Exhibit 10.3
ASSET PURCHASE AGREEMENT
By and Between
AMERICAN TOWER SYSTEMS, INC.
and
TOWERS L.L.C.
Dated as of
May 13, 1997
TABLE OF CONTENTS
ARTICLE 1 DEFINED TERMS...................................................................................1
ARTICLE 2 SALE AND PURCHASE OF ASSETS.....................................................................1
2.1 Agreement to Sell and Buy..............................................................1
2.2 Assumption of Liabilities and Obligations. ............................................2
2.3 Closing; Purchase Price................................................................4
2.4 Accounts Receivable....................................................................6
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER........................................................7
3.1 Organization and Business; Power and Authority; Effect of Transaction..................7
3.2 Financial and Other Information. .....................................................8
3.3 Changes in Condition...................................................................8
3.4 Materiality............................................................................8
3.5 Title to Properties; Leases............................................................8
3.6 Compliance with Private Authorizations.................................................9
3.7 Compliance with Governmental Authorizations and Applicable Law........................10
3.8 Intangible Assets.....................................................................11
3.9 Related Transactions..................................................................11
3.10 Insurance.............................................................................11
3.11 Tax Matters. ........................................................................11
3.12 Employee Retirement Income Security Act of 1974.......................................12
3.13 Absence of Sensitive Payments.........................................................12
3.14 Inapplicability of Specified Statutes.................................................12
3.15 Employment Arrangements...............................................................12
3.16 Material Agreements...................................................................13
3.17 Ordinary Course of Business...........................................................13
3.18 Material and Adverse Restrictions.....................................................14
3.19 Broker or Finder......................................................................14
3.20 Solvency..............................................................................14
3.21 Environmental Matters.................................................................14
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF ATS..........................................................15
4.1 Organization and Business; Power and Authority; Effect of Transaction.................15
4.2 Broker or Finder......................................................................15
4.3 Solvency..............................................................................16
4.4 No Legal Action.......................................................................16
4.5 Financing.............................................................................16
4.6 ATS Due Diligence Investigation.......................................................16
ARTICLE 5 COVENANTS......................................................................................16
5.1 Access to Information; Confidentiality................................................16
5.2 Agreement to Cooperate. .............................................................17
5.3 Public Announcements..................................................................18
5.4 Notification of Certain Matters.......................................................18
5.5 No Solicitation.......................................................................18
5.6 Conduct of Business by Seller Pending the Closing.....................................19
ARTICLE 6 CLOSING CONDITIONS.............................................................................20
6.1 Conditions to Obligations of Each Party to effect the Transactions....................20
6.2 Conditions to Obligations of ATS......................................................20
6.3 Conditions to Obligations of Seller...................................................22
ARTICLE 7 TERMINATION, AMENDMENT AND WAIVER..............................................................23
7.1 Termination...........................................................................23
7.2 Effect of Termination.................................................................24
ARTICLE 8 INDEMNIFICATION................................................................................24
8.1 Survival..............................................................................24
8.2 Indemnification.......................................................................25
8.3 Limitation of Liability...............................................................25
8.4 Notice of Claims......................................................................26
8.5 Defense of Third Party Claims.........................................................26
8.6 Exclusive Remedy......................................................................27
ARTICLE 9 GENERAL PROVISIONS.............................................................................27
9.1 Amendment.............................................................................27
9.2 Waiver................................................................................27
9.3 Fees, Expenses and Other Payments.....................................................27
9.4 Notices...............................................................................27
9.5 Specific Performance; Other Rights and Remedies.......................................28
9.6 Severability..........................................................................29
9.7 Counterparts..........................................................................29
9.8 Section Headings......................................................................29
9.9 Governing Law; Venue..................................................................29
9.10 Further Acts..........................................................................29
9.11 Entire Agreement......................................................................30
9.12 Assignment............................................................................30
9.13 Parties in Interest...................................................................30
9.14 WAIVER OF TRIAL BY JURY...............................................................30
9.15 Mutual Drafting.......................................................................30
APPENDIX A: Definitions
SCHEDULES:
Seller Disclosure Schedule
EXHIBITS:
EXHIBIT A Escrow Agreement (Third Whereas Paragraph)
EXHIBIT B Form of Noncompetition Agreement (Section 6.2(i))
EXHIBIT C Form of Employment Agreement (Section 6.2(i))
EXHIBIT D Form of Escrow Indemnity Agreement (Section 6.2(j))
-ii-
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is dated as of May 13,
1997 by and between American Tower Systems, Inc., a Delaware corporation
("ATS"), on the one hand, and Towers L.L.C. , a South Carolina limited liability
company (the "Seller" ) on the other hand.
WHEREAS, Seller owns and leases and operates communication towers in
South Carolina and Georgia and is engaged in the business of managing
communication sites for third parties in South Carolina (the "Seller Business");
WHEREAS, ATS desires to purchase and Seller desires to sell the Seller
Assets and the Seller Business on the terms and conditions hereinafter set
forth; and
WHEREAS, simultaneously with the execution and delivery of this
Agreement, ATS and Seller have entered into an escrow agreement (the "Escrow
Agreement") with ▇▇▇▇▇▇▇▇ & Worcester LLP, counsel for ATS, and ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, P.A., counsel for Seller (the "Escrow Agent"), pursuant to which ATS has
made a deposit of $100,000 (the "Escrow Deposit");
NOW, THEREFORE, in consideration of the above premises and the
covenants and agreements contained herein, the parties, intending to be legally
bound, do hereby covenant and agree as follows:
ARTICLE 1
DEFINED TERMS
As used herein, unless the context otherwise requires, the terms
defined in Appendix A shall have the respective meanings set forth therein.
Terms defined in the singular shall have a comparable meaning when used in the
plural, and vice versa, and the reference to any gender shall be deemed to
include all genders. Unless otherwise defined or the context otherwise clearly
requires, terms for which meanings are provided in this Agreement shall have
such meanings when used in the Seller Disclosure Schedule and each Collateral
Document executed or required to be executed pursuant hereto or thereto or
otherwise delivered, from time to time, pursuant hereto or thereto. References
to "hereof", "herein" or similar terms are intended to refer to the Agreement as
a whole and not a particular Section, and references to "this Section" are
intended to refer to the entire Section and not a particular subsection thereof.
The term "either party" shall, unless the context otherwise requires, refer to
Seller and ATS.
ARTICLE 2
SALE AND PURCHASE OF ASSETS
2.1 Agreement to Sell and Buy. Subject to the terms and conditions set
forth in this Agreement, Seller hereby agrees to sell, assign, transfer and
deliver to ATS at the Closing, and ATS agrees to purchase at the Closing, the
Seller Assets and the Seller Business, free and clear of any Liens of any nature
whatsoever except for Permitted Liens. For purposes of this Agreement, the term
"Seller Assets" shall mean all of the Assets of Seller, other than the Excluded
Assets, and shall include without limitation the Utility Assets or any right to
acquire the Utility Assets (as defined in Section 2.3), or manage the Utility
Assets pursuant to the
Santee ▇▇▇▇▇▇ Contract (as defined in Section 2.3), as the case may be. For
purposes of this Agreement, the term "Excluded Assets" shall mean the following
Assets:
(i) all cash and cash equivalents;
(ii) all Accounts Receivable;
(iii) all books and records which Seller is required by
Applicable Law to retain, subject to the right of ATS to have access
and to copy for a period of three (3) years from the Closing Date; the
records described herein shall further include without limitation all
corporate seals, certificates of incorporation, minute books, stock
books, Tax Returns or other records having to do with the corporate
organization of Seller;
(iv) any pension, profit-sharing or employee benefit plans,
including any assets in any related trusts; and
(v) any and all products, profits and proceeds of, and
including without limitation any Claims with respect to, any of the
foregoing.
2.2 Assumption of Liabilities and Obligations.
(a) At the Closing, ATS shall assume and agree to pay, discharge and
perform the following obligations and liabilities of Seller (collectively, the
"Seller Assumed Obligations"): (i) all of the obligations and liabilities of
Seller under the Seller Assumable Agreements, and (ii) all obligations and
liabilities of Seller with respect to the ownership and operation of the Seller
Assets and the conduct of the Seller Business, on and after the Closing Date;
provided, however, that notwithstanding the foregoing, ATS shall not assume and
agree to pay, and shall not be obligated with respect to, the Seller Nonassumed
Obligations.
(b) ATS shall not assume or become obligated to perform any debt,
liability or obligation of Seller relating to any of the following matters
(collectively, the "Seller Nonassumed Obligations"):
(i) the ownership or operation of the Seller Assets or the
conduct of the Seller Business prior to the Closing Date, including
without limitation Taxes, unfunded pension costs, any Employment
Arrangement of Seller (including without limitation any obligation to
any Seller Employee for severance benefits, vacation time or sick
leave), and any of the following to the extent same arise from Events
occurring prior to or existing on the Closing Date: products liability,
Legal Actions or other Claims, and obligations and liabilities relating
to Environmental Law;
(ii) any obligations or liabilities under the Seller Assumable
Agreements relating to the period prior to the Closing;
(iii) any insurance policies of Seller;
(iv) those required to be disclosed in the Seller Disclosure
Schedule which are not so disclosed or which, if disclosed, Section
2.2(b)(iv) of the Seller Disclosure Schedule indicates that such
obligation or liability will not be assumed;
(v) any liability or obligation from or relating to breach of
any warranty or any misrepresentation by Seller under this Agreement or
any Collateral Document;
-2-
(vi) any liability or obligation from or relating to breach or
violation of, or failure to perform, any of Seller's obligations,
covenants, agreements or undertakings set forth in this Agreement or
any Collateral Document, including without limitation Article 5 of this
Agreement;
(vii) any obligation or liability relating to any Excluded
Asset;
(viii) any obligation or liability with respect to or
Indebtedness for Money Borrowed;
(ix) any Taxes, fees, expenses or other amounts required to be
paid by Seller pursuant to the provisions of this Agreement or any
Collateral Document; and
(x) any Contract with any Affiliate of Seller, other than
those, if any, set forth in Section 2(b)(x) of the Seller Disclosure
Schedule.
All Seller Nonassumed Obligations shall remain and be the obligations and
liabilities solely of Seller.
(c) Anything in this Section or elsewhere in this Agreement to the
contrary notwithstanding, the term "Seller Nonassumed Obligations" shall not
include, and the term "Seller Assumed Obligations" shall include, any liability
arising out of the transfer or assignment to ATS of, or the use or enjoyment of
the benefits by ATS under, any Contract, Governmental Authorization or Private
Authorization the transfer or assignment of which (according to Section 2.2(c)
of the Seller Disclosure Schedule) requires or may require the consent of any
Authority or other third party (collectively, the "Nonassignable Contracts"), if
ATS has, on or prior to the Closing Date, notified Seller in writing (an
"Acceptance Notice") that ATS consents to the transfer or assignment of such
Nonassignable Contract despite the failure or inability of ATS and Seller to
obtain the approval or consent of an Authority or other Person whose approval or
consent is required pursuant to the terms of such Nonassignable Contract, or
elects to receive the benefits of such Nonassumable Contract, in either of which
events, if the approval or consent of an Authority or other Person applicable to
transfer of such Nonassignable Contract is required to be obtained as a
condition to ATS' obligations at Closing pursuant to the provisions of Section
6.1(a) or 6.2(d), ATS shall be deemed to have waived such condition with respect
to such Nonassignable Contract. With respect to any Nonassignable Contract for
which the applicable consent of any Authority or other Person is not obtained
prior to the Termination Date and for which ATS does not timely deliver an
Acceptance Notice as described in the preceding sentence, Seller and ATS shall
negotiate in good faith to reach an equitable sharing of the rights and
obligations under such Nonassignable Contracts.
(d) Notwithstanding anything contained in this Agreement to the
contrary, except as set forth in Section 2.2(d) of the Seller Disclosure
Schedule, all items of income and expense (including without limitation with
respect to rent, utility charges, Pro Ratable Taxes and wages, salaries and
accrued but unused vacation of Seller employees) arising from the ownership or
operation of the Seller Assets or the conduct of the Seller Business shall be
prorated as of 12:01 a.m., Eastern time, on the Closing Date, with Seller
entitled to and responsible for any such items on or prior to the Closing Date
and ATS entitled to and responsible for any such items relating to any
subsequent period. For these purposes, Pro Ratable Taxes attributable to a
period that begins before and ends after the Closing Date shall be treated on a
"closing of the books" basis as two partial periods, one ending at the close of
the Closing Date and the other beginning on the day after the Closing Date,
except that Pro Ratable Taxes (such as property Taxes) imposed on a periodic
basis shall be allocated on a daily basis. If either party shall have received
any such revenues or paid any such expenses or charges which, pursuant to the
terms hereof, the other party is entitled to or responsible for, it shall
furnish the other party with a detailed statement of any such items as soon as
practicable after receipt or payment thereof. The parties shall use their best
efforts to agree upon such items and other adjustments prior to the Closing Date
and, in any event, except as set forth in Section 2.2(c) of the Seller
Disclosure Schedule, within
-3-
sixty (60) days thereafter. If the parties are unable within such period to
agree upon such items and other adjustments, Seller and ATS shall, within the
following ten (10) days, jointly designate a nationally known independent public
accounting firm to be retained to review such items and other adjustments. The
fees and other expenses of retaining such independent public accounting firm
shall be borne equally by Seller and ATS. Such firm shall report its conclusions
as to such items and other adjustments pursuant to this Section and such report
shall be conclusive on all parties to this Agreement and not subject to dispute
or review. Upon such agreement or determination by such independent accounting
firm, Seller or ATS, as the case may be, shall promptly reimburse the other
party for any income received or expenses paid by the other party and not
previously reimbursed or any other adjustment required by this Section.
Nothing contained in this Section 2.2 is intended or shall be deemed to
amend or modify the indemnification provisions of Article 8 nor to reallocate
responsibility for the matters set forth therein.
2.3 Closing; Purchase Price.
(a) The closing of the Transactions (the "Closing") shall take place at
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., local time, on May 30, 1997 or such other date,
prior to the Termination Date, as the parties may agree (the "Closing Date"). At
the Closing, each of the parties shall deliver such bills of sale, assignments,
assumptions of liabilities, opinions and other instruments and documents as are
described in this Agreement or as may be otherwise reasonably requested by the
parties and their respective counsel. The purchase price for the Seller Assets
and the Seller Business (the "Purchase Price") shall be an amount equal to
$5,000,000, subject to adjustment as provided in Sections 2.2(d), 2.3(b) and
2.3(c), plus an amount equal to the sum of (x) the Debt Adjustment and (y) the
Prepaid Expenses and minus an amount equal to the sum of (i) the Seller
Nonassumed Obligations, if any, which ATS agrees to assume, and (ii) Prepaid
Revenues. The Purchase Price shall be payable (a) by ATS instructing the Escrow
Agent to deliver the Escrow Deposit (together with interest and other increments
thereto) to Seller and, (b) by wire transfer of immediately available funds to
Seller for the balance of the Purchase Price to such account (or accounts) as
Seller shall designate in written instructions to ATS delivered not later than
two (2) business days prior to the Closing.
(b) In the event that as of the Closing Seller has completed
negotiations (the "Negotiations") for ATS to acquire from The South Carolina
Public Service Authority ("Santee ▇▇▇▇▇▇") (or from Seller as the Direct
transferee from Santee ▇▇▇▇▇▇) certain tower assets (the "Utility Assets"), and
Santee ▇▇▇▇▇▇ is ready, willing and able to consummate the transactions required
to transfer the Utility Assets, at a price and upon the terms and conditions
reasonably satisfactory to ATS, then in consideration of the opportunity to
acquire the Utility Assets, the Purchase Price shall be the Purchase Price as
calculated pursuant to Section 2.3(a) plus the Utility Assets Price.
