obligations set forth on Schedule
5.1(z) of any of the Sellers under any of the Contracts that (i) any Seller will
be obligated to perform and (ii) will not be assumed by
2
the Purchaser upon the applicable Closing, notwithstanding Purchaser's
assumption of the applicable Contract in which such obligations are contained.
"Contracts" shall mean collectively the Ground Leases, Tenant Leases,
Seller Contracts, and Easements.
"Current TCF" shall mean, with respect to any Property and the
Improvements thereon, an amount equal to the Included Revenues minus the
Included Expenses attributable to such Property and the Improvements thereon.
"Deposits" shall have the meaning ascribed to it in Section 2.4.
"Designated Property" shall have the meaning ascribed to it in Section
2.1(b)(ii).
"Due Diligence Costs" shall have the meaning ascribed to it in Section
3.3(c).
"Easements" shall mean all of the applicable Seller's rights, title and
interest in all easements, licenses and agreements belonging to or in any way
appertaining to the Properties, Towers and/or Improvements, including, without
limitation, all easements, licenses and agreements providing access to the
Properties, Towers, and/or Improvements from public streets, roads and ways, all
easements, licenses and agreements for location, maintenance, repair and
replacement of and for cables, utilities, utility lines, wires and anchors, and
all easements, licenses and agreements for parking.
"Effective Date" shall have the meaning ascribed to it in the
introductory paragraph hereof.
"Employee Benefit Plan" means any employee related plan, program,
policy, practice, contract, agreement or arrangement providing for compensation,
loans, severance, termination pay, pension benefits, retirement benefits,
deferred compensation, performance awards, stock or stock-related awards, fringe
benefits, health, dental, vision, life, disability sabbatical, or accidental
death and dismemberment benefits, or other employee benefits of any kind,
whether unwritten or otherwise, funded or unfunded, including any "employee
benefit plan" within the meaning of Section 3(3) of ERISA.
"Environmental Claim" shall mean any claim, complaint, action, suit,
proceeding, investigation or notice in writing by any person alleging potential
liability arising out of, based on, or resulting from (i) the release, emission,
discharge or disposal into, or presence in, the environment, including, without
limitation, the indoor environment, of any Hazardous Material at any Property
and the Improvements on it, whether or not owned by Sellers; and (ii)
circumstances forming the basis of any violation, or alleged violation, of any
Environmental Law.
"Environmental Laws" shall mean all federal, state and local laws,
statutes, ordinances, judgments, decrees, orders, licenses, permits, rules,
regulations and other binding requirements relating to protection of human
health and the environment, including, without limitation, laws, statutes,
ordinances, judgments, decrees, licenses, permits, rules and regulations
relating to emissions, discharges, releases, or threatened releases of any
Hazardous Material, or otherwise relating to the use, treatment, storage,
disposal, transport or handling of any Hazardous Material, each as amended from
time to time.
"Environmental Licenses" shall mean all licenses, certificates,
permits, plans, approvals and registrations required under Environmental Laws.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
the same may be amended from time to time.
3
"ERISA Affiliate" means any Person under common control with any Seller
within the meaning of Section 4.14(b), (c), (m) or (o) of the Code and the
regulations issued thereunder.
"Escrow Agent" shall have the meaning ascribed to it in Section 2.4.
"Escrow Agreement" shall have the meaning ascribed to it in Section
2.4.
"Excluded Assets" shall mean: (i) any Communications Equipment; (ii)
the electrical utility meter, circuit breakers and branch circuits that serve
the Communications Equipment and the associated telephone company wiring for the
Communications Equipment at each Property belonging to any public utility, (iii)
any Assets that are or become Replaced Assets under the terms of this Agreement;
(iv) any insurance policy held by any Seller pertaining to any of the Assets;
(v) those contracts listed on Schedule 5.1(k)(ii); (vi) any Assets that
Purchaser does not acquire pursuant to the terms of this Agreement; (vii) any
software developed by Sellers or any Seller's independent contractors on such
Seller's behalf and used in the operation of the Assets; (viii) any vehicles
owned by any Seller; and (ix) any other assets of any Seller whether tangible or
intangible not expressly included in the Assets, each of which at all times will
remain the property of the applicable Seller.
"Excluded Liabilities" shall have the meaning ascribed to it in Section
2.3(b).
"Existing Credit Facility" shall have the meaning ascribed to it in
Section 8.1(g).
"Extension Date" shall have the meaning ascribed to it in Section 3.1.
"FAA" shall mean the Federal Aviation Administration or any successor
agency thereto.
"FCC" shall mean the Federal Communications Commission or any successor
agency thereto.
"FIRPTA" shall mean the Foreign Investment in Real Property Tax Act.
"First Closing" shall mean the closing of the transactions contemplated
by this Agreement that is to take place in accordance with Section 10.1(a).
"Governmental Authority" shall mean any federal, state, territorial,
county, municipal, local or other government or governmental agency or body or
any other type of regulatory body having jurisdiction over the Assets,
including, without limitation, the FAA and the FCC.
"Governmental Laws" shall mean all federal, state and local laws,
rules, ordinances, regulations, orders, judgments, writs, injunctions, codes,
directives, decrees, notices, rules and statutes of any Governmental Authority,
now or hereinafter in effect.
"Ground Lessor Estoppel" means an estoppel certificate signed by a
ground lessor under a Ground Lease in substantially the form attached as Exhibit
10.2(a)(x)(A).
"Ground Leases" shall mean individually, and collectively with respect
to each of the Leasehold Properties: (i) each lease between a third party
landlord, as lessor, and a Seller, as lessee, granting to such Seller a
leasehold estate in and to a Leasehold Property, (ii) each easement agreement
(other than easements appurtenant) between a third party, as grantor, and a
Seller, as grantee, granting to such Seller an easement in and to a Leasehold
Property, together with all amendments, modifications, supplements, assignments,
guaranties, side letters and other documents related thereto and (iii) any
license or other
4
right to use any Property owned by any United States Federal or State
Governmental Authority, including the United States Bureau of Land Management.
"Hazardous Material" shall mean any material, substance or compound
regulated under any Environmental Law as a pollutant, toxic substance,
contaminant, hazardous waste, hazardous material, hazardous substance, extremely
hazardous material, extremely hazardous substance, hazardous air pollutant,
radioactive substance, solid waste, radioactive waste, special waste, medical
waste, or words of similar import, any petroleum (including crude oil or any
refined fraction, constituent, by-product or residue thereof), asbestos or
polychlorinated biphenyl.
"Illinois Assets" shall mean those Assets owned by Sellers and located
in the State of Illinois but excluding any Initial Assets identified on Schedule
5.1(f)(i)(A).
"Improvements" shall mean any and all buildings, improvements,
fixtures, machinery, equipment (including all service entrance wiring, meter
banks breakers), shelters, fencing, structures, and other tangible assets owned
by Sellers and located on any of the Properties, including but not limited to
the Towers, other than any Communications Equipment.
"Included Expenses" shall mean, with respect to each Property and the
Improvements thereon, an amount equal to the product of twelve (12) times the
sum of:
(a) the monthly amount of the rent and revenue sharing obligations of
the applicable Seller in a Ground Lease (or the equivalent expenses in such of
the Ground Leases as are not leases to the extent the expenses are included in
the Seller Materials) for the applicable Property for the month ending December
31, 2002 but also straightlining any prepayments of the same and taking into
account all escalations scheduled to occur under the applicable Ground Lease on
or before Xxxxx 00, 0000,
(x) the monthly average telephone and utility expense for the
applicable Property and Improvements thereon equal to the quotient obtained by
dividing the total aggregate amount of all telephone and utility bills for
calendar year 2002 for the applicable Property (annualized for any Properties
not in service for one full calendar year) by twelve (12),
(c) an assumed monthly real and personal property tax expense for the
applicable Property and the Improvements thereon, calculated and applied on a
state by state basis, equal to the quotient obtained by dividing (i) the total
annual property taxes payable in such state based on the Tax bills or
assessments most recently received by Sellers in 2002 (annualized in the case of
bills or assessments for less than one full calendar year) for Properties in
such state (even if it is a Tax xxxx or assessment for calendar year 2003) by
(ii) the number of Properties in such state as to which Sellers have received
tax bills or assessments used in the calculation in clause (i) (such resulting
quotient being the "Annual Average") and then dividing the Annual Average by 12
(which monthly average will be applied to all Properties in such state
regardless of whether a property tax xxxx or assessment for such Property has
been used in this calculation),
(d) an assumed monthly insurance expense for each Property and the
Improvements thereon equal to $[*], and
(e) an assumed monthly maintenance and site expense for each Property
and the Improvements thereon equal to $[*] if the Wisconsin Notice is not given
or $[*] if the Wisconsin Notice is given (being the quotient obtained by
dividing the total aggregate amount of the maintenance and site expenses shown
in the Seller Materials attached hereto on the Effective Date (i.e., $[*] if the
Wisconsin Notice is not given or $[*] if the Wisconsin Notice is given)) divided
by the total number of Properties (being 679 if the Wisconsin Notice is not
given or 801 if the Wisconsin Notice is given).
5
"Included Revenues" shall mean, notwithstanding the definition of the term
"Tenant Leases" in the Agreement, with respect to each Property and the
Improvements thereon, an amount equal to the product of twelve (12) times the
monthly amount of rent in each Tenant Lease for the applicable Property and the
Improvements thereon for the month ending December 31, 2002 and taking into
account all escalations scheduled to occur under each applicable Tenant Lease on
or before March 31, 2003 and without giving effect to any free rent provided for
in the applicable Tenant Lease; provided, however, such amount shall not include
any security deposits, prepaid rents (unless taken into income by any Seller),
refunds to tenants, sales, property, excise or similar Taxes imposed by
Governmental Authorities or pass through expenses (other than those pass through
expenses listed on Schedule "Included Pass Through Revenues" to the extent the
expenses represented thereby were included in the Included Expenses) collected
from any Tenants.
"Indemnifiable Damages" shall have the meaning ascribed to it in Section
11.1.
"Indemnitee" shall have the meaning ascribed to it in Section 11.3(a).
"Indemnitor" shall have the meaning ascribed to it in Section 11.3(a).
"Indemnity Deposit" shall have the meaning ascribed to it in Section
11.5(a).
"Indemnity Escrow Agreement" shall have the meaning ascribed to it in
Section 11.5(a).
"Initial Assets" shall mean, individually, and collectively, all of any
Seller's right, title and interest in and to each of the Properties identified
in Schedule 5.1(f)(i)(A) (including, in the event that the Wisconsin Notice has
been delivered by Purchaser, the Wisconsin Assets) together with all (i)
Improvements thereon, (ii) Easements providing access thereto, (iii) Tower(s)
thereon and all tangible personal property owned by Sellers related to the
design, operation, and maintenance of such Tower(s) and such Improvements, (iv)
Ground Leases with respect thereto for Leasehold Properties included therein,
(v) Tenant Leases with respect to the Properties, (vi) Seller Contracts related
thereto, (vii) Permits with respect thereto, (viii) the Tower Lighting Systems
located thereon, and (ix) each of the following related to any of the foregoing:
(A) Security Deposits, claims, refunds, causes of action, rights of recovery,
prepayments, rights of setoff and rights of recoupment and all proceeds thereof,
(B) variances and similar rights obtained from any Governmental Authority, (C)
all records, files, documents, correspondence, architectural plans, drawings,
specifications, studies, reports, and other printed, electronic, or written
materials related to any of the foregoing, (D) to the extent assignable,
warranties and guarantees that any Seller has received in connection with any
work or services performed with respect to, or equipment installed in or on,
such Improvements, (E) intangible personal property rights of any Seller that
are used exclusively in connection with the ownership, operation, and
maintenance of such Improvements, and (F) all proceeds related to any of the
foregoing for periods on or after the applicable Closing Date on which such
Initial Asset is transferred to Purchaser or becomes an Managed Asset.
"Initial Assets Deposit" shall have the meaning ascribed to it in Section
2.4.
"Inspection Period" shall have the meaning ascribed to it in Section 3.1.
"Instruments of Transfer" shall have the meaning ascribed to it in Section
10.2(a).
"JAMS" shall have the meaning ascribed to it in Section 13.13.
"Knowledge" shall mean the actual knowledge of the directors, officers,
members of senior management and regional site managers of any Seller or any of
their respective Affiliates and any other
6
employees of any Seller or such Affiliate whose primary responsibility is the
operation of the Assets, in each case, after due inquiry into the subject matter
about which the relevant inquiry relates and the knowledge that each such person
reasonably should possess if he or she has properly discharged his or her
duties.
"Leasehold Property" shall mean, individually and collectively, each of
those certain parcels of land all of which are listed and described as such on
Schedules 5.1(f)(i)(A) and (B), in which a Seller is the holder of a valid
leasehold estate, license, easement interest or other right to use such land
under and pursuant to the Ground Lease applicable thereto, together with all
rights, appurtenances, advantages and easements belonging thereto or in any way
appertaining thereto.
"Lien" shall mean any lien, guaranty, mortgage, security interest,
attachment, levy, charge, pledge, conditional sale or title retention
arrangement, or any other interest in Property or Assets (or the income or
profits therefrom), whether consensual or nonconsensual and whether arising by
agreement or under any Governmental Law or otherwise.
"Louisiana Assets" shall mean those Assets owned by Sellers and located in
the State of Louisiana but excluding any Initial Assets identified on Schedule
5.1(f)(i)(A).
"Managed Assets" shall have the meaning ascribed to it in Section
2.1(a)(i).
"Managed Assets Closing Price" shall mean that portion of the Closing Price
paid by Purchaser at a Closing attributable to the amount of the TCF Product
representing all of the Initial Assets that become Managed Assets at such
Closing.
"Management Agreement" shall have the meaning ascribed to it in Section
2.6.
"Material Adverse Change" means (a) the commencement of a case under Title
11 of the United States Code by or against either of the Sellers, or any
Affiliate thereof (other than any Seller Service Company Affiliate), as debtor
and (b) any event, occurrence or change which could materially adversely affect
(i) the condition (financial or otherwise), business, operations, results of
operations, use, or prospects of the Assets taken as a whole or (ii) the binding
nature, validity or enforceability of this Agreement; provided, however, that no
change or effect arising out of or in connection with or resulting from any of
the following will be deemed to constitute to a "Material Adverse Change": (A)
changes or fluctuations in general financial market conditions or (B) changes
affecting the telecommunications industry generally.
"Memorandum of Lease" means a memorandum in recordable form setting forth
certain terms of a Ground Lease.
"Multiple" shall mean (i) [*], with respect to Wisconsin Assets, (ii) [*],
with respect to all other Assets, (iii) [*], with respect to the Breakup Assets
and (iv) with respect to the Assets identified in clauses (i), (ii) and (iii)
the "Multiple" for the Asset which such Replacement Asset replaces.
"Necessary Consents" shall mean all consents, approvals, concessions,
franchises, licenses, permits, nondisturbance agreements; provided any such
nondisturbance agreement relates solely to recorded interests recorded prior to
the interest of any Seller in the applicable Property, and other authorizations
that are required to be obtained by any Seller from any Governmental Authority
or any other Person in order to consummate the transactions contemplated by this
Agreement.
7
"New Breakup Assets" shall mean, individually, and collectively, all of
Sellers' right, title and interest in and to all of the Properties located in
the State of Louisiana (other than such Properties identified on Schedule
5.1(f)(i)(A)) but only to the extent of the TCF Product of the Breakup Assets on
Schedule 5.1(f)(i)(A), together with all (i) Improvements thereon, (ii)
Easements providing access thereto, (iii) Tower(s) owned by Sellers thereon and
all tangible personal property owned by Sellers related to the design,
operation, and maintenance of the Tower(s) and such Improvements, (iv) Ground
Leases with respect thereto for Leasehold Properties included therein, (v)
Tenant Leases with respect to the Properties, (vi) Seller Contracts related
thereto, (vii) Permits with respect thereto, (viii) the Tower Lighting Systems
thereto, and (ix) each of the following related to the foregoing: (A) Security
Deposits, claims, refunds, causes of action, rights of recovery, prepayments,
rights of setoff and rights of recoupment and all proceeds of them, (B)
variances and similar rights obtained from any Governmental Authority, (C) all
records, files, documents, correspondence, architectural plans, drawings,
specifications, studies, reports, and other printed, electronic, or written
materials related to any of the foregoing, (D) to the extent assignable,
warranties and guarantees that the Sellers have received in connection with any
work or services performed with respect to, or equipment installed in or on,
such Improvements, (E) intangible personal property rights of the Sellers that
are used exclusively in connection with the ownership, operation, and
maintenance of such Improvements, and (F) all proceeds related to any of the
foregoing for periods on or after the applicable Closing Date.
"New Tenant Lease Amount" shall mean with respect to each lease to rent
space on a Tower or a Property between any Seller and a third party or any
amendment to any Tenant Lease that was executed by the parties thereto, is dated
on or after January 1, 2003 and before the Effective Date and is not included in
the worksheet entitled "Active Tenants" included in Schedule 5.1(v) (a list and
description of the terms of which are attached hereto as Schedule 1.1(b)), the
amount equal to, for each such lease or amendment, the product of (i) the amount
of annual base rent payments required to be made to the "lessor" thereunder by
"Tenants" thereunder (net of any revenue sharing expenses) pursuant to such
lease or amendment and (ii) the Multiple; provided, however, that the aggregate
amount of all such payments shall not exceed the lesser of (A) $[*] and (B) the
aggregate amount due to Purchaser pursuant to any reconciliation performed
pursuant to Section 11.5(c)(i).
"Offer" shall have the meaning ascribed to it in Section 7.2(g).
"Offer Contract" shall have the meaning ascribed to it in Section 7.2(g).
"Offer Period" shall have the meaning ascribed to it in Section 7.2(g).
"Open Title Assets" shall have the meaning ascribed to it in Section
2.1(a)(i).
"Open Title Condition" shall have the meaning ascribed to it in Section
2.1(a)(i).
"Owned Property" shall mean, individually and collectively, each of those
certain parcels of real property in which Seller has a fee simple interest, all
of which are listed and described as such in Schedules 5.1(f)(i)(A) and (B),
together with all rights, alleys, streets, strip gores, water privileges,
appurtenances, advantages and easements belonging thereto or in any way
appertaining thereto.
"Parties" shall mean Purchaser and the Sellers, collectively.
"Party" shall mean Purchaser, on the one hand, or the Sellers, on the other
hand, as the case may be; provided, however, that with respect to the Sellers,
"Party" will mean the applicable individual Seller where the context so
requires.
8
"Payment Default" shall mean with respect to any Tenant Leases identified
on Schedule 5.1(ff), (i) with respect to any Tenant Lease requiring monthly rent
payments, any Tenant Lease under or pursuant to which [*]% or more of each of
[*] consecutive payments of the rent due under such Tenant Lease is past due
within the twelve month period immediately preceding the Effective Date; (ii)
with respect to any Tenant Lease requiring quarterly rent payments, any Tenant
Lease under or pursuant to which [*]% or more of each of [*] payments of the
rent due under such Tenant Lease are past due within the twelve month period
immediately preceding the Effective Date with the most recent delinquent payment
being past due for a period greater than sixty (60) days; (iii) with respect to
any Tenant Lease requiring semi-annual rent payments, any Tenant Lease under or
pursuant to which [*]% or more of each of [*] consecutive payments of the rent
due under such Tenant Lease are past due with the most recent delinquent payment
being past due for a period greater than sixty (60) days; and (iv) with respect
to any Tenant Lease requiring annual rent payments, any Tenant Lease under or
pursuant to which [*]% or more or the annual payment or rent due under such
Tenant Lease is more than [*] months past due within the twelve month period
immediately preceding the Effective Date. For purposes of this Agreement the
number of days an amount is "past due" under any Tenant Lease shall be
calculated from the date on which such amount is due and payable under such
Tenant Lease, as such date is set forth in such Tenant Lease.
"Permits" shall mean all permits, approvals, registrations, licenses,
certifications, or authorizations required by any Governmental Authority in
connection with the construction, ownership, maintenance, use or operation of
the Assets and all pending applications therefor or renewals thereof.
"Permitted Liens" shall mean (a) Liens for current Taxes not yet due and
payable, (b) assessments not yet due and payable under declarations, and that do
not or would not, individually or in the aggregate, interfere with the
Purchaser's actual or intended use of any Properties and/or Improvements as
telecommunications facilities, (c) any interest or title of a lessor or servient
tenant holder under any Ground Lease covering only the Assets so leased as set
forth on Schedule 5.1(g), (d) any revenue-sharing arrangements under any Ground
Lease as identified on Schedule 5.1(v), and (e) any recorded mortgages or deeds
of trust encumbering the fee simple interest under any Assets subject to a
Ground Lease and with respect to which binding nondisturbance agreements have
been obtained and are in full force and effect or are subsequent to such
Seller's recorded interest in the applicable Property. Notwithstanding anything
to the contrary in this Agreement, any mortgage or deed of trust lien, security
interest, and other monetary liens encumbering any Property and/or Improvements
created by any Seller or encumbrances created by a Seller after the Effective
Date that encumber a Property and/or Improvements will not be Permitted Liens.
