EXHIBIT 10.22
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PURCHASE AGREEMENT
dated as of
July 7, 1998
among
MOBILEMEDIA CORPORATION,
MOBILEMEDIA COMMUNICATIONS, INC.,
MOBILE COMMUNICATIONS CORPORATION OF AMERICA,
MOBILECOMM OF THE WEST, INC.,
MOBILECOMM OF THE SOUTHWEST, INC.,
MOBILECOMM OF TENNESSEE, INC.,
MOBILECOMM NATIONWIDE OPERATIONS, INC.,
MOBILEMEDIA COMMUNICATIONS, INC. (CALIFORNIA),
MOBILEMEDIA DP PROPERTIES, INC.,
MOBILEMEDIA PCS, INC.,
DIAL PAGE SOUTHEAST, INC.,
RADIO CALL CO. OF VIRGINIA, INC.
MOBILEMEDIA PAGING, INC.,
MOBILECOMM OF THE SOUTHEAST, INC.,
MOBILECOMM OF THE NORTHEAST, INC.,
MOBILECOMM OF THE SOUTHEAST PRIVATE CARRIERS
OPERATIONS, INC.,
MOBILECOMM OF FLORIDA, INC.,
MOBILECOMM OF THE MIDSOUTH, INC.,
FWS RADIO, INC.
and
PINNACLE TOWERS INC.
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS........................................................... 3
SECTION 1.02. Interpretation......................................... 11
ARTICLE II
PURCHASE, SALE AND ASSUMPTION......................................... 12
SECTION 2.01. Purchase and Sale...................................... 12
SECTION 2.02. Purchase Price......................................... 12
SECTION 2.03. Assumption of Liabilities.............................. 12
SECTION 2.04. ASSETS IN "AS IS" CONDITION............................ 13
SECTION 2.05. Excluded Assets........................................ 13
ARTICLE III
CLOSING............................................................... 14
SECTION 3.01. The Closing............................................ 14
SECTION 3.02. Supplemental Payments to Sellers Regarding
Post-Closing Revenue Leases............................ 17
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER.............................. 17
SECTION 4.01. Authorization; Contravention........................... 17
SECTION 4.02. Title to Assets........................................ 18
SECTION 4.03. Legal Proceedings...................................... 19
SECTION 4.04. Compliance With Law.................................... 19
SECTION 4.05. Ground Leases and Revenue Leases....................... 19
SECTION 4.06. Environmental Matters.................................. 19
SECTION 4.07. Certain Site and Tower Matters......................... 20
SECTION 4.08. Reaffirmation at Closing............................... 21
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER........................... 21
SECTION 5.01. Authorization; Contravention........................... 21
SECTION 5.02. Sufficient Funds....................................... 22
SECTION 5.04. Reaffirmation at Closing............................... 22
ARTICLE VI
EXCLUSIVITY; COMPETING BIDS AND BIDDING PROCEDURES.................... 22
SECTION 6.01. Bankruptcy Actions..................................... 22
SECTION 6.02. Exclusivity............................................ 22
SECTION 6.03. Competing Bids......................................... 23
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CONTINUED)
Page
SECTION 6.04. Purchaser's Liquidated Damages......................... 25
SECTION 6.05. Expense Reimbursement.................................. 25
ARTICLE VII
OTHER AGREEMENTS...................................................... 25
SECTION 7.01. Conduct of the Business Pending Closing................ 25
SECTION 7.02. Access................................................. 26
SECTION 7.03. Confidentiality........................................ 27
SECTION 7.04. Maintenance of Records................................. 27
SECTION 7.05. Deposit; Liquidated Damages............................ 28
SECTION 7.06. Pre-Closing Claims and Rights.......................... 29
SECTION 7.07. Prorations............................................. 29
SECTION 7.08. Certain Seller Undertakings Regarding
Ground Leases, Sites and Related Matters............... 30
SECTION 7.09. Certain Post-Closing Obligations....................... 32
SECTION 7.10. Further Assurances..................................... 33
SECTION 7.11. Indemnification........................................ 33
ARTICLE VIII
TERMINATION OF AGREEMENT.............................................. 37
SECTION 8.01. Termination............................................ 37
SECTION 8.02. Certain Termination Events Cure Period................. 38
SECTION 8.03. Effect of Termination.................................. 39
ARTICLE IX
CLOSING CONDITIONS.................................................... 39
SECTION 9.01. Closing Conditions..................................... 39
ARTICLE X
MISCELLANEOUS......................................................... 40
SECTION 10.01. Notices............................................... 40
SECTION 10.02. Binding Effect........................................ 41
SECTION 10.03. Amendments............................................ 41
SECTION 10.04. Counterparts.......................................... 41
SECTION 10.05. Expenses.............................................. 41
SECTION 10.06. Calculations.......................................... 42
SECTION 10.07. Entire Agreement...................................... 42
SECTION 10.08. Brokers............................................... 42
SECTION 10.09. Governing Law......................................... 42
SECTION 10.10. No Third Party Beneficiaries.......................... 43
-ii-
SCHEDULES
SCHEDULE I Towers, Leased Sites,
Owned Sites and Easement Sites
SCHEDULE II Ground Leases
SCHEDULE III Revenue Leases
SCHEDULE IV Leased Tower Space
SCHEDULE V Existing Pinnacle-MobileMedia Leases
DISCLOSURE SCHEDULE
EXHIBITS
EXHIBIT A Master Lease
EXHIBIT B General Assignment And ▇▇▇▇ Of Sale
EXHIBIT C Liabilities Assumption Agreement
EXHIBIT D Form of Estoppel Agreement
EXHIBIT E Form of Memorandum of Lease
-iii-
PURCHASE AGREEMENT
This PURCHASE AGREEMENT (this "Agreement") is entered into as of July
7, 1998 by and among PINNACLE TOWERS INC., a Delaware corporation
("Purchaser"), MOBILEMEDIA CORPORATION, a Delaware corporation, as debtor and
debtor-in-possession ("MobileMedia"), MOBILEMEDIA COMMUNICATIONS, INC., a
Delaware corporation, as debtor and debtor-in-possession ("MobileMedia
Communications"), MOBILE COMMUNICATIONS CORPORATION OF AMERICA, a Mississippi
corporation, as debtor and debtor-in-possession ("MCCA"), MOBILECOMM OF THE
WEST, a California corporation, as debtor and debtor-in-possession ("MCWEST"),
MOBILECOMM OF THE SOUTHWEST, INC. a Texas corporation, as debtor and debtor-in-
possession ("MCSW"), MOBILECOMM OF TENNESSEE, INC. a Tennessee corporation, as
debtor and debtor-in-possession ("MCTN"), MOBILECOMM NATIONWIDE OPERATIONS,
INC., a Delaware corporation, as debtor and debtor-in-possession ("MCNO"),
MOBILEMEDIA COMMUNICATIONS, INC. (California), a California corporation, as
debtor and debtor-in-possession ("MCCAL"), MOBILEMEDIA DP PROPERTIES, INC., a
Delaware corporation, as debtor and debtor-in-possession ("MDP"), MOBILEMEDIA
PCS, INC., a Delaware corporation, as debtor and debtor-in-possession ("MPCS"),
DIAL PAGE SOUTHEAST, INC., a Delaware corporation, as debtor and debtor-in-
possession ("DPS"), RADIO CELL CO. OF VIRGINIA, INC, a Virginia corporation, as
debtor and debtor-in-possession ("RCC"), MOBILEMEDIA PAGING, INC., a Delaware
corporation, as debtor and debtor-in possession ("MPI"), MOBILECOMM OF THE
SOUTHEAST INC., a Delaware corporation, as debtor and debtor-in-possession
("MCSE"), MOBILECOMM OF THE NORTHEAST, INC., a Delaware corporation, as debtor
and debtor-in-possession ("MCNE"), MOBILECOMM OF THE SOUTHEAST PRIVATE CARRIER
OPERATIONS, INC., a Georgia corporation, as debtor and debtor-in-possession
("MCSPCO"), MOBILECOMM OF FLORIDA, INC., a Florida corporation, as debtor and
debtor-in-possession ("MCFL"), MOBILECOMM OF THE MIDSOUTH, INC., a Missouri
corporation, as debtor and debtor-in-possession ("MCMS"), and FWS RADIO, INC., a
Texas corporation, as debtor and debtor-in-possession ("FWS"), and each of
MobileMedia, MobileMedia Communications, MCCA, MCWEST, MCSW, MCTN, MCNO, MCCAL,
MDP, MPCS, DPS, RCC, MPI, MCSE, MCNE, MCSPCO, MCFL, MCMS and FWS, together with
their respective successors and permitted assigns, are individually referred to
herein as a "Seller" and collectively referred to herein as the "Sellers".
RECITALS
A. Each of the Sellers and certain other Affiliates of MobileMedia
(the "Debtors") are debtors-in-possession in proceedings for reorganization
under chapter 11 of the Bankruptcy Code, 11 U.S.C. (S)(S) 101, et seq. (the
-- ----
"Code"), currently pending
in the United States Bankruptcy Court for the District of Delaware (the
"Bankruptcy Court").
B. Certain of the Sellers own the 163 towers including attached guy
wires (the "Towers") described on Schedule I hereto, which are located on the
140 sites (the "Sites") listed on Schedule I.
C. At the Sites, certain of the Sellers have installed various
equipment, including transmitters, antennas and microwaves, used in the course
of the Seller communications business.
D. Certain of the Sellers own the land and fixtures ("Real
Property") constituting the Sites at 49 of the Sites (the "Owned Sites"), and in
the case of two (2) of the Sites easements to use the land constituting such
Sites (the "Easement Sites"), as identified on Schedule I. Certain of the
Sellers lease the land constituting the Sites at 89 of the Sites (the "Leased
Sites"), as identified on Schedule I, pursuant to the leases (the "Ground
Leases") identified on Schedule II.
E. Certain of the Sellers are the lessors under 366 separate leases
(the "Revenue Leases") with various tenants ("Tenants") which have leased space
on certain Towers, as identified on Schedule III.
F. Pursuant to the terms and conditions set forth herein, Sellers
desire to sell and assign (or cause to be sold and assigned) to Purchaser and
Purchaser desires to purchase and acquire from Sellers, all right, title and
interest of Sellers, as of the Closing Date, in and to the Assets, and Sellers
desire to assign (or to cause to be assigned) to Purchaser and Purchaser desires
to assume the obligations and liabilities of Sellers in connection with the
Ground Leases and the Revenue Leases and such other assumed Liabilities as are
expressly provided in Section 2.03 herein.
G. Immediately upon the conclusion of the transactions referred to
in the preceding Recital F, MobileMedia Communications desires to lease back (or
to have one or more successors, assigns or Affiliates of MobileMedia
Communications lease back) from Purchaser and Purchaser desires to lease to
MobileMedia Communications (or such other entities) certain space on the Towers
identified in Schedule IV hereto pursuant to a lease substantially in the form
of Exhibit A hereto (the "Master Lease").
NOW, THEREFORE, in consideration of the foregoing premises and of the
covenants contained herein, the parties hereto hereby agree as follows:
2
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have
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the following meanings:
"Affiliate" means, when used with reference to a specific Person, any
---------
Person that, directly or indirectly, or through one or more intermediaries, owns
or controls, is owned or controlled by, or is under common ownership or common
control with, such specific Person. As used herein, "control" means the power
to direct the management or affairs of a Person and "ownership" means the
beneficial ownership of more than 50% of the equity interests of the Person.
"Agreement" has the meaning specified in the preamble hereto.
---------
"Ancillary Agreements" means the General Assignment And ▇▇▇▇ Of Sale
--------------------
and the Liabilities Assumption Agreement.
"Applicable Laws" means all laws, rules, regulations, Orders or
---------------
determinations of any governmental authority, including without limitation the
rules and regulations of the FAA and the FCC.
"Assets" means (i) the Towers (provided that each Seller at its
------ --------
discretion, in the ordinary course of business, may remove any of the Sellers'
transmitter systems and related equipment, fittings and other equipment which
are on the Towers or on the Sites, and in no event shall the Assets be deemed to
include any transmitter systems or other equipment of any Seller that are
installed on any Tower or exist at any Site from which any Seller will lease
space under the Master Lease), (ii) the Real Property, (iii) each Seller's
interest as tenant in and to the Ground Leases in effect on the Closing Date,
(iv) each Seller's interest as lessor in and to the Revenue Leases in effect on
the Closing Date, (v) each Seller's interest in the Easement Site, (vi)
approvals, permits, licenses, registrations, certificates and variances obtained
from governmental agencies to the extent relating to the Sites, and which
according to their respective terms are freely assignable by such Seller to
another Person, and (vii) originals or copies of plats, architectural plans,
drawings and specifications to the extent relating to the Towers or Sites, which
are material to the operation or ownership thereof and which are in any Seller's
possession.
3
"Bankruptcy Court" has the meaning specified in Recital A.