(c) In the event that as of the Closing Seller is unable to acquire or
enter into an agreement to acquire (or to enable ATS to do either of the
foregoing) the Utility Assets but instead enters into contracts, assignable to
ATS upon terms and conditions reasonably satisfactory to, ATS to manage the
Utility Assets (the "Santee ▇▇▇▇▇▇ Contract"), then, upon satisfaction of the
condition specified in Section 2.3(d), the Purchase Price shall be the Purchase
Price as calculated pursuant to Section 2.3(a) plus the Utility Management
Price.
(d) In the event that Seller, on behalf of ATS, completes the
Negotiations or presents to ATS for its execution and delivery the Santee ▇▇▇▇▇▇
Contract pursuant to Sections 2.3(b) or 2.3(c), respectively, at any time
between the Closing and the one (1) year anniversary of the Closing, Buyer shall
be entitled to the Utility Assets Price or the Utility Management Price, as the
case may be. ATS shall wire the Utility Asset
-4-
Price or the Utility Management Price, as the case maybe, to the Seller's
account(s) as designated by Seller pursuant to written instructions within ten
(10) business days of receipt of such instructions.
(e) For purposes of this Section 2.3 "Utility Asset Price" shall mean
cash in an amount calculated as follows:
(i) First calculate the purchase price for which Seller
would be acquiring the Utility Assets from Santee
▇▇▇▇▇▇ and divide that number by the annualized
running rate of cash flow from the Utility Assets as
of the date that Seller would acquire the Utility
Assets or as of the first full month that Santee
▇▇▇▇▇▇ makes full payment under the sale-leaseback
arrangement. For example, if the purchase price of
the Utility Assets were $3,250,000 and the annualized
running rate of cash flow were $480,000, the cash
flow multiple for which the Seller would be acquiring
the Utility Assets would be 6.77 (the "Utility Cash
Flow Multiple").
(ii) ATS will then compensate Seller by taking the
difference between (x) the Utility Cash Flow Multiple
and (y) the cash flow multiple which ATS is paying
Seller for the Seller Assets, based upon Seller's
estimated 1997 year end running rate of cash flow
(which the parties have heretofore agreed will be
$45,000 for December 1997, or $540,000 on an
annualized basis), and adding that number to the
Utility Cash Flow Multiple. By way of example, ATS
would be paying Seller approximately 9.87 times year
end 1997 running rate of cash flow ($5,330,000
divided by $540,000) and the difference would be 9.87
less 6.77, or 3.10.
(iii) This differential of 3.10 would then be multiplied by
the percentage of Utility Assets being acquired by
Seller (currently expected to be 19) which can be
utilized as lease towers, as determined by good faith
negotiations of Seller and ATS at the time of
purchase of the Utility Assets. Thus, for example, if
15 of the Utility Assets are useable, ATS would pay
Seller a cash flow multiple of 6.77 plus 3.10
multiplied by fifteen-nineteenths (15/19), or 6.77
plus 2.45, or 9.22.
(iv) Therefore, ATS would pay 9.22 times the cash flow of
the Utility Assets (9.22 times $480,000, or
$4,424,337) for the Utility Assets. Seller would have
a gain of $1,174,337 (over and above its $3,250,000)
purchase price) for the Utility Assets opportunity.
(f) For purposes of this Section 2.3 "Utility Management Price" shall
mean cash in an amount calculated as follows:
The number of tower sites being managed (estimated currently at 64 in
number), multiplied by the estimated annual revenue per site (estimated
currently at $12,000), multiplied by the percentage of sites actually
useable as lease sites (currently estimated at between 65% to 75%) and
multiplied by the management fee percentage negotiated by Seller with
Santee ▇▇▇▇▇▇ (estimated at between 25% to 30%). ATS and Seller would
then negotiate in good faith to determine (i) a reasonable multiple of
this estimated cash flow and, (ii) since there is presently no cash
flow from these towers, the schedule of payments to be paid by ATS to
Seller for the management opportunity, based in part on payments from
Santee ▇▇▇▇▇▇ under the Santee ▇▇▇▇▇▇ Contract.
-5-
(g) Except as set forth in this Section 2.3 with respect to the
adjustment of the Purchase Price, all efforts of Seller with respect to the
Negotiations whether prior or subsequent to the Closing, including without
limitation, the acquisition of the Utility Assets or execution and delivery of
the Santee ▇▇▇▇▇▇ Contract, as the case may be, shall, be for the sole and
exclusive benefit of ATS. If executed and delivered prior to the Closing the
Santee ▇▇▇▇▇▇ Contract shall be considered part of Seller's Assets. If acquired
by Seller prior to the Closing the Utility Assets shall be considered part of
Seller's Assets.
(h) In the event that Seller acquires the Utility Assets or enters into
the Santee ▇▇▇▇▇▇ Contract, but the terms and conditions thereof are not
reasonably satisfactory to ATS, Seller shall, within ten (10) business days from
ATS' rejection of the acquisition of the Utility Assets or refusal to enter into
the Santee ▇▇▇▇▇▇ Contract, as the case may be, notify ATS of its election
either (i) to offer the Utility Assets or the Santee ▇▇▇▇▇▇ Contract to a third
party which is not Affiliated with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, or (ii) submit to binding
arbitration in accordance with the Commercial Rules of the American Arbitration
Association the issue of ATS' reasonableness in rejecting the purchase of the
Utility Assets or the execution and delivery of the Santee ▇▇▇▇▇▇ Contract.
(i) Notwithstanding anything in this Agreement to the contrary, the
parties acknowledge that the employees, including the President, of Seller will
be employed by ATS following the Closing. These persons will continue to be
involved in the Negotiations and/or procurement of the Santee ▇▇▇▇▇▇ Contract.
ATS agrees to allow these persons to pursue the Negotiations and the Santee
▇▇▇▇▇▇ Contract, for the benefit of ATS or, upon its rejection of the purchase
of the Utility Assets or refusal to enter into the Santee Copper Contract,
Seller, during normal business hours while these persons are employees of ATS.
2.4 Accounts Receivable. At the closing, Seller shall appoint ATS its
agent for the purpose of collecting all Accounts Receivable relating to the
Seller Business. Seller shall deliver to ATS on or as soon as practicable after
the Closing Date a complete and detailed statement showing the name, amount and
age of each Accounts Receivable of the Seller Business. Subject to and limited
by the following, revenues relating to the Accounts Receivable relating to the
Seller Business will be for the account of Seller. ATS shall use the same
procedures and efforts which it uses with respect to its own accounts receivable
to collect the Accounts Receivable with respect to the Seller Business for a
period of ninety (90) days after the Closing Date (the "Collection Period"). Any
payment received by ATS during the Collection Period from any customer with an
account which is an Accounts Receivable with respect to the Seller Business
shall first be applied in reduction of the Accounts Receivable, unless the
customer contests the validity of such application. During the Collection
Period, ATS shall furnish Seller with a list of, and pay over to Seller, the
amounts collected with respect to the Accounts Receivable with respect to the
Seller Business on a monthly basis and forward to Seller, promptly upon receipt
or delivery, as the case may be, copies of all correspondence relating to
Accounts Receivable. ATS shall provide Seller with a final accounting on or
before the fifteenth (15th) day following the end of the Collection Period. Upon
the request of either party at and after such time, the parties shall meet to
mutually and in good faith analyze any uncollected Accounts Receivable to
determine if the same, in their reasonable business judgment, are deemed to be
collectable and if ATS desires to retain such Accounts Receivable. As to each
such Accounts Receivable, the parties shall negotiate a good faith value of such
Accounts Receivable, which ATS shall pay to Seller if ATS, in its sole
discretion, chooses to retain such Accounts Receivable. Seller shall retain the
right to collect any of its Accounts Receivable as to which the parties are
unable to reach agreement as to a good faith value, and ATS agrees to turn over
to Seller any payments received against any such Accounts Receivable. ATS shall
not be obligated to use any extraordinary efforts to collect any of the Accounts
Receivable assigned to it for collection hereunder or to refer any of such
Accounts Receivable to a collection agency or to any attorney for collection,
and ATS shall not make any such referral or compromise, nor settle or adjust the
amount of any such Accounts Receivable, except with the approval of Seller. ATS
shall not incur any liability to Seller for any uncollected account unless ATS
shall have engaged in willful misconduct or gross negligence in the performance
of its obligations
-6-
set forth in this Section. During and after the Collection Period, without
specific agreement with ATS to the contrary, neither Seller nor its agents shall
make any direct solicitation of the Accounts Receivable for collection purposes,
except for Accounts Receivable retained by Seller after the Collection Period.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents, warrants and covenants to, and agrees with,
ATS as follows:
3.1 Organization and Business; Power and Authority; Effect of
Transaction.
(a) Seller is a limited liability company duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization, has all requisite limited liability company power and authority to
own or hold under lease its properties and to conduct its business as now
conducted.
(b) Seller has all requisite limited liability company power and
authority and has in full force and effect all Governmental Authorizations
(which, for purposes of this Section 3.1(b), relate only to the sale of the
Seller Assets and the Seller Business generally and not to "site-specific"
Governmental Authorizations or those required by local Applicable Law) and
Private Authorizations, except for those set forth in Section 3.1(b) of the
Seller Disclosure Schedule or those the failure of which to obtain do not and
will not have, individually or in the aggregate, any material adverse effect on
Seller, necessary to enable it to execute and deliver, and to perform its
obligations under, this Agreement and each Collateral Document executed or
required to be executed by it pursuant hereto or thereto or to consummate the
Transactions; and the execution, delivery and performance of this Agreement and
each Collateral Document executed or required to be executed by it pursuant
hereto or thereto have been duly authorized by all requisite corporate or other
action on the part of Seller. This Agreement has been duly executed and
delivered by Seller and constitutes, and each Collateral Document executed or
required to be executed by it pursuant hereto or thereto or to consummate the
Transactions when executed and delivered by Seller will constitute, legal, valid
and binding obligations of Seller, enforceable in accordance with their
respective terms.
(c) Except as set forth in Section 3.1(c) of the Seller Disclosure
Schedule, and except for matters which would have no material adverse effect on
Seller, neither the execution and delivery by Seller of this Agreement or any
Collateral Document executed or required to be executed by it pursuant hereto or
thereto, nor the consummation by Seller of the Transactions, nor compliance with
the terms, conditions and provisions hereof or thereof by Seller:
(i) will conflict with, or result in a breach or violation of,
or constitute a default under, any Organic Document of Seller or any
Applicable Law (which, for purposes of this Section 3.1(c)(i), relates
only to the sale of the Seller Assets and the Seller Business generally
and not to local Applicable Law), or will conflict with, or result in a
breach or violation of, or constitute a default under, or permit the
acceleration of any obligation or liability in, or but for any
requirement of giving of notice or passage of time or both would
constitute such a conflict with, breach or violation of, or default
under, or permit any such acceleration in, any Contractual Obligation
of Seller, other than those constituting Seller Nonassumed Obligations;
or
(ii) will require Seller to make or obtain any Governmental
Authorization (which, for purposes of this Section 3.1(c)(ii)), relate
only to the sale of the Seller Assets and Seller Business
-7-
generally and not to "site-specific" Governmental Authorizations or
those required by local Applicable Law), or Private Authorization
including without limitation under the FCA.
(d) Seller does not have any Subsidiaries.
3.2 Financial and Other Information. Seller has heretofore furnished to
ATS copies of the financial statements of the Seller Business listed in Section
3.2 of the Seller Disclosure Schedule (the "Seller Financial Statements"). To
the best of Seller's knowledge, the Seller Financial Statements, including in
each case the notes thereto, have been prepared in accordance with GAAP applied
on a consistent basis throughout the periods covered thereby, except as
otherwise noted therein or as set forth in Section 3.2 of the Seller Disclosure
Schedule, are true, accurate and complete in all material respects, do not
contain any untrue statement of a material fact or omit to state a material fact
required by GAAP to be stated therein or necessary in order to make the
statements contained therein not misleading, and fairly present the financial
condition and the results of operations and cash flow of the Seller Business, on
the bases therein stated, as of the respective dates thereof, and for the
respective periods covered thereby subject, in the case of unaudited financial
statements, to normal nonmaterial year-end audit adjustments and accruals.
The parties recognize that Seller was issued a qualified opinion with
respect to its 1996 financial statements. A copy of these statements has been
provided to ATS.
3.3 Changes in Condition. Since the date of the most recent financial
statements constituting a part of the Seller Financial Statements, except to the
extent specifically described in Section 3.3 of the Seller Disclosure Schedule,
there has been no material adverse change in Seller. There is no Event known to
Seller which materially adversely affects, or is likely to materially adversely
affect, Seller, except to the extent specifically described in Section 3.3 of
the Seller Disclosure Schedule.
3.4 Materiality. The representations and warranties set forth in this
Article would in the aggregate be true and correct even without the materiality
exceptions or qualifications contained therein or set forth in the Seller
Disclosure Schedule, except for such exceptions and qualifications including
without limitation those set forth in the Seller Disclosure Schedule which, in
the aggregate for all such representations and warranties, are not and could not
reasonably be expected to be materially adverse to Seller.
3.5 Title to Properties; Leases.
(a) Section 3.5(a) of the Seller Disclosure Schedule contains a true,
accurate and complete description of all real property owned by Seller that is
part of the Seller Assets. Seller has good indefeasible, marketable and
insurable title to all real property (other than leasehold real property) and
good indefeasible and merchantable title to all other assets (other than real
property), tangible and intangible, constituting a part of the Seller Assets, in
each case free and clear of all Liens, except (i) Permitted Liens, (ii) Liens
set forth on Section 3.5(a) of the Seller Disclosure Schedule and (iii) Approved
Title Conditions. Except for financing statements evidencing Liens referred to
in the preceding sentence (a true, accurate and complete list and description of
which is set forth in Section 3.5(a) of the Seller Disclosure Schedule), no
financing statements under the Uniform Commercial Code and no other filing which
names Seller as debtor or which covers or purports to cover any of the Seller
Assets is on file in any state or other jurisdiction, and Seller has not signed
or agreed to sign any such financing statement or filing or any agreement
authorizing any secured party thereunder to file any such financing statement or
filing. To the best of Seller's knowledge, except as disclosed in Section 3.5(a)
of the Seller Disclosure Schedule, all improvements on the real property owned
or leased by Seller are in compliance with applicable zoning, wetlands and land
use laws, ordinances and regulations and applicable title covenants, conditions,
restrictions and reservations in all respects necessary to conduct the
operations as presently conducted, except for any instances of non-compliance
which do not
-8-
and will not in the aggregate have a material adverse effect on the owner or
lessee, as the case may be, of such real property. To the best of Seller's
knowledge, except as disclosed in Section 3.5(a) of the Seller Disclosure
Statement, all such improvements comply in all material aspects with all
Applicable Laws, Governmental Authorizations and Private Authorizations. Except
as disclosed in Section 3.5(a) of the Seller Disclosure Statement, all of the
transmitting towers, ground radials, guy anchors, transmitting buildings and
related improvements located on the real property owned or leased by Seller are
located entirely on such real property. There is no pending and, to Seller's
knowledge, threatened or contemplated action to take by eminent domain or
otherwise to condemn any part of any real property owned or leased by Seller.