"Person" shall mean any individual, group, corporation, partnership,
limited liability company or other organization or entity.
"Post-Closing Statement" shall have the meaning ascribed to it in Section
10.5(c).
"Post-Closing Tax Period" shall have the meaning ascribed to it in Section
10.5(a)(iii).
"Pre-Closing Tax Period" shall have the meaning ascribed to it in Section
10.5(a)(iii).
"Previously Transferred Assets" shall have the meaning ascribed to it in
Section 4.2.
"Property" shall mean a Leasehold Property and/or Owned Property.
"Purchase Price" shall mean the aggregate amount of the individual Closing
Prices paid by Purchaser to Sellers at Closings under this Agreement.
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"Purchaser" shall have the meaning ascribed to it in the introductory
paragraph hereof.
"Purchaser Indemnitee" shall have the meaning ascribed to it in Section
11.1.
"Reconciled TCF" shall have the meaning ascribed to it in Section
11.5(c)(i).
"Reconciliation Date" shall have the meaning ascribed to it in Section
11.5(c)(i).
"Removal Notice" shall have the meaning ascribed to it in Section
2.1(b)(ii).
"Replaced Asset" shall have the meaning ascribed to it in Section 2.1(f).
"Replacement Assets" shall mean, individually, and collectively, all of
Sellers' right, title and interest in and to each of the Properties identified
in Schedule 5.1(f)(i)(B) all such Properties to be located in the States of
Illinois, Louisiana and thereafter in the following States; Arkansas, Tennessee,
Ohio, Indiana and Kentucky, which such Schedule may be amended from time to time
in each case upon the mutual agreement of the Parties, together with all (i)
Improvements thereon, (ii) Easements providing access thereto, (iii) Tower(s)
owned by Sellers thereon and all tangible personal property owned by Sellers
related to the design, operation, and maintenance of the Tower(s) and such
Improvements, (iv) Ground Leases with respect thereto for Leasehold Properties
included therein, (v) Tenant Leases with respect to the Properties, (vi) Seller
Contracts related thereto, (vii) Permits with respect thereto, (viii) the Tower
Lighting Systems thereto, and (ix) each of the following related to the
foregoing: (A) Security Deposits, claims, refunds, causes of action, rights of
recovery, prepayments, rights of setoff and rights of recoupment and all
proceeds of them, (B) variances and similar rights obtained from any
Governmental Authority, (C) all records, files, documents, correspondence,
architectural plans, drawings, specifications, studies, reports, and other
printed, electronic, or written materials related to any of the foregoing, (D)
to the extent assignable, warranties and guarantees that the Sellers have
received in connection with any work or services performed with respect to, or
equipment installed in or on, such Improvements, (E) intangible personal
property rights of the Sellers that are used exclusively in connection with the
ownership, operation, and maintenance of such Improvements, and (F) all proceeds
related to any of the foregoing for periods on or after the applicable Closing
Date.
"Replacement Assets Closing" shall have the meaning ascribed to it in
Section 2.1(f).
"Replacement Assets Closing Adjustment" shall have the meaning ascribed to
it in Section 2.2(b).
"Replacement Assets TCF Product" shall mean the product of (a) the Current
TCF applicable to a Replacement Asset and (b) the Multiple applicable to the
corresponding Replaced Asset.
"ROFR" shall mean all rights of first refusal of any Person other than
Purchaser related to any of the Assets.
"Scheduled Assets" shall have the meaning ascribed to it in Section 4.2.
"Second Closing" shall mean the closing of the transactions contemplated by
this Agreement that is to take place in accordance with Section 10.1(b).
"Second Closing Amount" shall have the meaning ascribed to it in Section
2.2(a)(y).
"Security Deposits" shall have the meaning ascribed to it in Section
5.1(h).
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"Security Interest" shall have the meaning ascribed to it in Section
8.1(g).
"Seller" and "Sellers" shall have the meaning ascribed to it in the
introductory paragraph hereof.
"Seller Contracts" shall mean the service, supply, maintenance, management
and utility agreements between any Seller and a third party relating to or
affecting the Assets, which cannot be terminated by either party thereto on less
than thirty (30) days notice without penalty, together with all amendments,
modifications, supplements, assignments, guarantees, side letters and other
documents related thereto, as identified on Schedule 5.1(n).
"Seller Indemnitee" shall have the meaning ascribed to it in Section 11.2.
"Seller Service Company Affiliate" shall mean SBA Network Services, Inc. or
Total Tower Service, Inc.
"Selling Entity" shall have the meaning ascribed to it in Section 7.2(g).
"Subsequent Closing" shall have the meaning ascribed to it in Section
2.1(d).
"Tax Return" shall mean any report, declaration, statement, return or other
information filed in respect of Taxes, and any claims for refund of Taxes,
including any amendments or supplements to any of the foregoing, with any taxing
authority with respect to Taxes imposed upon or attributable to the operation of
any of the Assets.
"Taxes" shall mean any and all property (real, personal or intangible),
sales, use, income, transfer, gains, customs, employment, unemployment,
franchisor or license taxes (including any fee, assessment or other charge in
the nature of or in lieu of any tax), imposed by the United States, or any
state, local or foreign government or subdivision or agency thereof, any
interest, penalties, additions to tax or additional amounts in respect of the
foregoing (whether disputed or not).
"TCF Product" shall have the meaning ascribed to it in Section 2.2.
"Tenant Leases" shall mean all leases, subleases, licenses, sublicenses,
master leases, and other occupancy agreements for the use and occupancy or
future use and occupancy of a Property and/or Improvements or any portion
thereof, together with any amendments, modifications and supplements thereto,
whether entered into prior to, on or after the Effective Date (subject to the
terms of Section 7.1(a)).
"Tenant Lessee Estoppel" means an estoppel certificate signed by a tenant
under a Tenant Lease in substantially the form attached as Exhibit
10.2(a)(x)(A).
"Title Condition" shall mean the Condition Precedent set forth in Section
8.1(b).
"Tower" shall mean any wireless communications tower located on a Property
and owned by any Seller including, without limitation, the tower foundation, all
supporting elements, bolts, tower structure (including tower steel), pads,
anchors, caissons, lighting, lightening rod, compounds, and grounding system.
"Tower Lighting Services Agreement" shall have the meaning ascribed to it
in Section 10.2(i).
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"Tower Lighting System" means the lighting control system for a Tower
(including, without limitation, the control module, light fixtures, all
associated interconnection wiring and the external photo-cell) that is owned and
operated by a Seller.
"Transaction Documents" shall mean this Agreement, the Instruments of
Transfer, and any other agreements, certificates, documents or instruments to be
executed and delivered pursuant to this Agreement, as the same may be amended
from time to time.
"Transfer" shall mean any sale, assignment, pledge, encumbrance or other
disposition.
"Transfer Taxes" shall mean, collectively, all excise, sales, use, value
added, registration, stamp, recording, documentary, conveyancing, franchise,
transfer, gains and similar Taxes.
"Unresolved Claim" shall have the meaning ascribed to it in Section
11.5(a).
"WARN Act" shall mean the Worker Adjustment and Retraining Notification
Act, 29 U.S.C. 2101 et seq. as same may be amended from time to time.
"Wisconsin Assets" shall mean the Initial Assets located in the State of
Wisconsin and which are identified as "Wisconsin Assets" in Schedule
5.1(f)(i)(A).
"Wisconsin Notice" shall mean Purchaser's written notification to Sellers
that it has sufficient funds available to consummate the purchase of the
Wisconsin Assets and has received the consent of the requisite number of lenders
party to Purchaser's credit facility, which shall be delivered by Purchaser on
or before June 1, 2003.
ARTICLE II - PURCHASE AND SALE
2.1 Purchase and Sale of Assets. Subject to and on the terms and
conditions set forth herein:
(a) Initial Assets.
(i) First Closing. Upon and subject to the terms and conditions
of this Agreement, at the First Closing, Sellers shall sell, transfer, assign
and deliver to Purchaser, and Purchaser shall purchase, acquire and accept from
Sellers, all of Sellers' right, title and interest in and to all of the Initial
Assets identified in Schedule 2.1(b)(i) that meet the Conditions Precedent as of
such Closing, free and clear of all Liens other than Permitted Liens.
Notwithstanding the foregoing, the Parties acknowledge that, as of each Closing,
Sellers may not have satisfied the Title Condition with respect to certain of
the Initial Assets identified in the applicable schedule to be transferred to
Purchaser at such Closing (such unsatisfied condition, the "Open Title
Condition" and any such Assets, the "Open Title Assets"). If, at the time of the
First Closing, there is an Open Title Condition with respect to any Initial
Assets identified on Schedule 2.1(b)(i) and such failure would have the effect
of reducing the TCF Product at the First Closing to an amount below
$145,000,000, but all of the Conditions Precedent to the First Closing other
than the Title Condition are met with respect to such Initial Assets, then (i)
Sellers shall sell, transfer, assign and deliver to Purchaser, and Purchaser
shall purchase, acquire and accept from Sellers, all of Sellers' right, title
and interest in and to such Initial Assets identified in Schedule 2.1(b)(i) with
respect to which the Title Condition is satisfied, and (ii) the Parties will
enter into the Management Agreement pursuant to Section 2.6 with respect to such
Open Title Assets (the
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"Managed Assets") identified as such on Schedule 2.1(b)(i), so that the
aggregate TCF Product for the First Closing, with respect to such Initial Assets
to be transferred and such Managed Assets, shall not be less than $145,000,000.
Notwithstanding the foregoing, to the extent that the Title Condition is met
with respect to Initial Assets for which the TCF Product is greater than
$145,000,000, Purchaser shall have the right to defer to the Second Closing the
purchase of those Initial Assets for which the TCF Product exceeds $145,000,000.
For the avoidance of doubt, at the First Closing, Schedule 2.1(b)(i) shall
identify and Sellers shall sell, transfer and assign to Purchaser, Initial
Assets and deliver to Purchaser Managed Assets to be managed under the
Management Agreement, that generate, in the aggregate, TCF Product of at least
One Hundred Forty-Five Million Dollars ($145,000,0000).
(ii) Second Closing. Upon and subject to the terms and conditions
of this Agreement, at the Second Closing, Sellers shall sell, transfer, assign
and deliver to Purchaser, and Purchaser shall purchase, acquire and accept from
Sellers, all of Sellers' right, title and interest in and to all the Initial
Assets identified in Schedule 2.1(b)(ii) that meet the Conditions Precedent as
of the Second Closing, free and clear of all Liens other than Permitted Liens.
Notwithstanding the foregoing, if, at the time of the Second Closing, there is
an Open Title Condition with respect to any Initial Assets identified in
Schedule 2.1(b)(ii) and such failure would have the effect of reducing the TCF
Product payable for such Initial Assets at the Second Closing below the Second
Closing Amount, but all the Conditions Precedent to the Second Closing other
than the Title Condition are met with respect to such Initial Assets, then (i)
Sellers shall sell, transfer, assign and deliver to Purchaser, and Purchaser
shall purchase, acquire and accept from Sellers, all of Sellers' right, title
and interest in and to such Initial Assets identified in Schedule 2.1(b)(ii)
with respect to which the Title Condition is satisfied, and (ii) such Open Title
Assets will become Managed Assets pursuant to the Management Agreement so that
the aggregate TCF Product for the Second Closing, with respect to such Initial
Assets to be transferred and such Managed Assets, shall be not less than the
Second Closing Amount. For the avoidance of doubt, at the Second Closing,
Schedule 2.1(b)(ii) shall identify and Sellers shall deliver to Purchaser,
Initial Assets and deliver to Purchaser Managed Assets to be managed under the
Management Agreement that generate, in the aggregate, TCF Product in amount not
less than the Second Closing Amount.
(b) Updated Schedules for First and Second Closings.
(i) First Closing.
(A) Concurrently with the execution and delivery of this
Agreement, Seller has delivered to Purchaser Schedule 5.1(ff). Within twenty-one
(21) days of the Effective Date (the "Review Period"), Purchaser shall review
Schedule 5.1(ff) and identify those Tenant Leases as to which a Payment Default
exists and based upon such review, those Properties which Purchaser desires to
remove from Schedule 5.1(f)(i)(A). At any time prior to the expiration of the
Review Period, Purchaser, subject to Section 2.1(b)(i)(B) below, shall have the
right to deliver a written notice (a "Removal Notice") to Sellers stating (i)
that a Payment Default exists with respect to such Tenant Lease, (ii) that the
related Property may be removed from Schedule 5.1(f)(1)(A) (each such Property,
a "Designated Property") and (iii) whether Purchaser elects to enter into the
Management Agreement with respect to such Designated Property. In the event that
Purchaser makes the foregoing election to enter into the Management Agreement
with respect to the Assets related to a Designated Property, such Assets shall
constitute Managed Assets hereunder upon entering into the Management Agreement,
there shall
13
be no adjustment to Current TCF with respect to the Payment Default related
thereto, and shall not be removed from Schedule 5.1(f)(1)(A). With respect to
Assets related to any Designated Property that become Managed Assets, Purchaser
shall be entitled to acquire such Managed Assets pursuant to Section 2.1 hereof
so long as Purchaser waives any claim of a breach of any representation in this
Agreement relating thereto based solely on a Payment Default. With respect to
any Designated Property that does not become a Managed Asset, Purchaser may
acquire such Designated Property in accordance with the terms hereof for an
amount equal to the TCF Product (without any adjustment for the Payment Default
related thereto) for such Assets related to Designated Property. Notwithstanding
anything in the foregoing to the contrary, as soon as practicable after
Purchaser's delivery of the Removal Notice, Sellers shall use commercially
reasonable efforts to cause the tenant to cure the Payment Default with respect
to each Designated Property pursuant to Section 2.1(b)(i) (B) below. In the
event that Sellers cause the tenant to cure a Payment Default for a Designated
Property in accordance with Section 2.1(b)(i) (B) below, Purchaser shall acquire
such Property at the next Closing scheduled to occur hereunder that otherwise
satisfies the Conditions Precedent in accordance with the terms of Section 8.1
hereof. Within ten days of the scheduled date of the Replacement Assets Closing,
Sellers shall deliver a notice to Purchaser stating with respect to each
remaining Designated Property whether the Payment Default has been cured
pursuant to Section 2.1(b)(i) (B) below and Purchaser shall have the option to
either (i) acquire Assets related to such Designated Property in accordance with
Section 2.1 hereof (without any adjustment for the Payment Default related
thereto) or (ii) mutually agree with Sellers as to the selection of Properties
from the Properties from the Illinois Assets or Louisiana Assets to replace the
Designated Properties. Subject to Section 2.1(b)(i) (B) below, Schedule
2.1(b)(i) shall be amended to remove all Designated Properties with respect to
which any Payment Default remains uncured pursuant to Section 2.1(b)(i) (B)
below and which Designated Property has not been acquired by Purchaser and to
include such Illinois Assets and Louisiana Assets as are mutually agreed upon
pursuant to clause (ii) of the immediately preceding sentence to replace such
Designated Properties on Schedule 2.1(b)(i).
(B) Sellers shall have the right to cure any Payment
Default prior to the date of the Replacement Assets Closing. For purposes of
this Section 2.1(b)(i)(B), a Payment Default shall be deemed to be cured on the
date on which Sellers deliver to Purchaser written notice stating that (i) all
past due amounts of rent under the applicable Tenant Lease have been paid in
full and (ii) the lessee to such Tenant Lease shall have paid in full the
applicable rent for the calendar month immediately succeeding the calendar month
in which such past due amounts are paid. If Sellers cure any Payment Default
with respect to any Designated Property, then, the Parties shall amend Schedule
2.1(b)(i) to delete therefrom only those Designated Properties with respect to
which a Payment Default has not been cured and to include such Illinois Assets
and Louisiana Assets as are designated in the Removal Notice to replace such
Designated Properties on Schedule 2.1(b)(i).
(C) No later than ten (10) Business Days prior to the First
Closing, Sellers shall deliver to Purchaser Schedule 2.1(b)(i), which shall
identify (A) the Initial Assets with respect to which the Title Condition and
other Conditions Precedent have been met as of the First Closing, with the
corresponding Current TCF for such Initial Assets, and (B) the Managed Assets,
with the corresponding Current TCF with respect to each Property for such
Managed Assets, which (A) and (B) in the aggregate shall generate a TCF Product
of no less than One Hundred Forty-Five Million Dollars ($145,000,000). In the
event (A) and (B) in the
14
aggregate generate a current TCF Product of less than $145,000,000 because a
ROFR has been exercised or the reconciliation contemplated by Section
10.5(a)(viii) with respect to (A) and (B) would result in a TCF Product of less
than $145,000,000 and the Wisconsin Notice has not been delivered to Sellers,
then Sellers will deliver to Purchaser as part of Schedule 2.1(b)(i), a list of
Wisconsin Asset with respect to which the Title Condition and other Conditions
Precedent have been met as of the First Closing that generate a TCF Product in
the amount of such shortfall.
(ii) Second Closing. No later than five (5) Business Days prior
to the Second Closing, Sellers shall deliver to Purchaser Schedule 2.1(b)(ii),
which shall identify (A) the Initial Assets with respect to which the Title
Condition and other Conditions Precedent have been met as of the Second Closing,
with the corresponding Current TCF for such Initial Assets and (B) the Managed
Assets with the corresponding Current TCF for such Managed Assets which Initial
Assets and Managed Assets in the aggregate shall generate a TCF Product of no
less than the Second Closing Amount.
(c) Breakup Assets. No later than five (5) Business Days prior to the
Breakup Closing Date, if applicable, Sellers shall deliver to Purchaser Schedule
2.1(c), which shall identify the Breakup Assets with respect to which the
conditions precedent in Section 8.2 have been met as of the Breakup Closing,
with the corresponding Current TCF with respect to each Property for such
Breakup Assets. At the Breakup Closing, if applicable, subject to the terms of
this Agreement, Sellers shall sell, transfer, assign and deliver to Purchaser,
and Purchaser shall purchase, acquire and accept from Sellers, all of Sellers'
right, title and interest in and to all of the Breakup Assets identified in
Schedule 2.1(c), free and clear of all Liens other than Permitted Liens.
(d) Subsequent Closings. On each date following the date of the First
Closing on which any Seller or Purchaser becomes aware that any Initial Assets
and/or Managed Assets with respect to at least fifteen (15) Properties have met
the Conditions Precedent, such Party shall notify the other Parties that such
Conditions Precedent have been met and, in such event, within five (5) Business
Days of receipt by the applicable Party of such Notice, Sellers shall deliver to
Purchaser Schedule 2.1(d) which shall identify such Properties with respect to
which such Conditions Precedent have been met and the corresponding Current TCF
with respect thereto. Subsequent Closing(s) for the purchase of Initial Assets
(each, a "Subsequent Closing") shall occur on such date, following the First
Closing, that is two (2) Business Days after the date on which Sellers shall
have delivered to Purchaser a Schedule 2.1(d); provided, however, that in no
event shall any Subsequent Closing occur after October 1, 2003. Upon and subject
to the terms and conditions of this Agreement, at each Subsequent Closing,
Sellers shall transfer, assign and deliver to Purchaser, and Purchaser shall
acquire and accept from Sellers (without further payment in the case of any
Managed Assets), all of Sellers' right, title and interest in and to all the
Initial Assets identified in the Schedule 2.1(d) delivered prior to such Closing
that meet the Conditions Precedent as of such Subsequent Closing, free and clear
of all Liens other than Permitted Liens.
(e) Upon delivery to Purchaser of each of the Schedules contemplated
under Sections 2.1(a), 2.1(b), 2.1(c), 2.1(d) and 2.1(f) as applicable (each
such Schedule, a "Closing Schedule"), Purchaser, on the one hand, and Sellers,
on the other hand, shall negotiate in good faith to agree upon the Properties to
be identified in the Closing Schedule to be attached to this Agreement at the
applicable Closing.
