Additional Sites. (1) From time to time prior to Closing, but in all events at least 15 days prior to Closing, Powertel and Sellers shall provide notice to CCIC and Buyer as to whether they desire to sell any Additional Sites. Such notice shall identify the Additional Sites and shall include due diligence materials with respect to such site. Within 5 business days of receipt of such notice and due diligence materials, CCIC and Buyer shall inform Powertel and Sellers in writing as to whether in their reasonable judgment there are any Defects or Missing Information which may affect adversely the value, ownership, operation or use of the Additional Sites by CCIC and Buyer in a material way. Missing Information as to the Additional Sites shall generally be consistent with, and conform to, the kinds and materiality of the Missing Information otherwise contained on Schedule 1.3; Defects as to the Additional Sites shall generally be consistent with, and conform to, the kinds and materiality of the Defects described in the penultimate sentence of Section 2.10(c). If CCIC and Buyer fail to provide written notice of any Defects or Missing Information as to any Additional Site within such 5 business day period, then such Additional Site shall be deemed to be an Accepted Site and shall accordingly be added to Schedule 1.1; and the Purchase Price shall be increased by $423,077 for each of such additional Accepted Sites. In the event that CCIC and Buyer furnish written notice of a Defect or Missing Information as to any of the Additional Sites, then such Additional Sites shall be deemed a Defective Site (as to any Site for which a Defect(s) is identified) or an Incomplete Site (as to any Site for which Missing Information is indicated) and handled in accordance with Sections 2.10 and 2.11 hereof; provided, however, that Powertel and Sellers shall have the right to dispute in good faith whether a problem or defect constitutes a Defect (as defined herein) and to invoke the procedures described in Section 10.2 of this Agreement. (Such Additional Sites may become Rejected Sites pursuant to the provisions of Section 2.11(b).) CCIC and Buyer acknowledge that Powertel and Sellers shall have the right, but not the obligation, to include such Additional Sites for purchase by CCIC and Buyer, but only up to and until the total number of Tower Sites to be purchased hereunder by CCIC and Buyer shall equal 650 Tower Sites. (All In-Progress Sites are also Additional Sites under this Agreement; accordingly, the provisions of this Agreement (including this Section 2.12(a)) that apply to Additional Sites shall also apply to In-Progress Sites.) (2) In the event CCIC and Buyer become obligated as set forth above to purchase Additional Sites which are In-Progress Sites, CCIC and Buyer shall have the right at Closing to elect from among the following modes of purchase: (i) to accept a conveyance of the In-Progress Sites at Closing subject to the provisions of this Agreement, including Section 2.12(c), but subject also to the execution of a mutually acceptable form of construction or other agreement between and among the parties, which agreement includes insurance, indemnification and other customary provisions which adequately protect CCIC and Buyer during the completion of construction; (ii) to escrow the portion of the Purchase Price allocable to the In-Progress Sites with an escrow agent and pursuant to an escrow agreement mutually acceptable to Powertel and Sellers, on the one hand, and CCIC and Buyer, on the other hand, with disbursement of such escrowed amounts to be conditioned upon timely completion of the Construction Activities and the conveyance, free and clear of any Encumbrance other than Permitted Encumbrances, of the In-Progress Sites with completed Tower Structures built thereon; or (iii) to enter into an agreement mutually acceptable to Powertel and Sellers, on the one hand, and CCIC and Buyer, on the other hand, providing for a separate Closing to occur upon timely completion of the Construction Activities. (For purposes of this Section 2.12(b), the term "Permitted Encumbrances" shall not include liens, encumbrances or other matters ----------------- affecting title to the In-Progress Sites, which with the exercise by CCIC and Buyer of reasonable diligence would be disclosed by: (1) an examination of a current title commitment, search or report or the examination of public records, or (2) a current, accurate as-built boundary survey, but with regard to the foregoing matters shall only refer to those matters disclosed by: (x) the title commitment, search or report actually delivered by Powertel and Sellers to CCIC and Buyer for review, and (y) the actual survey delivered by Powertel and Sellers to CCIC and Buyer for review.) (3) In the event (and only in the event) that CCIC and Buyer elect to accept a conveyance of an In-Progress Site at Closing and thereby forego the escrow and deferred closing alternatives described above, then beginning on the Closing Date and until such time as both the In-Progress Site is completed and delivered to CCIC and Buyer as completed and the Initial SLA Term (as defined in the Master Lease) commences, Powertel and/or Sellers shall be obligated pursuant to the