Except as set forth in Section 3.5(a) of the Seller Disclosure Schedule, such
real property (other than land), fixtures, fixed assets and other material items
of personal property, including equipment, have, in Seller's reasonable business
judgment, been maintained in a manner consistent with generally accepted
standards of sound engineering practice and, to the best of Seller's knowledge,
currently permit the Seller Business to be operated in all material respects in
accordance with the terms and conditions of all Applicable Laws, Governmental
Authorizations and Private Authorizations.
(b) Section 3.5(b) of the Seller Disclosure Schedule contains a true,
accurate and complete description of all Leases under which any real property
used in the Seller Business is leased. Except as otherwise set forth in Schedule
3.5(b) of the Seller Disclosure Schedule, each Lease or other occupancy or other
agreement under which Seller holds real or personal property constituting a part
of the Seller Assets has been duly authorized, executed and delivered by Seller
and, to Seller's knowledge, each of the other parties thereto, and is a legal,
valid and binding obligation of Seller, and, to Seller's knowledge, each of the
other parties thereto, enforceable in accordance with its terms. Seller has a
valid leasehold interest in and enjoys peaceful and undisturbed possession under
all Leases pursuant to which it holds any such real property or tangible
personal property. To the best of Seller's knowledge, all of such Leases are
valid and subsisting and in full force and effect; neither Seller nor, to
Seller's knowledge, any other party thereto, is in material default in the
performance, observance or fulfillment of any obligation, covenant or condition
contained in any such Lease. None of the fixed assets or equipment comprising a
part of the Seller Assets is subject to contracts of sale, and none is held by
Seller as lessee or as conditional sales vendee under any Lease or conditional
sales contract and none is subject to any title retention agreement, except as
set forth in Section 3.5(b) of the Seller Disclosure Schedule.
(c) Section 3.5(c) of the Seller Disclosure Schedule contains a true,
accurate and complete description of all material items of Sellers Personal
Property. Seller owns and has good and merchantable title to all of the Sellers
Personal Property relating to the Sellers Business (the "Sellers Personal
Property"), in each case, free and clear of all Liens, except (i) Permitted
Liens and (ii) Liens set forth on Section 3.5(c) of the Seller Disclosure
Schedule (which Liens shall be released prior to Closing). Except as set forth
in Section 3.5(c) of the Seller Disclosure Schedule, all of the Seller Personal
Property is in a state of good repair and maintenance and is in good operating
condition, normal wear and tear excepted, has been maintained in a manner
consistent with generally accepted standards of good engineering practice and
currently permits the Seller Business to be operated in accordance with the
terms and conditions of all Applicable Laws.
3.6 Compliance with Private Authorizations. Section 3.6 of the Seller
Disclosure Schedule sets forth a true, accurate and complete list and
description of each Private Authorization which Seller currently holds. To the
best of Seller's knowledge, Seller has obtained all Private Authorizations which
are necessary for the ownership or operation of the Seller Assets or the conduct
of the Seller Business which, if not obtained and maintained, could,
individually or in the aggregate, materially adversely affect Seller. All of
such Private Authorizations, to Seller's knowledge, are valid and in good
standing and are in full force and effect. To the best of Seller's knowledge,
Seller is not in breach or violation of, or in default in the performance,
observance or fulfillment of, any such Private Authorization, and, to the best
of Seller's knowledge, no Event exists or has occurred, which constitutes, or
but for any requirement of giving of notice or passage of time or both
-9-
would constitute, such a breach, violation or default, under any such Private
Authorization, except for such defaults, breaches or violations as do not and
will not have in the aggregate any material adverse effect on Seller. No such
Private Authorization is the subject of any pending or, to Seller's knowledge,
threatened attack, revocation or termination.
3.7 Compliance with Governmental Authorizations and Applicable Law.
(a) Section 3.7(a) of the Seller Disclosure Schedule contains a true,
complete and accurate description of each Governmental Authorization which
Seller currently holds. To the best of Seller's knowledge, these are the only
Governmental Authorizations (i) required under Applicable Laws to own and
operate the Seller Business, as currently conducted or proposed to be conducted
on or prior to the Closing Date, or (ii) necessary to permit Seller to execute
and deliver this Agreement and to perform its obligations hereunder. To the best
of Seller's knowledge, Seller has obtained all Governmental Authorizations which
are necessary for the ownership or operation of the Seller Assets or the conduct
of the Seller Business as now conducted and which, if not obtained and
maintained, would, individually or in the aggregate, have any material adverse
effect on Seller. None of the Governmental Authorizations listed in Section
3.7(a) of the Seller Disclosure Schedule, to Seller's knowledge, is subject to
any restriction or condition which would limit in any material respect the
ownership or operations of the Seller Assets or the conduct of the Seller
Business as currently conducted, except for restrictions and conditions
generally applicable to Governmental Authorizations of such type. The
Governmental Authorizations listed in Section 3.7(a) of the Seller Disclosure
Schedule are, to Seller's knowledge, valid and in good standing, are in full
force and effect and are not impaired in any material respect by any act or
omission of Seller or its officers, directors, employees or agents, and, to the
best of Seller's knowledge, the ownership or operation of the Seller Assets or
the conduct of the Seller Business are in accordance in all material respects
with the Governmental Authorizations. All material reports, forms and statements
required to be filed by Seller with all Authorities with respect to the Seller
Business have, to Seller's knowledge, been filed and are true, complete and
accurate in all material respects. No such Governmental Authorization is the
subject of any pending or, to Seller's knowledge, threatened challenge or
proceeding to revoke or terminate any such Governmental Authorization. Seller
does not believe that any such Governmental Authorization will not be renewed in
the name of Seller by the granting Authority in the ordinary course.
(b) Except as otherwise specifically described in Section 3.7(b) of the
Seller Disclosure Schedule, neither Seller nor any director or officer thereof
(in connection with ownership or operation of the Seller Assets or the conduct
of the Seller Business) is in or is charged by any Authority with or, to
Seller's knowledge, at any time since January 1, 1993 has been in or has been
charged by any Authority with, or, to Seller's knowledge, is threatened or under
investigation by any Authority with respect to, breach or violation of, or
default in the performance, observance or fulfillment of, any Governmental
Authorization or any Applicable Law relating to the ownership and operation of
the Seller Assets or the conduct of the Seller Business. In particular, but
without limiting the generality of the foregoing, there are no applications,
complaints or Legal Actions pending or, to Seller's knowledge, threatened before
or by any Authority (x) relating to the ownership or operation of the Seller
Assets or the conduct of the Seller Business which, individually or in the
aggregate, are reasonably likely to result in the revocation or termination of
any Governmental Authorization or the imposition of any restriction of such a
nature as would adversely affect the ownership or operation of the Seller Assets
or the conduct of the Seller Business; (y) involving charges of illegal
discrimination by Seller under any federal or state employment Laws, or (z)
involving Environmental Laws or zoning laws, except as otherwise specifically
described in Section 3.7(b) of the Seller Disclosure Schedule.
(c) Except as otherwise specifically described in Section 3.7(c) of the
Seller Disclosure Schedule, no Event exists or has occurred, which, to Seller's
knowledge, constitutes, or but for any requirement of
-10-
giving of notice or passage of time or both would constitute, such a breach,
violation or default, under (i) any Governmental Authorization or any Applicable
Law, except for such breaches, violations or defaults as do not and will not
have, individually or in the aggregate, any material adverse effect on Seller or
(ii) any material requirement of any insurance carrier, applicable to the
ownership or operations of the Seller Assets or the conduct of the Seller
Business.
(d) With respect to matters, if any, of a nature referred to in Section
3.7(a), 3.7(b) or 3.7(c) of the Seller Disclosure Schedule, except as otherwise
specifically described in Section 3.7(d) of the Seller Disclosure Schedule, all
such information and matters set forth in the Seller Disclosure Schedule, if
adversely determined against Seller, will not, individually or in the aggregate,
have a materially adversely effect on Seller.
3.8 Intangible Assets. Section 3.8 of the Seller Disclosure Schedule
sets forth a true, accurate and complete description of all Intangible Assets
(other than Governmental Authorizations and Private Authorizations) relating to
the ownership and operation of the Seller Assets or the conduct of the Seller
Business held or used by Seller, including without limitation the nature of
Seller's interest in each and the extent to which the same have been duly
registered in the offices as indicated therein. To the best of Seller's
knowledge, except as set forth in Section 3.8 of the Seller Disclosure Schedule,
no Intangible Assets (except Governmental Authorizations, Private
Authorizations, and the Intangible Assets so set forth) are required for the
ownership or operation of the Seller Assets or the conduct of the Seller
Business as currently owned, operated and conducted or proposed to be owned,
operated and conducted on or prior to the Closing Date. Seller does not, to its
knowledge, wrongfully infringe upon or unlawfully use any Intangible Assets
owned or claimed by another, and Seller has not received any notice of any claim
or infringement relating to any such Intangible Asset.
3.9 Related Transactions. Seller is not a party or subject to any
Contractual Obligation relating to the ownership or operation of the Seller
Assets or the conduct of the Seller Business between Seller and any of its
officers, directors, shareholders, employees or, to the knowledge of Seller, any
Affiliate of any thereof, including without limitation any Contractual
Obligation providing for the furnishing of services to or by, providing for
rental of property, real, personal or mixed, to or from, or providing for the
lending or borrowing of money to or from or otherwise requiring payments to or
from, any such Person, other than (i) Employment Arrangements listed or
described in Section 3.15 of the Seller Disclosure Schedule, (ii) Contractual
Obligations between Seller and any of its directors, shareholders, officers,
employees or Affiliates of Seller or any of the foregoing, which constitute
Excluded Assets or Seller Nonassumed Obligations, or (iii) as specifically set
forth in Section 3.9 of the Seller Disclosure Schedule.
3.10 Insurance. Seller maintains, with respect to the Seller Assets and
the Seller Business, policies of fire and extended coverage and casualty,
liability and other forms of insurance in such amounts and against such risks
and losses as are set forth in Section 3.10 of the Seller Disclosure Schedule.
3.11 Tax Matters.
(a) Seller has in accordance with all Applicable Laws filed all federal
and state and, to the best of Seller's knowledge, local Tax Returns which are
required to be filed, and has paid, or made adequate provision for the payment
of, all Taxes which have or may become due and payable pursuant to said Tax
Returns and all other governmental charges and assessments received to date
other than those Taxes being contested in good faith for which adequate
provision has been made on the most recent balance sheet forming part of Seller
Financial Statements. To the best of Seller's knowledge, the Tax Returns of
Seller have been prepared in all material respects in accordance with all
Applicable Laws and generally accepted principles applicable to taxation
consistently applied. All Taxes which Seller is required by law to withhold and
collect
-11-
have been duly withheld and collected, and have been paid over, in a timely
manner, to the proper Authorities to the extent due and payable. Seller has not
executed any waiver to extend, or otherwise taken or failed to take any action
that would have the effect of extending, the applicable statute of limitations
in respect of any Tax liabilities of Seller for the fiscal years prior to and
including the most recent fiscal year. Adequate provision has, to Seller's
knowledge, been made on the most recent balance sheet forming part of Seller
Financial Statements for all Taxes accrued through the date of such balance
sheet of any kind, including interest and penalties in respect thereof, whether
disputed or not, and whether past, current or deferred, accrued or unaccrued,
fixed, contingent, absolute or other, and there are, to Seller's knowledge, no
past transactions or matters which could result in additional Taxes of a
material nature to Seller for which an adequate reserve has not been provided on
such balance sheet. Seller is not a "consenting corporation" within the meaning
of Section 341(f) of the Code.
(b) Seller is not a party to any tax sharing agreement or arrangement.
3.12 Employee Retirement Income Security Act of 1974.
(a) Seller (which for purposes of this Section shall include any ERISA
Affiliate) is not making any contribution to or sponsoring, and has not at any
time since its organization made any contribution to or sponsored, any Plan or
Benefit Arrangement.
3.13 Absence of Sensitive Payments. Neither Seller nor, to Seller's
knowledge, any of its officers, directors, employees, agents or other
representatives, has with respect to the Seller Assets or the Seller Business
(a) made any contributions, payments or gifts to or for the private use of any
governmental official, employee or agent where either the payment or the purpose
of such contribution, payment or gift is illegal under the laws of the United
States or the jurisdiction in which made or (b) established or maintained any
unrecorded fund or asset for any purpose or made any false or artificial entries
on its books.
3.14 Inapplicability of Specified Statutes. Seller is not a "holding
company", or a "subsidiary company" or an "affiliate" of a "holding company", as
such terms are defined in the Public Utility Holding Company Act of 1935, as
amended, or an "investment company" or a company "controlled" by or acting on
behalf of an "investment company", as defined in the Investment Company Act of
1940, as amended, or a "carrier" or a person which is in control of a "carrier",
as defined in section 11301 of Title 49, U.S.C.
3.15 Employment Arrangements. Section 3.15 of the Seller Disclosure
Schedule contains a true, accurate and complete list of all Seller employees
involved in the ownership or operation of the Seller Assets or the conduct of
the Seller Business (the "Seller Employees"), together with each such employee's
title or the capacity in which he or she is employed and the basis for each such
employee's compensation. Seller has no obligation or liability, contingent or
other, under any Employment Arrangement with any Seller Employee, other than
those listed or described in Section 3.15 of the Seller Disclosure Schedule.
Except as described in Section 3.15 of the Seller Disclosure Schedule, (a) none
of the Seller Employees is now, or since January 1, 1993 has been, represented
by any labor union or other employee collective bargaining organization, and
Seller is not, and never has been, a party to any labor or other collective
bargaining agreement with respect to any of the Seller Employees, (b) there are
no pending grievances, disputes or controversies with any union or any other
employee or collective bargaining organization of such employees, or threats of
strikes, work stoppages or slowdowns or any pending demands for collective
bargaining by any such union or other organization, (c) neither Seller nor any
of such employees is now, or has since January 1, 1993 been, subject to or
involved in or, to Seller's knowledge, threatened with, any union elections,
petitions therefore or other organizational or recruiting activities, in each
case with respect to the Seller Employees, and (d) none of the Seller Employees
has notified Seller that he or she does not intend to continue employment with
Seller until the Closing or with ATS following the Closing. Seller has performed
in all material respects all obligations
-12-
required to be performed under all Employment Arrangements and is not in
material breach or violation of or in material default or arrears under any of
the terms, provisions or conditions thereof.
3.16 Material Agreements. Listed on Section 3.16 of the Seller
Disclosure Schedule are all Material Agreements relating to the ownership or
operation of the Seller Assets or the conduct of the business of the Seller
Business or to which Seller is a party or to which it is bound or which any of
the Seller Assets is subject. True, accurate and complete copies of each of such
Material Agreements have been made available by Seller to ATS and Seller has
provided ATS with photocopies of all such Material Agreements requested by ATS.
All of such Material Agreements are valid, binding and legally enforceable
obligations of Seller and, to Seller's knowledge, all other parties thereto,
except as such enforceability may be limited by bankruptcy, moratorium,
insolvency and similar laws affecting the rights and remedies of creditors and
obligations of debtors generally and by general principles of equity. To
Seller's knowledge Seller has duly complied with all of the material terms and
conditions of each such Material Agreement and has not done or performed, or
failed to do or perform (and there is no pending or, to the knowledge of Seller,
Claim threatened in writing that Seller has not so complied, done and performed
or failed to do and perform) any act which would invalidate or provide grounds
for the other party thereto to terminate (with or without notice, passage of
time or both) such Material Agreement or impair the rights or benefits, or
increase the costs, of Seller under any of such Material Agreements in any
material respect.