15
(f) Replacement Assets Closing. The final Closing for the purchase of
Replacement Assets (the "Replacement Assets Closing") shall occur on October 1,
2003, or on such later date as is reasonably required for Purchaser to complete
its due diligence investigation with respect to Replacement Assets but in any
event no later than December 31, 2003. No later than five (5) Business Days
prior to the Replacement Assets Closing, Sellers shall deliver to Purchaser
Schedule 2.1(f), which will identify (A) the Replacement Assets with respect to
which all of the Conditions Precedent have been met, with the corresponding
Current TCF with respect to each Property for such Replacement Assets and (B)
any Managed Assets that do not meet the Conditions Precedent on or before
October 1, 2003 and accordingly are not transferred to Purchaser hereunder (the
"Replaced Assets"). Upon and subject to the terms and conditions of this
Agreement, in consideration of the Managed Assets Closing Price, at the
Replacement Assets Closing, each Seller shall transfer, assign and deliver to
Purchaser, and Purchaser shall acquire and accept from Sellers (without further
payment except as provided in Section 2.2(b), if applicable), all of Sellers'
right, title and interest in and to all the Replacement Assets identified on
Schedule 2.1(f), free and clear of all Liens other than Permitted Liens.
2.2 Purchase Price and Payment.
(a) Closing Price. Subject to Section 11.5(c)(ii), at each Closing
(other than the Replacement Assets Closing), Purchaser shall pay Sellers an
amount equal to the result of (a) the product of (i) the sum of the Current TCF
for all of the Managed Assets, if any, and Assets transferred to Purchaser at
such Closing and (ii) the Applicable Multiple (such product, the "TCF Product");
less (b) the aggregate amount of any applicable Adjustments (such difference,
the "Closing Price"), in each case, subject to (A) the application of the
applicable portion of the Deposits in accordance with Section 2.4 and (B) the
deduction and deposit of the Indemnity Deposit in accordance with Section 11.5.
Notwithstanding the foregoing,
(x) the Closing Price paid at the First Closing shall not be less
than One Hundred Forty-Five Million Dollars ($145,000,000) and shall not exceed
(I) Two Hundred Three Million Dollars ($203,000,000), in the event the Wisconsin
Notice is provided to Sellers on or before such Closing Date or (II) One Hundred
Sixty Million ($160,000,000), in the event Wisconsin Notice is not provided to
Sellers on or before such Closing Date; and
(y) in the event that the Closing Price actually paid at the
First Closing is less than One Hundred Sixty Million Dollars ($160,000,000),
then the Closing Price paid at the Second Closing shall not be less than an
amount equal to the difference, if any, between (I) One Hundred Sixty Million
Dollars ($160,000,000) and (II) the Closing Price actually paid at the First
Closing (such amount, the "Second Closing Amount"); and
(z) in the event that the Wisconsin Notice is not provided to
Sellers, then the Purchase Price shall not exceed One Hundred Sixty Million
Dollars ($160,000,000), and in the event that the Wisconsin Notice is provided
to Sellers, the Purchase Price shall not exceed Two Hundred Three Million
Dollars ($203,000,000).
(b) Replacement Assets Closing Adjustment.
(i) At any Closing at which Replacement Assets are transferred to
Purchaser and the Replacement Assets Closing, (A) Sellers shall pay to Purchaser
in exchange for such Replacement Assets the amount by which (i) the sum of the
TCF Product generated by all Replaced Assets exceeds (ii) the sum of the
Replacement Assets TCF Product generated by
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all the Replacement Assets transferred to Purchaser at the Replacement Assets
Closing, or (B) Purchaser shall pay to Sellers the amount by which (x) the sum
of the Replacement Assets TCF Product generated by all the Replacement Assets
transferred to Purchaser at the Replacement Assets Closing exceeds (y) the sum
of the TCF Product generated by all Replaced Assets (either such amount, the
"Replacement Assets Closing Adjustment"). The Replacement Assets Closing
Adjustment will be paid in cash without set-off or deduction of any kind if to
Sellers, in accordance with Section 2.2(c) below, and if to Purchaser, by wire
transfer in accordance with the wire transfer instructions of Purchaser
delivered to Sellers not less than two (2) Business Days prior to the
Replacement Assets Closing.
(ii) Notwithstanding the terms of Section 2.2(b)(i), in the event
the aggregate TCF Product for all Initial Assets actually acquired by Purchaser
on or before the Replacement Assets Closing is equal to or greater than:
(A) (1) One Hundred Ninety-Eight Million Dollars
($198,000,000), in the event the Wisconsin Notice has been delivered to Sellers
and no Illinois Assets or Louisiana Assets are acquired by Purchaser at the
First Closing or (2) One Hundred Fifty-Five Million Dollars ($155,000,000) in
the event the Wisconsin Notice has not been delivered to Sellers and no Illinois
Assets or Louisiana Assets are acquired by Purchaser, Sellers shall have no
obligation to convey the Replacement Assets to Purchaser, and Purchaser shall
have no obligation to purchase such Replacement Assets, and in such event,
Sellers shall pay Purchaser an amount by which (I) (1) in the event the
Wisconsin Notice has been delivered to Sellers and no Illinois Assets or
Louisiana Assets are acquired by Purchaser, One Hundred Ninety Eight Million
Dollars ($198,000,000) or (2) in the event the Wisconsin Notice has not been
delivered to Sellers and no Illinois Assets or Louisiana Assets are acquired by
Purchaser at the First Closing, One Hundred Fifty-Five Million Dollars
($155,000,000) exceeds (II) the product of (x) the aggregate Current TCF for all
Assets transferred to Purchaser and (y) the Multiple, if the reconciliation
under Section 11.5(c)(ii) has occurred, or if otherwise, the Applicable
Multiple, or
(B) (1) One Hundred Ninety-Three Million Dollars
($193,000,000), in the event the Wisconsin Notice has been delivered to Sellers
and any Illinois Assets or Louisiana Assets are acquired by Purchaser at the
First Closing, or (2) One Hundred Fifty-Three Million Dollars ($153,000,000) in
the event the Wisconsin Notice has not been delivered to Sellers and any
Illinois Assets or Louisiana Assets are acquired by Purchaser, Sellers shall
have no obligation to convey the Replacement Assets to Purchaser, and Purchaser
shall have no obligation to purchase such Replacement Assets, and in such event,
Sellers shall pay Purchaser an amount by which (I)(1) in the event the Wisconsin
Notice has been delivered to Sellers and no Illinois Assets or Louisiana Assets
are acquired by Purchaser, One Hundred Ninety-Three Million Dollars
($193,000,000) or (2) in the event the Wisconsin Notice has not been delivered
to Sellers and no Illinois Assets or Louisiana Assets are acquired by Purchaser,
One Hundred Fifty-Three Million Dollars ($153,000,000) exceeds (II) the product
of (x) the aggregate Current TCF for all Assets transferred to Purchaser and (y)
the Multiple, if the reconciliation under Section 11.5(c)(ii) has occurred, or
if otherwise, the Applicable Multiple, or
(c) The Closing Price at each Closing will be paid in cash without
set-off or deduction of any kind (except for the application of the Deposits and
the Indemnity Deposit) by wire transfer in accordance with the instructions
delivered to Purchaser three (3) Business Days
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prior to the Closing Date of such Closing. The Sellers shall be solely
responsible for allocating the Closing Price at each Closing between them.
2.3 Assumed Liabilities.
(a) Assumed Liabilities. Subject to and in accordance with the terms
and conditions of this Agreement, Purchaser agrees to assume and to discharge
upon each of the Closings, with respect to the Assets at such Closing, any and
all liabilities or obligations of any sort whatsoever regardless of how incurred
that relate to the Assets acquired and accepted by Purchaser at such Closing and
that arise from and/or relate to events, facts, or circumstances that occur on
or after the Closing Date of the applicable Closing for such Assets, other than
any Continuing Obligations (collectively, the "Assumed Liabilities").
(b) Excluded Liabilities. Purchaser specifically shall not assume or
pay or discharge or have any liability for any debts, liabilities, or
obligations of any Seller or otherwise other than the Assumed Liabilities.
Without limiting the foregoing, Purchaser will not be liable for any of the
following debts, liabilities or obligations (contingent or otherwise) of any
Seller: (i) Taxes, including amounts which have or may be passed through to any
Seller by any lessor under any Ground Lease, regardless of whether any Seller
has been invoiced for or notified of such amounts, and whether such Taxes or
amounts relate (i) in the case of Taxes that relate to any Assets transferred to
Purchaser hereunder and arise out of periods on or before the Closing Date on
which such Assets are transferred to Purchaser and (ii) in the case of all other
Taxes of any Seller that relate to periods on, prior to or after such Closing;
(ii) obligations under the Contracts and Permits that arise out of or relate to
events, facts or circumstances that occurred prior to the applicable Closing
Date; (iii) obligations relating to any Employee Benefit Plan ever maintained or
contributed to by any Seller or its ERISA Affiliates, whether incurred before,
on or after a Closing Date; (iv) any obligations relating to any Seller's
employment of or termination of its employees, whether incurred before, on or
after a Closing, including but not limited to obligations under the WARN Act or
similar state laws; (v) Continuing Obligations at any time prior to, on, or
after the applicable Closing Date; (vi) any liability or obligation of a Seller
pertaining to the Excluded Assets; (vii) Managed Assets that become Replaced
Assets, for the period between the Closing of such Managed Assets and the date
on which such Managed Assets became Replaced Assets, except as expressly
provided in the Management Agreement; (viii) any debt (contingent or otherwise)
regardless of how incurred; and (ix) any and all liabilities or obligations of
any sort whatsoever regardless of how incurred that relate to Assets acquired
and accepted by Purchaser at a Closing that arise or are incurred by any Seller
and/or relate to events, facts, or circumstances that occur on or before the
Closing Date of the applicable Closing for such Assets in each case, whether or
not any such debt, liability or obligation is disclosed to Purchaser or is set
forth on any Schedule to this Agreement. All of such excluded debts, liabilities
and obligations specified in this Section 2.3(b) are collectively referred to
herein as the "Excluded Liabilities".
2.4 Purchase Price Deposit. Purchaser shall deposit with First American
Title Insurance Company (the "Escrow Agent") (i) an amount equal to Ten Million
Dollars ($10,000,000) on the Effective Date with respect to the Initial Assets
(such amount, together with all interest accrued thereon, the "Initial Assets
Deposit") and (ii) in the event Purchaser satisfies or waives the Condition
Precedent set forth in Section 8.1(i), an amount equal to Two Million Five
Hundred Thousand Dollars ($2,500,000) upon Purchaser's delivery of the Wisconsin
Notice to Sellers (such amount, together with all interest accrued thereon, and,
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collectively with the Initial Assets Deposit, the "Deposits"). The Deposits
shall be maintained in a segregated interest-bearing account and the interest
accruing shall be for the benefit of Purchaser in accordance with the terms and
conditions of an escrow agreement (the "Escrow Agreement"), the form of which is
attached hereto as Exhibit 2.4. In accordance with the terms and provisions of
this Agreement and the Escrow Agreement the Deposits shall be held by the Escrow
Agent as a deposit against the Closing Price for each of the Closings. At each
Closing, a pro rata portion of the Deposit shall be applied to the applicable
Closing Price pursuant to Section 2.2 and paid to the Sellers, such pro rata
portion to be based on the Closing Price paid for the Initial Assets purchased
at such Closing in relation to the maximum aggregate potential Closing Price
that may be payable with respect to all Initial Assets at such time based upon
whether Purchaser has delivered the Wisconsin Notice. The Deposits or any
remaining portion thereof, if applicable, shall be returned promptly to
Purchaser as provided in the first sentence of Section 12.3(b) in the event
that: (i) Sellers fail to satisfy the Bank Condition; (ii) Purchaser exercises
its right to terminate this Agreement pursuant to Section 12.1(b); or (iii) this
Agreement is terminated by any Party for any reason other than by Sellers
pursuant to Section 12.2(a). The Deposit or any remaining portion thereof shall
be paid to Sellers if this Agreement is terminated by Sellers pursuant to
Section 12.2(a). The Deposits shall be deemed to be, and shall remain, the
Purchaser's property, and no Seller will have no legal, equitable or other
interest in the Deposits, until such time as, and then only to the extent that,
a portion of the Deposits is payable to Sellers pursuant to Section 2.2 or
Section 12.3(b). The Parties will provide the Escrow Agent with joint written
instructions for the disbursement of the Deposits in accordance with the terms
of this Agreement and the Escrow Agreement. The Deposits shall be delivered to
the Escrow Agent by wire transfer of immediately available federal funds or by
bank or cashier's check drawn on a nationally recognized bank. The Parties will
each pay one half (1/2) of the costs of the Escrow Agent in connection with the
Escrow Agreement.
2.5 Allocation. No later than five (5) Business Days prior to a Closing,
the Parties will agree to, and attach to this Agreement as Schedule 2.5, a list
of the allocation of the Closing Price and fair market value with respect to the
Assets to be transferred at the applicable Closing. The Parties shall make
consistent use of such allocations and valuations for all Tax purposes and in
all filings, declarations, and reports with the Internal Revenue Service. No
Party will contend or represent that the allocations and valuations contained in
Schedule 2.5 is not a correct allocation or valuation in any proceeding related
to the determination of any Taxes.
2.6 Open Title Assets. If, pursuant to Section 2.1(a), any Open Title
Assets are proposed to be transferred to Purchaser at the First Closing or the
Second Closing and the failure to transfer such Open Title Assets would result
in a reduction of the Closing Price payable at the (a) First Closing to an
amount less than $145,000,000 or (b) Second Closing to an amount less than the
Second Closing Amount, then concurrently with the Closings, the Parties shall
enter into an Asset Management Agreement, substantially in the form attached as
Exhibit 2.6 ("Management Agreement"), with respect to the management of such
Open Title Assets, pursuant to which, among other things, Purchaser shall manage
such Open Title Assets and retain all Tower Revenue (as such term is defined in
the Management Agreement) relating to such Open Title Assets during the term of
the Management Agreement.
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ARTICLE III - INSPECTION PERIOD
3.1 Duration. Purchaser shall have the right during the period commencing
on the Effective Date and ending at the close of business five (5) Business Days
prior to the Closing Date of the Replacement Assets Closing (the "Inspection
Period") to enter upon, inspect, investigate and conduct legal, financial,
business, environmental and technical due diligence with respect to the Assets;
provided, however, that in the event of the occurrence of a Breakup Event, the
Inspection Period will be deemed to mean the forty-five (45) Business Days (the
"Extension Date") following the date of the Breakup Event, or if Purchaser has
not, after exercising commercially reasonable efforts, completed its due
diligence investigation of the Breakup Assets on or prior to the Extension Date,
the ninety (90) Business Days following the occurrence of the Breakup Event.
3.2 Entry and Inspection. During the Inspection Period, Sellers shall
permit Purchaser and its authorized agents and representatives reasonable access
to (during normal business hours) all of the Assets, and Sellers shall permit
Purchaser to have access to, and Purchaser shall be allowed to photocopy, all
reports, documents, records, and information related to the Assets as Purchaser
may reasonably request, to permit Purchaser to perform its due diligence
investigation with respect to the Assets. Purchaser may undertake a complete
physical inspection of the Assets; provided, however, that with respect to the
Properties and the Improvements, any such physical inspection shall not result
in any damage to the same. Except as otherwise provided herein, no such
inspections, investigations or examinations shall interfere with the applicable
Seller's business or operations. After completing any physical inspections of
the Property and Improvements thereon, Purchaser shall restore and repair any
damage to the same caused by such inspections to the condition existing prior to
Purchaser's entry. Any site inspections shall be conducted by such employees,
consultants and professionals as Purchaser shall select, and any inspections
shall be arranged at times mutually convenient to the Parties.
3.3 Due Diligence Materials.
(a) Sellers Materials. Not more than five (5) Business Days following
the Effective Date, Sellers shall make available to Purchaser each of the
following items (to the extent same exist and are in any Seller's or any of its
Affiliate's possession) at the offices of Sellers located at 0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxx Xxxxx, Xxxxxxx 00000 and/or provide such items to Purchaser in
hard copy or electronic form, subject to Section 3.3(b):
(i) True, correct and complete copies of all structural
analyses, engineering reports, drawings, surveys, and condition reports for the
Improvements;
(ii) True, correct and complete copies of all environmental
reports and NEPA reports relating to the Properties, which reports may include a
current Phase I and Phase II (if applicable) environmental study of each
Property other than for the Properties set forth on Schedule 3.3(a)(ii) and a
reliance letter from each environmental consultant who prepared such report;
(iii) True, correct and complete copies of all Ground Leases,
Tenant Leases, Easements, Seller Contracts and other written contracts (and a
list of all such oral contracts) that Seller has entered into with third parties
related to the use, maintenance, or operation of any of the Assets presently in
force;
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(iv) True, correct and complete copies of the most recent and
current surveys, title commitments, title policies or abstracts of title and
corresponding legal opinions together with all copies of all documents and
instruments (as recorded where applicable) referred to or identified in the
title commitment, title policies or abstracts, including, but not limited to,
all deeds and other conveyance documents evidencing transfer of title into each
of the Sellers, lien instruments, leases, plats, reservations, restrictions and
easements, and all curative documentation executed subsequent to the commitment,
policy or abstract, including any non-disturbance agreements;
(v) The most recent annual and quarterly real estate Tax xxxx
and any notification of increases in Taxes in any Seller's possession for each
of: (i) the Improvements; and (ii) the Properties for which Sellers pay property
Taxes, and utility bills from the previous twelve month period;
(vi) Current tenant contact information;
(vii) An AM Study for each Tower for which an AM Study is
required;
(viii) Copies of all Permits including without limitation, all
zoning approvals, FAA clearances, and FCC registrations; and
(ix) True, correct and complete copies of any and all books,
records, files, studies, reports, documents and other information (A) related to
the Assets and the transactions contemplated herein and (B) as Purchaser may
reasonably request.
For purposes of this Agreement, the words "make available", "made
available", "furnished", or "provided" used in the context of Sellers'
providing, furnishing or making available items to Purchaser, shall mean that
Sellers have made available, furnished or provided true, correct and complete
copies of such items to Purchaser at the address of Seller set forth in Section
13.2 or in Sellers' online database.
(b) Updated Materials. To the extent the applicable Seller does not
have current or adequate copies of the items in Section 3.3(a)(i), 3.3(a)(ii),
3.3(a)(iv), 3.3(a)(viii) or 3.3(a)(ix) (including, without limitation, title
commitments and title updates) as reasonably determined by Purchaser, Purchaser
will have the right to obtain such items or, subject to limitations contained in
paragraph (c) below, require Sellers to obtain such items in accordance with
Purchaser's reasonable requirements, and Sellers shall cooperate with Purchaser
in obtaining such items. Sellers will promptly notify Purchaser of its receipt
of any additional due diligence materials described in Section 3.3(a) above.
(c) Due Diligence Costs. Sellers shall incur and pay such third party
costs and expenses as may be requested by Purchaser in connection with
Purchaser's due diligence investigation with respect to the Assets, including
without limitation any inspection costs incurred pursuant to Section 3.2 and the
cost of obtaining any items not in any Seller's or in any of such Seller's
Affiliate's possession pursuant to Sections 3.3(a) and 3.3(b) (all such costs,
collectively, "Due Diligence Costs"); provided, however, that the maximum amount
of Due Diligence Costs that Sellers shall be required to incur and pay hereunder
shall be limited to (i) $[*] prior to the First Closing, and (ii) a cumulative
amount of $[*]. The Sellers will have the sole responsibility for apportioning
any costs to be borne by them under this Section 3.3(c) between themselves.
Notwithstanding anything contained herein to the contrary, the foregoing
limitations shall not apply to any Due Diligence Costs related to Purchaser's
due diligence investigation (which Purchaser will conduct in a manner which is
consistent with its
21
customary due diligence procedures and as to which Purchaser will not conduct
due diligence for more Replacement Assets than reasonably anticipated to be
needed) of any Replacement Assets, all of which shall be borne by Sellers.
3.4 Inspection Indemnification. Purchaser agrees to indemnify and hold
Sellers harmless from any and all claims made, or causes of action brought
against Sellers resulting from any damage to the Properties as a result of the
activities of Purchaser or any of Purchaser's agents, servants, contractors or
invitees in conducting any of the physical inspections, investigations or
examinations on the Properties. This indemnification shall survive for a period
of one (1) year from the date of Purchaser's physical inspection, investigation
or examination of such Property.
ARTICLE IV - CURE, REPLACEMENT ASSETS, BREAKUP ASSETS
4.1 Cure. If, during the Inspection Period but prior to the applicable
Closing, Purchaser or Sellers discover any breach of or inaccuracy in any
representation or warranty of Sellers contained in Article V hereof, Purchaser
shall promptly provide notice to Sellers and Sellers shall take commercially
reasonable efforts to cure such breach or inaccuracy. Any out-of-pocket expenses
paid to third parties by Sellers under this Section 4.1 shall be deemed
Indemnifiable Damages and subject to Sellers' liability limits under Section
11.4 in the event the Asset with respect to which such expense relates is
transferred to Purchaser pursuant to this Agreement.