Master Lease to pay to CCIC and Buyer monthly rent at a rate of $1800.00 per month or the appropriate pro-rated portion thereof for any partial months. (4) Powertel and/or Sellers shall perform or cause to be performed all Construction Activities for such In-Progress Sites and shall use commercially reasonable efforts to deliver a completed Tower Structure no later than 120 days after the Closing Date subject to Unavoidable Delays; provided, however, that Unavoidable Delays shall not cause delivery of such Tower Structure to be delayed beyond 180 days after the Closing Date. Upon completion of the Construction Activities, Powertel or Sellers shall obtain and deliver to CCIC or Buyer all Governmental Permits necessary for the ownership, use or occupancy of the Tower Structure (except FCC licenses, and except to the extent and only to the extent such Governmental Permits are needed by Powertel or the Sellers in the operation of their businesses). In addition, upon completion of the Construction Activities, the parties shall enter into a Site Lease Agreement (as defined in the Master Lease) but which shall provide that the Initial SLA Term shall commence upon the 31st day following the last to occur of the following: conveyance of the In-Progress Site to Buyer and the completion and delivery of the Tower Structure to Buyer. Upon the commencement of the Initial SLA Term, the parties shall enter into a written commencement of term agreement in recordable form which shall incorporate and refer to the Master Lease and the Site Lease Agreement and which either party may file of record as an acknowledgment of the date on which the Initial SLA Term shall be deemed or stipulated to have commenced and the date on which it (and renewal terms) shall expire. (5) In the event Powertel and/or Sellers fail to complete construction of an In-Progress Site within the 120-day period set forth above in Section 2.12(d), as such period may be extended for any Unavoidable Delays, then CCIC and Buyer's sole and exclusive remedy shall be to recover from Powertel and/or Sellers the sum per diem of $500.00 (not to exceed $423,077 in the aggregate) for each In-Progress Site that is not completed on or before the required completion date. Notwithstanding the foregoing, Powertel and/or Sellers shall be obligated to complete such site and deliver to CCIC and Buyers as soon as commercially practicable the applicable Assets with respect thereto not previously conveyed and delivered.
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Sources: Asset Purchase Agreement (Crown Castle International Corp)
Additional Sites. (1a) From time to time prior to Closing, but in all events at least 15 days prior to Closing, Powertel and Sellers shall provide notice to CCIC and Buyer as to whether they desire to sell any Additional Sites. Such notice shall identify the Additional Sites and shall include due diligence materials with respect to such site. Within 5 business days of receipt of such notice and due diligence materials, CCIC and Buyer shall inform Powertel and Sellers in writing as to whether in their reasonable judgment there are any Defects or Missing Information which may affect adversely the value, ownership, operation or use of the Additional Sites by CCIC and Buyer in a material way. Missing Information as to the Additional Sites shall generally be consistent with, and conform to, the kinds and materiality of the Missing Information otherwise contained on Schedule 1.3; Defects as to the Additional Sites shall generally be consistent with, and conform to, the kinds and materiality of the Defects described in the penultimate sentence of Section 2.10(c). If CCIC and Buyer fail to provide written notice of any Defects or Missing Information as to any Additional Site within such 5 business day period, then such Additional Site shall be deemed to be an Accepted Site and shall accordingly be added to Schedule 1.1; and the Purchase Price shall be increased by $423,077 for each of such additional Accepted Sites. In the event that CCIC and Buyer furnish written notice of a Defect or Missing Information as to any of the Additional Sites, then such Additional Sites shall be deemed a Defective Site (as to any Site for which a Defect(s) is identified) or an Incomplete Site (as to any Site for which Missing Information is indicated) and handled in accordance with Sections 2.10 and 2.11 hereof; provided, however, that Powertel and Sellers shall have the right to dispute in good faith whether a problem or defect constitutes a Defect (as defined herein) and to invoke the procedures described in Section 10.2 of this Agreement. (Such Additional Sites may become Rejected Sites pursuant to the provisions of Section 2.11(b).) CCIC and Buyer acknowledge that Powertel and Sellers shall have the right, but not the obligation, to include such Additional Sites for purchase by CCIC and Buyer, but only up to and until the total number of Tower Sites to be purchased hereunder by CCIC and Buyer shall equal 650 Tower Sites. (All In-Progress Sites are also Additional Sites under this Agreement; accordingly, the provisions of this Agreement (including this Section 2.12(a)) that apply to Additional Sites shall also apply to In-Progress Sites.)