3.17 Ordinary Course of Business. Seller, from the end of its most
recent fiscal quarter to the date hereof, except (i) as may be described on
Section 3.17 of the Seller Disclosure Schedule, or (ii) as may be required or
expressly contemplated by the terms of this Agreement, with respect to the
Seller Assets and the Seller Business:
(a) has operated its business in all material respects in the
normal, usual and customary manner in the ordinary and regular course
of business, consistent with prior practice;
(b) except in each case in the ordinary course of business,
consistent with prior practice:
(i) has not incurred any obligation or liability
(fixed, contingent or other) individually having a value in
excess of $25,000;
(ii) has not sold or otherwise disposed of or
contracted to sell or otherwise dispose of any of its
properties or assets having a value in excess of $25,000;
(iii) has not entered into any individual commitment
having a value in excess of $25,000; and
(iv) has not canceled any debts or claims;
(c) has not created or permitted to be created any Lien on any
of its property and has not incurred any Indebtedness from Money
Borrowed;
(d) has not made or committed to make any additions to its
property or any purchases of equipment, except in the ordinary course
of business consistent with past practice or for normal maintenance and
replacements;
(e) has not increased the compensation payable or to become
payable to any of the Seller Employees other than in the ordinary
course of business or otherwise materially altered, modified or changed
the terms of their employment;
-13-
(f) has not suffered any material damage, destruction or loss
(whether or not covered by insurance) or any acquisition or taking of
property by any Authority;
(g) has not waived any rights of material value without fair
and adequate consideration;
(h) has not experienced any work stoppage;
(i) except in the ordinary course of business, has not entered
into, amended or terminated any Lease, Governmental Authorization,
Private Authorization, Material Agreement or Employment Arrangement, or
any transaction, agreement or arrangement with any Affiliate of Seller,
except for Seller Nonassumed Obligations; and
(j) has not entered into any other transaction or series of
related transactions which individually or in the aggregate is material
to the Seller Assets or the Seller Business.
3.18 Material and Adverse Restrictions. To the best of Seller's
knowledge, Seller is not a party to or subject to, nor is any of the Seller
Assets subject to, any Applicable Law, Governmental Authorization, Contractual
Obligation, Employment Arrangement, Material Agreement or Private Authorization,
or any other obligation or restriction of any kind or character, which,
individually or in the aggregate, now has or is likely to have any material
adverse effect on Seller, except as set forth in Section 3.18 of the Seller
Disclosure Schedule.
3.19 Broker or Finder. No Person assisted in or brought about the
negotiation of this Agreement or the Transactions in the capacity of broker,
agent or finder or in any similar capacity on behalf of Seller.
3.20 Solvency. As of the execution and delivery of this Agreement,
Seller is, and immediately prior to and after giving effect to the consummation
of the Transactions will be, solvent.
3.21 Environmental Matters. Except as set forth in Section 3.21 of the
Seller Disclosure Schedule, with respect to the Seller Assets, Seller:
(a) has not been notified that it is potentially liable under,
has not received any request for information or other correspondence
concerning its potential liability with respect to any site or facility
under, and, to Seller's knowledge, is not a "potentially responsible
party" under, the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, the Resource Conservation
Recovery Act, as amended, or any similar state law;
(b) has not entered into or received any consent decree,
compliance order or administrative order issued pursuant to any
Environmental Law;
(c) is not a party in interest or, to Seller's knowledge, in
default under any judgment, order, writ, injunction or decree of any
Final Order issued pursuant to any Environmental Law;
(d) to Seller's knowledge, is in compliance in all material
respects with all Environmental Laws, has obtained all Environmental
Permits required under Environmental Laws, and is not the subject of or
threatened with any Legal Action involving a demand for damages or
other potential liability including any Lien with respect to material
violations or material breaches of any Environmental Law; and
-14-
(e) has no knowledge of any past or present Event related to
the Seller Business or the Seller Assets which Event, individually or
in the aggregate, will materially interfere with or prevent continued
material compliance with all Environmental Laws, or which, individually
or in the aggregate, will form the basis of any material Claim for the
release or threatened release into the environment, of any Hazardous
Material.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF ATS
ATS represents, warrants and covenants to, and agrees with, Seller as
follows:
4.1 Organization and Business; Power and Authority; Effect of
Transaction.
(a) ATS is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has all
requisite power and authority (corporate and other) to own or hold under lease
its properties and to conduct its business as now conducted.
(b) ATS has all requisite corporate power and corporate authority
necessary to enable it to execute and deliver, and to perform its obligations
under, this Agreement and each Collateral Document executed or required to be
executed by it pursuant hereto or thereto or to consummate the Transactions; and
the execution, delivery and performance of this Agreement and each Collateral
Document executed or required to be executed by it pursuant hereto or thereto
have been duly authorized by all requisite corporate or other action on the part
of ATS. This Agreement has been duly executed and delivered by ATS and
constitutes, and each Collateral Document executed or required to be executed by
it pursuant hereto or thereto or to consummate the Transactions when executed
and delivered by ATS will constitute, legal, valid and binding obligations of
ATS, enforceable in accordance with their respective terms, except as such
enforceability may be limited by bankruptcy, moratorium, insolvency and similar
laws affecting the rights and remedies of creditors and the obligations of
debtors generally and by general principles of equity.
(c) Except for matters which would not have a material adverse effect
on ATS, neither the execution and delivery by ATS of this Agreement or any
Collateral Document executed or required to be executed by it pursuant hereto or
thereto, nor the consummation by ATS of the Transactions, nor compliance with
the terms, conditions and provisions hereof or thereof by ATS:
(i) will conflict with, or result in a breach or violation of,
or constitute a default under, any Organic Document of ATS or any
Applicable Law on the part of ATS, or will conflict with, or result in
a breach or violation of, or constitute a default under, or permit the
acceleration of any obligation or liability in, or but for any
requirement of giving of notice or passage of time or both would
constitute such a conflict with, breach or violation of, or default
under, or permit any such acceleration in, any Contractual Obligation
of ATS; or
(ii) will require ATS to make or obtain any Governmental
Authorization, Governmental Filing or Private Authorization including
without limitation under the FCA.
4.2 Broker or Finder. No Person assisted in or brought about the
negotiation of this Agreement or the Transactions in the capacity of broker,
agent or finder or in any similar capacity on behalf of ATS.
-15-
4.3 Solvency. As of the execution and delivery of this Agreement, ATS
is, and immediately prior to and after giving effect to the consummation of the
Transactions will be, solvent.
4.4 No Legal Action. There are no Legal Actions pending or, to the
knowledge of ATS, threatened against ATS or any of its Affiliated Entities,
officers or directors, that question or may affect the validity of this
Agreement or the right of ATS to consummate the transactions contemplated
hereunder.
4.5 Financing. ATS has available, and as of the Closing Date will have
available, sufficient funds to enable it to pay the Purchase Price in full in
accordance with the terms and provisions of Section 2.3.
4.6 ATS Due Diligence Investigation. ATS and its Representatives have
performed a thorough, complete and comprehensive due diligence investigation of
Seller, including without limitation an investigation of Seller's businesses,
operations, properties, fixtures, title to properties, assets (tangible and
intangible), equipment, prospects, personnel, employment arrangements, Seller
Financial Statements, condition (financial or other), books, accounts, financial
records, ledgers, commitments and records (including Tax Returns), work papers
and other sources of financial information possessed or controlled by Seller or
its accountants, contracts, agreements, leases, business environment, the Seller
Disclosure Schedule, and compliance with Governmental Authorizations, Applicable
Laws and Private Authorizations (the "Due Diligence Investigation"). The Due
Diligence Investigation has not revealed to ATS any information, issues, or
concerns which, in its reasonable business judgment, individually or in the
aggregate, materially adversely affects, or is likely to materially adversely
affect, the Seller. ATS and its Representatives represent that Seller fully
cooperated with ATS as it conducted the Due Diligence Investigation and Seller
did not interfere with, limit or impede the Due Diligence Investigation in any
manner whatsoever. ATS also represents that the Due Diligence Investigation has
been performed to its complete satisfaction.
ARTICLE 5
COVENANTS
5.1 Access to Information; Confidentiality.
(a) Seller shall afford to ATS and its accountants, counsel, lenders,
financial advisors and other representatives (the "Representatives") full access
during normal business hours throughout the period prior to the Closing Date to
all of Seller's properties, books, contracts, commitments and records (including
without limitation Tax Returns) relating to the Seller Assets and the Seller
Business and, during such period, shall furnish promptly upon request (i) a copy
of each report, schedule and other document filed or received by any of them
pursuant to the requirements of any Applicable Law or filed by it with any
Authority in connection with the Transactions or which may have an adverse
effect on the Seller Assets or the Seller Business or the businesses,
operations, properties, prospects, personnel, condition (financial or other), or
results of operations thereof, (ii) all financial records, ledgers, work papers
and other sources of financial information possessed and controlled by Seller or
its accountants deemed by ATS or its Representatives necessary or useful for the
purpose of performing an audit of the Seller Assets and the Seller Business and
certifying financial statements and financial information, and (iii) such other
information in the possession or control of Seller or its accountants concerning
any of the foregoing as ATS shall reasonably request; provided, however, that
Seller shall not be required to permit any such access to the extent same would
unreasonably interfere with Seller's normal business operations. All non-public
information relating to the Seller Assets or the Seller Business furnished prior
to the execution, or pursuant to the provisions, of this Agreement, including
without limitation this Section, will be kept confidential and shall not,
without the prior written consent of Seller, be disclosed by ATS in any manner
whatsoever, in whole or in part, and shall not be used for any purposes, other
than in
-16-
connection with the Transactions. In no event shall ATS or any of its
Representatives use such information to the detriment of Seller. ATS agrees to
reveal such information only to those of its Representatives or other Persons
who need to know such information for the purpose of evaluating the
Transactions, who are informed of the confidential nature of such information
and who shall undertake to act in accordance with the terms and conditions of
this Agreement. From and after the Closing, Seller shall not, without the prior
written consent of ATS, disclose any information with respect to the Seller
Assets or the Seller Business, and no such information shall be used for any
purposes, other than in connection with the Transactions or to the extent
required by Applicable Law.
(b) Subject to the terms and conditions of Section 5.1(a), ATS may,
subject to prior consultation with Seller, disclose such information as may be
necessary in connection with seeking all Governmental and Private Authorizations
or that is required by Applicable Law to be disclosed. In the event that this
Agreement is terminated for any reason, ATS shall promptly redeliver all
non-public written material provided pursuant to this Section or any other
provision of this Agreement or otherwise in connection with the Transactions and
shall not retain any copies, extracts or other reproductions in whole or in part
of such written material, other than one copy thereof which shall be delivered
to independent counsel for ATS.
(c) Anything in this Section or elsewhere in this Agreement to the
contrary notwithstanding, either party may disclose information received or
retained by it in accordance with the provisions of this Agreement if it can
demonstrate (i) such information is generally available to or known by the
public from a source other than the party seeking to disclose such information
or (ii) was obtained by the party seeking to disclose such information from a
source other than the other party, provided that such source was not bound by a
duty of confidentiality to the other party or another party with respect to such
information.
(d) No investigation pursuant to this Section or otherwise shall affect
any representation or warranty in this Agreement of either party or any
condition to the obligations of the parties hereto, except as set forth in
Section 8.3(e).
5.2 Agreement to Cooperate.
(a) Each of the parties hereto shall use reasonable business efforts
(x) to take, or cause to be taken, all actions and to do, or cause to be done,
all things necessary, proper or advisable under Applicable Law to consummate the
Transactions, and (y) to refrain from taking, or cause to be taken, any action
and to refrain from doing or causing to be done, any thing which could impede or
impair the consummation of the Transactions, including, in all cases, without
limitation using its reasonable business efforts (i) to prepare and file with
the applicable Authorities as promptly as practicable after the execution of
this Agreement all requisite applications and amendments thereto, together with
related information, data and exhibits, necessary to request issuance of orders
approving the Transactions by all such applicable Authorities, each of which
must be obtained or become final to the extent provided in Section 6.1(a), (ii)
to obtain all necessary or appropriate waivers, consents and approvals,
including without limitation those referred to in Section 6.2(d), (iii) to
effect all necessary registrations, filings and submissions (including without
limitation all filings necessary for ATS to own and operate the Seller Assets
and conduct the Seller Business), (iv) to lift any injunction or other legal bar
to the Transactions (and, in such case, to proceed with the Transactions as
expeditiously as possible), and (v) to obtain the satisfaction of the conditions
specified in Article 6, including without limitation the truth and correctness
as of the Closing Date as if made on and as of the Closing Date of the
representations and warranties of such party and the performance and
satisfaction as of the Closing Date of all agreements and conditions to be
performed or satisfied by such party.
(b) The parties shall cooperate with one another in the preparation,
execution and filing of all Tax Returns, questionnaires, applications, or other
documents regarding any real property transfer or gains,
-17-
sales, use, transfer, value added, stock transfer and stamp Taxes, any transfer,
recording, registration and other fees, and any similar Taxes which become
payable in connection with the Transactions that are required or permitted to be
filed on or before the Closing Date.
(c) Seller shall cooperate and use its reasonable business efforts to
cause its independent accountants to reasonably cooperate with ATS, and at ATS'
expense, in order to enable ATS to have its independent accountants prepare
audited financial statements for the Seller Business described in Section
6.2(g). Without limiting the generality of the foregoing, Seller agrees that
after the Closing Date it will (x) consent to the use of such audited financial
statements in any registration statement or other document filed by ATS or any
Affiliate of ATS under any applicable federal or state securities Law the
Securities Act or the Exchange Act and (y) execute and deliver, and cause its
directors and officers to execute and deliver, such "representation" letters as
are customarily delivered in connection with audits and as ATS' independent
accountants may reasonably request under the circumstances.
(d) Seller shall use its best efforts to diligently conduct and
conclude the Negotiations for the benefit of ATS, or to enter into or present to
ATS for execution and delivery the Santee ▇▇▇▇▇▇ Contract, as the case may be,
and conduct the Negotiations or the negotiations with respect to the Santee
▇▇▇▇▇▇ Contract in at least a manner as if the Negotiations or execution and
delivery of the Santee ▇▇▇▇▇▇ Contract were for the sole and exclusive benefit
of Seller. ATS agrees to cooperate and support, both before and after the
Closing Date, Seller's efforts with respect to the foregoing.
5.3 Public Announcements. Until the Closing, or in the event of
termination of this Agreement, and except as required to obtain third party
consents pursuant to this Agreement, Seller and ATS shall consult with the other
before issuing any press release or otherwise making any public statements with
respect to this Agreement or the Transactions and shall not issue any such press
release or make any such public statement without the prior consent of the
other. Notwithstanding the foregoing, each party acknowledges and agrees that
Seller and ATS may, without its prior consent, issue such press releases or make
such public statements as may be required by Applicable Law, in which case, to
the extent practicable, the party proposing to make such press release or public
statement will consult with the other regarding the nature, extent and form of
such press release or public statement. In addition, subject to the terms and
conditions hereof, ATS may disclose the subject matter of this Agreement to
Persons with whom Seller has a business or contractual relationship in
connection with ATS' due diligence investigation of Seller.
5.4 Notification of Certain Matters. Each party shall give prompt
notice to the other, of the occurrence or non-occurrence of any Event the
occurrence or non-occurrence of which would be likely to cause (i) any
representation or warranty made by it contained in this Agreement to be untrue
or inaccurate in any respect such that one or more of the conditions of Closing
might not be satisfied, or (ii) any covenant, condition or agreement made by it
contained in this Agreement not to be complied with or satisfied, or (iii) any
change to be made in the Seller Disclosure Schedule in any respect such that one
or more of the conditions of Closing might not be satisfied, and any failure
made by it to comply with or satisfy, or be able to comply with or satisfy, any
covenant, condition or agreement to be complied with or satisfied by it
hereunder in any respect such that one or more of the conditions of Closing
might not be satisfied; provided, however, that the delivery of any notice
pursuant to this Section shall not limit or otherwise affect the remedies
available hereunder to the party receiving such notice.