4.2 Replacement Assets; Purchase Price Adjustment. On the Closing Date
of the Replacement Assets Closing, if the Current TCF generated by the Initial
Assets transferred to Purchaser (but not under management) at any and all
Closings (including the Replacement Assets Closing) (the "Previously Transferred
Assets"), is less than the aggregate Current TCF of all the Initial Assets
identified in Schedule 5.1(f)(i)(A) (taking into account whether the Wisconsin
Notice has been delivered hereunder) (the "Scheduled Assets"), then the Sellers
shall transfer to Purchaser at the Replacement Assets Closing, Replacement
Assets which possess the same general characteristics of, and generate Current
TCF, together with the Current TCF of all Previously Transferred Assets, equal
to the sum of (i) an aggregate Current TCF substantially the same as the
Scheduled Assets and (ii) the annualized rent payments payable by tenants
pursuant to any lease or lease amendment executed during the term of the
Management Agreement to rent space on a Property included in any Replaced Asset.
Purchaser and Sellers shall jointly make the determination as to which
Replacement Assets satisfy the criteria set forth in this Section 4.2 and should
be set forth in Schedule 2.1(f).
4.3 Breakup Assets. Notwithstanding anything to the contrary in this
Article IV or otherwise in this Agreement, Purchaser shall have the right in its
sole discretion to conduct a due diligence review of the Breakup Assets during
the Inspection Period for such Breakup Assets in accordance with the terms of
Article III. Upon the occurrence of a Breakup Event, then Purchaser in its
discretion shall have the right, but not the obligation, to purchase those
Breakup Assets which satisfy the conditions precedent set forth in Section 8.2
at the Breakup Closing.
ARTICLE V - REPRESENTATIONS AND WARRANTIES OF SELLERS
5.1 Sellers' Representations and Warranties. Each of the Sellers
represents and warrants, jointly and severally, to Purchaser (i) on the
Effective Date, (ii) with respect to any representation for which a Schedule is
delivered after the date of this Agreement, on such date of
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delivery and (iii) in each case, on each Closing Date, as if made on each such
Closing Date as follows:
(a) Organization, Qualification and Compliance. Such Seller is an
entity duly organized, validly existing and in good standing under the laws of
its jurisdiction of organization. Such Seller has all requisite corporate or
limited liability company, as the case may be, power and authority to conduct
its business as it is currently conducted and to own, lease and use the Assets
as they are currently owned, leased and used. Such Seller is duly qualified to
do business as a foreign corporation and is in good standing under the laws of
each jurisdiction in which the Assets are owned or operated. Schedule 5.1(a)
contains a complete and accurate list of the Sellers' jurisdictions of
incorporation and any other jurisdictions in which they are qualified to do
business as a foreign corporation.
(b) Authority; Enforceability. Such Seller has the absolute and
unrestricted corporate right, power and authority to execute, deliver and
perform its obligations under this Agreement and the other Transaction
Documents. The execution and delivery of, and performance of the obligations
contained in, this Agreement by such Seller and the transactions contemplated
hereby and the Transaction Documents have been, or as of the Closing will be,
duly authorized by all necessary corporate or limited liability company, as the
case may be, action on the part of such Seller. This Agreement and the other
Transaction Documents to be delivered hereunder when executed and delivered by
each Seller constitute the legal, valid and binding obligations of such Seller,
enforceable against such Seller in accordance with the terms hereof and thereof,
except as the same may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting generally the enforcement of
creditors' rights and by general principles of equity.
(c) No Conflicts. Except as set forth on Schedule 5.1(c), the
execution, delivery and performance of this Agreement and the other Transaction
Documents and the consummation of the transactions contemplated hereunder do not
and will not, directly or indirectly, conflict with or result in a breach or
violation of any term or provision of, result in the imposition of any Liens
upon any Assets or permit the acceleration of any obligation or liability under
or pursuant to, or constitute a breach or default (including any event that,
with the passage of time or giving of notice, or both, would become a breach or
default or violation) under: (i) any provision of such Seller's charter, by-laws
or any other organizational documents, any partnership agreement or shareholder
agreement, or any resolution adopted by such Seller's board of directors or
shareholders; (ii) any of the terms or requirements of, or give any Governmental
Authority the right to revoke, withdraw, suspend, cancel, terminate or modify,
any Permit that is held by such Seller or that otherwise relates to the Assets
or to the business of such Seller; (iii) any of the terms of, result in a
material modification of, or otherwise give any other contracting party the
right to terminate, any contract, lease, or instrument affecting the Properties
or by which Sellers or any of the Assets may be bound or affected; (iv) any
Governmental Laws, or (v) violate or permit the acceleration of any obligation
or liability under any, contract, agreement, Governmental Law, license, lease,
indenture, mortgage, loan agreement or note, to which any Seller is a party or
by which any of the Assets is bound or may be affected.
(d) Permits. Schedule 5.1(d) contains a true, correct, and complete
list of all Permits for the Improvements and the Properties. Except as set forth
in Schedule 5.1(d)(ii), all such Permits have been obtained, made and duly and
validly issued, are in full force and effect, are binding and enforceable
against each applicable Seller, and, if applicable, have been paid for
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in full. Except as set forth in Schedule 5.1(d)(i), each Seller is the
authorized legal holder of all of its Permits and has not given or received
notice of any proceeding to revoke, cancel, encumber, terminate, or adversely
affect in any manner any such Permit nor has any such proceeding been initiated
or threatened, and such Seller is in compliance therewith. Except as set forth
in Schedule 5.1(d)(ii), there are no other approvals required from any
Governmental Authority to operate the Assets as they are currently being
operated except for the Permits. Except as set forth in Schedule 5.1(d)(ii),
such Seller has not received any indication that any of such Permits will not be
renewed in their ordinary course for the full term contained in any renewal
option or for a term (in the event there is no option) to be negotiated with the
appropriate Governmental Authority. Except as set forth in Schedule 5.1(d)(ii),
none of such Permits is subject to any restriction or condition that would limit
in any respect the ownership or operation of the Assets as presently conducted
or as contemplated by this Agreement. Except as set forth in Schedule 5.1(d)(i),
there are no Governmental Laws that would preclude such Seller from assigning
any of its Permits to Purchaser, and such Seller is assigning such Permits to
Purchaser without any further action required on the part of Purchaser. True,
correct and complete copies of each of the Permits have been, or will be prior
to the applicable Closing Date, furnished to Purchaser.
(e) Compliance With Laws. Such Seller and the Assets, and the
current ownership, use, occupancy, safety and operation of the Assets, are in
material compliance with, and there is no event that has rendered, or would
render, such ownership, use, occupancy, safety and operation materially
non-compliant under, all Governmental Laws and Permits, including without
limitation the record-keeping or periodic reporting requirements of such
Governmental Laws.
(f) Title Matters.
(i) Such Seller holds, and will transfer to Purchaser at the
applicable Closing, good, marketable and insurable title, as applicable, for all
of the Owned Properties and good title for all other owned Assets, and a valid
and insurable leasehold interest for all of the Leasehold Properties and a valid
interest in all other leased Assets, in each case, free and clear of all Liens,
other than Permitted Liens, other than Liens that will be discharged at or prior
to the applicable Closing. Neither the air rights over any Properties nor any
other "development rights" with respect to the Properties, as applicable, have
been assigned, transferred, leased or encumbered other than properties or assets
that are not site-specific, such Seller has no properties or assets necessary
for the ownership or operation of the Assets that are not included in the
Assets. True, correct, and complete copies of the legal description for each of
the Properties have been made available to Purchaser, which legal descriptions
describe such parcels fully and adequately. Schedule 5.1(f)(1)(A) and Schedules
5.1(f)(1)(B) identify whether each such Property is a Leasehold Property or
Owned Property. Schedule 5.1(f)(i)(A) sets forth a list of the Properties
pertaining to the Initial Assets, the Wisconsin Assets and the Breakup Assets.
Schedule 5.1(f)(i)(B), as of the Effective Date, identifies the Assets
contiguous to the Initial Assets, from which the Replacement Assets will be
selected, and as of the Closing Date of the First Closing will set forth a list
of the Properties pertaining to the Replacement Assets, which the Sellers may,
upon Purchaser's request pursuant to Section 4.2, supplement as necessary to
include additional Replacement Assets.
(ii) Each of the Improvements are located within the boundary
lines of the legal description for the corresponding Property (and, if
applicable, Easements), and are not
24
in violation of such Easements or any applicable setback requirements, zoning
laws, or ordinances. None of the Improvements encroach on any Easements that may
burden the Properties.
(iii) On the applicable Closing Date, other than the Seller
Contracts, there will be no outstanding contracts made or authorized by any
Seller for any work or services related to the Improvements included in the
Assets included in such Closing, including without limitation services by
professionals such as architects, engineers and planners, which have not yet
been fully satisfied and paid.
(iv) Schedule 5.1(f)(iv) sets forth a true, correct, and
complete list of the Easements pertaining to all of the Properties. True,
correct and complete copies of each of the documents evidencing the Easements
and the applicable Seller's rights with respect to them have been provided to
Purchaser.
(v) Schedule 5.1(f)(v) sets forth a true, correct, and
complete list of each Seller and the respective Assets that each Seller owns.
(g) Ground Leases. Schedule 5.1(g) contains a true, complete and
correct list and description of certain key terms of each of the Ground Leases
at the Leasehold Properties, true, complete and correct copies of which have
been made available to Purchaser. Except as contained on Schedule 5.1(g): (i) to
such Seller's Knowledge, each owner, lessor or easement grantor under each
Ground Lease has good and marketable title to the corresponding Property; (ii)
each Ground Lease is in full force and effect, has not been modified or amended,
and there is no action to revoke, cancel, renegotiate or adversely affect in any
manner any Ground Lease; (iii) such Seller is in actual possession of the
premises under the Ground Leases; (iv) there are no material defaults thereunder
by such Seller or, to such Seller's Knowledge, by the applicable owner, lessor
thereunder, or easement grantor; (v) such Seller has not received any notices
from or given notice to any owner, lessor or easement grantor claiming that the
other party is in default under any of the Ground Leases and to such Seller's
Knowledge, there is no event, with the giving of notice or the passage of time
or both, would constitute such a default; (vi) there are no existing disputes
regarding the computation and payment of fees or other lease payments under the
Ground Leases or any other material provisions thereunder; (vii) such Seller has
performed its obligations and paid the rent and such other payments set forth in
or required to be paid under its Ground Leases on a current basis and there are
no material past due amounts; (viii) such Seller has no obligation to pay any
additional rent or charges to any of the owners, lessors or easement grantors
under any Ground Lease except as set forth in the applicable Ground Lease; and
(ix) there is no non-monetary rent or other consideration payable to any of the
owners, lessors or easement grantors.
(h) Security Deposits. Schedule 5.1(h) sets forth a true, correct
and complete list of the security deposits, notes, instruments and other tenant
impounds (the "Security Deposits") currently held by (i) a landlord or easement
grantor under any Ground Lease and (ii) any such Seller under its Tenant Leases.
The Security Deposits are being maintained in accordance with the provisions of
the Tenant Leases and applicable state law, and no Security Deposits that were
in such Seller's possession during its ownership of the applicable Properties
have been applied except in accordance with the provisions of the applicable
Tenant Lease.
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(i) No Third Party Rights. Except as contained on Schedule 5.1(i),
no Person other than Purchaser by reason of this Agreement has any contractual
or other right of first refusal or any other right or option to acquire the
Assets or any portion thereof.
(j) Bankruptcy Matters. No Seller has changed its name or suspended
its business nor has any Seller or any of its Affiliates (including any Seller
Service Company Affiliate) had proceedings pending or threatened by or against
it in bankruptcy or reorganization in any state or Federal court, resolved or
otherwise agreed to file or actually has filed a case in bankruptcy or
reorganization in any state or Federal court, admitted in writing its inability
to pay its debts as they become due, or suffered the attachment or judicial
seizure of all, or substantially all of its assets or suffered the appointment
of a receiver to take possession of all, or substantially all, of its assets.
(k) Real Estate Matters.
(i) No Property is located within any flood plain or subject
to any similar type of restriction that materially negatively affects the Assets
without the required Permits.
(ii) Except for the contracts listed in Schedule 5.1(k)(ii)
there are no leases, subleases, licenses, concessions, or other agreements,
written or oral, granting to any party or parties the right to use, occupy,
encumber or otherwise affect any portion of any of the Properties, except for
the Ground Leases, Tenant Leases and Seller Contracts. There are no parties
(other than the applicable Seller) in possession of the Assets, except tenants
under Tenant Leases, ground lessors, servient tenant holders and Governmental
Authorities under the Ground Leases.
(l) Broker or Finder. Except for TD Securities (USA) Inc., whose
fees shall be paid in full by Sellers, such Seller has not entered into any
agreement, commitment or obligation with regard to any brokerage commission or
finder's fee which would be payable by such Seller arising out of the execution,
delivery or performance of this Agreement or the transactions contemplated
hereby.
(m) Litigation. Except as contained on Schedule 5.1(m), to Seller's
Knowledge, there is no pending or threatened claim, dispute, suit, grievance,
arbitration, action, proceeding (including any condemnation proceeding) or
governmental investigation against such Seller that affects any of its Assets
and no Seller has received notice of any of the foregoing. There is no
outstanding or unsatisfied award, judgment, order or decree to which such Seller
is a party or which involves the Assets.
(n) Seller Contracts. Schedule 5.1(n) sets forth a true, complete
and correct list and copies of all Seller Contracts of such Seller, true,
complete and correct copies of which have been furnished to Purchaser and its
representatives. Except as set forth on Schedule 5.1(n): (i) each such Seller
Contract is in full force and effect, has not been modified or amended, and no
action to revoke, cancel, renegotiate or adversely affect in any manner any such
Seller Contract has been initiated or threatened, and such Seller is in material
compliance therewith; (ii) such Seller has performed its obligations under the
Seller Contracts to which it is a party and has not received any written notice
from or given any written notice to the other party that such Seller or the
other party, as the case may be, is in default under any such Seller Contracts;
(iii) neither such Seller, nor any other party thereto, is in default
thereunder, nor has any event occurred that
26
with notice or the lapse of time would constitute a default thereunder; and (iv)
all amounts required to be paid by such Seller under such Seller's Contracts
have been paid to date.
(o) Tenant Leases. Schedule 5.1(o) sets forth a true, complete and
correct list and description of certain key terms of all Tenant Leases of such
Seller (including a description of whether such leases are with respect to
tenants who are installed but have not yet begun paying rent, tenants who have
begun paying rent but are not yet installed, tenants who have not yet installed
and not begun paying rent, and tenants who are installed and have begun paying
rent) and specifically identifies all Tenant Leases that are master lease
agreements, true, complete and correct copies of all of which have been or will
be furnished to Purchaser and its representatives. Except as contained on
Schedule 5.1(o): (i) each such Tenant Lease is in full force and effect, has not
been modified or amended, is not the subject of any dispute with respect to
computation or payment of fees, and no action to revoke, cancel, renegotiate or
adversely affect in any manner any such Tenant Lease has been initiated or
threatened, and such Seller is in compliance therewith; (ii) the applicable
Seller and any of its Affiliates has performed its obligations under the Tenant
Leases and has not received any written or oral notice from or given any written
or oral notice to any tenant that such Seller or the tenant, as the case may be,
is in default under the Tenant Lease or that such tenant is entitled to any rent
reduction, refund, counterclaims or offset or to cancel or terminate or such
tenant desires to terminate the applicable Tenant Lease or be released from any
of its obligations under a Tenant Lease; (iii) there are no monetary or other
defaults or any events that have occurred that with notice or the lapse of time
would constitute a default by any tenants or the applicable Seller under any
such Tenant Leases; (iv) no rent under a Tenant Lease has been paid to Sellers
more than one (1) month in advance of its due date; (v) no tenant has the right
to be installed or is actually installed at a Property without the obligation to
pay rent for any period of time other than customary rent abatements due to
casualty or condemnation events; (vi) no term of a Tenant Lease will exceed the
term of the Ground Lease for the corresponding Property, provided all renewal
terms of the applicable Ground Lease are exercised; and (vii) as of the
applicable Closing there will be no ROFRs that have not expired, terminated or
been irrevocably waived.
(p) Employee Matters.
(i) Neither such Seller nor any ERISA Affiliate contributes
to, has an obligation to contribute to or otherwise has any liability or
potential liability with respect to: (i) any multiemployer plan as defined in
Section 3(37) of ERISA; (ii) any plan of the type described in Sections 4063 and
4064 of ERISA or in Section 413 of the Code; or (iii) any "employee pension
benefit plan," within the meaning of Section 3(2) of ERISA, that is subject to
Section 412 of the Code or Section 302 or Title IV of ERISA. Such Seller will
comply with the applicable requirements of Part 6 of Subtitle B of Title I of
ERISA and Section 4980B of the Code ("COBRA") in connection with the
transactions contemplated by this Agreement. Purchaser shall have no obligation
to comply with COBRA by reason of the transactions contemplated by this
Agreement. With respect to any Employee Benefit Plans providing benefits or
coverages to any employee of such Seller or any ERISA Affiliate, no event has
occurred and no condition or set of circumstances exists, in connection with
which such Seller could be directly or indirectly, or through any ERISA
Affiliate, subject to any liability, Liens or loss of Tax deduction under ERISA
or the Code or under any agreement, instrument, Governmental Law pursuant to or
under which such Seller has indemnified or is required to
27
indemnify any Person against any such liability (except liability for benefit
claims and funding obligations payable in the ordinary course).
(ii) Such Seller and/or any Affiliate of such Seller will
take all necessary steps to comply with all Governmental Laws, including but not
limited to the notice requirements of the WARN Act, relating to the termination
of any employees of a Seller or such Affiliate, as the case may be, which
termination may be deemed to be a result of the sale of the Assets hereunder. If
such Seller or such Affiliate, as the case may be, terminates any employees
prior to any Closing Date and offers such terminated employees a severance or
other financial package contingent upon such employees' execution of a
separation or similar agreement that includes a release of such employees'
claims, such Seller or such Affiliate, as the case may be, agrees that such
separation or similar agreement will contain a release of claims against the
Seller or such Affiliate, as the case may be, and Purchaser. Each Seller shall
be solely responsible for, and shall indemnify and hold Purchaser harmless
against, any and all liability which may be assessed as a result of its failure
to comply with these requirements.
(q) Taxes. Except as set forth in Schedule 5.1(q):
(i) such Seller has duly and timely, or will so file when
due, with the appropriate governmental authorities (or there have been or will
be duly and timely filed on its behalf) all Tax Returns required to be filed by
it with respect to the Assets, and all such Tax Returns are true, correct and
complete in all material respects and were prepared in accordance with
applicable law, and all Taxes with respect to the Assets due and payable,
whether or not, shown as due on such Tax Returns, have been or will be timely
paid or are being contested in good faith by appropriate proceedings;
(ii) there are no Tax Liens (other than Liens for Taxes not
yet due and payable) on any of the Assets that will not be paid and discharged
prior to Closing or by such Seller prior to Closing or, to the Knowledge of such
Seller any Lien, action, suit, proceeding, investigation, audit, examination or
assessment with regard to any Taxes that related to the Assets, or for which
Purchaser could be liable, or which could result in a Lien on any of the Assets;
(iii) there are no waivers or extensions of the statute of
limitations by Sellers for the assessment or collection of Taxes of such Seller
with respect to Taxes which could result in an encumbrance upon the Assets;
(iv) the consummation of the transactions contemplated by
this Agreement will not trigger any excess parachute payments under Section
280(G) of the Code for which Purchaser could have any liability or obligation;
and
(v) such Seller is not a "foreign person" within the
meaning of Section 1445(f)(3) of the Code or Treasury Regulation Section
1.1445-2(b)(2)(i).
(r) Environmental Laws.
(i) Except as set forth in Schedule 5.1(r)(i), (A) no
operations or activities conducted on the Properties by such Seller or, to such
Sellers' Knowledge, those of any other third party are, or have been, in
material violation of or delinquent under any Environmental Laws, (B) such
Seller has not received any written notice and has no Knowledge of any violation
of or delinquency related to the Properties or arising out of such operations
with respect to any Environmental Laws; and (C) there is no consent decree,
consent order, or similar
28
document relating to any violations of any Environmental Law in force to which
such Seller is a party relating to any of the Properties, and (D) to such
Seller's Knowledge, there are no circumstances or conditions existing that would
prevent or interfere with carrying on such Seller's business as it is currently
conducted in compliance with Environmental Laws.
(ii) Schedule 5.1(r)(ii) sets forth a true, complete and
correct list of all Environmental Licenses held by such Seller for the operation
of its business with respect to its Assets. There are no material defects in the
Environmental Licenses held by any Seller in connection with the operation of
such Seller's business, which Environmental Licenses are adequate for the
operation and intended purpose of such business. Such Seller is in material
compliance with such Environmental Licenses.