----------------
"Bankruptcy Court Order" means a final, non-appealable order of the
----------------------
Bankruptcy Court, in form and substance reasonably satisfactory to Seller and
Purchaser, approving this Agreement, the Master Lease and the Ancillary
Agreements, and authorizing, pursuant to all applicable sections of the Code,
all of the transactions and agreements contemplated hereby and by the Master
Lease, which order shall not have been stayed, vacated or otherwise rendered
ineffective, and with respect to which no appeal shall be pending and all
applicable periods for appeal shall have expired, and which includes, without
limitation, the following provisions:
(i) a finding that the Assets are property of the Debtors' estates
within the meaning of section 541 of the Code;
(ii) a finding that all parties in interest, including each person or
entity known to any Seller to have any ownership interest or lien in the
Assets have been given proper and adequate notice of the motion seeking
entry of the Bankruptcy Court Order and of the hearing on the motion;
(iii) express approval of the Sellers' assumption and assignment to
Purchaser of the Ground Leases and the Revenue Leases in accordance with
section 365 of the Code;
(iv) express approval of the Sellers' assumption of all of its
existing leases with Pinnacle, as described on Schedule V, in accordance
with section 365 of the Code;
(v) a provision that authorizes the sale of the Assets to Purchaser
free and clear of all Liens (other than Permitted Liens);
(vi) a finding that the Purchaser has acted in good faith within the
meaning of section 363(m) of the Code;
(vii) a provision providing that, on and as of the effective date of
any plan of reorganization of Sellers in the Bankruptcy Proceedings,
Sellers will assign this Agreement, the Ancillary Agreements and the Master
Lease to the successor to Sellers under such plan of reorganization;
(viii) a provision expressly approving the Master Lease and the
applicable Seller's obligations thereunder, and finding that such Seller's
obligations thereunder, as and when accrued, are actual, necessary costs
and expenses of preserving the Debtors' estates, which obligations will
4
be satisfied in full by the assignment by Lessee of the Master Lease to the
successor to Lessee under and as of the effective date of any plan of
reorganization for Lessee; and
(ix) a provision providing that, to the extent applicable to the
Assets, no stamp tax or similar tax may be imposed on the transfer of the
Assets from Sellers to Purchaser.
"Bankruptcy Proceedings" means the proceedings in the Bankruptcy Court
----------------------
involving the Debtors, Case No. 97-174(PJW).
"Bidding Deadline" has the meaning specified in Section 6.03(a).
----------------
"Breaching Party" has the meaning specified in Section 8.02.
---------------
"Claim Notice" has the meaning specified in Section 7.11(e).
------------
"Closing" has the meaning specified in Section 3.01(a).
-------
"Closing Date" has the meaning specified in Section 3.01(a).
------------
"Code" has the meaning specified in Recital A.
----
"Competing Bidders" has the meaning specified in Section 6.02.
-----------------
"Competing Bid Notice" has the meaning specified in Section 6.03(b).
--------------------
"Competing Bids" has the meaning specified in Section 6.03(a).
--------------
"Competing Transaction" has the meaning specified in Section 6.02.
---------------------
"Consequential Damages" means any special, incidental, consequential,
---------------------
exemplary, or punitive damages, arising under any legal or equitable theory.
"Debtors" has the meaning specified in Recital A.
-------
"DIP Lenders" means each Person that is a "Lender" on the Closing Date
-----------
under and as defined in that certain Revolving Credit and Guarantee Agreement
dated as of January 30, 1997, as amended.
5
"Disclosure Schedule" means the Disclosure Schedule to this Agreement.
-------------------
"DPS" means Dial Page Southeast, Inc., a Delaware corporation, as
---
debtor and debtor-in-possession.
"Easement Sites" has the meaning specified in Recital D.
--------------
"Employees" has the meaning specified in Section 6.02.
---------
"Environmental Impaired Site" has the meaning specified in Section
---------------------------
2.05(a).
"Environmental Law" means any Applicable Law concerning protection of
-----------------
the environment or human health and safety.
"Estoppel Agreement" has the meaning specified in Section 7.08(a).
------------------
"Excluded Assets" has the meaning specified in Section 2.05(b).
---------------
"Exclusivity Period" has the meaning specified in Section 6.02.
------------------
"Expenses" means any and all expenses incurred in connection with
--------
investigating, defending or asserting any claim, action, suit or proceeding
incident to any matter indemnified against hereunder (including without
limitation court filing fees, court costs, witness fees, and reasonable fees and
expenses of legal counsel, investigators, expert witnesses, consultants,
accountants and other professionals).
"FAA" means the Federal Aviation Administration.
---
"FCC" means the Federal Communications Commission.
---
"FWS" means FWS Radio, Inc., a Texas corporation, as debtor and
---
debtor-in-possession.
"General Assignment And ▇▇▇▇ Of Sale" has the meaning specified in
-----------------------------------
Section 3.01(d).
"Ground Leases" as of the date hereof has the meaning specified in
-------------
Recital D, provided, however, for purposes of the purchase, sale and assignment
-------- -------
hereunder on the Closing Date, Ground Leases shall refer to leases in effect on
the Closing Date under which a Seller, as tenant, leases land at a Leased Site
and which are identified in Schedule II, as such Schedule may be revised by
Sellers as of the Closing Date to reflect any
6
attrition with respect to such leases in the ordinary course of business, and
subject to Section 7.01.
"Hazardous Materials" means any chemicals, pollutants or contaminants,
-------------------
hazardous substances (as such term is defined under 42 U.S.C. Secs. 9601 et seq.
-- ----
or other Environmental Law), solid wastes and hazardous wastes (as such terms
are defined under 42 U.S.C. Secs. 6901 et seq. or other Environmental Law),
-- ----
toxic materials, oil or petroleum, or any other material subject to regulation
under any Environmental Law, except for normal office and cleaning products.
"H-S-R Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
---------
1976, as amended, and the rules and regulations promulgated thereunder.
"Indemnified Party" has the meaning specified in Section 7.11(e).
-----------------
"Indemnitor" has the meaning specified in Section 7.11(e).
----------
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
---------------------
amended, and the rules and regulations promulgated thereunder.
"Issuing Bank" means NationsBank.
------------
"Leased Sites" has the meaning specified in Recital D.
------------
"Lessee" means MobileMedia Communications, or, as applicable, one or
------
more successors, assigns or Affiliates of MobileMedia Communications as the
lessee party or parties under the Master Lease.
"Letter of Credit" means the standby irrevocable letter of credit in
----------------
the amount of $5,000,000 issued within three (3) business days after the date
hereof by NationsBank to MobileMedia Communications (on behalf of Sellers) as
the beneficiary, which letter of credit shall in a form satisfactory to Sellers.
"Letter of Credit Disbursement" means the $5,000,000 which is payable
-----------------------------
to MobileMedia Communications under the Letter of Credit upon presentment
thereof to the Issuing Bank in accordance with the terms and conditions of the
Letter of Credit.
"Liabilities" has the meaning specified in Section 2.03.
-----------
"Liabilities Assumption Agreement" has the meaning specified in
--------------------------------
Section 3.01(e).
7
"Liens" means liens, mortgages, pledges, claims, charges, security
-----
interests or encumbrances.
"Losses" means any and all losses, costs, obligations, liabilities,
------
settlement payments, awards, judgments, fines, penalties or damages.
"Master Lease" has the meaning specified in Recital G.
------------
"Memorandum of Lease" has the meaning specified in Section 7.08(a).
-------------------
"MCCA" means Mobile Communications Corporation Of America, a
----
Mississippi corporation, as debtor and debtor-in-possession.
"MCCAL" means MobileMedia Communications, Inc. (California), a
-----
California corporation, as debtor and debtor-in-possession.
"MCFL" means MobileComm of Florida, Inc., a Florida corporation, as
----
debtor and debtor-in-possession.
"MCMS" means MobileComm of the Midsouth, Inc., a Missouri corporation,
----
as debtor and debtor-in-possession.
"MCNE" means MobileComm of the Northeast, Inc., a Delaware
----
corporation, as debtor and debtor-in-possession.
"MCNO" means MobileComm Nationwide Operations, Inc., a Delaware
----
corporation, as debtor and debtor-in-possession.
"MCSE" means MobileComm of the Southeast, Inc., a Delaware
----
corporation, as debtor and debtor-in-possession.
"MCSPCO" means MobileComm of the Southeast Private Carrier Operations,
------
Inc., a Georgia corporation, as debtor and debtor-in-possession.
"MCSW" means MobileComm Of The Southwest, a Texas corporation, as
----
debtor and debtor-in-possession.
"MCTN" means MobileComm Of Tennessee, Inc. a Tennessee corporation, as
----
debtor and debtor-in-possession.
"MCWEST" means MobileComm Of The West, Inc. a California corporation,
------
as debtor and debtor-in-possession.
"MDP" means MobileMedia DP Properties, Inc., a Delaware corporation,
---
as debtor and debtor-in-possession.
8
"MobileMedia" means MobileMedia Corporation, Inc. a Delaware
-----------
corporation, as debtor and debtor-in-possession.
"MobileMedia Communications" means MobileMedia Communications, Inc., a
--------------------------
Delaware corporation, as debtor and debtor-in-possession.
"MPCS" means MobileMedia PCS, Inc., a Delaware corporation, as debtor
----
and debtor-in-possession.
"MPI" means MobileMedia Paging, Inc., a Delaware corporation, as
---
debtor and debtor-in-possession.
"NationsBank" means NationsBank, N.A., a national banking association.
-----------
"Order" means any court or administrative order, judgment, writ,
-----
injunction or decree applicable specifically to the Assets, any Seller or
Purchaser, as the case may be, including the Bankruptcy Court Order.
"Owned Sites" has the meaning specified in Recital D.
-----------
"Permitted Liens" means (i) Liens for taxes not yet due and payable,
---------------
(ii) any Liens set forth in the Disclosure Schedule, and (iii) any other Liens,
encumbrances or other imperfections in title the existence of which are
immaterial to the ownership, use or operation of the applicable Tower or Site.
"Person" means any general partnership, limited partnership,
------
corporation, limited liability company, joint venture, trust, business trust,
governmental agency, cooperative, association, individual or other entity, and
the heirs, executors, administrators, legal representatives, successors and
assigns of such Person as the context may require.
"Post-Closing Period Ground Leases Prepaid Rent" has the meaning
----------------------------------------------
specified in Section 7.07(b).
"Post-Closing Period Revenue Leases Prepaid Rent" has the meaning
-----------------------------------------------
specified in Section 7.07(a).
"Post-Closing Revenue Leases" has the meaning specified in Section
---------------------------
3.02.
"Pre-Closing Rights" has the meaning specified in Section 7.06.
------------------
"Pre-Petition Lenders" means the financial institutions from time to
--------------------
time party as "Lenders" to the Credit Agreement dated as of December 4, 1995, as
amended.
9
"Procedures Order" has the meaning specified in Section 6.01.
----------------
"Purchase Price" has the meaning specified in Section 2.02.
--------------
"Purchaser" means Pinnacle Towers Inc., a Delaware corporation.
---------
"Purchaser Group Member" means Purchaser, its Affiliates and their
----------------------
respective directors, officers, employees and agents.
"Purchaser's Liquidated Damages" has the meaning specified in Section
------------------------------
6.04.
"Qualified Competing Bid" has the meaning specified in Section
-----------------------
6.03(a).
"Qualified Competing Bidder" has the meaning specified in Section
--------------------------
6.03(b).
"RCC" means Radio Call Co. of Virginia, a Virginia corporation, as
---
debtor and debtor-in-possession.
"Real Property" has the meaning specified in Recital D of this
-------------
Agreement.
"Release" means any release, spill, emission, leaking, pumping,
-------
injection, deposit, disposal, discharge, dispersal, leaching or migration into
the indoor or outdoor environment.
"Remedial Action" means actions required to: (a) clean up, remove,
---------------
treat or in any other way address Hazardous Materials in the indoor or outdoor
environment; (b) prevent the Release or threat of Release or minimize the
further Release of Hazardous Materials; or (c) perform pre-remedial studies and
investigations and post-remedial care.
"Representatives" has the meaning specified in Section 6.02.
---------------
"Revenue Leases" as of the date hereof has the meaning specified in
--------------
Recital E, provided, however, for purposes of the purchase, sale and assignment
-------- -------
hereunder on the Closing Date, Revenue Leases shall refer to leases in effect on
the Closing Date under which a Seller, as lessor, leases out space on a Tower
and which are identified in Schedule III, as such Schedule may be revised by
Sellers as of the Closing Date to reflect any attrition (or addition) with
respect to such leases in the ordinary course of business, and subject to
Section 7.01.
10
"Seller" or "Sellers" has the meaning specified in the introductory
------ -------
paragraph of this Agreement.
"Seller Group Members" means each Seller, its Affiliates and their
--------------------
respective directors, officers, employees and agents.
"Seller's Knowledge" means the actual knowledge of any present
------------------
employee of the Sellers.
"Sellers' Liquidated Damages" has the meaning specified in Section
---------------------------
7.05(c).
"Sites" has the meaning specified in Recital B.
-----
"Survey" has the meaning specified in Section 7.08(c).
------
"Tenants" has the meaning specified in Recital E.
-------
"Termination Notice" has the meaning specified in Section 8.02.
------------------
"Topping Offer" has the meaning specified in Section 6.03(b).
-------------
"Topping Right" has the meaning specified in Section 6.03(b).
-------------
"Towers" has the meaning specified in Recital B.
------
"Transfer Taxes And Charges" has the meaning specified in Section
--------------------------
3.01(k).
SECTION 1.02. Interpretation. Reference to the singular includes the
--------------
plural and reference to the plural includes the singular, according to the
context. Reference to the neuter gender includes the masculine and feminine
where appropriate. References to any statute shall include any amendments
thereto, any successor statutes and all regulations, rulings and orders
promulgated thereunder, in effect at any applicable date of determination. The
headings to the Articles and Sections are for convenience of reference and shall
not affect the meaning or interpretation of this Agreement. Except as otherwise
stated, reference to Articles, Sections, Recitals, Exhibits and Schedules means
the Articles, Sections, Recitals, Exhibits and Schedules of this Agreement. The
words "including" or "includes" or similar terms used herein shall be deemed to
be followed by the words "without limitation", whether or not such additional
words are actually set forth herein. The Exhibits and Schedules are hereby
incorporated into this Agreement by reference thereto, and shall be deemed a
part of, this Agreement, provided that no Exhibit
11
that consists of a form of agreement or instrument shall be deemed to become
effective until executed and delivered by the appropriate parties.