5.5 No Solicitation. Seller shall not, nor shall it knowingly permit
any of its Representatives (including, without limitation, any investment
banker, broker, finder, attorney or accountant retained by it) to, initiate,
solicit or facilitate, directly or indirectly, any inquiries or the making of
any proposal with respect to any Alternative Transaction, engage in any
discussions or negotiations concerning, or provide to any other Person any
information or data relating to it for the purposes of, or otherwise cooperate
in any way with or
-18-
assist or participate in, or facilitate any inquiries or the making of any
proposal which constitutes, or may reasonably be expected to lead to, a proposal
to seek or effect any Alternative Transaction, or agree to or endorse any
Alternative Transaction. "Alternative Transaction" means a transaction or series
of related transactions (other than the Transactions) resulting in (i) any
merger or consolidation, regardless of whether Seller is the surviving Entity
unless the surviving Entity remains obligated under this Agreement to the same
extent as it was, or (ii) any sale or other disposition of all or any
substantial part of the Seller Assets or the Seller Business. The provisions of
this Section shall apply to each of Seller's Subsidiaries. If Seller or any of
its Representatives receives any inquiry with respect to an Alternative
Transaction while this Agreement is in effect, Seller shall inform the inquiring
party that it is not entitled to enter into discussions or negotiations relating
to an Alternative Transaction.
5.6 Conduct of Business by Seller Pending the Closing. Except as
otherwise contemplated by this Agreement, after the date hereof and prior to the
Closing Date or earlier termination of this Agreement, unless ATS shall
otherwise agree in writing, Seller shall, to the extent relating to the Seller
Business or the Seller Assets:
(a) conduct its business in the ordinary and usual course of
business and consistent with past practice, including without
limitation the performance of such maintenance, repairs or replacements
with respect to communication towers, fixtures and Personal Property
comprising the Seller Assets as is consistent with past practice;
(b) use all reasonable business efforts to preserve intact its
business organizations and goodwill, keep available the services of its
present key employees, and preserve the goodwill and business
relationships with customers and others having business relationships
with it;
(c) confer, as and when reasonably requested, on a regular and
frequent basis with one or more representatives of ATS to report
material operational matters and the general status of ongoing
operations;
(d) maintain with financially responsible insurance companies
insurance on its assets and its business in such amounts and against
such risks and losses as are consistent with past practice;
(e) use reasonable business efforts to (i) operate the Seller
Business in conformity in all material respects with all Governmental
and Private Authorizations, Leases and Material Agreements on a basis
consistent with past practice and Applicable Law and the rules and
regulations of any Authority with jurisdiction over the Seller Assets
or the Seller Business, and (ii) maintain in full force and effect all
such Governmental and Private Authorizations, Leases and Material
Agreements relating to the Seller Business;
(f) not (i) dispose of any of the Seller Assets owned by
Seller or used in the operation of the Seller Business (other than for
the disposition in the ordinary course of business of immaterial assets
that are of no further use to the Seller Business) or (ii) modify or
change in any material respect, or enter into, any Material Agreement
relating to the Seller Business; and
(g) not voluntarily take any action which if taken between the
end of its most recent fiscal quarter and prior to the date of this
Agreement would have been required to be noted as an exception on
Section 3.17 of the Seller Disclosure Schedule.
With respect to any transaction or act proposed to be entered into or performed
by Seller which, pursuant to Sections 5.6(a) through 5.6(g), requires the prior
approval of ATS, ATS shall be deemed to have approved
-19-
same unless written notice of disapproval is received by Seller within five (5)
business days after receipt by ATS of a written request for approval made by
Seller.
ARTICLE 6
CLOSING CONDITIONS
6.1 Conditions to Obligations of Each Party to effect the Transactions.
The respective obligations of each party to effect the Transactions shall,
except as hereinafter provided in this Section, be subject to the satisfaction
at or prior to the Closing Date of the following conditions, any or all of which
may be waived, in whole or in part, to the extent permitted by Applicable Law:
(a) As of the Closing Date, no Legal Action shall be pending
before or threatened in writing by any Authority seeking to enjoin,
restrain, prohibit or make illegal or to impose any materially adverse
conditions in connection with, the consummation of the Transactions, it
being understood and agreed that a written request by any Authority for
information with respect to the Transactions, which information could
be used in connection with such Legal Action, shall not in itself be
deemed to be a threat of any such Legal Action; and
(b) All authorizations, consents, waivers, orders or approvals
required to be obtained from all Authorities, and all filings,
submissions, registrations, notices or declarations required to be made
by ATS and Seller with any Authority, prior to the consummation of the
Transactions, shall have been obtained from, and made with, all such
Authorities, except for such authorizations, consents, waivers, orders,
approvals, filings, registrations, notices or declarations or the
failure to obtain or make would not, in the reasonable business
judgment of ATS, have a material adverse effect on the Seller Assets or
the Seller Business.
6.2 Conditions to Obligations of ATS. The obligation of ATS to effect
the Transactions shall be subject to the satisfaction of the following
conditions, any or all of which may be waived, in whole or in part, to the
extent permitted by Applicable Law:
(a) All agreements, certificates, opinions and other documents
required to be delivered pursuant to the provisions of this Agreement
shall be reasonably satisfactory in form, scope and substance to ATS
and its counsel, and ATS and its counsel shall have received all
information and copies of all documents, including records of corporate
proceedings, which they may reasonably request in connection therewith,
such documents where appropriate to be certified by proper Authorities
or corporate officers;
(b) Seller shall have furnished ATS and, at ATS' request, any
bank or other financial institution providing credit to ATS, with a
favorable opinion, dated the Closing Date of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A.,
counsel for Seller, or other counsel reasonably acceptable to ATS, with
respect to the matters set forth in Sections 3.1(a), (b) and (c),
3.7(b) and 3.14, and such other matters arising after the date of this
Agreement and incident to the Transactions, as ATS or its counsel or
its counsel may reasonably request or which may be reasonably requested
by any such bank or financial institution or their respective counsel;
(c) The representations and warranties of Seller contained in
this Agreement or otherwise made in writing by it or on its behalf
pursuant hereto or otherwise made in connection with the Transactions
shall be true and correct in all material respects at and as of the
Closing Date with
-20-
the same force and effect as though made on and as of such date except
those which speak as of a certain date which shall continue to be true
and correct in all material respects as of such date on the Closing
Date (including without limitation giving effect to any later obtained
knowledge of Seller or ATS, except as otherwise specifically provided
herein); each and all of the agreements and conditions to be performed
or satisfied by Seller hereunder at or prior to the Closing Date shall
have been duly performed or satisfied in all material respects; and
Seller shall have furnished ATS with such certificates and other
documents evidencing the truth of such representations, warranties,
covenants and agreements and the performance of such agreements or
conditions as ATS or its counsel shall have reasonably requested;
(d) All authorizations, consents, waivers, orders or approvals
required by the provisions of this Agreement to be obtained from all
Persons (other than Authorities) prior to the consummation of the
Transactions, including without limitation those required by the
provisions of this Agreement in order to vest fully in ATS all right,
title and interest in and to all of the Seller Assets and the Seller
Business (including without limitation all Private Authorizations,
Leases and Material Agreements of Seller and, at the cost and expense
of Seller, all modifications of Leases and other Contractual
Obligations heretofore requested by ATS and set forth in Section 6.2(d)
of the Seller Disclosure Schedule) and the full enjoyment thereof shall
have been obtained, without the imposition, individually or in the
aggregate, of any condition or requirement which could adversely affect
ATS;
(e) Between the date of this Agreement and the Closing Date,
there shall not have occurred and be continuing any material adverse
change in Seller from that reflected in the most recent Seller
Financial Statements; as of the Closing Date, the Governmental
Authorizations with respect to the ownership or operation of the Seller
Assets or the conduct of the Seller Business shall not have been
materially and adversely affected by any act, or failure to act, of
Seller;
(f) Seller shall have delivered or cause to be delivered to
ATS all of the Collateral Documents and other agreements, documents and
instruments required to be delivered by Seller to ATS at or prior to
the Closing pursuant to the terms of this Agreement;
(g) ATS shall have received from Seller such documentation as
shall be reasonably satisfactory to ATS indicating that an unqualified
report with respect to the financial statements of Seller could be
issued if requested by ATS;
(h) As of the Closing Date, except as otherwise set forth in
Section 3.7(a) of the Seller Disclosure Schedule, no Legal Action shall
be pending before or threatened in writing by any Authority which
might, in the reasonable business judgment of ATS, based upon the
advice of counsel, have a material adverse effect on the Seller Assets
and the Seller Business, it being understood and agreed that a written
request by any Authority for information with respect to the
Transactions, which information could be used in connection with such
Legal Action, shall not be deemed to be a threat of any such Legal
Action;
(i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Seller and Tower, Inc. shall have
executed and delivered to ATS an agreement substantially in the form of
Exhibit B attached hereto and made a part hereof (the "ATS
Noncompetition Agreement"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ shall have executed and
delivered to ATS an agreement substantially in the form of Exhibit C
attached hereto and made a part hereof (the "ATS Employment
Agreement");
(j) The Phase I Environmental Reports received by ATS with
respect to real property owned or leased by Seller that is part of the
Seller Assets shall not indicate any exceptions which
-21-
would indicate a breach of warranty or misrepresentation (without
regard to the knowledge qualification) of Seller set forth in Section
3.21;
(k) Seller and each of the escrow agents named therein (the
"Indemnity Escrow Agents") shall have executed and delivered to ATS an
indemnity agreement (the "Indemnity Escrow Agreement") substantially in
the form of Exhibit D attached hereto and made a part hereof;
(l) The title reports and/or CTLA title insurance policies
received by ATS with respect to real property owned by Seller that is
part of the Seller Assets shall not indicate any exceptions which would
indicate a breach of warranty or misrepresentation (without regard to
the knowledge qualification) of Seller set forth in Section 3.5; and
(m) Seller shall have executed and delivered to ATS an
agreement, in form, scope and substance reasonably satisfactory to ATS
(the "Nonassignable Contracts Agreement"), pursuant to which (i) Seller
will hold (but will have no obligation to perform services thereunder)
for the account of ATS, and remit promptly to ATS all amounts received
pursuant to the provisions of, all of the Nonassignable Contracts as to
which the required approval or consent to the assignment or transfer of
which was not obtained and as to which ATS has delivered an Acceptance
Notice, and (ii) ATS will agree to (A) perform all services required to
be performed under such Nonassignable Contracts, (B) reimburse Seller
for all costs and expenses reasonably incurred pursuant to the
Nonassignable Contracts Agreement and (C) indemnify and hold harmless
Seller with respect to all actions taken by ATS pursuant thereto and
all actions, if any, taken by Seller pursuant thereto other than those
relating to the bad faith, negligence or willful misconduct of Seller
or its officers, directors, stockholders or employees.
6.3 Conditions to Obligations of Seller. The obligation of Seller to
effect the Transactions shall be subject to the satisfaction of the following
conditions, any or all of which may be waived, in whole or in part, to the
extent permitted by Applicable Law:
(a) All agreements, certificates, opinions and other documents
required to be delivered pursuant to the provisions of this Agreement
shall be reasonably satisfactory in form, scope and substance to Seller
and its counsel, and Seller and its counsel shall have received all
information and copies of all documents, including records of corporate
proceedings, which they may reasonably request in connection therewith,
such documents where appropriate to be certified by proper Authorities
or corporate officers;
(b) ATS shall have furnished Seller and, at Seller's request,
any bank of other financial institution providing credit to Seller,
with favorable opinions, dated the Closing Date of ▇▇▇▇▇▇▇▇ & Worcester
LLP, counsel for ATS, with respect to the matters set forth in Section
4.1 and with respect to such other matters arising after the date of
this Agreement and incident to the Transactions, as Seller or its
counsel may reasonably request or which may be reasonably requested by
any such bank or financial institution or their respective counsel;
(c) The representations and warranties of ATS contained in
this Agreement or otherwise made in writing by it or on its behalf
pursuant hereto or otherwise made in connection with the Transactions
shall be true and correct in all material respects at and as of the
Closing Date with the same force and effect as though made on and as of
such date except those which speak as of a certain date which shall
continue to be true and correct in all material respects as of such
date on the Closing Date (including without limitation giving effect to
any later obtained knowledge of Seller or ATS, except as otherwise
specifically provided herein); each and all of the agreements and
conditions to
-22-
be performed or satisfied by ATS hereunder at or prior to the Closing
Date shall have been duly performed or satisfied in all material
respects; and ATS shall have furnished Seller with such certificates
and other documents evidencing the truth of such representations,
warranties, covenants and agreements and the performance of such
agreements or conditions as Seller or its counsel shall have reasonably
requested;
(d) ATS shall have delivered or cause to be delivered to
Seller all of the Collateral Documents and other agreements, documents
and instruments required to be delivered by ATS to Seller at or prior
to the Closing pursuant to the terms of this Agreement;
(e) ATS shall have executed and delivered to Seller a
counterpart of the ATS Employment Agreement; and
(f) ATS shall have executed and delivered to Seller the
Nonassignable Contracts Agreement.
ARTICLE 7
TERMINATION, AMENDMENT AND WAIVER
7.1 Termination. This Agreement may be terminated at any time prior to
the Closing Date:
(a) by mutual consent of Seller and ATS;
(b) by either ATS or Seller if any permanent injunction,
decree or judgment by any Authority preventing the consummation of the
Transactions shall have become final and nonappealable; or
(c) by Seller in the event (i) Seller is not in material
breach of this Agreement and none of its representations or warranties
shall have become and continue to be untrue in any material respect,
and (ii) either (A) the Transactions have not been consummated prior to
the Termination Date or (B) ATS is in material breach of this Agreement
or any of its representations or warranties shall have become and
continue to be untrue in any material respect, and such a breach or
untruth exists and is not capable of being cured by and will prevent or
delay consummation of the Transactions by or beyond the Termination
Date; or
(d) by ATS in the event (i) ATS is not in material breach of
this Agreement and none of its representations or warranties shall have
become and continue to be untrue in any material respect, and (ii)
either (A) the Transactions have not been consummated prior to the
Termination Date or (B) Seller is in material breach of this Agreement
or any of its representations or warranties shall have become and
continue to be untrue in any material respect, and such a breach or
untruth exists and is not capable of being cured by and will prevent or
delay consummation of the Transactions by or beyond the Termination
Date; or
The term "Termination Date" shall mean May 31, 1997 or such other date
as the parties may, from time to time, mutually agree.
The right of ATS or Seller to terminate this Agreement pursuant to this
Section shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of either party, any Person
-23-
controlling any such party or any of their respective Representatives whether
prior to or after the execution of this Agreement.
7.2 Effect of Termination.
(a) Except as provided in Sections 5.1 (with respect to
confidentiality), 5.3 and 9.3 and this Section, in the event of the termination
of this Agreement pursuant to Section 7.1, or in the event the Transactions
shall not have been consummated prior to the end of business on the Termination
Date, this Agreement shall forthwith become void, there shall be no liability on
the part of either party, or any of their respective shareholders, officers or
directors, to the other and all rights and obligations of either party shall
cease; provided, however, that such termination shall not relieve either party
from liability for any misrepresentation or breach of any of its warranties,
covenants or agreements set forth in this Agreement.