(iii) Schedule 5.1(r)(iii) sets forth a true, complete and
correct list of all surveys, reports, assessments, audits, evaluations,
investigations, sampling results or other documents relating to the presence,
migration or disposal of any Hazardous Material or noncompliance with
Environmental Laws prepared for or at the request of such Seller, or otherwise
relating to the Assets of such Seller.
(iv) Except as set forth in Schedule 5.1(r)(iv), to such
Seller's Knowledge there has been no release or threat of release of any
Hazardous Material at, on, under, or otherwise affecting the soil, surface or
ground water of any of the Assets by such Seller or any other third party,
except where such release or threat of release is in compliance with all
applicable Environmental Laws or would not give rise to an Environmental Claim
and would not, individually or in the aggregate, otherwise adversely affect such
Seller's Assets.
(v) Except as set forth in Schedule 5.1(r)(v), there is no
Environmental Claim related to the Assets pending or, to such Seller's
Knowledge, threatened against such Seller, its assets, properties, facilities or
business, and, to such Seller's Knowledge, there are no past or present actions,
activities, circumstances, conditions, events or incidents at any of the
Properties, including without limitation, the release, emission, discharge,
presence or disposal of any Hazardous Material, that could reasonably be
expected to form the basis of any Environmental Claim.
(vi) Except as set forth in Schedule 5.1(r)(vi), there are
not, and to such Seller's Knowledge have never been, any underground or above
ground storage tanks located on any of the Properties. To such Seller's
Knowledge, there is no friable asbestos located in or on, or incorporated into,
any building or otherwise on any Properties of such Seller.
(s) Utilities. Except as contained on Schedule 5.1(s), each of the
Properties has electricity and telephone: (i) that adequately service such
Seller's Assets, (ii) that enter each Asset through lands as to which valid
public or private easements exist that will inure to the benefit of Purchaser
and such Assets, and (iii) for which the cost of installation of such utilities
has been fully paid. To the extent due and payable, all amounts owed in respect
of current operating utility services have been paid or will be fully paid prior
to the applicable Closing.
(t) Disclosure. No representation or warranty by such Seller, or
any statement or certificate furnished by such Seller to Purchaser pursuant to
this Agreement or in connection with the transactions contemplated by this
Agreement, contains any untrue statement of a material fact or omits any
statement of a material fact necessary in order to make the statements and
information contained in this Article V not misleading. All information prepared
29
by and furnished by such Seller is true, complete and accurate in all material
respects, and to such Seller's Knowledge, all information prepared by a third
party and furnished on behalf of such Seller is true, complete and accurate in
all material respects.
(u) Consents. Schedule 5.1(u) contains a true, complete and
correct list of all Necessary Consents. Except for the Necessary Consents, the
execution, delivery, and performance of this Agreement by such Seller does not
require any material consent that has not been made, given, or otherwise
accomplished.
(v) Financial Information. Schedule 5.1(v) sets forth to the
best of the Sellers' Knowledge at the time of preparation, a true, correct,
complete and accurate calculation of the ground rent, ground rent escalators,
revenue sharing, site, telephone, utility, and maintenance and assumed expenses
for real and personal property taxes and insurance and current tenant rental
rates and tenant rent escalators for the Properties and Improvements thereon,
which amount shall cumulatively total no less than $[*], except that the Parties
acknowledge Schedule 5.1(v) may contain inadvertent errors which errors shall be
reconciled pursuant to Section 10.5. Schedule 5.1(v) has been prepared
throughout the applicable period in accordance with the true, complete and
correct accounting books and records of each Seller. Such Seller has no
Knowledge of any proposed material increase in any expenses for the Assets
including, without limitation, the real property Taxes with respect to the
Assets. The expenses identified in items (a) through (e) in the definition of
"Included Expenses" are all of the expenses shown in the Cost of Revenue on
Seller's financial statements.
(w) Improvements. Schedule 5.1(w) sets forth a true, correct,
and complete list of all equipment shelters at each of the Properties, and
Schedules 5.1(f)(i)(A) and (B) set forth a true, correct and complete list of
all Towers (including a description of the height and type of each Tower) at
each of the Properties, and: (i) there are no structural or latent defects in
such Improvements except as set forth in Schedule 5.1(w); (ii) all Improvements
have been maintained in accordance with normal communications tower industry
practice; (iii) the Improvements are in good working order, in operating
condition and repair adequate for normal operations, and require no repair,
replacement, or rehabilitation (subject to normal wear and tear), other than
ordinary course maintenance; and (iv) are suitable for the purposes for which
they presently are used. Notwithstanding the foregoing, Sellers make no
representation and specifically disclaim any representation regarding the
existing or remaining structural capacity of any Tower.
(x) Access. Except as set forth on Schedule 5.1(x)(i), each
Seller has vehicular access to the each of the Properties via a public road or a
private road pursuant to an Easement or other valid legal right. Except as set
forth on Schedule 5.1(x)(ii), to such Seller's Knowledge, there is no threatened
condemnation or eminent domain proceedings relating to or affecting such
Properties.
(y) Warranties and Guaranties. To the extent existing and in
any Sellers' or any of the respective Affiliates' possession, true, correct and
complete copies of all contractors' or subcontractors' guaranties and warranties
relating to the Assets, and all agreements, amendments, guaranties, side letters
and other documents relating to such guaranties and warranties, have been made
available to Purchaser, and there are no other such documents or agreements,
whether written or oral.
30
(z) Continuing Obligations. Schedule 5.1(z) sets forth a
true, correct, and complete list of the Continuing Obligations.
(aa) Tower Lighting System. Schedule 5.1(aa) sets forth a
true, correct, and complete list of the Towers on which Tower Lighting Systems
are located, which list includes a description of which Tower Lighting Systems
are electronically monitored (via satellite or otherwise) or visually monitored.
Each Tower Lighting System is in good working order, in operating condition and
repair adequate for normal operation and requires no repair, replacement or
rehabilitation (subject to normal wear and tear) other than ordinary course
replacement of light bulbs.
(bb) Conduct of Business. Since acquiring or constructing the
Assets related to a Property, such Seller has owned and operated such Assets
only in the ordinary course of business practices that are customary in the
industry.
(cc) Removal Bonds. Schedule 5.1(cc) sets forth all removal
bonds with respect to any and all of the Assets.
(dd) Assets Criteria.
(i) Except as set forth in Schedule 5.1(g), none of
the Ground Leases or Tenant Leases provides for the payment by Sellers to a
third party (including a landlord or tenant) of any portion of revenues received
by the Sellers under any of the Tenant Leases.
(ii) Except as set forth on Schedule 5.1(dd)(ii), no
landlord has the right to consent to any lessee's subleasing of space under any
of the Ground Leases.
(iii) Except as set forth in Schedule 5.1(dd)(iii), no
lessor or easement grantor under a Ground Lease will have a discretionary right
to terminate the Ground Lease without cause.
(ee) HSR Matters. The Properties and the Towers located
thereon (exclusive of common areas within such Properties) are rented, or held
for rental to Persons which are not Affiliates of any Seller. For purposes of
this Section 5.1(ee) only, an Affiliate of another Person shall include any
Person which is included within such other Person pursuant to the rules
promulgated under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended.
(ff) Accounts Receivable Aging Report. Schedule 5.1(ff)
delivered to Purchaser on the Effective Date contains a true, correct and
complete account in all respects of each Seller's accounts receivable aging
schedule for each Property identified on Schedule 5.1(f)(i)(A) under the heading
Wisconsin Towers, Western Towers and Michigan Towers, dated as of March 14,
2003.
5.2 Survival. Subject to the immediately following sentence, the
representations and warranties of each Seller contained in this Agreement and
all liability for indemnification with respect to any breach of any such
representations and warranties pursuant to the terms of this Agreement shall
survive the applicable Closing Date as of which such representations and
warranties are made. From and after each Closing, each Seller shall have
liability for breach of any such representations and warranties for a period of
one (1) year from the applicable Closing Date; provided, however, that each
Seller shall remain liable indefinitely for (i) breaches of the representations
and warranties contained in Sections 5.1(a), 5.1(b), 5.1(f), 5.1(q), and 5.1(r),
indefinitely and (ii) any intentional misrepresentation or fraud.
Notwithstanding the foregoing,
31
the representations and warranties that are the subject of any indemnity claim
made within the required time period under Section 11.1 shall continue in effect
insofar as they relate or allegedly relate to such claim, until any such claim
is finally resolved.
ARTICLE VI - REPRESENTATIONS AND WARRANTIES OF PURCHASER
6.1 Purchaser's Representations and Warranties. Purchaser hereby
represents, warrants and covenants to Sellers the following:
(a) Organization and Qualification. Purchaser is an entity duly
organized, validly existing and in good standing under the laws of the State of
New York. Purchaser has all requisite corporate power and authority to conduct
its business as it is currently conducted and, at the Closing for the applicable
Asset to own, lease and use such Assets after Closing. Purchaser will prior to
the applicable Closing be duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction in which the Assets
to be acquired at such Closing will be owned or operated except for those
jurisdictions in which non-qualification would not materially impair the ability
of Purchaser to operate its business or to consummate this transaction.
(b) Authority; Enforceability. Purchaser has the absolute and
unrestricted right, power and authority to execute, deliver and perform its
obligations under this Agreement and the other Transaction Documents. The
execution and delivery of, and performance of the obligations contained in, this
Agreement by Purchaser and the transactions contemplated hereby and in the
Transaction Documents have been, or as of the applicable Closing will be, duly
authorized by all necessary corporate action on the part of Purchaser. This
Agreement and the other Transaction Documents when executed and delivered by
Purchaser will constitute the legal, valid and binding obligations of Purchaser,
enforceable against Purchaser in accordance with the terms hereof and thereof,
except as the same may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting generally the enforcement of
creditors' rights and by general principles of equity.
(c) Litigation. To Purchaser's knowledge, there are no pending or
threatened administrative actions, including but not limited to bankruptcy,
insolvency proceedings or tax disputes, suits, claims, causes of action or
proceedings of any kind or nature whatsoever, legal or equitable, against
Purchaser or in any court or before any federal, state, county or municipal
department or other governmental agency, which may affect Purchaser's ability to
consummate the transactions contemplated in this Agreement.
(d) Funding. Purchaser has or prior to the applicable Closing will
have access to adequate funds available to fund the transactions contemplated by
this Agreement.
6.2 Survival. All of Purchaser's representations and warranties
contained in this Agreement and all liability for indemnification for any breach
of any such representations and warranties will survive the applicable Closing
Date on which such representations are made for one year from the date of such
Closing Date, provided, however, that Purchaser shall remain liable for any
intentional misrepresentation or fraud of Purchaser until the expiration of the
statute of limitations applicable to any such intentional misrepresentation or
fraud. Notwithstanding the foregoing, the representations and warranties that
are the subject of any indemnity claim made within the required timeframe under
Section 11.2 shall continue in effect insofar as they relate or allegedly relate
to the such claim, until such claim is finally resolved.
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ARTICLE VII - COVENANTS
7.1 Covenants of Sellers. Each of the Sellers covenants and agrees with
Purchaser as follows through the Closing Date for the applicable Asset:
(a) Operation of Assets. From the Effective Date until the date of
the last Closing to occur hereunder, such Seller (A) shall operate, maintain,
and repair those Assets which have not been transferred to Purchaser hereunder
or which are not Managed Assets, in accordance with such Seller's normal and
customary business practices, (B) will not enter into, cancel, modify,
accelerate, terminate or grant any waiver under, any contracts, arrangements,
understandings or agreements that will affect any of such Assets, including but
not limited to any amendment, modification, termination or other alteration of
any, or entering into any new, Ground Lease, Tenant Lease or Seller Contract
relating to such Assets without the prior written approval of Purchaser, which
approval shall not be unreasonably withheld, conditioned or delayed provided,
however, that the (i) foregoing restriction shall not apply to negotiations with
respect to any amendment to any such Ground Lease, Tenant Lease or Seller
Contract or any new lease relating to such Assets which Sellers document to
Purchaser's reasonable satisfaction, are ongoing on the Effective Date and (ii)
the failure of Purchaser to respond to any written request to take any action
contemplated under this clause (B) within forty-eight (48) hours of Purchaser's
receipt of Sellers' written request therefor shall be deemed to be Purchaser's
consent to such request; (C) shall timely make all payments and observe and
perform all obligations to be paid, observed or performed by the applicable
Seller under the Contracts applicable to such Assets; (D) shall promptly notify
Purchaser of any receipt of delivery of any notice (including any notice of
default) under the Contracts and will promptly cure such default to the extent
that such default is curable; and (E) will not accept payments of fixed rents,
additional rents or any other sums due and payable under the Tenant Leases
applicable to such Assets that are tendered more than one (1) month in advance
of the due dates thereof.
(b) Authorizations. Each Seller shall execute and deliver to
Purchaser, upon request therefor, all written consents and authorizations as may
be necessary, in the reasonable opinion of Purchaser or its counsel, to make a
search of the records of any federal, state, county or municipal or other
governmental or quasi-governmental department, agency or authority having
jurisdiction over the Properties in order to verify any provision, covenant,
agreement, condition, warranty or representation made by such Seller in this
Agreement or any information relating thereto.
(c) Inspection. Each Seller shall permit the Purchaser and its
designated agents to inspect the Assets and all books and records pertaining to
the operation and maintenance thereof, pursuant to Article III.
(d) Notice of Changes. Sellers shall deliver to Purchaser as soon
as practicable following the Effective Date but in no event later than three (3)
weeks following the Effective Date the following Schedules to this Agreement:
Schedules 5.1(d), 5.1(d)(i), 5.1(f)(iv), 5.1(r)(ii), 5.1(r)(iii), and 5.1(u).
Each Seller shall supplement or amend the Schedules to this Agreement and
disclose the occurrence of any event or the existence of any state of facts
that, if known or in existence at any time before the applicable Closing, would
have been required to have been set forth in a Schedule (other than Schedules
5.1(g), 5.1(n), 5.1(o), and 5.1(w), which shall not be amended or updated
without Purchaser's prior written consent) or would make any of such Seller's
representations and warranties untrue at the time such event or facts becomes
33
known to the Seller; provided, however, that any such supplement or amendment
will not relieve such Seller of any liability under this Agreement due to the
inaccuracy of such previously delivered Schedules or any breach of any such
representation or warranty under this Agreement when made. In addition to the
foregoing obligations, each Seller shall promptly deliver to Purchaser notice of
any circumstance, event, condition, or fact that could materially and adversely
affect the Assets or the consummation of the transactions contemplated under
this Agreement.
(e) Notice of Condemnation. Each Seller shall promptly deliver to
Purchaser a copy of any notice of any actual or threatened condemnation of any
Property or any portion thereof.
(f) Permits. Each Seller shall maintain all Permits in full force
and effect and promptly deliver notice to Purchaser of any intention of such
Seller to seek any new Permit or any notice of violation or non-compliance under
any Permit.
(g) Personnel. Each Seller shall make its personnel reasonably
available to Purchaser at all reasonable times, and cooperate in all reasonable
respects with the Purchaser in connection with its due diligence investigation
of the Assets pursuant to Article III and its review and verification of
financial information relating thereto.
(h) Insurance Coverage. Subject to Sellers' right to renew or
replace on terms acceptable to Sellers insurance policies whose terms expire
during the term of this Agreement, each Seller shall maintain in full force and
effect all insurance policies currently in effect with respect to such Seller's
Assets and promptly deliver to Purchaser copies of any work orders or
requirements of any company insuring the Assets against casualty loss.
(i) Violation of Law. Each Seller shall promptly deliver to
Purchaser copies of any notice of violation of any Governmental Law relating to
the Assets, and any notice of violation of any site plan approvals, zoning or
subdivision regulations or urban redevelopment plans applicable to any Asset.
(j) Maintenance of Property. No Seller shall remove from any
Property any article of personal property except as may be necessary for
repairs, or the discarding of worn out or useless items, provided, however, that
any article removed for repairs shall be returned to such Property promptly upon
its repair and shall remain a part of the Assets whether such article shall be
located on such Property at the time of the applicable Closing, and any article
so discarded shall be replaced with a new article of similar quality and utility
prior to such Closing.
(k) No Liens. No Seller shall make, grant or suffer any Liens
other than Permitted Liens with respect to any of the Assets or any portion
thereof that will not be discharged at or prior to the applicable Closing,
without the prior written consent of Purchaser in each instance.
(l) No Renovations. No Seller shall undertake or commence any
material renovations or alterations to the Assets, except those necessary to
comply with any of the provisions of this Agreement, without the prior written
consent of Purchaser in each instance.
(m) Security Deposits. No Seller shall apply any of the Security
Deposits, whether to a default of a tenant or otherwise without the prior
written consent of Purchaser, which consent will not be unreasonably withheld,
delayed or conditioned.
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(n) Employment Matters. As of each Closing, each Seller shall have
paid or caused to be paid all amounts due or owing to each employee employed
primarily or exclusively with respect to the Assets transferred to Purchaser at
such Closing, including all amounts due under each Employee Benefit Plan, and
any severance and other amounts payable to such employees on account of the
termination of such employee's employment by reason of the transactions
contemplated by this Agreement; provided, however, that each Seller shall
fulfill its obligations with respect to each employee under COBRA. Each Seller
shall furnish Purchaser with such proof of payment of such amounts as Purchaser
shall reasonably require prior to each Closing. Sellers and/or their Affiliates
shall provide any required notice under the WARN Act for any termination of
employment in connection with the sale of the Assets under this Agreement, and
Sellers shall indemnify Purchaser for any damages or other costs arising from
the failure to provide such notice. Sellers expressly acknowledge that Purchaser
shall not be obligated to offer post-Closing employment to any employee of
Sellers or any Affiliate thereof.
(o) Consents; Nondisturbance Agreements. Each Seller shall use
commercially reasonable efforts to obtain all Necessary Consents prior to the
First Closing at which the applicable Assets may be transferred and, if not
obtained prior to such Closing, then as soon as possible thereafter, but in no
event later than the Closing Date of the last Closing to occur hereunder;
provided, however, that Sellers shall not be in breach of this Agreement with
respect to any nondisturbance agreement, which cannot be obtained after using
commercially reasonable efforts to do so. Sellers and Purchaser shall cooperate
to obtain estoppel certificates with respect to each Tenant Lease.
(p) Accounting Information. In the event that following the
Effective Date, Purchaser conducts an offering of securities that requires
inclusion of financial information of any Seller related to the Assets for the
time period of such Seller's ownership of the Assets, such Seller shall provide
Purchaser with access to all financial statements, accounting records, working
papers and other accounting-related documents related to the Assets and shall
use its commercially reasonable efforts to cause its accountants to consent to:
(i) the use of such Seller's financial statements; and (ii) the identification
of such accountants as such in any securities offering document prepared by
Purchaser or any successor entity of Purchaser for the sale of securities of
Purchaser or of any successor entity of Purchaser; provided, however, that: (A)
Purchaser shall pay all out-of-pocket fees and costs incurred by the applicable
Seller and its accountants in connection with its obligations pursuant to this
Section 7.1(p), including the fees of the accountant and (B) Purchaser shall
indemnify each applicable Seller for any liability incurred by such Seller that
is claimed by an acquirer of the securities of Purchaser or of any successor
entity of Purchaser in connection with this Section 7.1(p).
(q) Exclusivity. Except with respect to any Assets that are or
have become Excluded Assets pursuant to the terms of this Agreement, during the
period from the Effective Date through the earliest to occur of (i) the Closing
Date of the Replacement Assets Closing, (ii) the Breakup Closing Date, if
applicable, or (iii) the date of termination of this Agreement, each Seller
shall not: (i) solicit or initiate the submission of any proposal or offer from
any Person relating to the acquisition of all or any portion of the Assets; or
(ii) participate in any discussions or negotiations regarding, furnish any
information with respect to, or assist or participate in, or facilitate in any
other manner any effort or attempt by any Person to do or seek any of the
foregoing.
35
(r) Bank Condition. Sellers shall use commercially reasonable
efforts to satisfy the Bank Condition no later than May 2, 2003. Upon receipt of
the Bank Documents, Sellers will take no action that is in conflict with any of
the terms of the Bank Condition or that could cause the modification,
alteration, rescission, termination, or acceleration of the Bank Condition.
Promptly upon receipt of documents satisfying the Bank Condition, Sellers shall
provide a true and correct copy thereof to Purchaser.
(s) Marketing. Sellers shall use commercially reasonable efforts
to continue to market the Towers in accordance with Sellers' normal and
customary business practices.