ARTICLE II
PURCHASE, SALE AND ASSUMPTION
SECTION 2.01. Purchase and Sale. Subject to the satisfaction of the
-----------------
applicable conditions provided for herein, on the Closing Date, except as set
forth in the Disclosure Schedule, Sellers shall sell, convey and assign to
Purchaser and Purchaser shall purchase from Sellers, all right, title and
interest of Sellers, as of the Closing Date, in and to the Assets, free and
clear of all Liens other than Permitted Liens, and Sellers shall assign to
Purchaser and Purchaser shall assume all of the Liabilities.
SECTION 2.02. Purchase Price. The aggregate purchase price hereunder
--------------
for the purchase, sale, assignment and conveyance of Sellers' right, title and
interest in and to the Assets, and the assumption by Purchaser of the
Liabilities, shall be $170,000,000 (the "Purchase Price").
SECTION 2.03. Assumption of Liabilities.
-------------------------
Subject to the terms and conditions set forth herein, as of the
Closing, Purchaser shall assume and fully and timely pay, perform and discharge,
each of the following obligations and liabilities (of every kind and nature,
including contingent) (the "Liabilities"):
(i) all obligations and liabilities of Sellers in connection
with the Ground Leases, which arise out of or relate to the period on and after
the Closing Date, and which obligations or liabilities are contemplated by the
Ground Leases;
(ii) all obligations and liabilities of Sellers in connection
with the Revenue Leases, which arise out of or relate to the period on and after
the Closing Date, and which obligations or liabilities are contemplated by the
Revenue Leases; and
(iii) all other obligations and liabilities which arise out of
or relate to the period on and after the Closing Date with respect to the
ownership, possession, use, maintenance, licensing or operation of the Assets.
Except as expressly provided in this Agreement, in the Ancillary Agreements or
in the Master Lease, Purchaser is not assuming any other obligations or
liabilities of Sellers under the
12
transactions contemplated by this Agreement. Without limiting the foregoing,
Purchaser will not be liable for any of the following debts, liabilities and
obligations of any Seller (except as otherwise agreed by Purchaser and Sellers):
(a) employee salary, payroll or benefit obligations, (b) general or
administrative expenses of Sellers, whether or not related to the Assets (except
as provided in Sections 3.01(k), 7.07 or 7.11), (c) sales commissions (except as
provided in Sections 3.02 or 7.11), or (d) Seller obligations in respect of
insurance policies.
SECTION 2.04. ASSETS IN "AS IS" CONDITION. SUBJECT TO THE
---------------------------
REPRESENTATIONS AND WARRANTIES OF EACH SELLER SET FORTH IN ARTICLE IV, PURCHASER
ACKNOWLEDGES AND AGREES THAT THE ASSETS ARE BEING SOLD, ASSIGNED AND CONVEYED
HEREUNDER ON AN "AS IS" AND "WHERE IS" BASIS AS OF THE CLOSING DATE. WITHOUT
LIMITING THE FOREGOING, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF EACH
SELLER SET FORTH IN ARTICLE IV, PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT
NO SELLER HAS MADE, IS MAKING OR IS DEEMED TO HAVE MADE OR BE MAKING ANY
REPRESENTATION OR WARRANTY WITH RESPECT TO THE ASSETS, INCLUDING WITH RESPECT TO
THE TITLE, WORKMANSHIP, CONDITION, DESIGN, STRUCTURAL INTEGRITY, OPERATION OR
FITNESS FOR USE OR A PARTICULAR PURPOSE OF THE ASSETS OR ANY PORTION THEREOF, AS
TO THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, AS TO
THE ABSENCE OF ANY CONDITION OR OTHER CHARACTERISTIC RELATING TO ENVIRONMENTAL
OR SAFETY MATTERS, AS TO THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT,
TRADEMARK, COPYRIGHT OR OTHER PROPERTY RIGHT, WHETHER TANGIBLE OR INTANGIBLE OR
REAL OR PERSONAL, AS TO ANY EASEMENTS, COVENANTS, CONDITIONS OR RESTRICTIONS
AFFECTING THE ASSETS, OR AS TO THE ABSENCE OF OBLIGATIONS BASED ON STRICT
LIABILITY IN TORT, OR ANY OTHER REPRESENTATIONS AND WARRANTIES.
SECTION 2.05. Excluded Assets. (a) If by the earlier of the Closing
---------------
Date and August 15, 1998, as to any Site ("Environmental Impaired Site")
Purchaser demonstrates and describes in reasonable written detail to Sellers
that (i) the applicable Seller at such Site is not in compliance in all material
respects with all Environmental Laws and related permits and licenses applicable
to such Seller's operations at the Site, except for any non-compliance that will
not materially adversely affect the value of such Site, or (ii) any Hazardous
Materials are present at such Site, except for any such Hazardous Materials
which are presently in compliance in all material respects with all applicable
Environmental Laws or the presence of which will not materially adversely affect
the value of such Site, Purchaser at its option may exclude the Assets relating
to such Environmental Impaired Site from the Assets that will be conveyed and
assigned hereunder (including all interests in Ground Leases and Revenue Leases
relating to such Environmental Impaired Site). Notwithstanding the preceding
provisions of this Section 2.05(a),
13
at such Seller's option (but not its obligation) if such Seller cures the
problem at the Environmental Impaired Site prior to the Closing, to the
reasonable satisfaction of Purchaser, then Purchaser shall not be entitled to
exclude the Assets relating to such Site from the Assets that will be conveyed
and assigned hereunder and such Site shall no longer be deemed an Environmental
Impaired Site.
(b) With respect to any Assets which become excluded from the Assets that
will be conveyed and assigned hereunder pursuant to Section 2.05(a) ("Excluded
Assets"), Purchaser shall have no right, claim or remedy regarding any of
Sellers' representations, warranties, covenants or agreements hereunder relating
to any of such Excluded Assets, and, without limiting the foregoing, Purchaser
shall have no right or claim under Sections 7.11 or 8.01(d) with respect
thereto.
ARTICLE III
CLOSING
SECTION 3.01. The Closing.
-----------
(a) Subject to the terms and conditions set forth herein, the closing
(the "Closing") of the purchase, sale, assignment and conveyance of the Assets
and the assumption of the Liabilities pursuant to this Agreement shall take
place at the offices of Sidley & Austin, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ on
August 25, 1998, or, if the conditions pursuant to Section 9.01 are not
satisfied by such date then on the date five (5) business days after such
conditions are satisfied, or on such other date as the parties may agree (the
"Closing Date"). Sellers and Purchaser shall communicate with each other
regarding the status and completion of the conditions that are to be satisfied
pursuant to Section 9.01.
(b) At the Closing, Purchaser shall pay to MobileMedia Communications
on behalf of Sellers an amount equal to the Purchase Price in immediately
available federal funds by wire transfer to such account as MobileMedia
Communications shall designate.
(c) At the Closing, MobileMedia Communications (or one or more
successors, assigns or Affiliates of MobileMedia Communications as applicable)
and Purchaser shall execute and deliver the Master Lease.
(d) At the Closing, Sellers and Purchaser shall execute and deliver a
General Assignment And ▇▇▇▇ Of Sale
14
substantially in the form of Exhibit B hereto (the "General Assignment And ▇▇▇▇
Of Sale").
(e) At the Closing, Sellers and Purchaser shall execute and deliver a
Liabilities Assumption Agreement substantially in the form of Exhibit C hereto
(the "Liabilities Assumption Agreement").
(f) At the Closing, with respect to any Real Property regarding which
the title company of Purchaser issues a policy to Purchaser confirming that one
or more Sellers is the fee owner thereof, the applicable Sellers shall execute
and deliver to Purchaser, in recordable form, special warranty deeds (or the
local equivalent) conveying such Seller's interest in the Real Property to
Purchaser, and Purchaser (at its expense as to recordation fees) shall promptly
cause the appropriate recordation of such deeds, subject to Sections 7.09(b) and
7.09(c) in the event that such Seller is unable to provide such recordable deeds
at the Closing.
(g) At the Closing, each of the applicable Sellers shall execute and
deliver to Purchaser, in recordable form, assignments for each Ground Lease, and
Purchaser (at its expense as to recordation fees) shall promptly cause the
appropriate recordation of such assignments.
(h) At the Closing, MobileMedia Communications on behalf of Sellers
shall pay to Purchaser an amount equal to the amount, if any, of any Post-
Closing Period Revenue Leases Prepaid Rent.
(i) At the Closing, Purchaser shall pay to MobileMedia Communications
on behalf of Sellers an amount equal to the amount, if any, of any Post-Closing
Period Ground Leases Prepaid Rent.
(j) At the Closing, as applicable, each party shall pay to the other
party the amount or amounts, if any, as are required to be paid as prorations
for certain costs, expenses and charges pursuant to Section 7.07(c).
(k) This Section 3.01(k) shall be subject to Sections 3.01(f), 3.01(g)
and 3.01(r). At or prior to the Closing, Purchaser shall pay or cause to be
paid (either to the appropriate taxing authority, or to the applicable Seller
for payment by such Seller to the appropriate taxing authority, as the case may
be) all transfer, stamp, sales, use, excise or similar taxes or duties, and any
applicable escrow fees or similar charges, payable in connection with the sale,
assignment or conveyance of such Seller's interest in and to the Assets or the
assumption of the Liabilities hereunder to the extent not
15
covered by section 1146(c) of the Code (collectively "Transfer Taxes And
Charges"). At the Closing, Sellers shall reimburse Purchaser in the amount of
fifty percent (50%) of the Transfer Taxes And Charges. Notwithstanding the
foregoing, in the event that any deed recordation fees or escrow fees or similar
charges are not due and payable until after the Closing, Purchaser may elect to
pay such fees or charges when due, rather than at or prior to the Closing, and
in such event Sellers shall reimburse Purchaser in the amount of fifty percent
(50%) of such fees or charges promptly after Purchaser's payment of the same and
Purchaser's notifying Sellers of such payment and providing Sellers appropriate
supporting documentation with respect thereto. If Purchaser receives any
refunds, credits, rebates or similar payments with respect to any Transfer Taxes
and Charges, Purchaser shall as soon as reasonably practicable remit fifty
percent (50%) of the amount thereof to MobileMedia Communications on behalf of
Sellers. (Any payments by Sellers to Purchaser under this Section 3.01(k) may
be paid by MobileMedia Communications on behalf of Sellers.)
(l) At the Closing, MobileMedia Communications on behalf of Sellers
shall return the Letter of Credit to Purchaser.
(m) At or prior to the Closing, each Seller shall deliver the
applicable items which are to be delivered by such Seller pursuant to Sections
7.08(a) and 7.08(b).
(n) At the Closing, each Seller shall deliver the applicable documents
and materials, or copies thereof, which are listed in clause (vii) of the
definition of Assets in Section 1.01.
(o) At or prior to the Closing, Purchaser shall deliver to Sellers
resale certificates for each state or local jurisdiction in which Purchaser will
either resell or lease any Asset that is treated as tangible personal property
under any applicable sales, use, excise or similar tax laws.
(p) As applicable, each Seller shall deliver to Purchaser certificates
certifying that such Seller is not a foreign person within the meaning of
Section 1445 of the Internal Revenue Code.
(q) Subject to the terms hereof, Sellers shall deliver revised
Schedules II and III, as applicable.
(r) At the Closing (or soon as reasonably practicable thereafter as to
non-Owned Sites), Purchaser and Lessee shall prepare a memorandum of the Master
Lease for recordation in the appropriate jurisdictions, at Lessee's expense as
to recordation
16
fees (except to the extent that the parties are unable to effect such
recordation as to non-Owned Sites).
(s) At the Closing, as applicable, Purchaser shall deliver to the
Lessee nondisturbance agreements and similar agreements pursuant to Section 18
of the Master Lease.
(t) At the Closing, a Seller and Purchaser shall execute a lease for
Site 61 (Greensboro, NC) as contemplated by the Disclosure Schedule.
(u) At or prior to the Closing, Sellers will provide Purchaser a
complete list of paging terminals that are excluded from the Assets as
contemplated by the Disclosure Schedule.
SECTION 3.02. Supplemental Payments to Sellers Regarding Post-Closing
-------------------------------------------------------
Revenue Leases
--------------
If Purchaser or any of its Affiliates, as lessor, enters into a lease
("Post-Closing Revenue Leases") for space on Towers with a Person or its
Affiliates whom any Seller has contacted or has been engaged in discussions
with, whether prior to or following the Closing Date, regarding the leasing of
space on Towers which Post-Closing Revenue Lease becomes effective on the
Closing Date or at any time within one (1) year following the Closing Date,
Purchaser shall pay such Seller an amount equal to fifty percent (50%) of the
stipulated annual rent under such Post-Closing Revenue Lease. The payment from
Purchaser shall be due and payable to Seller in one lump sum no later than
thirty (30) days after the effective date of the applicable Post-Closing Revenue
Lease. "Post-Closing Revenue Leases" include arrangements with any existing
tenant under a Revenue Lease regarding such tenant installing different
equipment or leasing other space or additional space on the same or different
Towers, but does not refer to an extension or renewal of an existing Revenue
Lease for the same equipment at the same Tower Site.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
As of the date hereof, each of the Sellers jointly and severally
represents and warrants to Purchaser that:
SECTION 4.01. Authorization; Contravention. Except as set forth in
----------------------------
the Disclosure Schedule, (i) each Seller is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation, and (ii) subject to the issuance and effectiveness of the
Bankruptcy Court Order, the execution, delivery and performance of this
Agreement and the Ancillary Agreements by such Seller, and the execution,
17
delivery and performance of the Master Lease by MobileMedia Communications (or
the applicable Lessee), and the consummation of the transactions contemplated
hereby and thereby, are within such Seller's corporate power, have been duly
authorized by all necessary corporate action of such Seller, and, other than
breaches that by operation of law are deemed cured or waived and consents that
by operation of law are deemed granted or inapplicable, as reflected in the
Bankruptcy Court Order, do not contravene or constitute a default under any
provision of (x) its certificate of incorporation or by-laws, or (y) subject to
receipt of the consent of the DIP Lenders, any Applicable Laws, or any agreement
or other instrument or Order binding upon it or any of its properties. Except
for the issuance and effectiveness of the Bankruptcy Court Order, and except as
set forth in the Disclosure Schedule, the execution, delivery and performance by
each Seller of this Agreement and the Ancillary Agreements, and the execution,
delivery and performance by MobileMedia Communications (or the applicable
Lessee) of the Master Lease, require no action or consent by, filing with or
notice to any governmental body, agency or official or other Person (including
with respect to the FAA or FCC). Subject to the issuance and effectiveness of
the Bankruptcy Court Order, this Agreement is a valid and binding agreement of
each Seller enforceable against such Seller in accordance with its terms. Each
of the Ancillary Agreements will constitute a valid and binding agreement of
each Seller enforceable against such Seller in accordance with its terms, upon
the execution and delivery thereof. The Master Lease will constitute a valid
and binding agreement of MobileMedia Communications (or the applicable Lessee)
enforceable against MobileMedia Communications (or the applicable Lessee) in
accordance with its terms upon the execution and delivery thereof.