(b) In the event this Agreement is terminated by Seller or ATS pursuant
to the provisions of Section 7.1(c) or 7.1(d), respectively, then Seller or ATS,
as the terminating party, shall be entitled to liquidated damages of an amount
equal to the Escrow Deposit, together with interest and other earnings thereon,
or $100,000, as the case may be, it being agreed that such amount shall
constitute full payment for any and all damages suffered by Seller or ATS by
reason of the other's failure to consummate the Transactions. ATS and Seller
agree in advance that actual damages would be difficult to ascertain and that
such liquidated damages is a fair and equitable amount to reimburse Seller for
damages sustained due to ATS' failure to consummate the Transactions for the
above-stated reasons. In addition, in the event this Agreement is terminated by
ATS pursuant to the provisions of Section 7.1(d), then ATS shall be entitled to
a return of the Escrow Deposit, together with interest and other earnings
thereon, together with without prejudice to ATS' right to pursue specific
performance hereunder. Notwithstanding the foregoing, each party shall have the
right to seek specific performance pursuant to the provisions of Section 9.5.
(c) In the event this Agreement is terminated pursuant to the
provisions of Section 7.1(a) or 7.1(b), except as provided in Section 7.2(a),
neither of the parties shall have any further rights or remedies, except that
ATS shall be entitled to the Escrow Deposit, together with interest and earnings
thereon.
ARTICLE 8
INDEMNIFICATION
8.1 Survival. The representations and warranties of the parties
contained in or made pursuant to this Agreement or any Collateral Document shall
survive the Closing and shall remain operative and in full force and effect for
a period ending on the later of (i) one (1) year from the Closing Date or (ii)
the earlier of (x) the termination of all negotiations with Santee ▇▇▇▇▇▇ or (y)
the acquisition by ATS (or Seller) of the Utility Assets or the execution and
delivery of the Santee ▇▇▇▇▇▇ Contract, irrespective of the application of any
applicable statute of limitations. The covenants and agreements of the parties
contained in or made pursuant to this Agreement or any Collateral Document shall
survive the Closing and shall remain operative and in full force and effect for
the statute of limitations applicable to contractual obligations. The term
"Indemnity Period" shall mean the applicable period with respect to which a
representation, warranty, covenant or agreement survives the Closing as provided
in this Section. No claim for indemnification, other than with respect to fraud
or intentional and willful breach or misrepresentation, may be asserted after
the expiration of the Indemnity Period. Notwithstanding anything herein to the
contrary, any representation, warranty, covenant and agreement which arises and
is the subject of a Claim which is asserted in writing prior to the expiration
of the applicable Indemnity Period shall survive with respect to such Claim or
any dispute with respect thereto until the final resolution thereof.
-24-
8.2 Indemnification. Each of Seller and ATS (the "indemnifying party")
agrees that on and after the Closing it shall indemnify and hold harmless the
other (the "indemnified party") from and against any and all damages, claims,
losses, expenses, costs, obligations and liabilities, including without
limitation liabilities for all reasonable attorneys', accountants' and experts'
fees and expenses including those incurred to enforce the terms of this
Agreement or any Collateral Document executed by it (collectively, "Loss and
Expense"), suffered, directly or indirectly, by the indemnified party by reason
of, or arising out of:
(a) any breach of representation or warranty made by the
indemnifying party pursuant to this Agreement or any Collateral
Document executed by it or any failure by the indemnifying party to
perform or fulfill any of its respective covenants or agreements set
forth in this Agreement or any Collateral Document executed by it; or
(b) any Legal Action or other Claim by any third party
relating to the indemnifying party or, in the case of ATS, the
ownership or operations of the Seller Assets or the conduct of the
business of the Seller Business to the extent such Legal Action or
other Claim has also resulted in a breach of representation or warranty
by the indemnifying party pursuant to this Agreement or any Collateral
Document executed by it; or
(c) in the case of Seller as the indemnifying party, the
failure of Seller to comply with Bulk Sales law of the South Carolina;
or
(d) in the case of Seller as the indemnifying party, by reason
of, or arising out of, (i) Seller Nonassumed Obligations or (ii) the
ownership and operation of the Seller Assets and the Seller Business
prior to the Closing Date; or
(e) in the case of ATS as the indemnifying party, by reason
of, or arising out of, (i) Seller Assumed Obligations or (ii) the
ownership and operation of the Seller Assets and the Seller Business
from and after the Closing Date, except for Events arising prior to or
existing on the Closing Date, unless they are part of the Seller
Assumed Obligations.
8.3 Limitation of Liability.
(a) Notwithstanding the provisions of Section 8.2, after the Closing,
except as otherwise provided in Section 8.6, each indemnified party's rights to
indemnification shall be subject to the following limitations: (i) the
indemnified party shall be entitled to recover its Loss and Expense in respect
of any Claim only in the event that the aggregate Loss and Expense for all
Claims exceeds, in the aggregate, $25,000, in which event the indemnified party
shall be entitled to recover all such Loss and Expense (including without
limitation such $25,000), and (ii) in no event shall the aggregate amount
required to be paid by each indemnifying party pursuant to the provisions of
this Article exceed the sum of (x) $100,000 plus (y) in the event ATS acquires
the Utility Assets or enters into the Santee ▇▇▇▇▇▇ Contract, an amount equal to
the lesser of (I) $200,000 or (II) the Utility Asset Price or the Utility
Management Price, as the case may be, except for any Loss or Expense arising out
of matters of a nature referred to in Sections 3.1(b), 3.1(c) and 4.1 as to
which the limitations set forth in this clause (ii) shall not apply.
(b) Anything in this Agreement, including without limitation the
provisions of Sections 8.2 or 8.3(a), to the contrary notwithstanding, except as
provided in Section 8.6, (i) the exclusive recourse of ATS after the Closing
with respect to the liability of Seller pursuant to Section 8.2 or any other
provision of this Agreement or Applicable Law which requires Seller to defend,
indemnify or hold harmless ATS from or against any Claim, Loss or Expense shall
be (x) the Escrow Indemnity Funds (including interest or other
-25-
earnings thereon) and (y) in the event ATS acquires the Utility Assets or enters
into the Santee ▇▇▇▇▇▇ Contract, the Utility Asset Price or the Utility
Management Price, as the case may be, to the extent provided in clause (y) of
Section 8.3(a); and (ii) ATS' remedies for any such liability of Seller, or for
any Claim arising under this Agreement, shall be limited to its right to recover
from (x) the Escrow Indemnity Funds in accordance with the provisions of the
Escrow Indemnity Agreement and (y) the Utility Asset Price or the Utility
Management Price, as the case may be, to the extent provided in clause (y) of
Section 8.3(a), and neither ATS nor any of its officers, directors,
shareholders, agents or Affiliated Entities shall have any right of recovery
against Seller or any of its officers, directors, shareholders, agents or
Affiliated Entities or against the assets of any of them for any such liability.
(c) In the event there shall be no Claims pursuant to the provisions of
this Agreement with respect to the Escrow Indemnity Funds, if any, existing at
the expiration of one (1) year after the Closing, the Escrow Indemnity Funds
then remaining (together with any then existing interest or earnings) shall be
distributed to the Persons entitled thereto. In the event one or more such
Claims with respect to the Escrow Indemnity Funds, if any, shall exist upon the
expiration of the Indemnity Period, funds in an amount equal to the sum of (i)
the aggregate amount of such Claims and (ii) the amount reasonably determined by
ATS to be necessary to cover the fees, expense and other costs which will be
required to resolve such Claims shall be retained as part of the Escrow
Indemnity Funds and the balance thereof, if any, shall be distributed to the
Persons entitled thereto. Upon the resolution of all such Claims and the payment
of all such fees, expenses and costs out of the Escrow Indemnity Funds, the
remainder of the Escrow Indemnity Funds, if any, shall be distributed to the
Persons entitled thereto.
(d) In the case any event shall occur which would otherwise entitle
either party to assert a claim for indemnification hereunder, no Loss and
Expense shall be deemed to have been sustained by such party to the extent of
any proceeds received by such party from any insurance policies with respect
thereto.
8.4 Notice of Claims. If an indemnified party believes that it has
suffered or incurred any Loss and Expense, it shall notify the indemnifying
party promptly in writing, and in any event within the applicable time period
specified in Section 8.1, describing such Loss and Expense, all with reasonable
particularity and containing a reference to the provisions of this Agreement in
respect of which such Loss and Expense shall have occurred. If any Legal Action
is instituted by a third party with respect to which an indemnified party
intends to claim any liability or expense as Loss and Expense under this
Article, such indemnified party shall promptly notify the indemnifying party of
such Legal Action, but the failure to so notify the indemnifying party shall not
relieve such indemnifying party of its obligations under this Article, except to
the extent such failure to notify prejudices such indemnifying party's ability
to defend against such Claim.
8.5 Defense of Third Party Claims. The indemnifying party shall have
the right to conduct and control, through counsel of their own choosing,
reasonably acceptable to the indemnified party, any third party Legal Action or
other Claim, but the indemnified party may, at its election, participate in the
defense thereof at its sole cost and expense; provided, however, that if the
indemnifying party shall fail to defend any such Legal Action or other Claim,
then the indemnified party may defend, through counsel of its own choosing, such
Legal Action or other Claim, and (so long as it gives the indemnifying party at
least fifteen (15) days' notice of the terms of the proposed settlement thereof
and permits the indemnifying party to then undertake the defense thereof) settle
such Legal Action or other Claim and to recover the amount of such settlement or
of any judgment and the reasonable costs and expenses of such defense. The
indemnifying party shall not compromise or settle any such Legal Action or other
Claim without the prior written consent of the indemnified party, which consent
shall not be unreasonably withheld, delayed or conditioned if the terms and
conditions of such compromise or settlement proposed by the indemnifying party
and agreed to in writing by the claimant in such Legal Action or other Claim
(the "Settlement Proposal") (a) include a full release of the indemnified party
from the Legal Action or other Claim which is the subject of the Settlement
-26-
Proposal, and (b) if the indemnified party is ATS, do not include any term or
condition which would restrict in any material manner the continued ownership or
operations of the Seller Assets or the conduct of the Seller Business in
substantially the manner then being theretofore owned, operated and conducted by
ATS.
8.6 Exclusive Remedy. Except for fraud, willful or intentional
misrepresentation or willful or intentional breach of warranty, covenant or
agreement or as otherwise provided in Section 9.5, the indemnification provided
in this Article shall be the sole and exclusive post-Closing remedy available to
either party against the other party for any Claim under this Agreement.
ARTICLE 9
GENERAL PROVISIONS
9.1 Amendment. This Agreement may be amended from time to time by the
parties hereto at any time prior to the Closing Date but only by an instrument
in writing signed by the parties hereto.
9.2 Waiver. At any time prior to the Closing Date, except to the extent
not permitted by Applicable Law, ATS or Seller may extend the time for the
performance of any of the obligations or other acts of the other, subject,
however, to the provisions with respect to the Termination Date, waive any
inaccuracies in the representations and warranties of the other contained herein
or in any document delivered pursuant hereto, and waive compliance by the other
with any of the agreements, covenants or conditions contained herein. Any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
9.3 Fees, Expenses and Other Payments. All costs and expenses, incurred
in connection with any transfer taxes, sales taxes, recording or documentary
taxes, stamps or other charges levied by any Authority in connection with this
Agreement and the consummation of the Transactions shall be borne by ATS up to
an aggregate of $15,000 and, any amount in excess thereof, equally by Seller and
ATS. All other costs and expenses incurred in connection with this Agreement and
the consummation of the Transactions, including without limitation fees and
disbursements of counsel, financial advisors and accountants incurred by the
parties hereto, shall be borne solely and entirely by the party which has
incurred such costs and expenses.
9.4 Notices. All notices and other communications which by any
provision of this Agreement are required or permitted to be given shall be given
in writing and shall be (a) mailed by first-class or express mail, or by
recognized courier service, postage prepaid, (b) sent by telex, telegram,
telecopy or other form of rapid transmission, confirmed by mailing (by first
class or express mail, or by recognized courier service, postage prepaid)
written confirmation at substantially the same time as such rapid transmission,
or (c) personally delivered to the receiving party (which if other than an
individual shall be an officer or other responsible party of the receiving
party). All such notices and communications shall be mailed, sent or delivered
as follows:
-27-
(a) If to ATS:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Operating Officer and
Chief Financial Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
American Radio Systems Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Chief Financial Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇▇ & Worcester LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to Seller:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other person(s), telex or facsimile number(s) or address(es) as the
party to receive any such communication or notice may have designated by written
notice to the other party.
9.5 Specific Performance; Other Rights and Remedies. Each party
recognizes and agrees that in the event the other party should refuse to perform
any of its obligations under this Agreement or any Collateral Document, the
remedy at law would be inadequate and agrees that for breach of such provisions,
each party shall, in addition to such other remedies as may be available to it
at law or in equity or as provided in Article 7, be entitled to injunctive
relief and to enforce its rights by an action for specific performance to the
extent permitted by Applicable Law. Each party hereby waives any requirement for
security or the post ing of any bond or other surety in connection with any
temporary or permanent award of injunctive,
-28-
mandatory or other equitable relief. Nothing herein contained shall be construed
as prohibiting each party from pursuing any other remedies available to it
pursuant to the provisions of, and subject to the limitations contained in, this
Agreement for such breach or threatened breach. Notwithstanding the foregoing or
any provision of this Agreement to the contrary, after the Closing Date ATS
shall not be entitled to specific performance or any other remedy to the extent
that the cost to Seller arising from the enforcement or exercise of such remedy
would exceed the amount of the Escrow Indemnity Funds, in accordance with the
provisions of the Escrow Indemnity Agreement, for all costs and expenses
incurred in connection with its performance of or compliance with the remedy
exercised or enforced.
9.6 Severability. If any term or provision of this Agreement shall be
held or deemed to be, or shall in fact be, invalid, inoperative, illegal or
unenforceable as applied to any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions or in all cases, because of the
conflicting of any provision with any constitution or statute or rule of public
policy or for any other reason, such circumstance shall not have the effect of
rendering the provision or provisions in question invalid, inoperative, illegal
or unenforceable in any other jurisdiction or in any other case or circumstance
or of rendering any other provision or provisions herein contained invalid,
inoperative, illegal or unenforceable to the extent that such other provisions
are not themselves actually in conflict with such constitution, statute or rule
of public policy, but this Agreement shall be reformed and construed in any such
jurisdiction or case as if such invalid, inoperative, illegal or unenforceable
provision had never been contained herein and such provision reformed so that it
would be valid, operative and enforceable to the maximum extent permitted in
such jurisdiction or in such case. Notwithstanding the foregoing, in the event
of any such determination the effect of which is to affect materially and
adversely either party, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible to the fullest extent permitted by Applicable Law in an acceptable
manner to the end that the Transactions are fulfilled and consummated to the
maximum extent possible.
9.7 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, binding upon all of the
parties. In pleading or proving any provision of this Agreement, it shall not be
necessary to produce more than one of such counterparts.
9.8 Section Headings. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
9.9 Governing Law; Venue. The validity, interpretation, construction
and performance of this Agreement shall be governed by, and construed in
accordance with, the applicable laws of the United States of America and the
laws of the State of South Carolina applicable to contracts made and performed
in such State and, in any event, without giving effect to any choice or conflict
of laws provision or rule that would cause the application of domestic
substantive laws of any other jurisdiction. Anything in this Agreement to the
contrary notwithstanding, including without limitation the provisions of Article
8, in the event of any dispute between the parties which results in a Legal
Action, the prevailing party shall be entitled to receive from the
non-prevailing party reimbursement for reasonable legal fees and expenses
incurred by such prevailing party in such Legal Action. Venue for all actions
arising hereunder shall be in the Federal District Court sitting in Columbia,
South Carolina, and the parties agree to submit to the jurisdiction of such
court.