(t) Tower Lighting. For a period commencing on the Closing Date of
the First Closing and continuing for a period of five (5) years from the Closing
Date of the Replacement Assets Closing at no cost to Purchaser (other than
expenses for power and telephone services at such Properties), Seller shall
monitor the Tower Lighting Systems on such Assets on substantially the terms
described in the Tower Lighting Services Agreement.
(u) Continuing Obligations. Each Seller shall use its commercially
reasonable efforts to perform and satisfy the Continuing Obligations.
(v) Security Interest. Each Seller shall take all action necessary
to grant or reaffirm, as applicable, to Purchaser, at each Closing, the Security
Interest in the funds contained in the Indemnity Deposit.
7.2 Other Covenants.
(a) Cooperation and Further Acts. Each of Purchaser, on the one
hand, and the Sellers, on the other hand, shall use commercially reasonable
efforts to: (i) take all actions and do all things necessary, proper, or
advisable in order to consummate and make effective the transactions
contemplated by this Agreement including, without limitation, the satisfaction
of the Conditions Precedent; and (ii) cooperate with the other Party in
connection with the other Party's obligations under this Agreement and keep the
other Party informed in connection with this Agreement. If, at any time before,
on or after any Closing Date, any further action by either Party is necessary to
carry out the purposes of this Agreement, such Party shall take all such
necessary action or use such Party's commercially reasonable efforts to cause
such action to be taken.
(b) Access to Records. Each Party shall grant the other Party
reasonable access during normal business hours upon reasonable prior notice to
its books and records covering the Assets for the purpose of the requesting
Party's complying with any Governmental Laws relating to the period during which
the other Party operated and/or owned the Assets including, without limitation,
the filing of any Tax Returns. Any expenses incurred in furnishing such
information or assistance or making such records available shall be borne by the
Party requesting it.
(c) Lease Agreement with SBA Broadband Services, Inc.
("Broadband"). Purchaser and Broadband shall enter into that certain lease
agreement, attached to this Agreement as Exhibit 7.2(c) (the "Broadband Lease
Agreement"), for the Towers listed on Schedule 7.2(c), whereby Broadband will
lease space on such Towers for a yearly rental of $[*] per year pursuant to the
terms and conditions of the Broadband Lease Agreement.
(d) Confidentiality. The Parties acknowledge and agree that the
Confidentiality Agreement signed by and between Purchaser and SBA
Telecommunications, Inc.
36
on January 22, 2003, and attached as Exhibit 7.2(d) shall be deemed to apply to
each of the Parties, this Agreement and the transactions contemplated under this
Agreement and all of the information provided, disclosed, and/or prepared in
connection with this Agreement shall be "Information" as defined in such
Confidentiality Agreement except as otherwise may be required by Governmental
Laws (including, without limitation, the Securities and Exchange Act of 1934, as
amended, and any regulations promulgated thereunder).
(e) Satisfaction of Conditions. Sellers shall use commercially
reasonable efforts to satisfy, prior to the applicable Closing Date, all
Conditions Precedent with respect to the Assets to be transferred at such
Closing and the conditions precedent set forth in Section 8.2, as the case may
be.
(f) Satisfaction of Conditions. Purchaser shall use commercially
reasonable efforts to satisfy, prior to the applicable Closing Date, all
conditions precedent contained in Article IX.
(g) Right of First Refusal. [*]
(h) Purchaser Activities. For so long as this Agreement has not
been terminated pursuant to Article XII, Purchaser covenants with Sellers that
neither it nor its Affiliates (other than Cequel III, LLC) will, prior to May 9,
2003, close on the purchase of any wireless communications tower(s) with an
aggregate purchase price of more than [*], other than any such towers that are
the subject of any executed purchase agreement as of the date of this
Agreement; provided, however, that for the avoidance of doubt, the foregoing
restriction shall not and shall not be deemed to in any manner restrict or
limit Purchaser's ability to enter into or consummate any agreement for the
construction of any, or purchase of any newly constructed wireless
communications tower.
ARTICLE VIII - CONDITIONS TO PURCHASER'S PERFORMANCE
8.1 Conditions Precedent. Purchaser's obligations to consummate a
Closing (other than a Breakup Closing) are expressly contingent upon fulfillment
of all of the following terms and conditions prior to such Closing (each, a
"Condition Precedent"), unless such conditions are waived in writing by
Purchaser; provided, however, that Purchaser has no obligation to purchase any
Breakup Assets, subject to Section 4.3, or accept any Replacement Assets other
than such Replacement Assets as the Purchaser agrees to include on Schedule
2.1(f), and; provided, further, that no waiver by Purchaser of any condition
contained in this Section 8.1 shall operate as a waiver of any rights of
Purchaser hereunder or otherwise:
(a) Accuracy of Certain Representations and Warranties. At each
Closing, (i) each representation and warranty of each Seller contained in
Sections 5.1(a), 5.1(b), 5.1(c) (but with respect to Section 5.1(c) only with
respect to the applicable Property and Improvements thereon), 5.1(j), and 5.1(r)
shall be true and correct in all respects as of the applicable Closing Date, as
if restated on the applicable Closing Date.
(b) Title. The following shall be true and correct as of the date
of the applicable Closing with respect to the applicable Asset to be transferred
to Purchaser at such Closing:
(i) with respect to the Owned Property, the applicable
Seller shall have good, marketable and insurable title to such Owned Property;
37
(ii) with respect to the Leased Property (other than a Leased
Property referred to in clause (iii) or (iv) below), the applicable Seller shall
have a valid and insurable leasehold interest in such Leased Property;
(iii) with respect to the Leased Property which is an easement
interest, the applicable Seller shall have a valid and insurable easement
interest;
(iv) with respect to the Leased Property with respect to which
any Seller holds a "license" or other right to use, the applicable Seller shall
have a valid license or right to use such Property;
(v) with respect to each Asset (other than the Properties
identified in clauses (i), (ii), (iii), (iv) above), the applicable Seller shall
have good title to such Asset and with respect to such Assets (including the
Properties identified in clauses (i), (ii), (iii) and (iv)) there are no Liens
(other than Permitted Liens) on such Assets;
(vi) with respect to the applicable Asset to be transferred at
such Closing, there is no condition contemplated by the subject matter of the
representations and warranties of Sellers contained in Article V of this
Agreement (disregarding any exceptions thereto, materiality or knowledge
qualifiers therein or Schedules referenced therein or any disclosure contained
in any such Schedule) that does or could reasonably be expected, individually or
in the aggregate, to materially interfere with or adversely impair the use or
operation of such Asset in the same manner as the applicable Seller; and
(vii) each Seller shall have obtained and delivered to Purchaser,
evidence satisfactory to Purchaser that such Seller has obtained all Necessary
Consents.
(c) Execution and Delivery of Documents. Sellers shall have executed
and delivered to Purchaser the documents specified in Section 10.2 with respect
to the applicable Assets.
(d) Performance. Sellers shall have performed and complied in all
material respects with all covenants, conditions and obligations (but not the
representations and warranties of Seller, other than as provided in this Section
8.1) of this Agreement to be performed or complied with by Sellers on or before
the applicable Closing.
(e) Absence of Litigation. Except as provided in Section 13.1(b),
there shall be no pending or threatened order or litigation with respect to the
Assets that are the subject of such Closing or that would prevent or make
unlawful the consummation of the transactions contemplated under this Agreement.
(f) Material Change. No Material Adverse Change shall have occurred
between the Effective Date and the Closing Date of any Closing.
(g) Bank Condition. On or before May 2, 2003, Sellers shall have
delivered to Purchaser written copies of a fully-executed amendment or
modification or refinancing of the existing credit facility of SBA
Telecommunications, Inc. (the "Existing Credit Facility") that, in exchange for
use by Sellers of a portion of the proceeds received by Sellers at the First
Closing to repay a portion of the Existing Credit Facility, is effective at or
before the First Closing, sets new financial covenants for SBA
Telecommunications, Inc. for the period through at least December 31, 2004 and
contains no provision which would, directly or indirectly, restrict or prohibit
the consummation of the transactions contemplated hereby or in any Transaction
38
Documents, including but not limited to any Seller's payment of any
Indemnifiable Damages and Seller's grant to Purchaser of a perfected first
priority security interest (the "Security Interest") in the funds contained in
the Indemnity Deposit as contemplated in the Indemnity Deposit Agreement. Such
amendment, modification or refinancing documents (the "Bank Documents"), which
Bank Documents shall be valid and in full force and effect (the "Bank
Condition") shall be to Sellers' sole satisfaction, which satisfaction will be
assumed upon delivery of such written evidence to Purchaser. Each Seller shall
grant at the First Closing to Purchaser the Security Interest.
(h) Release of Seller Indebtedness. Each applicable Seller shall at
its sole cost and expense have, or shall have caused to be paid off, released of
record, or bonded over any mortgages, deeds of trust, deeds to secure debt or
similar security instruments created by such Seller that encumber such Seller's
title to the Assets to be transferred or the management of which will be
governed by the Management Agreement at the applicable Closing and secure
indebtedness for money borrowed by such Seller or any Affiliate (including,
without limitation, the filing of UCC-3s) and shall have delivered to Purchaser
a copy of an estoppel from the administrative agent under the Existing Credit
Facility committing it to discharge the same upon payment of all or a portion of
the Closing Price paid at such Closing. Sellers shall provide confirmatory
evidence of such discharge as soon as practicable.
(i) Wisconsin Assets Financing Contingency. With respect to the
Wisconsin Assets, Purchaser shall have delivered to Sellers the Wisconsin
Notice.
(j) First Closing TCF Product. At the First Closing, Sellers shall
deliver to Purchaser (whether to be acquired or managed pursuant to the terms of
this Agreement), Initial Assets and Managed Assets that generate, in the
aggregate, a TCF Product of at least One Hundred Forty-Five Million Dollars
($145,000,000).
(k) ROFRs. Sellers shall have delivered to Purchaser evidence
reasonably satisfactory to Purchaser that all ROFRs with respect to any of the
Assets to be transferred or the management of which will be provided by
Purchaser pursuant to the Management Agreement at the applicable Closing shall
have expired, terminated or have been permanently waived.
(l) Necessary Consents. Sellers shall have received the Necessary
Consents, the failure of which to receive would prevent or make unlawful the
consummation of the transactions contemplated under the Agreement.
8.2 Conditions Precedent for Breakup Closing.
Purchaser's obligations to consummate a Breakup Closing are expressly
contingent upon fulfillment of all of the following terms and conditions prior
to such Breakup Closing, unless such conditions are waived in writing by
Purchaser. Notwithstanding anything to the contrary, Purchaser has no obligation
to purchase any Breakup Assets, subject to Section 4.3, and provided, further,
that no waiver by Purchaser to any condition contained in this Section 8.2 shall
operate as a waiver of any rights of Purchaser hereunder or otherwise:
(a) Accuracy of Representations and Warranties. Each representation
and warranty of each Seller contained in Article V shall be true and correct in
all respects as of the date of the Breakup Closing, as if restated on such date.
39
(b) Title. The following shall be true and correct as of the date of
the applicable Closing:
(i) with respect to the Owned Property, the applicable Seller
shall have good, marketable and insurable title to such Owned Property;
(ii) with respect to the Leased Property (other than a Leased
Property referred to in clause (iii) or (iv) below), the applicable Seller shall
have a valid and insurable leasehold interest in such Leased Property;
(iii) with respect to the Leased Property which is an easement
interest, the applicable Seller shall have a valid and insurable easement
interest;
(iv) with respect to the Leased Property with respect to which
any Seller holds a "license" or other right to use, the applicable Seller shall
have a valid license or right to use such Property;
(v) with respect to each Asset (other than the Properties
identified in clauses (i), (ii), (iii), (iv) above), the applicable Seller shall
have good title to such Asset and with respect to all Assets (including the
Properties identified in clauses (i), (ii), (iii) and (iv)) there are no Liens
(other than Permitted Liens) on such Assets;
(c) Execution and Delivery of Documents. Sellers shall have executed
and delivered to Purchaser the documents specified in Section 10.2, except for
Sections 10.2(c), 10.2(j), and 10.2(l).
(d) Performance. Sellers shall have performed and complied in all
material respects with all covenants, conditions and obligations of this
Agreement to be performed or complied with by Sellers on or before the Breakup
Closing.
(e) Absence of Litigation. There shall be no pending or threatened
litigation or order with respect to the Assets that are the subject of such
Closing or that would prevent or make unlawful the consummation of the Breakup
Closing.
(f) Material Change. No Material Adverse Change shall have occurred
between the Effective Date and the Closing Date of the Breakup Closing.
(g) Release of Seller Indebtedness. Each applicable Seller shall at
its sole cost and expense have, or shall have caused to be paid off, released of
record, or bonded over any mortgages, deeds of trust, deeds to secure debt or
similar security instruments created by such Seller that encumber such Seller's
title to the Breakup Assets to be transferred at the Breakup Closing and/or
secure indebtedness for money borrowed by such Seller or any Affiliate
(including, without limitation, the filing of UCC-3s).
ARTICLE IX - CONDITIONS PRECEDENT TO SELLERS' PERFORMANCE
Sellers' obligations to consummate any Closing are expressly contingent
upon fulfillment of the following terms and conditions prior to any Closing,
unless such conditions are waived in writing by the applicable Seller:
9.1 Accuracy of Covenants, Representations and Warranties. All covenants,
representations and warranties of Purchaser set forth in this Agreement shall be
true and correct as of the applicable Closing Date in all material respects as
if made on such Closing Date.
40
9.2 Performance. Purchaser shall have performed and complied in all
material respects with all covenants, conditions and obligations required by
this Agreement to be performed or complied with by Purchaser on or before the
Closing.
9.3 Absence of Litigation. There shall be no pending or threatened
litigation or order with respect to the Assets that are the subject of such
Closing or that would prevent or make unlawful the consummation of the
transactions contemplated under this Agreement.
9.4 Execution and Delivery of Documents. Purchaser shall have executed and
delivered to Sellers the documents specified in Section 10.3, except for, with
respect to the Breakup Closing, those documents specified in Sections 10.3(g),
10.3(j) and 10.3(k).
9.5 Bank Condition. Except with respect to the Breakup Closing, Sellers
shall have satisfied the Bank Condition on or before May 2, 2003, after which
this condition shall be deemed waived by Sellers.
ARTICLE X - CLOSINGS
10.1 Closings.
(a) First Closing. The First Closing shall occur on the later of (i)
May 9, 2003 or (ii) the date on which all ROFRs have expired, terminated or have
been irrevocably waived, at the offices of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
at 00 Xxxx 00 Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 a.m. eastern time, unless
this Agreement shall have been terminated prior to such date, either in its
entirety or with respect to the Initial Assets, in accordance with the terms of
this Agreement.
(b) Second Closing. The Second Closing shall occur on July 1, 2003 at
the offices of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP at 00 Xxxx 00 Xxxxxx, Xxx
Xxxx, Xxx Xxxx, at 10:00 a.m. eastern time, unless this Agreement shall have
been terminated prior to such date, either in its entirety or with respect to
the Initial Assets, in accordance with the terms of this Agreement.
(c) Replacement Assets Closing. The Replacement Assets Closing shall
occur on October 1, 2003 at the offices of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
at 00 Xxxx 00 Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 a.m. eastern time, unless
this Agreement shall have been terminated prior to such date, either in its
entirety or with respect to the Initial Assets, in accordance with the terms of
this Agreement.
(d) Subsequent Closings. Each of the Subsequent Closings shall occur
on or about any date, which date shall be the first Business Day of a month, as
mutually agreed to by the Parties following the First Closing and prior to the
Replacement Assets Closing in accordance with Section 2.1(d), at the offices of
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP at 00 Xxxx 00 Xxxxxx, Xxx Xxxx, Xxx Xxxx,
at 10:00 a.m. eastern time, unless this Agreement shall have been terminated
prior to such date in accordance with its terms.
(e) Breakup Closing. The Breakup Closing, if applicable, shall occur
on the earlier of (i) the date that is sixty (60) days following the date of the
Breakup Event, or (ii) the date on which conditions precedent have been met or
as reasonably extended by Purchaser if Purchaser has not, after exercising
commercially reasonably efforts, completed its due diligence investigation of
such Breakup Assets prior to such dates(s) but in no event later than October 1,
2003, at the offices of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP at 00 Xxxx 00
Xxxxxx, Xxx Xxxx,
41
New York, at 10:00 a.m. eastern time, unless this Agreement shall have been
terminated prior to such date in accordance with its terms.
(f) Time is of the essence in each provision of this Section of the
Agreement.
10.2 Sellers' Obligations at Closings. At each Closing, each Seller shall
execute and deliver to Purchaser the following documents:
(a) Closing Instruments. Instruments of transfer ("Instruments of
Transfer") transferring to Purchaser all of such Seller's rights, title and
interest in the Assets included in such Closing. The Instruments of Transfer
shall be as follows:
(i) Assignment and Assumption of Ground Leases. With respect
to each of the Leased Properties, a duly executed, valid and acknowledged
original assignment and assumption of all of such Seller's right, title and
interest in and to the Ground Lease to which such Seller is a party,
substantially in the form attached as Exhibit 10.2(a)(i) hereto;
(ii) Assignment and Assumption of Tenant Leases. A duly
executed, valid, and acknowledged original assignment and assumption of all of
such Seller's right, title and interest in and to each of the Tenant Leases
applicable to the Assets included in the Closing, substantially in the form
attached as Exhibit 10.2(a)(ii) hereto;
(iii) Deeds. With respect to Owned Properties, a special
warranty deed duly executed, valid and acknowledged, in a form acceptable for
recording in the state and county where each of the applicable Owned Properties
is located, and as otherwise reasonably satisfactory to Purchaser and such
Seller, together with such other forms as may be required to record such deed;
(iv) Assignment and Assumption of Seller Contracts. A duly
executed, valid and acknowledged original assignment and assumption of all of
such Seller's right, title and interest in and to each of the Seller Contracts
applicable to the Assets included in the Closing, substantially in the form
attached as Exhibit 10.2(a)(iv) hereto;
(v) Xxxx of Sale. A duly executed xxxx of sale and assignment,
transferring all of such Seller's right, title and interest in and to all of the
tangible, personal property included in the Assets from such Seller to
Purchaser, substantially in the form attached as Exhibit 10.2(a)(v) hereto;
(vi) Assignment of Security Deposits. A duly executed, valid
and acknowledged assignment and assumption of all Security Deposits, together
with any and all interest accrued thereon, if any, together with the applicable
Seller's indemnification and hold harmless agreement indemnifying Purchaser with
respect to such Security Deposits for the period prior to the applicable Closing
Date;
(vii) Title Affidavits. Any customary affidavits required by,
and reasonably satisfactory to, the title company in order that an owner's title
insurance policy and any lessee title insurance policy may be issued free and
clear of the standard exceptions, other than those exceptions related to survey
and to parties in possession with respect to tenants only, which a title company
is permitted by applicable law to remove or modify upon delivery of such
affidavits;
(viii) Memorandum of Lease. For each applicable Leasehold
Property, a separate Memorandum of Lease with respect to each Ground Lease
(other than any license or
42
other right to use any property owned by any United States Federal or State
Governmental Authority) in a form acceptable for recording in the state and
county where each applicable Asset is located to the extent that the applicable
Seller has not already recorded a Memorandum of Lease or other instrument
evidencing Seller's rights in such Leasehold Property; and
(ix) Evidence reasonably satisfactory to Purchaser that each
Seller has obtained all Necessary Consents for such Closing;
(x) Original Ground Lessor Estoppels substantially in the form
attached as Exhibit 10.2(a)(x)(A) hereto and Tenant Lessee Estoppels
substantially in the form attached as Exhibit 10.2(a)(x)(B) that have been
received by any Seller.
(xi) Other Documents. All other documents reasonably required to
effectuate the transactions contemplated by this Agreement, including, without
limitation any and all real property transfer tax forms or returns or any other
documents or instruments required to be delivered in the State and county where
each of the applicable Assets are located.
(b) FIRPTA Certificate. A certificate duly executed by such Seller
certifying that such Seller is not a foreign person for purposes of FIRPTA;
(c) Broadband Lease Agreement. A duly executed Broadband Lease
Agreement.