SECTION 4.02. Title to Assets. Except as set forth in the Disclosure
---------------
Schedule, each Seller has (i) valid leasehold interests as a tenant under the
Ground Leases to which it is a party and valid leasehold interests as a lessor
under the Revenue Leases to which it is a party, and (ii) good title to all of
the Assets which it purports to own (subject to the Permitted Liens and except
for Liens in favor of the Pre-Petition Lenders or the DIP Lenders). Except for
Permitted Liens, upon consummation of the Closing, the Assets will be conveyed
and assigned by Sellers to Purchaser free and clear of all Liens (including
without limitation free and clear of all Liens in favor of the Pre-Petition
Lenders or the DIP Lenders). Except as set forth in the Disclosure Schedule, no
Seller has entered into any contracts or granted any options or similar rights
for the sale of the Assets to any Person other than to Purchaser pursuant to
this Agreement, other than as contemplated by Article VI, and, upon consummation
of the Closing, the Assets will no longer be subject to any such options or
similar rights entered into by any Seller.
18
SECTION 4.03. Legal Proceedings. Except as set forth in the
-----------------
Disclosure Schedule, no Seller has received notice of, and to such Seller's
Knowledge there are not, any claims, actions, suits, investigations or
proceedings before any court or governmental body against the Assets, an outcome
of which would likely have a material adverse effect on such Seller's interest
in and to the Assets taken as a whole.
SECTION 4.04. Compliance With Law. Except as set forth in the
-------------------
Disclosure Schedule, each Seller is in compliance in all material respects with
all material laws and regulations applicable to the Assets which it purports to
own and the business operations presently conducted by such Seller at the Sites.
Except as set forth in the Disclosure Schedule, to such Seller's Knowledge, such
Seller possesses all licenses, franchises, permits, zoning variances, and other
governmental authorizations that are necessary to operate the Towers. Each
Seller has provided to Purchaser or made available to Purchaser or its
representatives copies of all applicable material licenses, franchises, permits,
zoning variances and other governmental authorizations regarding the operation
of such Towers, which are in such Seller's possession. The representations and
warranties under this Section 4.04 shall not apply with respect to
environmental, health and safety matters which, instead, are covered exclusively
by the representations and warranties set forth in Sections 4.01 and 4.06.
SECTION 4.05. Ground Leases and Revenue Leases. Except as set forth
--------------------------------
in the Disclosure Schedule, and except with respect to the Bankruptcy
Proceedings, each of the Ground Leases and Revenue Leases to which any Seller is
a party (i) has been duly and validly executed and delivered by such Seller, and
(ii) constitutes a valid and binding agreement of such Seller. Except as set
forth in the Disclosure Schedule, to such Seller's Knowledge, neither the lessor
nor tenant under any Ground Lease or Revenue Lease is in material breach
thereunder. Schedule III sets forth the approximate amount of gross monthly
rent paid to Sellers under each of the Revenue Leases indicated thereon
(exclusive of expense reimbursements and related expense components) for the
period indicated thereon. Except as set forth in the Disclosure Schedule, each
Seller has made available to Purchaser or its representatives true and correct
copies of any Ground Leases, Revenue Leases or easements for the Easement Sites
to which such Seller is party and which Purchaser or its representatives has
requested to review.
SECTION 4.06. Environmental Matters. This Section 4.06 and Section
---------------------
4.01 contain the exclusive representations and warranties of each Seller
concerning environmental, health and safety matters, including but not limited
to Environmental Laws and Hazardous Materials. Except as set forth in the
Disclosure
19
Schedule, to such Seller's Knowledge, such Seller is in compliance in all
material respects with all Environmental Laws and related permits and licenses
applicable to such Seller's operations at the Sites, except for any non-
compliance that will not materially adversely affect the value of such Site, and
no action, suit, proceeding, hearing, investigation, charge, complaint, claim,
demand, or notice has been filed or commenced, and is pending, against Seller
alleging any failure to so comply. Except as set forth in the Disclosure
Schedule, no Hazardous Materials are present at a Site which have been placed
thereon by any Seller, except for any such Hazardous Materials which are
presently in compliance in all material respects with all applicable
Environmental Laws or the presence of which will not materially adversely affect
the value of such Site. Each Seller has provided or made available to Purchaser
or its representatives copies of all environmental studies and reports, which
were prepared during the five (5)-year period preceding the date hereof and are
in such Seller's possession regarding Hazardous Materials on Sites operated by
such Seller.
SECTION 4.07. Certain Site and Tower Matters.
------------------------------
(a) Except as set forth in the Disclosure Schedule, no Seller has
received notice of any existing action by governmental authorities to terminate
or materially reduce the current access from the Sites to existing highways and
roads, or to sewer or other utility services serving the Sites. Except as set
forth in the Disclosure Schedule, to Sellers' Knowledge, (i) all utilities
required for the operation of the Towers enter the Sites through adjoining
public streets or, if they pass through an adjoining private tract, do so in
accordance with valid public easements, and (ii) all utilities required for the
operation of the Towers are installed and operating and all installation and
connection charges have been paid in full.
(b) Except as set forth in the Disclosure Schedule, to Sellers'
Knowledge, (i) the Towers are located within the boundary lines of the
applicable Real Property, (ii) the Towers are not in violation of applicable
setback requirements, zoning laws, and ordinances, and (iii) the Towers do not
encroach on any easement that may materially burden the Sites.
(c) Except as set forth in the Disclosure Schedule, to Sellers'
Knowledge, (i) the Real Property is not located within any flood plain or
subject to any similar type restriction for which any permits or licenses
necessary to the use thereof have not been obtained, and (ii) none of the Real
Property is within any area determined by the Department of Housing and Urban
Development to be flood prone under the Federal Flood Protection Act of 1973.
20
(d) Except as set forth in the Disclosure Schedule, there are no
leases, subleases or other agreements granting to any Person the right of use or
occupancy of any portion of the Real Property, other than the use or occupancy
by any Seller, its Affiliates, Tenants under applicable Revenue Leases or
Persons performing maintenance, repair or related services. Except as set forth
in the Disclosure Schedule, there are no Persons in possession of such Real
Property, other than any Seller, its Affiliates, Tenants under applicable
Revenue Leases or Persons performing maintenance, repair or related services.
SECTION 4.08. Reaffirmation at Closing. At the Closing, each Seller
------------------------
shall be deemed to reaffirm to Purchaser the accuracy and correctness in all
material respects of the representations and warranties of such Seller set forth
in this Article IV (without further action by such Seller), except to the extent
that prior to the Closing Purchaser receives from Sellers a written instrument
(which shall become a Schedule hereto) that discloses any modifications and
exceptions to such representations and warranties.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PURCHASER
As of the date hereof, Purchaser represents and warrants to each
Seller that:
SECTION 5.01. Authorization; Contravention. (i) Purchaser is a
----------------------------
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation, and (ii) the execution, delivery and
performance of this Agreement, the Ancillary Agreements and the Master Lease by
Purchaser and the consummation of the transactions contemplated hereby and
thereby are within Purchaser's corporate power, have been duly authorized by all
necessary corporate action of Purchaser, and do not contravene or constitute a
default under any provision of (x) its certificate of incorporation or by-laws
or (y) any Applicable Laws, or any agreement or other instrument or Order
binding upon it or any of its properties. Except for the issuance and
effectiveness of the Bankruptcy Court Order, the execution, delivery and
performance by Purchaser of this Agreement, the Ancillary Agreements and the
Master Lease require no action or consent by, filing with or notice to any
govern mental body, agency or official or other Person (including with respect
to the FAA or FCC). This Agreement is a valid and binding agreement of Purchaser
enforceable against Purchaser in accordance with its terms. Each of the
Ancillary Agreements and Master Lease will constitute a valid and binding
agreement of
21
Purchaser enforceable against Purchaser in accordance with its terms, upon the
execution and delivery thereof.
SECTION 5.02. Sufficient Funds. On or before August 15, 1998,
----------------
Purchaser will have sufficient funds, under binding financing commitments and/or
from Purchaser's cash on-hand, which will fully enable Purchaser to purchase the
Assets and to assume the Liabilities pursuant to this Agreement. No condition
(contractual or otherwise) will exist to prevent Purchaser from applying
borrowed funds under any such financing commitment and Purchaser's cash on-hand
to purchase the Assets and otherwise to consummate the transactions contemplated
hereunder in a timely manner.
SECTION 5.03. No H-S-R Act Filing. The transactions contemplated by
-------------------
this Agreement are exempt from the filing requirements under the H-S-R Act based
on (i) such transactions being deemed an acquisition of investment real property
assets for purposes of the H-S-R Act and (ii) the fair market value of any
equipment located on such real property not exceeding $15,000,000 in the
aggregate.
SECTION 5.04. Reaffirmation at Closing. At the Closing, Purchaser
------------------------
shall be deemed to reaffirm to each Seller the accuracy and correctness in all
material respects of the representations and warranties set forth in Article V
(without further action by Purchaser), except to the extent that prior to the
Closing Sellers receive from Purchaser a written instrument (which shall become
a Schedule hereto) that discloses any modifications and exceptions to such
representations and warranties.
ARTICLE VI
EXCLUSIVITY; COMPETING BIDS AND BIDDING PROCEDURES
--------------------------------------------------
SECTION 6.01. Bankruptcy Actions. No later than five (5) business
------------------
days after the date hereof, Sellers will file a motion, supporting papers and a
proposed order, in form and substance reasonably acceptable to Sellers and
Purchaser (the "Procedures Order"), seeking approval of the terms of this
Article VI.
SECTION 6.02. Exclusivity. From and after the date hereof through
-----------
and including the earlier of the date of the closing of the transaction
contemplated by this Agreement and the date on which this Agreement is
terminated pursuant to Article VIII (the "Exclusivity Period"), no Seller shall
(i) make any
22
offer, or initiate or solicit the making of any proposal, that constitutes, or
may reasonably be expected to lead to, any Competing Transaction (as hereinafter
defined), or (ii) authorize or permit any of the officers, directors or
employees (collectively, "Employees") of such Seller or any investment banker,
financial advisor, attorney, accountant, agent or other representative
(collectively, "Representatives") retained by such Seller to take any such
action. Notwithstanding the foregoing, each Seller and their respective
Employees and Representatives may, until such time as the Bankruptcy Court has
entered the Procedures Order (at which time the Procedures Order shall govern),
(i) respond to inquiries from one or more third parties, including third parties
previously contacted by such Seller ("Competing Bidders"), (ii) review written
proposals from Competing Bidders for Competing Transactions, (iii) enter into
confidentiality agreements with Competing Bidders and provide Competing Bidders
with access to information, confidential or otherwise, concerning the Company
and its business, (iv) negotiate Competing Bids with Competing Bidders, (v) to
the extent that a Competing Bid is made and not exceeded by a Topping Offer as
described in Section 6.03, consummate Competing Transactions with Competing
Bidders, (vi) disclose to the maker of the Qualifying Competing Bid the terms of
a Topping Offer as described in Section 6.03 and (vii) take any action not
otherwise prohibited by this Agreement in furtherance of any of the foregoing or
as otherwise permitted by the Procedures Order. During the Exclusivity Period,
such Seller shall (x) promptly notify Purchaser of any inquiries or proposals
received by it or by any such officer, director or Representative relating to
any such matters, (y) promptly notify Purchaser of all relevant terms (including
the identify of the person or entity) of any such inquiry or proposal, and (z)
if the inquiry or proposal is in writing, deliver or cause to be delivered to
Purchaser a copy of such inquiry or proposal. For purposes of this Agreement,
"Competing Transaction" shall mean the sale of any of the Assets to a Person or
Persons other than Purchaser, in one transaction or a series of related
transactions, and the entering into of leasing transactions as contemplated by
the Master Lease. Upon expiration of the Exclusivity Period, each Seller and
their respective Employees and Representatives may initiate or solicit the
making of any proposal that constitutes, or may reasonably be expected to lead
to, any Competing Transaction, without further restriction under this Section
6.02.
SECTION 6.03. Competing Bids.