9.10 Further Acts. Each party agrees that at any time, and from time to
time, before and after the consummation of the transactions contemplated by this
Agreement, it will do all such things and execute and deliver all such
Collateral Documents and other assurances, as any other party or its counsel
reasonably deems necessary or desirable in order to carry out the terms and
conditions of this Agreement and the
-29-
transactions contemplated hereby or to facilitate the enjoyment of any of the
rights created hereby or to be created hereunder.
9.11 Entire Agreement. This Agreement (together with the Seller
Disclosure Schedule and the other Collateral Documents delivered in connection
herewith), constitutes the entire agreement of the parties and supersedes all
prior agreements and undertakings, both written and oral, between the parties,
with respect to the subject matter hereof, including without limitation that
certain letter of intent, dated December 19, 1996, between the parties.
9.12 Assignment. This Agreement shall not be assignable by either party
and any such assignment shall be null and void, except that it shall inure to
the benefit of and by binding upon any successor to any party by operation of
law, including by way of merger, consolidation or sale of all or substantially
all of its assets, and ATS may assign its rights and remedies hereunder to any
bank or other financial institution which has loaned funds or otherwise extended
credit to it.
9.13 Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each party, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any Person any right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement,
except as otherwise provided in Section 9.12.
9.14 WAIVER OF TRIAL BY JURY. SELLER AND ATS HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN.
9.15 Mutual Drafting. This Agreement is the result of the joint efforts
of Seller and ATS, and each provision hereof has been subject to the mutual
consultation, negotiation and agreement of the parties and there shall be no
construction against either party based on any presumption of that party's
involvement in the drafting thereof.
-30-
IN WITNESS WHEREOF, ATS and Seller have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
American Tower Systems, Inc.
By:
Name:
Title:
Towers L.L.C.
By:
Name:
Title:
-31-
APPENDIX A
DEFINITIONS
As used in this Agreement, unless the context otherwise requires, the
following terms (or any variant in the form thereof) have the following
respective meanings. Terms defined in the singular shall have a comparable
meaning when used in the plural, and vice versa, and the reference to any gender
shall be deemed to include all genders. Unless otherwise defined or the context
otherwise clearly requires, terms for which meanings are provided herein shall
have such meanings when used in the Seller Disclosure Schedule, and each
Collateral Document executed or required to be executed pursuant hereto or
thereto or otherwise delivered, from time to time, pursuant hereto or thereto.
References to "hereof", "herein" or similar terms are intended to refer to the
Agreement as a whole and not a particular Section, and references to "this
Section" are intended to refer to the entire Section and not a particular
subsection thereof. The term "either party" shall, unless the context otherwise
requires, refer to Seller and ATS.
Acceptance Notice shall have the meaning given to it in Section 2.2(c).
Accounts Receivable shall mean (a) any and all rights to the payment of
money or other forms of consideration of any kind at any time now or hereafter
owing or to be owing to Seller attributable to the ownership or operation of the
Seller Business (whether classified under the Uniform Commercial Code of any
state as accounts, contract rights, chattel paper, general intangibles or
otherwise), including without limitation accounts receivable, letters of credit
and the right to receive payment thereunder, chattel paper, insurance proceeds,
contract rights, notes, drafts, instruments, documents, acceptances, and all
other debts, obligations and liabilities in whatever form now or hereafter owing
from any other Person, all guarantees, security and Liens for the payment of any
thereof, and all of Seller's rights to goods, now owned or hereafter acquired,
sold (delivered, undelivered, in transit or returned) which may be represented
thereby; and (b) all proceeds of any of the foregoing.
adverse, adversely, when used alone or in conjunction with other terms
(including without limitation "affect," "change" and "effect") shall mean any
Event which is reasonably likely, in the reasonable business judgment of ATS, to
be expected to (a) adversely affect the validity or enforceability of this
Agreement or the likelihood of consummation of the Transactions, or (b)
adversely affect the business, operations, management, properties or prospects,
or the condition, financial or other, or results of operation of the Seller
Business, or (c) impair Seller's ability to fulfill its obligations under the
terms of this Agreement, or (d) adversely affect the aggregate rights and
remedies of ATS under this Agreement. Notwithstanding the foregoing, and
anything in this Agreement to the contrary notwithstanding, any Event generally
affecting the economy or the tower communications business shall not be deemed
to constitute such a change, affect or effect.
Affiliate, Affiliated shall mean, with respect to any Person, (a) any
other Person at the time directly or indirectly controlling, controlled by or
under direct or indirect common control with such Person, (b) any other Person
of which such Person at the time owns, or has the right to acquire, directly or
indirectly, twenty percent (20%) or more of any class of the capital stock or
beneficial interest, (c) any other Person which at the time owns, or has the
right to acquire, directly or indirectly, twenty percent (20%) or more of any
class of the capital stock or beneficial interest of such Person, (d) any
executive officer or director of such Person, (e) with respect to any
partnership, joint venture or similar Entity, any general partner thereof, and
(f) when used with respect to an individual, shall include any member of such
individual's immediate family or a family trust.
A-1
Agreement shall mean this Agreement as originally in effect, including,
unless the context otherwise specifically requires, this Appendix A, the Seller
Disclosure Schedule and all exhibits hereto, and as any of the same may from
time to time be supplemented, amended, modified or restated in the manner herein
or therein provided.
Applicable Law shall mean any Law of any Authority, whether domestic or
foreign, including without limitation the FCA and all federal and state
securities and Environmental Laws, to which a Person is subject or by which it
or any of its business or operations is subject or any of its property or assets
is bound.
Assets shall mean the business and the tangible and intangible assets
used in connection with the conduct of the business or operations of the Seller
Business, which business and assets are being exchanged, transferred or
otherwise conveyed hereunder, including without including without limitation the
following:
(a) the Personal Property;
(b) the Real Property;
(c) the Governmental Authorizations;
(d) the Private Authorizations;
(e) the Contracts (other than the Seller Nonassumed
Obligations);
(f) the corporate name of Seller and all variations thereof;
(g) all Intellectual Property and other proprietary
information, which relate to the Seller Business, including without
limitation, technical information and data, machinery and equipment
warranties, maps, computer discs and tapes, plans, diagrams, blueprints
and schematics, including filings with all Authorities which relate to
the Seller Business;
(h) all claims, choses in action and rights under warranties
relating to the Seller Business or any of the Seller Assets;
(i) all books and records relating to the ownership or
operation of the Seller Assets or the conduct of the Seller Business,
including executed copies of Leases, Material Agreements and other
written Contracts, and all records required by Applicable Law to be
kept, subject to the right of the conveying party to have such books
and records made available to it for such time as may be reasonably
required in connection with audits, defense or prosecution of lawsuits,
or other legitimate business purposes. The records described herein
shall not include corporate seals, certificates of incorporation,
minute books, stock books, tax returns or other records having to do
with the corporate organization of Seller; and
(j) any and all products, profits and proceeds of, and
including without limitation any Claims with respect to, any of the
foregoing;
provided, however, that notwithstanding the foregoing, the term Assets shall not
include any of the Excluded Assets.
ATS shall have the meaning given to it in the Preamble.
A-2
ATS Employment Agreement shall have the meaning given to it in Section
6.2(i).
ATS Noncompetition shall have the meaning given to it in Section
6.2(i).
Authority shall mean any governmental or quasi-governmental authority,
whether administrative, executive, judicial, legislative or other, or any
combination thereof, including without limitation any federal, state,
territorial, county, municipal or other government or governmental or
quasi-governmental agency, arbitrator, authority, board, body, branch, bureau,
central bank or comparable agency or Entity, commission, corporation, court,
department, instrumentality, master, mediator, panel, referee, system or other
political unit or subdivision or other Entity of any of the foregoing, whether
domestic or foreign., including without limitation the FCC.
Benefit Arrangement shall mean any material benefit arrangement that is
not a Plan, including (a) any employment or consulting agreement (b) any
arrangement providing for insurance coverage or workers' compensation benefits,
(c) any incentive bonus or deferred bonus arrangement, (d) any arrangement
providing termination allowance, severance or similar benefits, (e) any equity
compensation plan, (f) any deferred compensation plan, and (g) any compensation
policy and practice, but only to the extent that it covers or relates to any
officer, employee or other Person involved in the ownership and operation of the
Assets or the conduct of the business of the Seller Business.
Claims shall mean any and all debts, liabilities, obligations, losses,
damages, deficiencies, assessments and penalties, together with all Legal
Actions, pending or threatened, claims and judgments of whatever kind and nature
relating thereto, and all fees, costs, expenses and disbursements (including
without limitation reasonable attorneys' and other legal fees, costs and
expenses) relating to any of the foregoing.
Closing shall have the meaning given to it in Section 2.3.
Closing Date shall have the meaning given to it in Section 2.3.
COBRA shall mean the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended, as set forth in Section 4980B of the Code and Part 6 of
Subtitle B of Title I of ERISA.
Code shall mean the Internal Revenue Code of 1986, and the rules and
regulations thereunder, all as from time to time in effect, or any successor
law, rules or regulations, and any reference to any statutory or regulatory
provision shall be deemed to be a reference to any successor statutory or
regulatory provision.
Collateral Document shall mean the Escrow Agreement, the Indemnity
Escrow Agreement, the ATS Employment Agreement(s), the Nonassignable Contracts
Agreement, bills of sale, assignments of intangibles, assumption agreements with
respect to the Seller Assumed Obligations, other instruments of conveyance and
assignment sufficient to vest in ATS title to all of the other Seller Assets and
the Seller Business, and any other agreement, certificate, contract, instrument,
notice, opinion or other document delivered pursuant to the provisions of this
Agreement or any Collateral Document.
Collection Period shall have the meaning given to it in Section 2.4.
Contract, Contractual Obligation shall mean any agreement, arrangement,
commitment, contract, covenant, indemnity, undertaking or other obligation or
liability which involves the ownership or operation of the Seller Assets or the
conduct of the Seller Business.
A-3
Control (including the terms "controlled," "controlled by" and "under
common control with") means the possession, directly or indirectly or as trustee
or executor, of the power to direct or cause the direction of the management or
policies of a Person, or the disposition of such Person's assets or properties,
whether through the ownership of stock, equity or other ownership, by contract,
arrangement or understanding, or as trustee or executor, by contract or credit
arrangement or otherwise.
Debt Adjustment shall mean an amount equal to the amount owed by Seller
on the Closing Date to First Community Bank, Lexington, South Carolina, which is
estimated to equal approximately $340,000.
Due Diligence Investigation shall have the meaning given to it in
Section 4.6.
Employment Arrangement shall mean, with respect to Seller, any
employment, consulting, retainer, severance or similar contract, agreement,
plan, arrangement or policy (exclusive of any which is terminable within thirty
(30) days without liability, penalty or payment of any kind by Seller or any
Affiliate), or providing for severance, termination payments, insurance coverage
(including any self-insured arrangements), workers compensation, disability
benefits, life, health, medical, dental or hospitalization benefits,
supplemental unemployment benefits, vacation or sick leave benefits, pension or
retirement benefits or for deferred compensation, profit-sharing, bonuses, stock
options, stock purchase or appreciation rights or other forms of incentive
compensation or post-retirement insurance, compensation or post-retirement
insurance, compensation or benefits, or any collective bargaining or other labor
agreement, whether or not any of the foregoing is subject to the provisions of
ERISA, but only to the extent that it covers or relates to any officer, employee
or other Person involved in the ownership or operation of the Seller Assets or
the conduct of the Seller Business.
Encumber shall mean to suffer, accept, agree to or permit the
imposition of a Lien.
Entity shall mean any corporation, firm, unincorporated organization,
association, partnership, limited liability company, trust (inter vivos or
testamentary), estate of a deceased, insane or incompetent individual, business
trust, joint stock company, joint venture or other organization, entity or
business, whether acting in an individual, fiduciary or other capacity, or any
Authority.
Environmental Law shall mean any Law relating to or otherwise imposing
liability or standards of conduct concerning pollution or protection of the
environment, including without limitation Laws relating to emissions,
discharges, releases or threatened releases of Hazardous Materials or other
chemicals or industrial pollutants, substances, materials or wastes into the
environment (including, without limitation, ambient air, surface water, ground
water, mining or reclamation or mined land, land surface or subsurface strata)
or otherwise relating to the manufacture, processing, generation, distribution,
use, treatment, storage, disposal, cleanup, transport or handling of pollutants,
contaminants, chemicals or industrial, toxic or hazardous substances, materials
or wastes. Environmental Laws shall include without limitation the Comprehensive
Environmental Response, Compensation and Liability Act (42 U.S.C. Section 6901
et seq.), the Hazardous Material Transportation Act (49 U.S.C. Section 1801 et
seq.), the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et
seq.), the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.),
the Clean Air Act (42 U.S.C. Section 7401 et seq.), the Toxic Substances Control
Act (15 U.S.C. Section 2601 et seq.), the Occupational Safety and Health Act (29
U.S.C. Section 651 et seq.), the Federal Insecticide Fungicide and Rodenticide
Act (7 U.S.C. Section 136 et seq.), and the Surface Mining Control and
Reclamation Act of 1977 (30 U.S.C. Section 1201 et seq.), and any analogous
federal, state, local or foreign, Laws, and the rules and regulations
promulgated thereunder all as from time to time in effect, and any reference to
any statutory or regulatory provision shall be deemed to be a reference to any
successor statutory or regulatory provision.
A-4
Environmental Permit shall mean any Governmental Authorization required
by or pursuant to any Environmental Law.
ERISA shall mean the Employee Retirement Income Security Act of 1974,
and the rules and regulations thereunder, all as from time to time in effect, or
any successor law, rules or regulations, and any reference to any statutory or
regulatory provision shall be deemed to be a reference to any successor
statutory or regulatory provision.
ERISA Affiliate shall mean any Person that is treated as a single
employer with Seller under Sections 414(b), (c), (m) or (o) of the Code or
Section 4001(b)(1) of ERISA.
Escrow Agent shall have the meaning given to it in the third Whereas
paragraph.
Escrow Agreement shall have the meaning given to it in the third
Whereas paragraph.
Escrow Deposit shall have the meaning given to it in the third Whereas
paragraph.
Event shall mean the existence or occurrence of any act, action,
activity, circumstance, condition, event, fact, failure to act, omission,
incident or practice, or any set or combination of any of the foregoing.
Exchange Act shall mean the Securities Exchange Act of 1934, and the
rules and regulations thereunder, all as from time to time in effect, or any
successor law, rules or regulations, and any reference to any statutory or
regulatory provision shall be deemed to be a reference to any successor
statutory or regulatory provision.
Excluded Assets shall have the meaning given to it in Section 2.1.
Existing Asset Cost Flow Multiple shall have the meaning given to it in
Section 2.3(e).
FCA shall mean the Communication Act of 1934, and the rules and
regulations thereunder, all as from time to time in effect, or any successor
law, rules or regulations, and any reference to any statutory or regulatory
provision shall be deemed to be a reference to any successor statutory or
regulatory provision.
FCC shall mean the Federal Communications Commission and shall include
any successor Authority.