(2b) In the event CCIC and Buyer become obligated as set forth above to purchase Additional Sites which are In-Progress Sites, CCIC and Buyer shall have the right at Closing to elect from among the following modes of purchase: (i) to accept a conveyance of the In-Progress Sites at Closing subject to the provisions of this Agreement, including Section 2.12(c), but subject also to the execution of a mutually acceptable form of construction or other agreement between and among the parties, which agreement includes insurance, indemnification and other customary provisions which adequately protect CCIC and Buyer during the completion of construction; (ii) to escrow the portion of the Purchase Price allocable to the In-Progress Sites with an escrow agent and pursuant to an escrow agreement mutually acceptable to Powertel and Sellers, on the one hand, and CCIC and Buyer, on the other hand, with disbursement of such escrowed amounts to be conditioned upon timely completion of the Construction Activities and the conveyance, free and clear of any Encumbrance other than Permitted Encumbrances, of the In-Progress Sites with completed Tower Structures built thereon; or (iii) to enter into an agreement mutually acceptable to Powertel and Sellers, on the one hand, and CCIC and Buyer, on the other hand, providing for a separate Closing to occur upon timely completion of the Construction Activities. (For purposes of this Section 2.12(b), the term "Permitted Encumbrances" shall not include liens, encumbrances or other matters ----------------- affecting title to the In-Progress Sites, which with the exercise by CCIC and Buyer of reasonable diligence would be disclosed by: (1) an examination of a current title commitment, search or report or the examination of public records, or (2) a current, accurate as-built boundary survey, but with regard to the foregoing matters shall only refer to those matters disclosed by: (x) the title commitment, search or report actually delivered by Powertel and Sellers to CCIC and Buyer for review, and (y) the actual survey delivered by Powertel and Sellers to CCIC and Buyer for review.)
(3c) In the event (and only in the event) that CCIC and Buyer elect to accept a conveyance of an In-Progress Site at Closing and thereby forego the escrow and deferred closing alternatives described above, then beginning on the Closing Date and until such time as both the In-Progress Site is completed and delivered to CCIC and Buyer as completed and the Initial SLA Term (as defined in the Master Lease) commences, Powertel and/or Sellers shall be obligated pursuant to the Master Lease to pay to CCIC and Buyer monthly rent at a rate of $1800.00 per month or the appropriate pro-rated portion thereof for any partial months.
(4d) Powertel and/or Sellers shall perform or cause to be performed all Construction Activities for such In-Progress Sites and shall use commercially reasonable efforts to deliver a completed Tower Structure no later than 120 days after the Closing Date subject to Unavoidable Delays; provided, however, that Unavoidable Delays shall not cause delivery of such Tower Structure to be delayed beyond 180 days after the Closing Date. Upon completion of the Construction Activities, Powertel or Sellers shall obtain and deliver to CCIC or Buyer all Governmental Permits necessary for the ownership, use or occupancy of the Tower Structure (except FCC licenses, and except to the extent and only to the extent such Governmental Permits are needed by Powertel or the Sellers in the operation of their businesses). In addition, upon completion of the Construction Activities, the parties shall enter into a Site Lease Agreement (as defined in the Master Lease) but which shall provide that the Initial SLA Term shall commence upon the 31st day following the last to occur of the following: conveyance of the In-Progress Site to Buyer and the completion and delivery of the Tower Structure to Buyer. Upon the commencement of the Initial SLA Term, the parties shall enter into a written commencement of term agreement in recordable form which shall incorporate and refer to the Master Lease and the Site Lease Agreement and which either party may file of record as an acknowledgment of the date on which the Initial SLA Term shall be deemed or stipulated to have commenced and the date on which it (and renewal terms) shall expire.
(5e) In the event Powertel and/or Sellers fail to complete construction of an In-Progress Site within the 120-day period set forth above in Section 2.12(d), as such period may be extended for any Unavoidable Delays, then CCIC and Buyer's sole and exclusive remedy shall be to recover from Powertel and/or Sellers the sum per diem of $500.00 (not to exceed $423,077 in the aggregate) for each In-Progress Site that is not completed on or before the required completion date. Notwithstanding the foregoing, Powertel and/or Sellers shall be obligated to complete such site and deliver to CCIC and Buyers as soon as commercially practicable the applicable Assets with respect thereto not previously conveyed and delivered.
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