--------------
(a) On or before August 7, 1998 (the "Bidding Deadline"), third
parties may submit proposals for Competing Transactions ("Competing Bids"),
which proposals shall be delivered to such Seller and such other parties as may
be specified in the Procedures Order. In order for any Seller to
23
consider any Competing Bid, the Competing Bid must be: (i) in writing; (ii)
identical in all material respects to the terms set forth in this Agreement
(except that no other Person shall be entitled to the Purchaser's Liquidated
Damages or to the expense reimbursement provided for in Section 6.05), the
Ancillary Agreements and the Master Lease; (iii) accompanied by a deposit in
cash or collected funds in the amount of $5,000,000 to be held by Seller; (iv)
accompanied by evidence satisfactory to Seller, in its sole discretion that the
bidder has sufficient financial resources to complete the transactions
contemplated by this Agreement; and (v) reflect a cash purchase price of at
least $178,000,000. If more than one Competing Bid is made before the Bidding
Deadline, Sellers shall determine the Competing Bid that provides the greatest
value to, and is in the best interests of the estate, which bid shall be the
"Qualifying Competing Bid" for purposes of clauses (b) and (c) below.
(b) Within five (5) calendar days after the Bidding Deadline,
MobileMedia Communications on behalf of Sellers will promptly notify Purchaser
and shall indicate in such notice the terms of the Qualifying Competing Bid,
including the identity of the third party submitting the Qualifying Competing
Bid (the "Qualifying Competing Bidder") and the consideration offered by the
Qualifying Competing Bidder (a "Competing Bid Notice"). Upon delivery of a
Competing Bid Notice, Purchaser shall have the right (a "Topping Right") to
deliver to Sellers, within [five (5)] calendar days following the receipt by
Purchaser of such Competing Bid Notice, a written offer (a "Topping Offer") to
amend the terms of this Agreement in order to provide for a Purchase Price
exceeding the Qualifying Competing Bid. A Topping Offer shall exceed the
Qualifying Competing Bid by a minimum of $500,000.
(c) In the event that Purchaser exercises such Topping Right, Sellers
shall disclose such Topping Offer to the Qualifying Competing Bidder and, within
three (3) calendar days following receipt by Sellers of Purchaser's notice of
Topping Offer, Purchaser and Sellers shall enter into an amendment to this
Agreement to reflect Sellers' acceptance of Purchaser's Topping Offer, unless,
within such three (3) day period, the Qualifying Competing Bid is increased to
exceed the Topping Offer by a minimum of $500,000, in which event Purchaser may
again exercise its Topping Right. If, however, within the time period specified
in clause (b) of this Section 6.03, Purchaser has failed to make a Topping Offer
or has notified Sellers in writing that it does not intend to make a Topping
Offer, Sellers may enter into a definitive agreement with the Qualifying
Competing Bidder and Sellers' only obligation to Purchaser shall be the payment
of Purchaser's Liquidated Damages as set forth in Section 6.04 and the return of
the Deposit as provided for in Section 8.01(b).
24
(d) Following the execution of any amendment to this Agreement
pursuant to subsection (c) above, unless specifically amended in such
amendments, the provisions of this Article VI shall remain in effect and the
receipt by Seller of any other offers, proposals or inquiries relating to any
Competing Bid shall be subject to the provisions of this Article VI.
SECTION 6.04. Purchaser's Liquidated Damages. In the event this
------------------------------
Agreement is terminated pursuant to Section 8.01(b) and Purchaser has not
breached this Agreement, Sellers shall pay to Purchaser, upon the earlier to
occur of (i) December 1, 1998 and (ii) the closing of a Competing Transaction,
an amount equal to $5,000,000 ("Purchaser's Liquidated Damages"). The parties
acknowledge that any damages to Purchaser arising from a termination of this
Agreement are not reasonably ascertainable and cannot be calculated with any
degree of certainty. Therefore, the parties have agreed that Purchaser's
Liquidated Damages are necessary and appropriate to compensate Purchaser for the
actual damages expected to result from out-of-pocket expenses, the payment of
commitment fees for financing, professional fees and expenses, and likely
opportunity costs to be incurred by Purchaser.
SECTION 6.05. Expense Reimbursement. In the event this Agreement is
---------------------
terminated by Purchaser pursuant to Section 8.01(c) or (d) and Section 8.03,
Seller shall pay to Purchaser, within 10 business days after the effectiveness
of such termination, an amount equal to the reasonable expenses actually
incurred by Purchaser in connection with the transactions contemplated hereby
and by the Master Lease and the Ancillary Documents, which expenses shall be
evidenced by invoices or other documentation delivered to Seller together with
the Termination Notices, and which may include, without limitation, reasonable
attorneys' and accountants' fees and expenses, commitment or other financing
fees and fees relating to title reports or surveys.
ARTICLE VII
OTHER AGREEMENTS
SECTION 7.01. Conduct of the Business Pending Closing. Each Seller
---------------------------------------
covenants and agrees that, prior to the earlier of the Closing or termination of
this Agreement, except as (x) set forth in the Disclosure Schedule, (y)
otherwise agreed to by Purchaser, or (z) otherwise required by the Bankruptcy
Court or resulting from the Bankruptcy Proceedings:
(i) such Seller will operate the Assets in the ordinary course
of its business, consistent with past practice as a debtor-in-possession;
25
(ii) such Seller will not encumber the Assets with any Liens except
for Liens incurred in the ordinary course of its business or with Permitted
Liens or Liens in favor of the Pre-Petition Lenders or the DIP Lenders (and any
such Liens in favor of the Pre-Petition Lenders or DIP Lenders shall not survive
the Closing);
(iii) such Seller will not amend, in any material respect, any
Revenue Leases or Ground Leases, except for amendments in the ordinary course of
its business, and, without limiting the foregoing, the extension or renewal of
any Revenue Leases or Ground Leases shall not be deemed to be an amendment for
purposes of this Section 7.01, provided, that (x) such Seller shall not extend
--------
or renew any Revenue Lease at a rental rate that is less than the present rental
rate thereunder, without the consent of Purchaser which consent shall not be
unreasonably withheld or delayed, and (y) such Seller shall not extend or renew
any Ground Lease at a rental rate that exceeds the greater of (1) one hundred
twenty five percent (125%) of the present rental rate thereunder or (2) $500 per
month more than the present rental rate thereunder, without the consent of
Purchaser which consent shall not be unreasonably withheld or delayed;
(iv) such Seller shall notify Purchaser of any pending or threatened
governmental investigations or hearings, within such Seller's Knowledge, that
would be expected to materially adversely affect the Assets taken as a whole;
and
(v) such Seller will comply with all Applicable Laws in all
material respects, the compliance with which is required for consummation of the
transactions contemplated by this Agreement.
SECTION 7.02. Access. Each Seller shall provide Purchaser and its
------
representatives, at reasonable times and upon reasonable advance notice to such
Seller, with reasonable access to the Assets that are purported to be owned by
such Seller, and such Seller shall make available to Purchaser or its
representatives all documents, records and information as Purchaser may
reasonably request with respect to the ownership or operation of such Assets or
the terms of related Liabilities, subject to any confidentiality agreements
restricting such disclosure or access. At reasonable times and upon reasonable
advance notice to any Seller, Purchaser and its representatives shall have the
right to enter Sites that are operated by such Seller for purposes of Purchaser
or its representatives conducting surveys, tests and studies that are necessary
or appropriate in connection with inspecting such Sites; provided that if such
--------
surveys, tests or studies include sampling, Purchaser shall provide such Seller
with a reasonable opportunity to review the scope of work for sampling before it
is performed,
26
and Purchaser shall defend, indemnify and hold harmless such Seller against any
and all Losses and Expenses to the extent caused by such sampling.
SECTION 7.03. Confidentiality. (a) If this Agreement is terminated,
---------------
Purchaser hereby agrees that Purchaser, its Affiliates and its representatives
will immediately (and without request by any Seller) deliver to MobileMedia
Communications on behalf of Sellers, and Purchaser will not retain any copies of
all documents, work papers and other material obtained by Purchaser or on its
behalf from any Seller or any of their Affiliates or representatives in
connection with this Agreement, whether so obtained before or after the
execution hereof. If this Agreement is terminated, Purchaser (and its Affiliates
and representatives) will not use or disclose, directly or indirectly, any
information so obtained, and will have all such information kept confidential
and not used in any way detrimental to any Seller or any of their Affiliates;
provided, that: (i) Purchaser may use and disclose any such information which
--------
has been publicly disclosed (other than by the Purchaser or any of its
Affiliates or representatives in breach of their obligations under this Section
7.03), and (ii) to the extent that Purchaser or any of its Affiliates or
representatives may become legally compelled to disclose any of such
information, Purchaser, its Affiliate or representative may disclose such
information if they shall have accorded the applicable Seller the opportunity to
obtain an appropriate protective order, or other satisfactory assurance of
confidential treatment, for the information required to be so disclosed.
(b) Purchaser, its Affiliates and its representatives shall comply
with the requirements of all existing agreements to which Purchaser is a party
applicable to the use or confidentiality of information regarding the Assets,
any Seller, any of their Affiliates or any of their respective businesses.
(c) Without limiting the other provisions of this Section 7.03, the
applicable Seller may impose reasonable confidentiality restrictions on
Purchaser and its representatives regarding any inspection by Purchaser and its
representatives in connection with Section 7.02.
SECTION 7.04. Maintenance of Records. For a period of fifteen (15)
----------------------
years from the Closing Date: (i) Purchaser and its Affiliates shall keep and
maintain all documents and records relating to the Assets or Liabilities, or
(ii) Purchaser shall (at its expense) deliver to the applicable Seller copies of
any of such documents or records which Purchaser chooses not to maintain (unless
such Seller grants permission, in writing, for Purchaser to destroy specified
documents and records). Upon reasonable notice and request, Purchaser shall make
such
27
documents and records available to such Seller for inspection and copying, at
such Seller's expense, during regular business hours in order to permit such
Seller to (i) prepare for, dispute or respond to any claim or proceeding,
including, without limitation, audits in connection with tax returns or
proceedings under the Internal Revenue Code, and (ii) comply with governmental
requirements applicable to such Seller or any of its Affiliates; provided, that
--------
any such inspection pursuant to this Section 7.04 shall be conducted in such a
manner so as not to unreasonably interfere with the normal conduct of the
business by Purchaser.
SECTION 7.05. Deposit; Liquidated Damages.
---------------------------
(a) Purchaser shall cause the Letter of Credit to be issued to
MobileMedia Communications (on behalf of Sellers) within three (3) business days
after the date hereof, which Letter of Credit shall be drawn on by MobileMedia
Communications or returned to Purchaser as provided below, and in accordance
with the terms of the Letter of Credit:
(i) if the Closing shall occur, the Letter of Credit shall be
returned to Purchaser at the Closing;
(ii) if this Agreement is terminated pursuant to Section 8.01(c)
and a breach by the Purchaser of this Agreement causes such termination event,
or if this Agreement is terminated pursuant to Section 8.01(e), MobileMedia
Communications on behalf of Sellers may present and draw on the Letter of
Credit, in partial or full payment of the Sellers' Liquidated Damages as the
case may be; and
(iii) if this Agreement is terminated pursuant to Sections
8.01(a), 8.01(b) or 8.01(d), or if this Agreement is terminated pursuant to
Section 8.01(c) and there is no breach by the Purchaser of this Agreement which
causes the Section 8.01(c) termination event, MobileMedia Communications on
behalf of Sellers shall promptly return the Letter of Credit to Purchaser.
(b) Each of Purchaser and each Seller shall perform and act with
respect to the Letter of Credit consistent with the provisions of this Section
7.05 and the applicable provisions of the Letter of Credit.
(c) Purchaser hereby acknowledges that the actual damages to Sellers
in the event that this Agreement is terminated pursuant to Section 8.01(e) or
the Closing does not occur by the date specified in Section 8.01(c) due to a
breach by Purchaser of any of its representations, warranties, covenants or
agreements under this Agreement will equal or exceed $12,500,000 ("Sellers'
Liquidated Damages"), provided that Sellers' Liquidated Damages
--------
28
shall be $5,000,000 if this Agreement is terminated pursuant to Section 8.01(e)
prior to the issuance of the Bankruptcy Court Order. In the event that the
Closing does not occur by the date specified in Section 8.01(c) due to such
breach by Purchaser of this Agreement or this Agreement is terminated pursuant
to Section 8.01(e), Purchaser shall promptly pay to MobileMedia Communications
(on behalf of Sellers) cash in the amount, if any, that the Sellers' Liquidated
Damages exceeds the amount of any payment made under the Letter of Credit to
MobileMedia Communications (on behalf of Sellers). In the event of such breach
by Purchaser, the Letter of Credit Disbursement shall be paid to MobileMedia
Communications (on behalf of Sellers) and applied to Sellers' Liquidated Damages
pursuant to Section 7.05(a)(ii), provided, that, Purchaser shall be and remain
--------
primarily liable to Sellers for the full and prompt payment of the entire amount
of Sellers' Liquidated Damages (in the event that the Issuing Bank does not so
promptly pay the full amount of the Letter of Credit Disbursement to MobileMedia
Communications, and upon any such payment by Purchaser of the full amount of the
Sellers' Liquidated Damages, MobileMedia Communications shall return the Letter
of Credit to Purchaser).
SECTION 7.06. Pre-Closing Claims and Rights. The parties acknowledge
-----------------------------
and agree that the Assets that are being sold and assigned hereunder shall not
include any claims, causes of actions, indemnities, recoveries or similar rights
(individually and collectively the "Pre-Closing Rights") that may exist in favor
of any Seller with respect thereto regarding acts or events which arise or occur
prior to the Closing Date or otherwise relate to the period prior to the Closing
Date, and such Seller shall not be deemed to have sold or assigned the Pre-
Closing Rights to Purchaser hereunder.
SECTION 7.07. Prorations.