(d) Original Documents. To the extent in a Seller's possession and
not previously delivered to Purchaser, originals (or copies where such originals
are not in the Seller's possession) of the Permits, Contracts, AM Studies, Phase
I reports, Phase II reports, NEPA reports, and other environmental reports,
structural reports, surveys, as-built drawings, warranties, guarantees, and all
other books, records, materials and other information in such Seller's
possession that relate to the ownership, operation or use of the Assets, all for
which, to Sellers' Knowledge true, correct and fully executed copies shall be
provided;
(e) Certificates. Original certificates for each Seller signed by an
executive officer of such Seller certifying that: (i) such Seller has performed
and complied in all material respects with all agreements and covenants required
to be performed or complied with by such Seller under this Agreement and the
Escrow Agreement related to the applicable Assets at or prior to the applicable
Closing, (ii) each of the covenants, representations and warranties of such
Seller are true and correct in all respects as of the applicable Closing Date
with respect to any Asset being transferred, as if restated on such Closing
Date, subject to Section 7.1(d), and (iii) each of the persons executing and
delivering this Agreement and the Transaction Documents contemplated hereby on
behalf of such Seller has the authority to execute, deliver and consummate this
Agreement and each other Transaction Document;
(f) Resolutions. A copy of resolutions of the board of directors of
such Seller authorizing the execution, delivery and performance of this
Agreement and the other Transaction Documents by such Seller, and an officer's
certificate of such Seller, dated the applicable Closing Date, that such
resolutions were duly adopted and are in full force and effect;
(g) Certificates of Good Standing. A certificate of good standing for
each Seller from its jurisdiction of organization and in each of the
jurisdictions where the Properties included in the Closing are located;
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(h) Nondisturbance Agreements. Any executed nondisturbance agreements
obtained by any Seller pursuant to Section 7.1(o)(i) and (ii) an executed copy
of the nondisturbance agreement substantially in the form attached hereto as
Exhibit 10.2(h) at the First Closing;
(i) Tower Lighting Services Agreement. A duly executed agreement
providing for the monitoring of the Tower Lighting Systems by the Sellers for a
period commencing on the Closing Date of the First Closing and continuing for a
period of five (5) years from the Closing Date of the Replacement Assets Closing
at no cost to Purchaser ("Tower Lighting Services Agreement"), substantially in
the form of Exhibit 10.2(i), pursuant to which the sole obligation of Seller in
the event of a Tower Lighting System failure will be to so notify Purchaser;
(j) Legal Opinion. An opinion of the applicable Seller's legal
counsel, substantially in the form of Exhibit 10.2(j);
(k) Indemnity Escrow Agreement. A duly executed Indemnity Escrow
Agreement;
(l) Asset Management Agreement. To the extent required by Section
2.6, a duly executed Asset Management Agreement; and
(m) Other Documents and Items. Any other documents, keys, access
codes, items or instruments required by this Agreement, necessary for the
operation of the Assets included in the applicable Closing, or reasonably
requested by Purchaser to consummate the applicable Closing.
10.3 Purchaser's Obligations at Closing. At each Closing, Purchaser shall
deliver to Sellers the following:
(a) Purchase Price. The Closing Price in accordance with the
provisions of Article II;
(b) Assignment and Assumption of Ground Leases. With respect to each
of the Leased Properties being acquired at such Closing, a duly executed, valid
and original assignment and assumption of all of the applicable Seller's right,
title and interest in and to the Ground Leases included at such Closing to which
such Seller is a party, substantially in the form attached as Exhibit 10.2(a)(i)
hereto;
(c) Assignment and Assumption of Tenant Leases. A duly executed,
valid and original assignment and assumption of all of the applicable Seller's
right, title and interest in and to the Tenant Leases applicable to the Assets
being acquired at such Closing, substantially in the form attached as Exhibit
10.2(a)(ii) hereto;
(d) Assignment and Assumption of Seller Contracts. A duly executed,
valid and original assignment and assumption of all of such Seller's right,
title and interest in and to the Seller Contracts applicable to the Assets being
acquired at such Closing, substantially in the form attached as Exhibit
10.2(a)(iv) hereto;
(e) Removal Bonds. Removal bonds in form and amount sufficient to
permit the return of all removal bonds with respect to the Assets being acquired
at such Closing;
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(f) Certificates. Original certificates for Purchaser signed by an
executive officer of Purchaser certifying that: (i) Purchaser has performed and
complied in all material respects with all agreements and covenants required to
be performed or complied with by Purchaser under the Agreement and the Escrow
Agreement related to the applicable Assets at or prior to the applicable
Closing, (ii) each of the covenants, representations and warranties of Purchaser
are remade and restated as of the applicable Closing as of such Closing, and
(iii) each of the persons executing and delivering this Agreement and the
Transaction Documents contemplated hereby on behalf of Purchaser has the
authority to execute, deliver and consummate this Agreement and each other
Transaction Document;
(g) Broadband Lease Agreement. A duly executed Broadband Lease
Agreement;
(h) Tower Lighting Services Agreement. A duly executed Tower Lighting
Services Agreement substantially in the form of Exhibit 10.2(h);
(i) Indemnity Escrow Agreement. A duly executed Indemnity Escrow
Agreement;
(j) Management Agreement. To the extent required by Section 2.6, a
duly executed Management Agreement;
(k) Legal Opinion. An opinion of Purchaser's legal counsel,
substantially in the form of Exhibit 10.3(k); and
(l) Other Documents. Any other documents or instruments required by
this Agreement to be executed and delivered by Purchaser or reasonably requested
by Sellers to consummate the Closing.
10.4 Closing Costs. At each Closing, Sellers, on the one hand, and
Purchaser, on the other hand, will share equally all documentary stamp or other
Transfer Taxes arising in connection with any deed or other conveyance document
relating to the Assets. The Party that is required by applicable law to file the
Tax Returns with respect to any applicable Transfer Taxes will do so, and the
other Party will cooperate with respect to such filings as necessary. All escrow
charges charged by Escrow Agent in connection with the Escrow Indemnity
Agreement will be shared equally between Purchaser, on the one hand, and
Sellers, on the other hand. Sellers, on the one hand, and Purchaser, on the
other hand, shall share equally all recording costs arising in connection with
and Sellers shall have the sole responsibility for recording any Memorandum of
Lease with respect to the Ground Leases that Purchaser elects, in its sole
discretion to record. Purchaser, on the one hand, and the Sellers, on the other
hand, will cooperate in providing each other with any appropriate resale
exemption certifications and other similar documentation. Except for the Due
Diligence Costs (which shall be borne in accordance with Section 3.3(c)),
Purchaser will pay for all fees, costs or expenses in connection with
Purchaser's due diligence reviews hereunder. At each Closing, the Sellers will
pay all applicable sales tax in connection with the Closing. The Sellers will
have the sole responsibility for apportioning any costs to be borne by them
under this Section 10.4 between themselves.
10.5 Prorations and Credits.
(a) Adjustments. Notwithstanding any provision to the contrary in
this Section 10.5 or elsewhere in this Agreement, at the applicable Closing, all
items of income and expense that are prepaid or payable in arrears, in each
case, including, but not limited to, the
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following items, shall be either apportioned on a per diem basis between
Sellers, on the one hand (with such Sellers having the sole responsibility for
apportioning any Adjustments between themselves) and Purchaser, on the other
hand, in respect of the applicable Assets at 12:01 A.M. on the applicable
Closing Date (the "Apportionment Time"), or credited to Purchaser in respect of
the applicable Assets at the Apportionment Time, with such adjustments and
credits (collectively, the "Adjustments") to be made as of the applicable
Closing Date by the Party that on a net basis owes money to the other Party
under this Section 10.5 by means of "netting" such amount against the applicable
Closing Price:
(i) All rents, revenues, expenses and other payments under the
Ground Leases, Tenant Leases and Seller Contracts included in Assets purchased
by Purchaser. If, at the Apportionment Time, there are any past due rents owed
under any Tenant Leases for any period through the Apportionment Time, Sellers
shall have the exclusive right to collect such rents and the other sums due and
payable to the applicable Seller under the Tenant Leases for periods prior to
the applicable Closing attributable to such Seller; provided, however, that
Sellers shall keep Purchaser fully informed of any disputes with any such
tenants with respect to such past due amounts and shall not interfere with
Purchaser's operation of the Assets or such tenant's use thereof. Any sums
received by Purchaser to which such Seller is entitled on account of said past
due rents shall be promptly remitted to such Seller within five (5) Business
Days after receipt thereof. Each Seller expressly agrees that if such Seller
receives any amounts under any Ground Lease, Tenant Lease or Seller Contract
(other than past due amounts) after the Closing Date, such Seller shall remit to
Purchaser the moneys so received within five (5) Business Days after receipt
thereof and Purchaser shall promptly apportion such amounts in accordance with
the terms of this Section 10.5(a)(i) and deliver to such Seller the amount, if
any, to which such Seller is entitled pursuant to the terms hereof.
(ii) Real and personal property taxes paid or payable with
respect to the Assets. Real and personal taxes shall be apportioned on the basis
of the fiscal period for which assessed; provided that any apportionment
hereunder with respect to any real and personal property taxes paid or payable
with respect to the Assets under any Ground Lease that are or may be "passed
through" to any Seller shall be based upon those amounts actually paid by or
invoiced to such Seller. If the applicable Closing Date shall occur either
before an assessment is made or a tax rate is fixed for the tax period in which
such Closing Date occurs, the apportionment of such real estate taxes based
thereon shall be made at such Closing Date by applying the tax rate for the
preceding year to the latest assessed valuation, but, promptly after the
assessment and/or tax rate for the current year is fixed, the apportionment
thereof shall be recalculated and the applicable Seller or Purchaser, as the
case may be, shall promptly make an appropriate payment to the other based on
such recalculation (except that any increases in taxes for improvements made by
Purchaser post Closing shall be paid exclusively by Purchaser).
(iii) All personal property Taxes and similar ad valorem
obligations levied with respect to the Assets (excluding any Communications
Equipment) for a taxable period that includes (but does not end on) the
applicable Closing Date shall be apportioned between the applicable Seller and
Purchaser as of the applicable Closing Date based on the number of days of such
taxable period included in the period ending with and including the applicable
Closing Date (with respect to any such taxable period, the "Pre-Closing Tax
Period"), and the number of days of such taxable period beginning after the
applicable Closing Date (with respect to any such taxable period, the
"Post-Closing Tax Period"). Such Seller shall be liable
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for the proportionate amount of such Taxes that is attributable to the
applicable Pre-Closing Tax Period, and Purchaser shall be liable for the
proportionate amount of such Taxes that is attributable to the applicable
Post-Closing Tax Period.
(iv) All other revenues and expenses arising or relating to the
Assets.
(v) Charges (to the extent not billed to and payable directly
by any third party under the Tenant Leases) for electricity, water and any other
utilities made by the utility companies servicing a Property shall be
apportioned on the basis of actual current readings or, if such readings have
not been made, on the basis of the most recent bills that are available. If any
apportionment is not based on an actual current reading, then, upon the taking
of a subsequent actual reading, such apportionment shall be readjusted and the
applicable Seller or Purchaser, as the case may be, shall promptly deliver to
the other the amount determined to be due upon such readjustment.
(vi) Any amounts prepaid or payable by the applicable Seller
under all Seller Contracts.
(vii) All Due Diligence Costs in accordance with Section 3.3(c).
(viii) The Parties will perform a reconciliation at each Closing
to conform (as outlined on Schedule 5.1(v)) the Current TCF upon which TCF
Product generated by the Assets transferred at such Closing is based with
respect to the Properties and Improvements thereon acquired by Purchaser and
Managed Assets at the applicable Closing. To the extent that such financial
information is not correct and the amount of the Current TCF for all of such
Properties and Improvements thereon is less than the Current TCF set forth on
Schedule 5.1(v) with respect to such Properties and Improvements thereon, (A)
and such reconciliation is made prior to the Replacement Assets Closing,
Purchaser shall receive a credit toward the Closing Price at the Closing at
which the remainder of the Properties and Improvements thereon are conveyed or
the Replacement Assets are conveyed, in an amount equal to the product of (x)
the Applicable Multiple; and (y) the amount by which the Current TCF set forth
on Schedule 5.1(v) exceeds the Current TCF, as corrected herein, with respect to
the Properties and Improvements thereon included in the applicable Closing, or
(B) if such reconciliation is made after the Replacement Assets Closing, Seller
shall promptly pay such amount to Purchaser in cash. In lieu of the above
credit, Sellers may elect to convey to Purchaser Replacement Assets for which
the Conditions Precedent have been satisfied; provided such Replacement Assets
exhibit the same general characteristics as such Assets and generate a TCF
Product in an amount equal to or greater than such difference.
(b) Amounts Retained by Sellers. All utility deposits, reservation
fees, removal bonds, and Security Deposits paid by or on behalf of the Sellers
in connection with the Assets will be retained by the Sellers or the Seller will
receive a credit on the applicable Closing Statement. The Sellers shall have the
sole responsibility for apportioning such amounts between themselves.
(c) Closing Statement. At or prior to each Closing, Sellers and
Purchaser and/or their respective agents or designees will jointly prepare a
preliminary closing statement (each, a "Closing Statement"), which will show the
net amount due to or owing from the Sellers as the result of the Adjustments and
prorations provided for herein, and such net due or owing amount will be added
to or subtracted from the TCF Product to be paid at the applicable Closing.
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Within ninety (90) days following the First Closing, and within sixty (60) days
following each other Closing, Sellers and Purchaser will jointly prepare in form
and substance an updated Closing Statement setting forth the final determination
of the adjustments and prorations provided for herein (each, a "Post-Closing
Statement"). The net amount due to the Sellers or Purchaser, if any, by reason
of adjustments to the Closing Statement provided at the applicable Closing,
shall be paid in cash by the party obligated therefor promptly upon completion
of the Closing Statement for such Closing. The adjustments, prorations and
determinations agreed to by Sellers and Purchaser in the applicable Post-Closing
Statement shall be conclusive and binding on the Sellers and Purchaser, subject
to the immediately following paragraph.
(d) Payment Errors. If at any time within 180 days of the Closing
Date of the last Closing to occur hereunder, amounts calculated pursuant to this
Article X shall prove to be incorrect (whether as a result of an error in
calculation or the inaccuracy or incompleteness of any information upon which
such calculation is based), the Party in whose favor such error was made shall
promptly pay to the other Party the sum necessary to correct such error upon
receipt of proof of such error.
(e) Settlement. If the Parties cannot reach agreement with respect to
any matters to be included in the Post-Closing Statement or any reconciliation
performed pursuant to Section 11.5(c) below prepared in connection with the last
Closing to occur hereunder, the Parties will submit to Ernst & Young LLP, or
such other nationally recognized accounting firm which shall be mutually agreed
in writing (the "Accounting Firm"), for review and resolution any and all
matters that remain in dispute. The Accounting Firm will be instructed to,
within twenty (20) Business Days after the submission of the disputed matters,
review and resolve all such disputed matters and to report in writing its
resolution of the matter to the Parties, and such report shall be in writing,
final, binding and conclusive on the Parties with respect to all such disputed
matters. The applicable Party will pay the amounts determined by and in
accordance with the Accounting Firm's report within ten (10) Business Days of
the date of such report. Purchaser, on the one hand, and the Sellers, on the
other hand, shall each pay one half of the fees and expenses of the Accounting
Firm incurred pursuant to this Section 10.5(e).
ARTICLE XI - INDEMNIFICATION; RISK OF LOSS
11.1 Indemnification by Sellers. Each of the Sellers shall jointly and
severally indemnify Purchaser and its Affiliates, directors, partners, agents
and employees (each, a "Purchaser Indemnitee") and hold each of them harmless,
from any and all losses, liabilities, claims, Taxes, suits, proceedings,
demands, judgments, damages, expenses and costs, including, without limitation,
counsel fees and disbursements, expert fees and costs and expenses incurred in
the investigation, defense or settlement of any of the foregoing (collectively,
the "Indemnifiable Damages") which such Purchaser Indemnitee may suffer or incur
by reason of, arising from or in connection with: (i) the inaccuracy or breach
of any representation or warranty of any Seller contained in this Agreement or
any other Transaction Document; (ii) the breach by any Seller of any covenant
made by it in this Agreement or in any of the Transaction Documents; (iii) the
ownership, operation, use or transfer of the Assets prior to and on the
applicable Closing Date; (iv) any Taxes of or attributable to any Seller; (v)
the Excluded Assets; (vi) the actions or omissions of any Seller or any of its
agents, representatives, directors, officers, partners, agents, or employees;
and (vii) any Excluded Liabilities. The foregoing obligation of Sellers shall be
subject to and limited by each of the qualifications set forth below. No Seller
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shall be liable for any indirect, special, incidental or consequential damages.
Notwithstanding anything contained in this Agreement to the contrary, for
purposes of Section 11.1(i) only, Purchaser shall be entitled to indemnification
hereunder only in the event that such breach of any representation or warranty
of Sellers (regardless of whether such representation or warranty contains a
materiality qualifier) results in Indemnifiable Damages to any Purchaser
Indemnitee in an amount of [*] or more and in such event Sellers shall be liable
for all such amounts of Indemnifiable Damages including such [*]. With respect
to any Indemnifiable Damages arising out of inaccuracies or breaches of Section
5.1(f) and matters which are covered by title insurance obtained by Purchaser
in connection with its purchase of Assets hereunder, Purchaser shall,
simultaneously with the making of any such claim for indemnification hereunder,
seek payment from the title insurance company, if any, that has issued title
insurance with respect to the Property to which such breach relates.
11.2 Indemnification by Purchaser. Purchaser shall indemnify each Seller
and its Affiliates, directors, partners, agents and employees (each a "Seller
Indemnitee") against and hold each of them harmless, from any and all
Indemnifiable Damages which any such Seller Indemnitee may suffer or incur by
reason of, arising from or in connection with: (i) the material inaccuracy or
breach of any representation or warranty of Purchaser contained in this
Agreement or any other Transaction Document; (ii) the material breach by
Purchaser of any covenant made by it in this Agreement or any of the Transaction
Documents; (iii) the ownership, operation or use of the Assets subsequent to the
Closing Date on which such Assets are acquired; and (iv) any acts or omissions
of Purchaser or any of their agents, servants, contractors or representatives;
provided, however, that Purchaser shall have no liability hereunder or otherwise
for any Indemnifiable Damages that relate to, or arise out of, its ownership or
operation of any Excluded Assets or Excluded Liabilities, except for
Indemnifiable Damages resulting from Purchaser's acts or omissions. The
foregoing obligation of Purchaser shall be subject to and limited by each of the
qualifications set forth below. Purchaser shall not be liable for any indirect,
special, incidental or consequential damages. Notwithstanding anything contained
in this Agreement to the contrary, for purposes of Section 11.2(i) only, Sellers
shall be entitled to indemnification hereunder only in the event that such
breach of any representation or warranty of Purchaser (regardless of whether
such representation or warranty contains a materiality qualifier) results in
Indemnifiable Damages to any Seller Indemnitee in an amount of [*] or more and
in such event Purchaser shall be liable for all such amounts of Indemnifiable
Damages including such [*].
11.3 Notice and Right To Defend Third-Party Claims.
(a) Notice of Claim. Upon receipt of written notice of any claim,
demand or assessment or the commencement of any suit, action or proceeding in
respect of which indemnity may be sought on account of an indemnity obligation
contained in this Article XI, the Party seeking indemnification (the
"Indemnitee") shall promptly, but in no event later than twenty (20) days prior
to the date a response or answer thereto is due (unless a response or answer is
due within fewer than twenty (20) days from the date of Indemnitee's receipt of
notice thereof, and in such event ten (10) days prior to the date such answer is
due), inform the Party against whom indemnification is sought (the "Indemnitor")
in writing thereof. The failure, refusal or neglect of such Indemnitee to notify
the Indemnitor within the time period specified above of any such claim or
action shall not relieve such Indemnitor from any liability which it may have to
such
49
Indemnitee in connection therewith, unless the effect of such failure, refusal
or neglect is to prejudice materially the rights of the Indemnitor in defending
against the claim or action. If any claim, demand or assessment shall be
asserted or suit, action or proceeding commenced against an Indemnitee, and such
Indemnitee shall have timely and properly notified the Indemnitor of the
commencement thereof, Indemnitor shall have the right to assume the defense,
conduct or settlement thereof, with counsel selected by Indemnitor.
(b) Indemnitee Cooperation. The Indemnitee will at the Indemnitor's
expense cooperate with the Indemnitor in connection with any such claim, make
personnel, witnesses, books and records relevant to the claim available to the
Indemnitor at Indemnitor's cost and grant such authorizations or powers of
attorney to the agents, representatives and counsel of the Indemnitor as the
Indemnitor may reasonably request in connection with the defense or settlement
of any such claim.
(c) Indemnitee Right to Counsel. Notwithstanding the foregoing in this
Article XI, the Indemnitee shall have the right to employ separate counsel in
any such action, claim or proceeding and to participate in the defense thereof,
but the fees and expenses of such counsel shall be its fees and expenses.