Final Order shall mean, with respect to any Authority, including
without limitation the FCC, one with respect to which no appeal, no stay, no
petition or application for rehearing, reconsideration, review or stay, whether
on motion of the applicable Authority or other Person or otherwise, and no other
Legal Action contesting such consent or approval, is in effect or pending and as
to which the time or deadline for filing any such appeal, petition or
application or other Legal Action has expired or, if filed, has been denied,
dismissed or withdrawn, and the time or deadline for instituting any further
Legal Action has expired.
GAAP shall mean means, except to the extent that a deviation therefrom
is expressly required by this Agreement, such principles applied on a consistent
basis, (i) as set forth in Opinions of the Accounting Principles Board of the
American Institute of Certified Public Accountants ("AICPA") and/or in
statements of the Financial Accounting Standards Board that are applicable in
the circumstances as of the date in question, (ii) when not inconsistent with
such opinions and statements, as set forth in other AICPA publications and
guidelines and/or (iii) that otherwise arise by custom for the particular
industry, all as the same shall exist on the date of this Agreement.
A-5
Governmental Authorizations shall mean all approvals, concessions,
consents, franchises, licenses, permits, plans, registrations and other
authorizations of all Authorities, including without limitation the Federal
Aviation Administration, in connection with the ownership or operation of the
Seller Assets or the conduct of the Seller Business.
Governmental Filings shall mean all filings, including franchise and
similar Tax filings, and the payment of all fees, assessments, interest and
penalties associated with such filings, with all Authorities.
Hazardous Materials shall mean and include any substance, material,
waste, constituent, compound, chemical, natural or man-made element or force (in
whatever state of matter): (a) the presence of which requires investigation or
remediation under any Environmental Law, or (b) that is defined as a "hazardous
waste" or "hazardous substance" under any Environmental Law; or (c) that is
toxic, explosive, corrosive, etiologic, flammable, infectious, radioactive,
carcinogenic, mutagenic or otherwise hazardous and is regulated by any
applicable Authority or subject to any Environmental Law; or (d) the presence of
which on the real property owned or leased by such Person causes or threatens to
cause a nuisance upon any such real property or to adjacent properties or poses
or threatens to pose a hazard to the health or safety of persons on or about any
such real property; or (e) the presence of which on adjacent properties could
constitute a trespass by such Person; or (f) that contains gasoline, diesel fuel
or other petroleum hydrocarbons, or any by-products or fractions thereof,
natural gas, polychlorinated biphenyls ("PCBs") and PCB-containing equipment,
radon or other radioactive elements, ionizing radiation, electromagnetic field
radiation and other non-ionizing radiation, sonic forces and other natural
forces, lead, asbestos or asbestos-containing materials ("ACM"), or urea
formaldehyde foam insulation.
Indebtedness shall mean, with respect to any Person, (a) all items,
except items of capital stock or of surplus or of general contingency or
deferred tax reserves or any minority interest in any Subsidiary of such Person
to the extent such interest is treated as a liability with indeterminate term on
the consolidated balance sheet of such Person, which in accordance with GAAP
would be included in determining total liabilities as shown on the liability
side of a balance sheet of such Person, (b) all obligations secured by any Lien
to which any property or asset owned or held by such Person is subject, whether
or not the obligation secured thereby shall have been assumed, and (c) to the
extent not otherwise included, all Contractual Obligations of such Person
constituting capitalized leases and all obligations of such Person with respect
to Leases constituting part of a sale and leaseback arrangement.
Indebtedness for Money Borrowed shall mean, with respect to Seller,
money borrowed and Indebtedness represented by notes payable and drafts accepted
representing extensions of credit, all obligations evidenced by bonds,
debentures, notes or other similar instruments, the maximum amount currently or
at any time thereafter available to be drawn under all outstanding letters of
credit issued for the account of such Person, all Indebtedness upon which
interest charges are customarily paid by such Person, and all Indebtedness
(including capitalized lease obligations) issued or assumed as full or partial
payment for property or services, whether or not any such notes, drafts,
obligations or Indebtedness represent Indebtedness for money borrowed, but shall
not include (a) trade payables, (b) expenses accrued in the ordinary course of
business, (c) customer advance payments and customer deposits received in the
ordinary course of business, or (d) conditional sales agreements not prohibited
by the terms of this Agreement.
Indemnity Escrow Agent shall have the meaning given to it in Section
6.2(k).
Indemnity Escrow Agreement shall have the meaning given to it in
Section 6.2(k).
Indemnity Escrow Fund shall have the meaning given to it in Section
2.3.
A-6
Intangible Assets shall mean all assets and property lacking physical
properties the evidence of ownership of which must customarily be maintained by
independent registration, documentation, certification, recordation or other
means, and shall include, without limitation, concessions, copyrights,
franchises, license, patents, permits, service marks, trademarks, trade names,
and applications with respect to any of the foregoing, technology and know-how.
Intellectual Property shall mean any and all research, information,
inventions, designs, procedures, developments, discoveries, improvements,
patents and applications therefor, trademarks and applications therefor, service
marks, trade names, copyrights and applications therefor, logos, trade secrets,
drawing, plans, systems, methods, specifications, computer software programs,
tapes, discs and related data processing software (including without limitation
object and source codes) owned by such Person or in which it has an ownership
interest and all other manufacturing, engineering, technical, research and
development data and know-how made, conceived, developed and/or acquired by such
Person, which relate to the manufacture, production or processing of any
products developed or sold by such Person or which are within the scope of or
usable in connection with such Person's business as it may, from time to time,
hereafter be conducted or proposed to be conducted.
Law shall mean any (a) administrative, judicial, legislative or other
action, code, consent decree, constitution, decree, directive, enactment,
finding, guideline, law, injunction, interpretation, judgment, order, ordinance,
policy statement, proclamation, promulgation, regulation, requirement, rule,
rule of law, rule of public policy, settlement agreement, statute, or writ of
any Authority, domestic or foreign; (b) the common law, or other legal or
quasi-legal precedent; or (c) arbitrator's, mediator's or referee's award,
decision, finding or recommendation; including, in each such case or instance,
any interpretation, directive, guideline or request, whether or not having the
force of law including, in all cases, without limitation any particular section,
part or provision thereof.
Lease shall mean any lease of property, whether real, personal or
mixed, and all amendments thereto.
Legal Action shall mean, with respect to any Person, any and all
litigation or legal or other actions, arbitrations, counterclaims,
investigations, proceedings, requests for material information by or pursuant to
the order of any Authority or suits, at law or in arbitration, equity or
admiralty, whether or not purported to be brought on behalf of such Person,
affecting such Person or any of such Person's business, property or assets.
Lien shall mean any of the following: mortgage; lien (statutory or
other); or other security agreement, arrangement or interest; hypothecation,
pledge or other deposit arrangement; assignment; charge; levy; executory
seizure; attachment; garnishment; encumbrance (including any easement,
exception, reservation or limitation, right of way, and the like); conditional
sale, title retention or other similar agreement, arrangement, device or
restriction; preemptive or similar right; any financing lease involving
substantially the same economic effect as any of the foregoing; the filing of
any financing statement under the Uniform Commercial Code or comparable law of
any jurisdiction; restriction on sale, transfer, assignment, disposition or
other alienation; or any option, equity, claim or right of or obligation to, any
other Person, of whatever kind and character.
Loss and Expense shall have the meaning given to it in Section 8.2.
material, materially or materiality for the purposes of this Agreement,
shall, unless specifically stated to the contrary, be determined without regard
to the fact that various provisions of this Agreement set forth specific dollar
amounts.
A-7
Material Agreement shall mean, with respect to Seller, any Contractual
Obligation which (a) was not entered into in the ordinary course of business,
(b) was entered into in the ordinary course of business which (i) involved the
purchase, sale or lease of goods or materials, or purchase of services,
aggregating more than $20,000 during any of the last three fiscal years, (ii)
extends for more than three (3) months, or (iii) is not terminable on thirty
(30) days or less notice without penalty or other payment, (c) involves a
capitalized lease obligation or Indebtedness for Money Borrowed, (d) is or
otherwise constitutes a written agency, broker, dealer, license,
distributorship, sales representative or similar written agreement, (e)
accounted for more than three percent (3%) of the revenues of the Seller
Business in any of the last three fiscal years or is likely to account for more
than three percent (3%) of revenues of the Seller Business during the current
fiscal year, (f) is with any Authority, or (g) involves the management by Seller
of any communication tower of any other Person.
Multiemployer Plan shall mean a Plan which is a "multiemployer plan"
within the meaning of Section 4001(a)3 of ERISA.
Negotiations shall have the meaning given in Section 2.3.
Nonassignable Contracts shall have the meaning given to it in Section
2.2(c).
Nonassignable Contracts Agreement shall have the meaning given to it in
Section 6.2(m).
Organic Document shall mean, with respect to a Person which is a
corporation, its charter, its by-laws and all shareholder agreements, voting
trusts and similar arrangements applicable to any of its capital stock and, with
respect to a Person which is a partnership, its agreement and certificate of
partnership, any agreements among partners, and any management and similar
agreements between the partnership and any general partners (or any Affiliate
thereof).
PBGC shall mean the Pension Benefit Guaranty Corporation and any Entity
succeeding to any or all of its functions under ERISA.
Permitted Liens shall mean (a) Liens for current taxes not yet due and
payable, (b) such imperfections of title, easements, encumbrances and mortgages
or other Liens, if any, as are not, individually or in the aggregate,
substantial in character, amount or extent and do not materially detract from
the value, or materially interfere with the present use, of the property subject
thereto or affected thereby, or otherwise materially impair the conduct of the
Seller Business, and (c) such other Liens as are permitted by the provisions of
this Agreement to be in place on the Closing Date.
Person shall mean any natural individual or any Entity.
Personal Property shall mean all of the machinery, equipment, tools,
vehicles, furniture, leasehold improvements, office equipment, plant, inventory,
spare parts and other tangible personal property which are owned or leased by
Seller and used or useful as of the date hereof in the conduct of the business
or operations of the Seller Business, plus such additions thereto and deletions
therefrom arising in the ordinary course of business between the date hereof and
the Closing Date.
Plan shall mean, with respect to any Person and at a particular time,
any employee benefit plan which is covered by ERISA and in respect of which such
Person or an ERISA Affiliate is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA, but only to the extent that it covers or relates to any
officer, employee or other Person involved in the ownership and operation of the
Assets or the conduct of the business of the Seller Business.
A-8
Prepaid Expense shall mean any item which in accordance with GAAP would
be treated as an expense and which has been paid by Seller prior to the Closing
and relates to a period subsequent to the Closing.
Prepaid Revenue shall mean any item which in accordance with GAAP would
be treated as revenue and which has been received by Seller prior to the Closing
and relates to a period subsequent to the Closing.
Private Authorizations shall mean all approvals, concessions, consents,
franchises, licenses, permits, and other authorizations of all Persons (other
than Authorities) including without limitation those with respect to
Intellectual Property.
Pro Ratable Taxes shall mean real estate and other property Taxes, ad
valorem Taxes, gross receipts Taxes and similar Taxes, but shall not include
federal, state or local income Taxes, franchise Taxes or other Taxes measured by
or based upon income or gain on sale or other disposition of property or assets.
Purchase Price shall have the meaning given to it in Section 2.3.
Real Property shall mean all of the fee estates and buildings and other
fixtures and improvements thereon, leasehold interest, easements, licenses,
rights to access, right-of- way, and other real property interest which are
owned or used by Seller as of the date hereof, in the operations of the Seller
Business, plus such additions thereto and deletions therefrom arising in the
ordinary course of business between the date hereof and the Closing Date.
Regulations shall mean the federal income tax regulations promulgated
under the Code, as such Regulations may be amended from time to time. All
references herein to specific sections of the Regulations shall be deemed also
to refer to any corresponding provisions of succeeding Regulations, and all
references to temporary Regulations shall be deemed also to refer to any
corresponding provisions of final Regulations.
Representatives shall have the meaning given to it in Section 5.1(a).
Securities Act shall mean the Securities Act of 1933, and the rules and
regulations thereunder, all as from time to time in effect, or any successor
law, rules or regulations, and any reference to any statutory or regulatory
provision shall be deemed to be a reference to any successor statutory or
regulatory provision.
Santee ▇▇▇▇▇▇ shall have the meaning given to it in Section 2.3(b).
Santee ▇▇▇▇▇▇ Contract shall have the meaning given to it in Section
2.3(c).
Seller shall have the meaning given to it in the Preamble.
Seller Assumable Agreements shall mean all obligations and liabilities
of Seller under all Leases, Material Agreements, Governmental Authorizations,
Private Authorizations and other Contractual Obligations not required to be
listed on Section 3.16 of the Seller Disclosure Schedule entered into in the
ordinary course of business and relating to the ownership or operation of any of
the Seller Assets or the
conduct of the Seller Business.
Seller Assets shall have the meaning given to it in Section 2.1.
Seller Assumed Liabilities shall have the meaning given to it in
Section 2.2(b).
A-9
Seller Business shall have the meaning given them in the first Whereas
paragraph.
Seller Disclosure Schedule shall mean the Seller Disclosure Schedule
dated as of the date of this Agreement delivered by Seller to ATS.
Seller Employees shall have the meaning given it in the Section 3.15.
Seller Financial Statements shall have the meaning given to it in
Section 3.2(b).
Seller Nonassumed Obligations shall have the meaning given to it in
Section 2.2(b).
Seller's knowledge means the actual knowledge of any Seller officer or
senior manager, as such knowledge exists on the date of this Agreement and no
later date, after reasonable review of appropriate Seller records.
Subsidiary shall mean, with respect to a Person, any Entity a majority
of the capital stock ordinarily entitled to vote for the election of directors
of which, or if no such voting stock is outstanding, a majority of the equity
interests of which, is owned directly or indirectly, legally or beneficially, by
such Person or any other Person controlled by such Person.
Tax (and "Taxable", which shall mean subject to Tax), shall mean, with
respect to any Person, (a) all taxes (domestic or foreign), including without
limitation any income (net, gross or other including recapture of any tax items
such as investment tax credits), alternative or add-on minimum tax, gross
income, gross receipts, gains, sales, use, leasing, lease, user, ad valorem,
transfer, recording, franchise, profits, property (real or personal, tangible or
intangible), fuel, license, withholding on amounts paid to or by such Person,
payroll, employment, unemployment, social security, excise, severance, stamp,
occupation, premium, environmental or windfall profit tax, custom, duty or other
tax, or other like assessment or charge of any kind whatsoever, together with
any interest, levies, assessments, charges, penalties, addition to tax or
additional amount imposed by any Taxing Authority, (b) any joint or several
liability of such Person with any other Person for the payment of any amounts of
the type described in (a) and (c) any liability of such Person for the payment
of any amounts of the type described in (a) as a result of any express or
implied obligation to indemnify any other Person.
Tax Claim shall mean any Claim which relates to Taxes, including
without limitation the representations and warranties set forth in Section 3.11.
Tax Return or Returns shall mean all returns, consolidated or otherwise
(including without limitation information returns), required to be filed with
any Authority with respect to Taxes.
Taxing Authority shall mean any Authority responsible for the
imposition of any Tax.
Termination Date shall have the meaning given to it in Section 7.1.
Transactions shall mean the transactions contemplated to be consummated
on or prior to the Closing Date, including without limitation the purchase and
sale of the Seller Assets and the Seller Business and the execution, delivery
and performance of the Collateral Documents.
Utility Assets Price shall have the meaning given to it in Section
2.3(e).
Utility Cash Flow Multiple shall have the meaning given to it in
Section 2.3(e).
Utility Management Price shall have the meaning given to it in Section
2.3(f).
A-10