----------
(a) Each Seller shall be entitled to all rent and related payments
under the Revenue Leases to which it is party relating to any period (or portion
thereof) preceding the Closing Date (regardless of the actual rent receipt
date). Purchaser shall promptly remit to MobileMedia Communications on behalf of
Sellers, all rent and related payments that Purchaser receives or collects from
Tenants under the Revenue Leases regarding rent relating to any period (or
portion thereof) preceding the Closing Date. Such rent shall include the
application of any guarantee payments, indemnities, setoffs or similar payments
or recoveries that are applied to rent. The parties agree that all such payments
received by Purchaser or its representatives from or on behalf of a Tenant shall
applied in the following order: (i) first, to unpaid rent that has been due
within sixty (60) days preceding such rent receipt date, first applied to rent
that is most remotely in arrears, (ii) next, to rent that is due on
29
such rent receipt date or comes due during the immediately succeeding forty
(40) -day period, (iii) next, to unpaid rent that has been due more than sixty
(60) days preceding such rent receipt date, first applied to rent that is most
remotely in arrears, and (iv) then, to rent coming due more than forty (40) days
after such rent receipt date. Notwithstanding the foregoing provisions of this
Section 7.07(a), Purchaser shall be entitled to all rent under the Revenue
Leases which comprises rental payments relating to any period (or portion
thereof) on or after the Closing Date ("Post-Closing Period Revenue Leases
Prepaid Rent"), and Sellers shall deliver to Purchaser at Closing by payment of
an amount equal to any Post-Closing Period Revenue Leases Prepaid Rent.
(b) Sellers shall be responsible for paying all rent under the Ground
Leases relating to any period (or portion thereof) which ends on or prior to the
date immediately preceding the Closing Date. As applicable, with respect to rent
under any Ground Lease that has been paid by or for any Seller and which
comprises rental payments relating to any period (or portion thereof) on or
after the Closing Date ("Post-Closing Period Ground Leases Prepaid Rent"),
Purchaser shall reimburse Sellers at Closing by payment of an amount equal to
the amount of any Post-Closing Period Prepaid Ground Lease Rent.
(c) Utility charges, personal property taxes, real estate taxes and
similar items relating to the Assets shall be ratably adjusted among the parties
at the Closing (or as soon as reasonably practicable thereafter to the extent
that the allocation is undetermined by the Closing Date). Subject to Section
3.01(k) regarding the allocation of Transfer Taxes And Charges, and without
limiting the foregoing provision of this Section 7.07(c), Sellers shall be
responsible for taxes relating to the Assets regarding any period (or portion
thereof) which ends on or prior to the date immediately preceding the Closing
Date and Purchaser shall be responsible for all taxes relating to the Assets
regarding any period (or portion thereof) on or after the Closing Date.
SECTION 7.08. Certain Seller Undertakings Regarding Ground Leases,
----------------------------------------------------
Sites and Related Matters.
-------------------------
(a) Prior to the Closing, with respect to each Leased Site the
applicable Seller which purports to lease such Site will, at its reasonable
expense, forward to its lessor at the Leased Site, the following documents,
requesting the execution and delivery thereof: (i) a landlord estoppel agreement
(the "Estoppel Agreement"), substantially in the form of Exhibit D hereto, and
(ii) a memorandum of lease ("Memorandum of Lease"), substantially in the form of
Exhibit E hereto (subject to the final sentence of this Section 7.08(a)). Such
Seller shall not
30
be responsible for any recordation costs or related fees with respect to any
Memorandum of Lease. Such Seller will forward to Purchaser any Estoppel
Agreement and Memorandum of Lease that have been so executed and delivered by
such lessor and returned to such Seller. The parties acknowledge and agree that
(x) no Seller makes any representation or warranty as to whether any lessor will
so execute and deliver any Estoppel Agreement or Memorandum of Lease, (y) no
Seller shall have further responsibility in attempting to obtain the execution
and delivery thereof, and (z) Purchaser shall not be entitled to exclude any
Towers at a Leased Site from the Assets, and no Seller shall have any other
liability or responsibility, solely because of such Seller's failure to deliver
an executed and delivered Estoppel Agreement or Memorandum of Lease from the
lessor at such Site. Sellers and Purchaser shall reasonably cooperate in
connection with modifying the forms of Estoppel Agreement and Memorandum of
Lease as appropriate for specific Sites.
(b) On or prior to the Closing, the applicable Seller shall provide
to Purchaser, at such Seller's reasonable expense as to the items listed in
clauses (i) through (iii) and (v) below, the following affidavits and
undertakings, each in form acceptable to such Seller in its reasonable
discretion, to the extent that the same are required by Purchaser's title
insurance company, if Purchaser elects to purchase owner's and/or leasehold
title insurance policies, as the case may be (written on ALTA Form B-1970, if
available in the applicable jurisdictions), for each of the Sites: (i)
affidavits regarding parties in possession of the real property, (ii) affidavits
certifying as to matters that would give rise to the filing of a mechanic's or
materialman's lien, (iii) so-called "gap" undertakings, (iv) such other
documents that a title company customarily requests from an owner of real
property which are necessary either to allow the deed or Memorandum of Lease to
be recorded or to remove standard preprinted exceptions regarding factual
matters (provided that the same can be furnished at no additional expense to any
Seller), and (v) evidence reasonably satisfactory to Purchaser and the title
company that the Persons executing closing documents on behalf of such Seller
have appropriate right, power and authority to do so. Any such title insurance
policies shall be subject only to Permitted Liens. In furtherance of this
Section 7.08(b) the applicable Seller will provide to Purchaser copies of any or
all of the following items for each of the Sites which may then be in the
possession of such Seller or any of its a wholly-owned subsidiaries, and which
have been prepared within the five (5)-year period preceding the date hereof:
(1) title reports, commitments and policies, (2) surveys, and (3) zoning
reports.
(c) If Purchaser elects to order a current survey (the "Survey") of
any Site that any Seller owns, leases, or subleases
31
and which is included in the Assets, such Seller shall cooperate in all
commercially reasonable respects with Purchaser's reasonable requests to obtain,
at Purchaser's sole cost and expense, any such current survey. If the Survey
shall disclose any defect(s) or encroachment(s) from or onto the Site that has
not been cured, or will not be insured over by Purchaser, and such defect(s) or
encroachment(s), in the aggregate, have a material adverse effect on the value
of the Site in question, then Seller and Purchaser shall in good faith attempt
to correct such defect consistent with the provisions of Section 7.09(b),
including the limitation on the obligation to expend funds set forth therein.
SECTION 7.09. Certain Post-Closing Obligations.
--------------------------------
(a) For a period of four (4) months following the Closing Date,
Seller shall make ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ available on a substantially full-time basis
to assist Purchaser regarding any Purchaser efforts to negotiate renewals or
extensions of Ground Leases, to the extent that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ is an employee
of Seller during such period (at no cost to Purchaser). If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ is
not an employee of Seller during such period, Seller's obligation under this
Section 7.09(a) shall apply to any employee of Seller who succeeds to ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇'▇ duties and responsibilities (at no cost to Purchaser); provided,
--------
that Seller's obligations under this Section 7.09(a) shall cease as of any date
on which Purchaser or its Affiliates hire ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as an employee or
consultant. Purchaser acknowledges and agrees that Seller is not making any
representation or warranty or agreement under this Section 7.09(a) that Seller
will retain ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as an employee or consultant at any time following
the date hereof through the four (4)-month anniversary of Closing Date.
(b) Without limiting each Seller's obligations under Section 7.10,
each Seller shall reasonably cooperate with Purchaser, and each Seller shall use
commercially reasonable efforts, to cure any breaches of such Seller's
representations and warranties in Section 4.02 regarding title defects, and to
correct Survey defects pursuant to Section 7.08(c); provided that Purchaser
--------
acknowledges and agrees that this Section 7.09(b) shall not be construed as
obligating any Seller to expend any funds or to incur any expenses in connection
with any such cure or correction.
(c) In the event that any Seller is unable to convey good title to
any Real Property (or portion thereof) to Purchaser, such Seller and Purchaser
shall in good faith attempt to implement a commercially reasonable and feasible
arrangement that will provide Purchaser with a non-fee ownership possessory
interest to such Real Property (or portion thereof).
32
(d) Purchaser and Sellers shall amend Schedule I, from time to time,
to include the legal descriptions of any Site that is in such party's
possession.
(e) The Master Lease, in Section 2(c), contemplates certain
procedures for the compensation of Purchaser (including without limitation by
the substitution of rental sites in the event that Seller and Purchaser are
unable to extend the terms of Ground Leases to at least the fifth (5th)
anniversary of the date of the Master Lease), or are unable to cure certain
title defects for any owned Site. The Master Lease, in Section 11, contemplates
certain procedures and obligations of Lessee regarding the "overloading" of any
Tower.
SECTION 7.10. Further Assurances. Each of the Purchaser and each
------------------
Seller further agrees that prior to the Closing it will use reasonable efforts
to take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable under the Code, the Internal Revenue Code
and other applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement, including reasonable efforts to
obtain all necessary waivers, consents and approvals and to effect all necessary
filings and notices including, but not limited to: (i) obtaining the Order, and
(ii) Purchaser making all applicable filings with the FCC as contemplated by
Section 9.01(d). Furthermore, each of the Purchaser and each Seller agrees
either prior to or after the Closing (subject to the provisions hereof
concerning responsibility for costs and expenses)to execute and deliver other
documents and take other actions as the other party may reasonably request which
are necessary to consummate the transactions contemplated hereby.
SECTION 7.11. Indemnification. (a) Subject to the provisions of
---------------
this Section 7.11, each Seller shall jointly and severally indemnify, protect
and hold harmless each Purchaser Group Member from and against any and all
Losses and Expenses, whether or not litigation is commenced, imposed in any
manner upon, incurred by or asserted against such Purchaser Group Member in
connection with or arising from:
(i) any breach of any representation or warranty of a Seller
contained in this Agreement or in an Ancillary Agreement;
(ii) any breach of any covenant or agreement of a Seller
contained in this Agreement or in an Ancillary Agreement; or
(iii) any claim by any broker, finder or investment banker
engaged or allegedly engaged by a Seller or any
33
Affiliate thereof in connection with any of the transactions contemplated by
this Agreement;
provided, that no Seller shall be required to indemnify, protect or hold any
--------
Purchaser Group Member harmless from or against any such Loss or Expense to the
extent that such Loss or Expense arises out of (A) such Purchaser Group Member's
own gross negligence or willful misconduct or (B) the breach of any of the
representations or warranties of Purchaser contained in this Agreement or in an
Ancillary Agreement, or the breach of any covenant or agreement of Purchaser
contained in this Agreement or in an Ancillary Agreement.
(b) The indemnification obligation provided for in Section 7.11(a)(i)
shall terminate with respect to any claim on the earlier of the third (3rd)
anniversary of the Closing Date and the expiration of the applicable statute of
limitations. The indemnification obligation provided for in Section 7.11(a)(ii)
shall continue until the earlier of three (3) years after the applicable
Purchaser Group Member knew or should have known of the breach of the covenant
or agreement by the applicable Seller and the expiration of the applicable
statute of limitations, except that indemnification by Sellers with respect to a
breach of Section 7.07 shall continue until the expiration of the applicable
statute of limitations. The indemnification obligation provided for in Section
7.11(a)(iii) shall continue until the expiration of the applicable statute of
limitations.
(c) Subject to the provisions of this Section 7.11, Purchaser shall
indemnify, protect and hold harmless each Seller Group Member from and against
any and all Losses and Expenses, whether or not litigation is commenced, imposed
in any manner upon, incurred by or asserted against such Seller Group Member in
connection with or arising from:
(i) any breach of any representation or warranty of Purchaser
contained in this Agreement or in an Ancillary Agreement;
(ii) any breach (other than as specified in clause (iii) below)
of any covenant or agreement of Purchaser contained in this Agreement or in an
Ancillary Agreement;
(iii) any breach by Purchaser of any covenant or agreement
contained in Section 2.03 or Section 7.02; or
(iv) any claim by any broker, finder or investment banker
engaged or allegedly engaged by Purchaser or any Affiliate thereof in connection
with any of the transactions contemplated by this Agreement; or
34
provided, that Purchaser shall not be required to indemnify, protect or hold any
--------
Seller Group Member harmless from or against any such Loss or Expense to the
extent that such Loss or Expense arises out of (A) such Seller Group Member's
own gross negligence or willful misconduct or (B) the breach of any of the
representations or warranties of a Seller contained in this Agreement or in an
Ancillary Agreement, or the breach of any of covenant or agreement of a Seller
contained in this Agreement or in an Ancillary Agreement.
(d) The indemnification obligation provided for in Section 7.11(c)(i)
shall terminate with respect to any claim on the earlier of the third (3rd)
anniversary of the Closing Date and the expiration of the applicable statute of
limitations. The indemnification obligation provided for in Section 7.11(c)(ii)
shall continue until the earlier of three (3) years after the applicable Seller
Group Member knew or should have known of the breach of the covenant or
agreement by Purchaser and the expiration of the applicable statute of
limitations, except that indemnification by Purchaser with respect to a breach
of Section 7.07 shall continue until the expiration of the applicable statute of
limitations. The indemnification obligation provided for in Sections
7.11(c)(iii) or 7.11(c)(iv) shall continue until the expiration of the
applicable statute of limitations.
(e) Any Seller Group Member or Purchaser Group Member (the
"Indemnified Party") seeking indemnification hereunder shall promptly give
notice (a "Claim Notice") to the party obligated to provide indemnification to
such Indemnified Party (the "Indemnitor") describing in reasonable detail the
facts giving rise to any claim for indemnification hereunder and shall include
in such Claim Notice (if then known) the amount or the method of computation of
the amount of such claim, and a reference to the provision of this Agreement or
any Ancillary Agreement upon which such claim is based; provided, however, that
-------- -------
a Claim Notice in respect of any action at law or suit in equity by or against a
third Person as to which indemnification will be sought shall be given in
accordance with Section 7.11(f). In calculating any Loss or Expense there shall
be deducted (i) any insurance recovery in respect thereof (and no right of
subrogation shall accrue hereunder to any insurer) and (ii) the amount of any
tax benefit to the Indemnified Party (or any of its Affiliates) with respect to
such Loss or Expense (after giving effect to the tax effect of receipt of the
indemnification payments). The Indemnified Party shall have the burden of proof
in establishing the amount of Loss and Expense suffered by it.