11.4 Limitation on Indemnification. In no event shall the liability
hereunder of Sellers, on the one hand, or Purchaser, on the other hand, exceed
an amount equal to [*]% of the Purchase Price (the "Cap"), and (b) such
limitations shall not apply to (i) Purchaser's indemnification obligations under
Section 3.4, (ii) Sellers' indemnification obligations with respect to the
Excluded Assets and the Excluded Liabilities or (iii) Sellers' indemnification
obligations for Indemnifiable Damages resulting from any breach of any
representation or warranty contained in Sections 5.1(a), 5.1(b), 5.1(f), 5.1(q)
or 5.1(r). For the avoidance of doubt, Sellers' liability for Indemnifiable
Damages in respect of items identified under clauses (b)(i), (ii) and (iii) of
the immediately preceding sentence shall be in addition to and taken into
account for purposes of determining Sellers' liability for, Indemnifiable
Damages for in respect of items that are expressly subject to the limitations
set forth in this Section 11.4.
11.5 Indemnity Deposit.
(a) Indemnity Deposit. [*]
(b) Ownership; Maintenance and Instructions. The Indemnity Deposit
shall be deemed to be, and shall remain, the property of Sellers and, except for
the Purchaser's Security Interest therein, as provided herein and in the
Indemnity Escrow Agreement, Purchaser will not have any legal, equitable or
other interest in the Indemnity Deposit until such time as, and then only to the
extent that, a portion of the Indemnity Deposit is payable to Purchaser pursuant
to any claim for indemnification hereunder. The Indemnity Escrow Agreement shall
provide (i) that the amounts held in the Indemnity Deposit shall be maintained
in a segregated interest-bearing account and that interest accruing shall be for
the benefit of Sellers and (ii) that Sellers shall grant to Purchaser and
Purchaser shall have a Security Interest in the Indemnity Deposit from and after
the date on which the Indemnity Deposit is deposited into escrow pursuant to
Section 11.5(a). The Parties will provide the Escrow Agent with joint
instructions for the disbursement of the Indemnity Deposit in accordance with
the terms of this Agreement and the Indemnity Escrow Agreement. If at any time
Purchaser is entitled to Damages, pursuant to and in accordance with Section
11.1 or any payment pursuant to Section 11.5(c), the Parties shall provide the
Escrow Agent with joint instructions for the disbursement of the Indemnity
50
Deposit to Purchaser to the extent that any Indemnifiable Damages have not been
paid by any Seller. The Parties will each pay one half of the costs of the
Escrow Agent in connection with the Indemnity Escrow Agreement.
(c) Reconciliation.
(i) Commencing on the first Business Day of each calendar
quarter commencing on or after any Closing (each such date, a "Reconciliation
Date") and continuing until the fourth Reconciliation Date following the date of
the last Closing hereunder, the Parties will perform a reconciliation to
determine the Current TCF generated by all of the Initial Assets and Replacement
Assets, in each case, acquired by Purchaser as described in Schedule 5.1(v)
("Reconciled TCF"). To the extent that the amount of the total Reconciled TCF is
less than the Current TCF for all of the Assets acquired by Purchaser pursuant
to the terms of this Agreement, Sellers shall pay Purchaser the amount equal to
the difference between (a) the product of (x) such difference between the amount
of the total Reconciled TCF and the Current TCF and (y) the Applicable Multiple
and (b) the amount of New Tenant Lease Amount.
(ii) If at any Closing, the Multiple with respect to any
Wisconsin Asset is [*] then Purchaser, on the date of the last Closing at which
Wisconsin Assets are sold, transferred and assigned to Purchaser, Purchaser and
Sellers shall perform the following reconciliation ("Wisconsin Reconciliation"),
the result of which shall be a credit to the appropriate party at such Closing.
Such reconciliation shall determine the difference between (1) the product of
(A) the Multiple, and (B) the Current TCF for all Assets conveyed to Purchaser
or under management pursuant to the Management Agreement (on an Asset by Asset
basis), and (2) the actual TCF Product paid by Purchaser for all Assets conveyed
to Purchaser or under management pursuant to the Management Agreement. In the
event clause (1) exceeds clause (2) then Sellers shall receive a credit at such
Closing, and in the event clause (2) exceeds clause (1) Purchaser shall receive
a credit at such Closing. Notwithstanding any other term of this Agreement,
following the date of the Wisconsin Reconciliation, the Multiple shall, in all
instances, be used in lieu of the Applicable Multiple.
(d) Disposition. Subject to Section 11.5(a), to the extent any
portion of the Indemnity Deposit remains in escrow after payment of any amounts
calculated pursuant to Section 11.5(c), the Parties shall provide the Escrow
Agent with joint instructions for the disbursement to Sellers within five (5)
Business Days thereafter of such portion of the Indemnity Deposit.
(e) In no event shall there be any reconciliation under this Section
11.5(c) after the date that is one (1) year following the date of the Closing at
which Purchaser acquired such Assets.
ARTICLE XII - TERMINATION
12.1 Termination by Purchaser. Purchaser may terminate this Agreement by
written notice to any Seller upon the occurrence of any of the following:
(a) if any Seller has failed to comply with any material term or
condition of this Agreement and such failure (other than any failure to satisfy
any condition set forth in Section 8.1 on the date such condition is required to
be satisfied) is not cured within ten (10) Business Days of written notice of
such breach, as long as Purchaser is not in breach of this Agreement at such
time;
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(b) if a Material Adverse Change has been discovered or has occurred
after the Effective Date and before the Closing Date for the last Closing to
occur hereunder;
(c) the Breakup Event, which termination may be either with respect to
(i) the Initial Assets, in which case all of the terms and condition of this
Agreement will remain in full force and effect solely with respect to the
Breakup Assets; or (ii) this Agreement in its entirety; or
(d) upon the mutual written consent of the Parties in each Party's
sole discretion.
12.2 Termination by Sellers. The Sellers may terminate this Agreement by
written notice to Purchaser upon the occurrence of any of the following:
(a) if Purchaser has failed to comply with any material term or
condition of this Agreement and such failure (other than any failure to satisfy
any condition set forth in Article IX on the date such condition is required to
be satisfied) is not cured within ten (10) Business Days of written notice of
such breach as long as no Seller is in breach of this Agreement at such time;
provided, however, there shall be no cure period for payment of a Closing Price
by Purchaser at a Closing as time is of the essence in accordance with Section
10.1(f); or
(b) upon the mutual written consent of the Parties in each Party's
sole discretion.
12.3 Effect of Termination.
(a) Obligations. In the event of the termination of this Agreement
pursuant to this Article XII, all obligations of the Parties under this
Agreement shall terminate except for the respective obligations of the Parties
under Articles V, VI, XI, and this Article XII and XIII, and any other
provisions of this Agreement that are expressly meant to survive the termination
of this Agreement; provided, however, that no termination of this Agreement
shall: (i) relieve a defaulting or breaching Party from any liability to the
other Party for or in respect of such default; (ii) result in the rescission of
any transaction consummated under this Agreement prior to its termination or
(iii) relieve any Party from any obligation to pay to any other Party any amount
which such Party is obligated to pay to such other party pursuant to the terms
of this Agreement. Except as hereinafter defined, the remedies set forth in this
Agreement shall be cumulative and each Party shall have the right to pursue all
remedies available to it at law or in equity except as provided in Section
12.3(b); provided, however, to the extent a matter is within the scope of the
indemnity of Sections 11.1 and 11.2, such indemnity shall be Purchaser's or
Sellers', as applicable, sole and exclusive remedy. If, prior to any termination
of this Agreement, any Closing shall have occurred, nothing contained in this
Section 12.3 shall be construed to limit either Party's rights to enforce
subject to Section 11.4 any representation, warranty, covenant or indemnity, nor
prevent, subject to Section 11.4, such Party from proceeding against the other
Party in an action at law for the recovery of damages suffered by such Party and
each provision specified to survive any such Closing, shall so survive. No
termination of this Agreement will affect the Parties' respective rights and
obligations under the Transaction Documents for which a Closing has occurred
prior to such termination.
(b) Deposit. If this Agreement is terminated by any Party for any
reason other than by the Sellers pursuant to Section 12.2(a), Purchaser shall
retain the Deposit. If this
52
Agreement is terminated by the Sellers in accordance with Section 12.2(a), the
Sellers shall retain the Deposit, and the Deposit will be the sole and exclusive
remedy for any breach of this Agreement by Purchaser. The Sellers, on the one
hand, and Purchaser, on the other hand, hereby agree that the remedy for any
damages that any Seller or all of the Sellers or any Person claiming through or
under any Seller may at any time allege to have been suffered by any Seller or
any such Person arising out of or related to the termination of this Agreement
for Purchaser's breach are not easily measured and that the Deposit represents a
reasonable estimate of the Damages to be suffered by any Seller and not a
penalty. Accordingly, Purchaser, on the one hand, and the Sellers, on the other
hand, hereby agree that the payment of the Deposit shall be a liquidated sum in
full satisfaction and complete payment of all such Damages and in lieu of any
and all other damages, including without limitation all consequential,
incidental and punitive damages, arising out of or related to the termination of
this Agreement for any breach of this Agreement by Purchaser and that no
additional damages shall be payable to any of the Sellers or any Person claiming
through any such Seller arising out of or related to such termination.
Notwithstanding the immediately preceding sentence, disbursement of the Deposit
or any portion thereof in accordance with this Section 12.3(b) shall not relieve
Purchaser of its indemnification liability under Section 3.4. Each Party's right
of termination under this Agreement or otherwise and the exercise of such right
shall not be an election of remedies. The Sellers will have the sole
responsibility for allocating the Deposit retained pursuant to this Section
12.3(b) between themselves.
ARTICLE XIII - MISCELLANEOUS
13.1 Casualty and Condemnation.
(a) Casualty. Sellers assume all risk and liability, damage to or
injury occurring to each of the Assets by fire, storm, explosion, earthquake,
windstorm, flood act of God, war, seizure, accident or any other casualty or
cause until the Closing with respect to such Asset has been consummated, other
than material damage caused by Purchaser's due diligence investigation. If any
of the Assets suffer any such casualty and Seller does not elect to fix or
replace such Assets, Purchaser may elect in its sole discretion to either
obligate Seller to assign any insurance proceeds it is entitled to as a result
of such casualty to Purchaser or deem the applicable Assets to be Excluded
Assets.
(b) Condemnation. If, prior to a Closing, action is initiated or
threatened to take a part of any Assets by eminent domain proceeding, Purchaser
shall (i) remain obligated to purchase such Assets as are the subject of such
proceeding; provided, that such proceeding relates only to that portion of any
such Asset, the taking of which could not reasonably be expected to impair in
any manner, Purchaser's ability to operate such Asset in the manner as is
currently contemplated by Purchaser and (ii) be entitled to receive any and all
amounts of any judgments awarded in connection with any such taking.
13.2 Notices. Any notice or demand desired or required to be given
hereunder shall be in writing and deemed given when personally delivered, sent
by telecopier, overnight courier or deposited in the mail, postage prepaid, sent
certified or registered, return receipt requested, and addressed as set forth
below or to such other address as either Party shall have previously designated
by such a notice. Any notice so delivered personally or by telecopy shall be
deemed to be received on the date of delivery or transmission by telecopier; any
notice so sent by overnight courier shall be deemed to be received one (1)
Business Day after the date sent; and
53
any notice so mailed shall be deemed to be received on the date stamped on the
receipt (rejection or other refusal to accept or inability to deliver because of
a change of address of which no notice was given shall be deemed to be receipt
of the notice).
TO PURCHASER:
AAT Communications Corp.
000 Xxxxx Xxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxxx, Vice President and General Counsel
WITH A COPY TO:
CEQUEL III, LLC
00000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxx Xxxxxxxxx, Executive Vice President and General Counsel
AND
Paul, Hastings, Xxxxxxxx & Xxxxxx, LLP
00 Xxxx 00 Xxxxxx
Xxx Xxxx, Xxx Xxxx
Fax: (000) 000-0000
Attn: Xxxxxx Xxxxxxxxx, Esq.
TO SELLERS:
SBA Properties, Inc.
0000 Xxxxxx Xxxxx Xxxxxxx, XX
Xxxx Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxx, Xx. Vice President and General Counsel
WITH A COPY TO:
SBA Properties, Inc.
0000 Xxxxxx Xxxxx Xxxxxxx, XX
Xxxx Xxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx, Chief Executive Officer
54
AND, WITH RESPECT TO SECTION 7.1(a)(i)(B) ONLY (which notices must be
sent by fax):
AAT Communications Corp.
000 Xxxxx Xxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx Xxxxxxx
Xxxxxx Xxxxx
Fax: (000) 000-0000
Fax: (000) 000-0000
13.3 Entire Agreement. This Agreement and the other Transaction Documents
and its schedules and exhibits attached hereto and thereto embody the entire
agreement between the Parties with respect to the subject matter hereof and
thereof and there are no oral or written agreements with respect thereto that
are not expressly set forth herein or therein, except for the Confidentiality
Agreement set forth in Exhibit 7.2(d). This Agreement may be amended only by a
written instrument executed by the Party or Parties to be bound thereby.
13.4 Headings. The captions and headings used in this Agreement are for
convenience only, and do not in any way limit, amplify or otherwise modify the
provisions of this Agreement.
13.5 Governing Law. This Agreement and the rights and obligations of the
Parties shall be governed by and construed and enforced in accordance with the
laws of the State of New York without regard to conflict of law principles. Any
action, suit or proceeding in respect of or arising out of this Agreement shall
be prosecuted as to any Party hereto in New York, New York. Each Party hereto
consents to the exercise of jurisdiction over its person by any court situated
in the Borough of Manhattan, City of New York, State of New York and having
jurisdiction over the subject matter of any such action, suit or proceeding, and
consents to the service of process in connection therewith by notice given in
accordance with Section 13.2 hereof. Each Party hereto waives any right such
party may have to a jury trial in connection with any such action, suit or
proceeding.
13.6 Successors and Assigns. This Agreement shall bind and inure to the
benefit of Purchaser and Sellers and their respective successors and assigns.
13.7 Assignment. Each of the Sellers, on the one hand, and the Purchaser,
on the other hand, may not assign its rights under this Agreement without the
express written consent of the other Party, which shall not be unreasonably
withheld, conditioned, or delayed. Notwithstanding the foregoing, (i) any
assignment of this Agreement resulting from or in connection with Purchaser's
merger, consolidation, or corporate reorganization, or the sale of all or a
substantial portion of its assets to a third party, or a change of control of
Purchaser including as a result of transfers of its securities shall not require
any Sellers' consent or be subject to any restrictions, and (ii) Purchaser may
assign this Agreement to any of its Affiliates, provided that, in the case of
any assignment pursuant to clause (i) or clause (ii), Purchaser shall remain
bound under this Agreement and the assignee shall assume all obligations of
Purchaser hereunder. Except as provided herein, any assignment of this Agreement
in violation of the terms of this Agreement shall be void.
55
13.8 Severability. If any provision of this Agreement is contrary to,
prohibited by or deemed invalid under applicable law or regulation, such
provision shall be inapplicable and deemed omitted to the extent so contrary,
prohibited or invalid, but the remainder hereof shall not be invalidated thereby
and shall be given full force and effect so far as possible. If any provision of
this Agreement may be construed in two or more ways, one of which would render
the provision invalid or otherwise voidable or unenforceable and another of
which would render the provision valid and enforceable, such provision shall
have the meaning which renders it valid and enforceable.
13.9 Public Announcements. Each Party shall consult with the other before
issuing any press release or otherwise making any public statements with respect
to this Agreement and shall not issue any such press release or make any such
public statement without the prior written approval of the other.
Notwithstanding the foregoing, the Parties acknowledge and agree that they may,
without each other's prior consent, issue such press releases or make such
public statements as may be required by applicable Governmental Law, in which
case the issuing Party shall consult with the other Party and use all
commercially reasonable efforts to agree upon the nature, content and form of
such press release or public statement. No such announcement shall indicate that
Purchaser has acquired substantially all of the business or assets of Sellers
and/or their Affiliates.
13.10 Notification of Certain Matters. Each Party shall give prompt written
notice to the other of the occurrence or non-occurrence of any event the
occurrence or non-occurrence of which would be reasonably likely to cause: (i)
any representation or warranty made by it contained in this Agreement to be
untrue or inaccurate in any material respect; or (ii) any failure by it to
comply with or satisfy, or be able to comply with or satisfy, in any material
respect, any covenant, condition or agreement to be complied with or satisfied
by it under this Agreement in any material respect, such that, in any such case,
one or more of the Conditions Precedent would not be satisfied; provided,
however, that the delivery of any notice pursuant to this section shall not
limit or otherwise affect the rights and remedies available hereunder to the
Party receiving such notice or the obligations of the Party delivering such
notice and shall not, in any event, affect the representations, warranties,
covenants and agreements of the Parties or the conditions to their respective
obligations under this Agreement except as herein expressly provided.
13.11 Counterparts. This Agreement may be executed in a number of identical
counterparts, each of which shall be deemed an original.
13.12 Expenses. Except as set forth elsewhere in this Agreement, Sellers,
on the one hand, and Purchaser, on the other hand, shall bear their own costs
and expenses incurred in connection with the negotiation, preparation or
execution of this Agreement (including, but not limited to, fees and expenses of
attorneys, accountants, brokers, consultants, finders and investment bankers),
whether or not any Closing occurs.
13.13 Controversies. Any dispute, controversy, or claim between any Seller,
on the one hand, and Purchaser, on the other hand, arising out of, relating or
with respect to the subject matter of this Agreement, shall be resolved and
determined by binding arbitration in accordance with the Federal Arbitration Act
(or if not applicable, New York law) and the Rules of Practice and Procedure for
Judicial Arbitration and Mediation Services ("JAMS"). The arbitration will be
conducted in New York City, New York and administered by JAMS, who will appoint
the
56
arbitrator. Judgment upon any arbitration award may be entered into in any court
having jurisdiction.
13.14 Enforcement. In the event that it is necessary for Sellers, on the
one hand, or Purchaser, on the other hand, to incur any costs and expenses: (a)
in the enforcement of any of the terms and provisions of this Agreement in
arbitration or a court of law or equity; (b) in the defense of any attempted
enforcement of any of the terms and provisions of this Agreement in arbitration
or a court of law or equity; (c) in an action for damages in an arbitration or a
court of law; or (d) in an effort to protect the rights of the solvent Party in
an insolvency, bankruptcy, or receivership proceeding, in any such case the
non-prevailing Party shall pay to the prevailing Party any and all costs and
expenses incurred including, but not limited to, reasonable attorneys' fees and
costs.
13.15 Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement. Words of any gender used in this Agreement
shall be held and construed to include any other gender and defined terms and
other words in the singular number shall be held to include the plural and vice
versa, unless the context requires otherwise. When used alone in this Agreement,
the words "including", "inclusive" and other similar components of the word
"include" shall be deemed to be followed by the words "without limitation."
13.16 Relationship of Parties. Notwithstanding any other provision of this
Agreement or any of the other Transaction Documents or obligations that may
derive from them, nothing in this Agreement or the Transaction Documents shall
be construed to make the Parties partners, agents, or joint venturers. Except as
expressly provided for in this Agreement and the Instruments of Transfer,
neither Party shall be liable for any of the debts or obligations of the other
Party.
ARTICLE XIV - OTHER MATTERS
14.1 Addendum A. Attached hereto is Addendum A the terms and conditions of
which form part of this Agreement.
14.2 New Breakup Assets. Notwithstanding anything to the contrary
contained in this Agreement, the Parties agree that, in the event that (a) any
holder of a ROFR exercises the ROFR held by such party with respect to all or
substantially all of the Assets, then, such event shall be treated as a Breakup
Event and such event shall be treated substantially the same as a Breakup Event
under this Agreement and Purchaser shall have the right to purchase the New
Breakup Assets and (b) (i) any holder of a ROFR exercises the ROFR held by such
party with respect to any Asset or (ii) any Seller fails to obtain any Necessary
Consent from a tenant or landlord under any Tenant Lease or Ground Lease, as
applicable or as may be required under any zoning or land use law then,
Purchaser shall have the right to cause Sellers to sell, transfer and assign
such Asset to Purchaser and Purchaser shall indemnify Sellers for any
Indemnifiable Damages suffered by Sellers as a result thereof.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.
PURCHASER:
AAT COMMUNICATIONS CORP.
By: /s/ Xxxx X. Xxxxx
___________________________________
Name: Xxxx X. Xxxxx
Title: Vice President
SELLERS:
SBA PROPERTIES, INC.
By: /s/ Xxxxxx X. Xxxx
___________________________________
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
and General Counsel
SBA TOWERS, INC.
By: /s/ Xxxxxx X. Xxxx
___________________________________
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
and General Counsel
SBA PROPERTIES LOUISIANA, LLC
By: /s/ Xxxxxx X. Xxxx
___________________________________
Name: Xxxxxx X. Xxxx
Title: Senior Vice President
and General Counsel
[SIGNATURE PAGE OF PURCHASE AND SALE AGREEMENT]