(f) (i) In order for an Indemnified Party to be entitled to any
indemnification provided for under this Agreement in respect of, arising out of
or involving a claim or demand made by any third Person against an Indemnified
Party (whether or not
35
in writing), such Indemnified Party shall notify the Indemnitor in writing, and
in reasonable detail, of the third Person claim within ten (10) business days
after receipt by such Indemnified Party of written notice of the third Person
claim. Thereafter, the Indemnified Party shall deliver to the Indemnitor,
promptly after the Indemnified Party's receipt thereof, copies of all notices
and documents (including court papers) received by the Indemnified Party
relating to the third Person claim.
(ii) In the event of the initiation of any legal proceeding,
claim or demand against the Indemnified Party by a third Person, the Indemnitor
shall have the sole and absolute right after the receipt of notice, at its
option and at its own expense, to be represented by counsel of its choice and to
control, defend against, negotiate, settle or otherwise deal with any
proceeding, claim, or demand which relates to any Loss or Expense indemnified
against hereunder; provided, that the Indemnified Party may participate in any
--------
such proceeding with counsel of its choice and at its expense. The parties
hereto agree to cooperate fully with each other in connection with the defense,
negotiation or settlement of any such legal proceeding, claim or demand. To the
extent the Indemnitor elects not to defend such proceeding, claim or demand, and
the Indemnified Party defends against or otherwise deals with any such
proceeding , claim or demand, the Indemnified Party may retain counsel, at the
expense of the Indemnitor, and control the defense of such proceeding. Neither
the Indemnitor nor the Indemnified Party may settle any such proceeding which
settlement obligates the other party to pay money, to perform obligations or to
admit liability without the consent of the other party, such consent not to be
unreasonably withheld.
(g) Notwithstanding anything to the contrary in this Agreement, the
Sellers in the aggregate shall be required to indemnify and hold harmless
Purchaser Group Members under Section 7.11(a)(i) with respect to Losses and
Expenses incurred by Purchaser Group Members only up to a cumulative aggregate
maximum of $25,000,000, it being agreed and acknowledged that indemnification
claims under Sections 7.11(a)(ii) or 7.11(a)(iii) shall not be subject to any
such maximum limit. The indemnifiable Losses and Expenses claims limitation in
the preceding sentence refers to the cumulative claims by Purchaser Group
Members against any and all of the Sellers in the aggregate. Notwithstanding
anything to the contrary in this Agreement, Purchaser shall be required to
indemnify and hold harmless Seller Group Members under Section 7.11(c)(i) with
respect to Losses and Expenses incurred by Seller Group Members only up to a
cumulative aggregate maximum of $25,000,000, it being agreed and acknowledged
that indemnification claims under Sections 7.11(c)(ii), 7.11(c)(iii) or
7.11(c)(iv) shall not be subject to any such maximum limit. Notwithstanding the
foregoing,
36
Purchaser's maximum liability hereunder to Seller Group Members regarding any
breaches of this Agreement by Purchaser which cause the Closing not to occur by
the date specified in Section 8.01(c) or this Agreement to terminate pursuant to
Section 8.01(e) shall be an amount equal to the Sellers' Liquidated Damages
pursuant to Section 7.05(c).
(h) No Seller shall be required to indemnify any Purchaser Group
Member for any claims arising under Sections 7.11(a)(i) or 7.11(a)(ii) with
respect to any claim or group of claims arising from the same facts unless the
amount of the aggregate Losses arising under Sections 7.11(a)(i) and 7.11(a)(ii)
from the same or different facts exceeds $1,000,000 (in which event the entire
amount of such indemnifiable claims arising under Sections 7.11(a)(i) or
7.11(a)(ii) may be recovered, subject to Section 7.11(g)). Purchaser shall not
be required to indemnify any Seller Group Member for any claims arising under
Sections 7.11(c)(i) or 7.11(c)(ii) with respect to any claim or group of claims
arising from the same facts unless the amount of the aggregate Losses arising
under Sections 7.11(c)(i) and 7.11(c)(ii) from the same or different facts
exceeds $1,000,000 (in which event the entire amount of such indemnifiable
claims arising under Sections 7.11(c)(i) or 7.11(c)(ii) may be recovered,
subject to Section 7.11(g)).
(i) In no event shall any Seller, Purchaser or any of their
respective Affiliates be liable for any Consequential Damages arising under or
in connection with this Agreement or any Ancillary Agreement, other than
Consequential Damages resulting from breaches of Section 2.03 or Section 7.02.
ARTICLE VIII
TERMINATION OF AGREEMENT
SECTION 8.01. Termination. This Agreement and the transactions
-----------
contemplated hereby may be terminated at any time prior to the Closing Date:
(a) by mutual written consent of MobileMedia Communications (on
behalf of Sellers) and Purchaser;
(b) by Sellers' entering into a definitive agreement for a Competing
Transaction (and promptly thereafter MobileMedia Communications (on behalf of
Sellers) shall return the Letter of Credit to Purchaser), in which event Sellers
shall pay the Purchaser's Liquidated Damages in accordance with Section 6.04
(provided that Purchaser has not breached this Agreement), and Sellers shall
have no further obligation or liability to Purchaser in connection with this
Agreement and Sellers shall not
37
be subject to damages or other liability to Purchaser in connection with Sellers
terminating this Agreement;
(c) by Purchaser or by MobileMedia Communications (on behalf of
Sellers) if the Closing shall not have occurred prior to the close of business
on December 31, 1998 (subject to extension as provided in Section 8.02);
provided, that the party seeking to terminate this Agreement pursuant to this
--------
Section 8.01(c) shall be permitted to do so only if the delay in the Closing
shall not have resulted from the failure of such party to materially comply with
any of the terms of this Agreement;
(d) by Purchaser if prior to the Closing (i) Sellers provide
modifications and exceptions to their representations and warranties hereunder
which modifications and exceptions in their entirety represent a materially
adverse change to Purchaser's interests under this Agreement, the Ancillary
Agreements and the Master Lease taken as a whole, as compared with the
representations and warranties that Sellers make as of the date hereof, (ii)
Sellers materially breach their representations and warranties contained herein
taken as a whole (subject to modification thereof pursuant to Section 4.08), or
(iii) any Seller materially breaches a covenant or agreement contained herein,
and the effect of such breach is materially adverse to Purchaser's interests
under this Agreement, the Ancillary Agreements and the Master Lease taken as a
whole; or
(e) by MobileMedia Communications (on behalf of Seller) if prior to
the Closing (i) Purchaser provides modifications and exceptions to its
representations and warranties hereunder which modifications and exceptions in
their entirety represent a materially adverse change to Sellers' interests under
this Agreement, the Ancillary Agreements and the Master Lease taken as a whole,
as compared with the representations and warranties that Purchaser makes as of
the date hereof, (ii) Purchaser materially breaches its representations and
warranties contained herein taken as a whole (subject to modification thereof
pursuant to Section 5.04), or (iii) Purchaser materially breaches a covenant or
agreement contained herein and the effect of such breach is materially adverse
to Sellers' interests under this Agreement, the Ancillary Agreements and the
Master Lease taken as a whole.
SECTION 8.02. Certain Termination Events Cure Period.
--------------------------------------
In the event that Purchaser wishes to terminate this Agreement
pursuant to Section 8.01(d) or MobileMedia Communications (on behalf of Sellers)
wishes to terminate this Agreement pursuant to Section 8.01(e), as the case may
be, the party seeking termination shall notify the breaching party (the
"Breaching Party") in writing of the existence of such breach
38
(the "Termination Notice") and thereupon the Breaching Party shall have the
right (but not the obligation) to cure such breach within the 120-day period
following delivery of the Termination Notice, and this Agreement shall not
terminate if such breach is cured within the 120-day cure period. If the
duration of the 120-day period would extend beyond December 31, 1998 then such
date shall be extended to the end of such 120-day period or such earlier date as
soon as reasonably practicable after such breach is cured or some other date as
the parties may agree upon.
SECTION 8.03. Effect of Termination. If this Agreement shall be
---------------------
terminated pursuant to Section 8.01, all further obligations of Purchaser and
Sellers under this Agreement shall terminate without further liability of any
party hereto except for those further obligations of the Purchaser and Sellers
under the proviso in Section 7.02 and under Sections 7.03, 7.05, 7.11, 10.05 and
10.08.
ARTICLE IX
CLOSING CONDITIONS
SECTION 9.01. Closing Conditions. Unless waived by the applicable
------------------
party (and consummation of the Closing shall be deemed to constitute such
waiver), the obligations of the parties to enter into and consummate the Closing
transactions contemplated in Article III hereof shall be subject to the
satisfaction on or prior to the Closing Date of the following conditions:
(a) the Bankruptcy Court Order shall have been issued and shall be in
full force and effect, and all conditions contemplated by the Bankruptcy Court
Order to consummation of the transactions contemplated hereby shall have been
satisfied;
(b) in the case of Purchaser, the representations and warranties of
Sellers contained herein (as such representations and warranties may be modified
pursuant to Section 4.08) shall be true and correct in all material respects,
and Sellers shall have complied with the covenants of Sellers contained in
Article VII in all material respects, unless waived by Purchaser;
(c) in the case of Sellers, the representations and warranties of
Purchaser contained herein (as such representations and warranties may be
modified pursuant to Section 5.04) shall be true and correct in all material
respects, and Purchaser shall have complied with the covenants of Purchaser
contained in Article VII in all material respects, unless waived by Seller;
39
(d) in the case of Sellers, Purchaser shall have made all filings with
the FCC with respect to consummating the transactions contemplated by this
Agreement if applicable;
(e) there shall not be any statute, rule or regulation promulgated or
enacted which makes it illegal for Sellers to sell and assign the Assets or for
Purchaser to purchase the Assets and assume the Liabilities, or any order or
judgment enjoining Sellers or Purchaser from consummating the transactions
contemplated hereby; and
(f) the Debtors shall have assumed and assigned, pursuant to section
365 of the Code, the Revenue Leases and Ground Leases to which the Debtors are
party.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices. All notices or other communications required
-------
or permitted hereunder shall be in writing and shall be deemed given or
delivered when delivered personally, by courier or facsimile transmission or
mailed (first class postage prepaid) to the parties at the addresses or
facsimile numbers set forth below:
If to Purchaser to:
------------------
Pinnacle Towers Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
With a copy to:
Holland & Knight LLP
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
If to any Seller to:
-------------------
MobileMedia Communications, Inc.
Fort ▇▇▇ Executive Park
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
40
With a copy to:
Sidley & Austin
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇
All such notices and other communications will (x) if delivered
personally or by courier to the address provided in this Section 10.01, be
deemed given upon delivery, (y) if delivered by facsimile transmission to the
facsimile number provided in this Section 10.01, be deemed given when receipt of
transmission has been orally confirmed by the sending party, and (z) if
delivered by first class or registered mail in the manner described above to the
address as provided in this Section 10.01, be deemed given three (3) business
days after deposit in the United States mail (in each case regardless of whether
such notice, request or other communication is received by any other Person to
whom a copy of such notice is to be delivered pursuant to this Section 10.01).
Any party from time to time may change its address, facsimile number or other
information for the purpose of notices to that party by giving notice specifying
such change to the other party.
SECTION 10.02. Binding Effect. This Agreement shall be binding upon
--------------
and shall inure to the benefit of the parties and their respective successors
and assigns. This Agreement may not be assigned by Sellers or Purchaser without
the consent of the other party, except for an assignment by any party to any
successor of all or substantially all the operating assets of such party and its
Affiliates taken as a whole (which shall not require the consent of the other
party).
SECTION 10.03. Amendments. This Agreement may be amended only by
----------
written agreement of all of the parties. Any consents or waivers hereunder
shall require the written agreement of all of the parties.
SECTION 10.04. Counterparts. This Agreement may be executed in one
------------
or more counterpart all of which shall be considered one and the same instrument
and shall become effective when one or more counterparts have been signed by
each of the parties and delivered to each of the other parties.
SECTION 10.05. Expenses. Except as otherwise expressly provided
--------
herein, all legal and other costs and expenses incurred in connection herewith
and the transactions contemplated hereby shall be paid by the party incurring
such expenses.
41
SECTION 10.06. Calculations. MobileMedia Communications (on behalf
------------
of Sellers and Purchaser) shall calculate any payments under this Agreement
which require any calculation, including without limitation payment amounts
under Sections 3.01 and 7.07, which calculations shall be binding on the parties
absent error. The parties shall provide MobileMedia Communications with
necessary information for enabling MobileMedia Communications to make accurate
calculations hereunder. Purchaser shall have the right to verify any such
calculations, and to contest the computation of any calculation regarding which
Purchaser disagrees in good faith.
SECTION 10.07. Entire Agreement. This Agreement and the Schedules
----------------
and Exhibits described herein or attached or delivered pursuant hereto set forth
the entire agreement and understanding of the parties in respect of the
transactions contemplated hereby and supersede all prior agreements,
arrangements and understandings relating to the subject matter hereof.
SECTION 10.08. Brokers. Purchaser represents and warrants to Seller
-------
that Purchaser has not employed any broker, finder or investment banker which
might be entitled to any brokerage, finder's or other fee or commission from
Purchaser or Seller in connection with this Agreement or the consummation of any
transaction contemplated hereunder. Each Seller severally represents and
warrants to Purchaser that other than The Blackstone Group, L.P., whose fees
shall be paid by Seller, it has not employed any broker, finder or investment
banker which might be entitled to any brokerage, finder's or other fee or
commission from Seller or Purchaser in connection with this Agreement or the
consummation of any transactions contemplated hereunder.
SECTION 10.09. Governing Law. This Agreement shall be governed by
-------------
and construed in accordance with the internal laws of the State of New York.
42
SECTION 10.10. No Third Party Beneficiaries. This Agreement shall
----------------------------
not create any rights, claims or benefits inuring to any Person that is not a
party hereto or establish any third-party beneficiary of any of the obligations
of the parties set forth herein (except as expressly provided in Section 7.11).
43
IN WITNESS WHEREOF, this Purchase Agreement has been executed and
delivered by the parties hereto as of the day and year first above written.
PINNACLE TOWERS INC., a Delaware MOBILEMEDIA CORPORATION,a Delaware
corporation corporation, as debtor and
debtor-in-possession
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------- -------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President Title: Chairman-Restructuring
MOBILEMEDIA COMMUNICATIONS, INC. MOBILEMEDIA COMMUNICATIONS, INC., a
(CALIFORNIA), a California Delaware corporation, as debtor and
corporation, as debtor and debtor-in-possession
debtor-in-possession
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------- ------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman-Restructuring Title: Chairman-Restructuring
MOBILEMEDIA DP PROPERTIES, INC., a MOBILE COMMUNICATIONS CORPORATION OF
Delaware corporation, as debtor and AMERICA, a Mississippi corporation,
debtor-in-possession as debtor and debtor-in-possession
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------- -------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman-Restructuring Title: Chairman-Restructuring
MOBILEMEDIA PCS, INC., a Delaware MOBILECOMM OF THE WEST, INC., a
corporation, as debtor and California corporation, as debtor and
debtor-in-possession debtor-in-possession
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------- ----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman-Restructuring Title: Chairman-Restructuring
44
DIAL PAGE SOUTHEAST, INC., a Delaware MOBILECOMM OF THE SOUTHWEST, INC., a
corporation, as debtor and Texas corporation, as debtor and
debtor-in-possession debtor-in-possession
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------- ----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman-Restructuring Title: Chairman-Restructuring
RADIO CALL CO., OF VIRGINIA, INC., a MOBILECOMM OF TENNESSEE, INC., a
Virginia corporation, as debtor and Tennessee corporation, as debtor and
debtor-in-possession debtor-in-possession
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------- -----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman-Restructuring Title: Chairman-Restructuring
MOBILECOMM OF FLORIDA, INC., a MOBILECOMM NATIONWIDE OPERATIONS,
Florida corporation, as debtor and INC., a Delaware corporation, as
debtor-in-possession debtor and debtor-in-possession
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------- ------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman-Restructuring Title: Chairman-Restructuring
MOBILECOMM OF THE MIDSOUTH, INC., a MOBILECOMM OF THE SOUTHEAST, INC., a
Missouri corporation, as debtor and Delaware corporation, as debtor and
debtor-in-possession debtor-in-possession
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------- -----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman-Restructuring Title: Chairman-Restricting
FWS RADIO, INC., a Texas corporation, MOBILEMEDIA PAGING, INC., a Delaware
as debtor and debtor-in-possession corporation, as debtor and
debtor-in-possession
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------- ------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman-Restructuring Title: Chairman-Restructuring
45
MOBILECOMM OF THE NORTHEAST, INC., a MOBILECOMM OF THE SOUTHEAST PRIVATE
Delaware corporation, as debtor and CARRIER OPERATIONS, INC., a Georgia
debtor-in-possession corporation, as debtor and
debtor-in-possession
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------- --------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman-Restructuring Title: Chairman-Restructuring
46
EXHIBIT B
---------
GENERAL ASSIGNMENT AND ▇▇▇▇ OF SALE
-----------------------------------
1. Reference is made to that certain Purchase Agreement dated as of
July 7, 1998 (the "Purchase Agreement") among MOBILEMEDIA CORPORATION, a
Delaware corporation, MOBILEMEDIA COMMUNICATIONS, INC., a Delaware corporation,
MOBILE COMMUNICATIONS CORPORATION OF AMERICA, a Mississippi corporation,
MOBILECOMM OF THE WEST, INC., a California corporation, MOBILECOMM OF THE
SOUTHWEST, INC., a Texas corporation, MOBILECOMM OF TENNESSEE, INC., a Tennessee
corporation, MOBILECOMM NATIONWIDE OPERATIONS, INC., a Delaware corporation,
MOBILEMEDIA COMMUNICATIONS, INC. (CALIFORNIA), a California corporation,
MOBILEMEDIA DP PROPERTIES, INC., a Delaware corporation, MOBILEMEDIA PCS, INC.,
a Delaware corporation, DIAL PAGE SOUTHEAST, INC., a Delaware corporation, RADIO
CALL CO. OF VIRGINIA, INC., a Virginia corporation, MOBILEMEDIA PAGING, INC., a
Delaware corporation, MOBILECOMM OF THE SOUTHEAST, INC., a Delaware corporation,
MOBILECOMM OF THE NORTHEAST, INC., a Delaware corporation, MOBILECOMM OF THE
SOUTHEAST PRIVATE CARRIER OPERATIONS, INC., a Georgia corporation, MOBILECOMM OF
FLORIDA, INC., a Florida corporation, MOBILECOMM OF THE MIDSOUTH, INC., a
Missouri corporation, and FWS RADIO, INC., a Texas corporation (each a
"Grantor"), and PINNACLE TOWERS INC., a Delaware corporation ("Grantee").
Capitalized terms used herein shall have the meanings specified in the Purchase
Agreement unless otherwise defined herein.
2. Grantors in consideration of the payment of the Purchase Price
and the assumption of Liabilities by Grantee pursuant to the Purchase Agreement,
does hereby grant, bargain, sell, assign, set over and deliver unto Grantee, its
successors and assigns, all right, title and interest of Grantors in and to the
Assets.
3. The representations and warranties of each Grantor in Article IV
of the Purchase Agreement (as modified by the Disclosure Schedule thereto) which
relate to the Assets are incorporated by reference herein.
4. In the event of any inconsistency or conflict between any
provisions of this General Assignment And ▇▇▇▇ Of Sale and the Purchase
Agreement, the Purchase Agreement provisions shall control.
5. This General Assignment And ▇▇▇▇ Of Sale may be executed in
counterparts, all of which together shall constitute one and the same
instrument.
47
IN WITNESS WHEREOF, this General Assignment And ▇▇▇▇ Of Sale has been
executed and delivered by the parties hereto as of the ___ day of __________.
PINNACLE TOWERS INC., MOBILEMEDIA CORPORATION,
a Delaware corporation a Delaware corporation
By:_______________________________ By:_____________________________________
MOBILEMEDIA DP PROPERTIES, INC., MOBILEMEDIA COMMUNICATIONS, INC.,
a Delaware corporation a Delaware corporation
By:_______________________________ By:_____________________________________
Name: Name:
Title: Title:
MOBILEMEDIA PCS, INC., MOBILE COMMUNICATIONS CORPORATION
a Delaware corporation OF AMERICA, a Mississippi corporation
By:_______________________________ By:_____________________________________
Name: Name:
Title: Title:
DIAL PAGE SOUTHEAST, INC., MOBILECOMM OF THE WEST, INC.
a Delaware corporation a California corporation
By:_______________________________ By:_____________________________________
Name: Name:
Title: Title:
RADIO CALL CO. OF VIRGINIA, MOBILECOMM OF THE SOUTHWEST, INC.
INC., a Virginia corporation a Texas corporation
By:_______________________________ BY:_____________________________________
Name: Name:
Title: Title:
48
MOBILEMEDIA PAGING, INC., MOBILECOMM OF TENNESSEE, INC.,
a Delaware corporation a Tennessee corporation
By:_______________________________ By:_____________________________________
Name: Name:
Title: Title:
MOBILECOMM OF THE SOUTHEAST, MOBILECOMM NATIONWIDE OPERATIONS,
INC., a Delaware corporation INC., a Delaware corporation
By:_______________________________ By:____________________________________
Name: Name:
Title: Title:
MOBILECOMM OF THE NORTHEAST, MOBILEMEDIA COMMUNICATIONS, INC.
INC., a Delaware corporation (CALIFORNIA), a California corporation
By:_______________________________ By:____________________________________
Name: Name:
Title: Title:
MOBILECOMM OF THE SOUTHEAST MOBILECOMM OF THE MIDSOUTH, INC.,
PRIVATE CARRIER OPERATIONS, a Missouri corporation
INC., a Georgia corporation
By:_______________________________ By:____________________________________
Name: Name:
Title: Title:
MOBILECOMM OF FLORIDA, INC., FWS RADIO, INC.,
a Florida corporation a Texas corporation
By:_______________________________ By:____________________________________
Name: Name:
Title: Title:
49
EXHIBIT C
---------
LIABILITIES ASSUMPTION AGREEMENT
--------------------------------
THIS LIABILITIES ASSUMPTION AGREEMENT is made as of this __ day of
_________, by and among PINNACLE TOWERS INC., a Delaware corporation
("Purchaser"), MOBILEMEDIA CORPORATION, a Delaware corporation, MOBILEMEDIA
COMMUNICATIONS, INC., a Delaware corporation, MOBILE COMMUNICATIONS CORPORATION
OF AMERICA, a Mississippi corporation, MOBILECOMM OF THE WEST, INC., a
California corporation, MOBILECOMM OF THE SOUTHWEST, INC., a Texas corporation,
MOBILECOMM OF TENNESSEE, INC., a Tennessee corporation, MOBILECOMM NATIONWIDE
OPERATIONS, INC., a Delaware corporation, MOBILEMEDIA COMMUNICATIONS, INC.
(CALIFORNIA), a California corporation, MOBILEMEDIA DP PROPERTIES, INC., a
Delaware corporation, MOBILEMEDIA PCS, INC., a Delaware corporation, DIAL PAGE
SOUTHEAST, INC., a Delaware corporation, RADIO CALL CO. OF VIRGINIA, INC., a
Virginia corporation, MOBILEMEDIA PAGING, INC., a Delaware corporation,
MOBILECOMM OF THE SOUTHEAST, INC., a Delaware corporation, MOBILECOMM OF THE
NORTHEAST, INC., a Delaware corporation, MOBILECOMM OF THE SOUTHEAST PRIVATE
CARRIER OPERATIONS, INC., a Georgia corporation, MOBILECOMM OF FLORIDA, INC., a
Florida corporation, MOBILECOMM OF THE MIDSOUTH, INC., a Missouri corporation,
and FWS RADIO, INC., a Texas corporation (each a "Seller"), pursuant to the
Purchase Agreement dated as of July 7, 1998 (the "Purchase Agreement") among
-
Purchaser and Seller. Capitalized terms herein shall have the meanings
specified in the Purchase Agreement unless otherwise defined herein.
WHEREAS, pursuant to Section 2.03 of the Purchase Agreement, at the
Closing, Purchaser has agreed to assume certain liabilities and obligations
relating to the Assets.
NOW, THEREFORE, pursuant to the Purchase Agreement, Purchaser and Seller
hereby agrees as follows:
1. Assumption of Liabilities. In consideration of the sale, transfer,
-------------------------
assignment, conveyance and delivery by Sellers of Sellers' interests and to in
the Assets pursuant to the Purchase Agreement, Purchaser does hereby assume and
agree to fully and timely pay, perform and discharge each of the following
obligations and liabilities (of every kind and nature, including contingent)
(the "Liabilities"):
(a) all obligations and liabilities of Sellers in connection with the
Ground Leases, which arise out of or relate to the period on and
after the
50
Closing Date, and which obligations or liabilities are
contemplated by the Ground Leases;
(b) all obligations and liabilities of Sellers in connection with the
Revenue Leases, which arise out of or relate to the period on and
after the Closing Date, and which obligations or liabilities are
contemplated by the Revenue Leases; and
(c) all other obligations and liabilities which arise out of or
relate to the period on and after the Closing Date with respect
to the ownership, possession, use, maintenance, licensing or
operation of the Assets.
2. Further Assurances. Each of the parties agree to take such
------------------
further actions and execute and deliver such other documents, certificates,
agreements and other instruments as may be necessary or desirable in order to
consummate or implement the assumption of the Liabilities contemplated hereby.
3. The Purchase Agreement. In the event of any inconsistency or
----------------------
conflict between any provisions of this Liabilities Assumption Agreement and the
Purchase Agreement, the Purchase Agreement provisions shall control.
4. Governing Law. This Liability Assumption Agreement shall be
-------------
governed by and construed in accordance with the internal laws of the State of
New York.
5. Counterparts. This Liabilities Assumption Agreement may be
------------
executed in counterparts, all of which together shall constitute one and the
same instrument.
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IN WITNESS WHEREOF, this Liabilities Assumption Agreement has been
executed and delivered by the parties hereto as of the day and year first above
written.
PINNACLE TOWERS INC., MOBILEMEDIA CORPORATION,
a Delaware corporation a Delaware corporation
By:__________________________ By:__________________________
Name: Name:
Title: Title:
MOBILEMEDIA DP PROPERTIES, INC., MOBILEMEDIA COMMUNICATIONS, INC.,
a Delaware corporation a Delaware corporation
By:__________________________ By:__________________________
Name: Name:
Title: Title:
MOBILEMEDIA PCS, INC., MOBILE COMMUNICATIONS CORPORATION
a Delaware corporation OF AMERICA, a Mississippi
corporation
By:__________________________ By:__________________________
Name: Name:
Title: Title:
DIAL PAGE SOUTHEAST, INC., MOBILECOMM OF THE WEST, INC.
a Delaware corporation a California corporation
By:__________________________ By:__________________________
Name: Name:
Title: Title:
RADIO CALL CO. OF VIRGINIA, MOBILECOMM OF THE SOUTHWEST, INC.
INC., a Virginia corporation a Texas corporation
By:__________________________ By:__________________________
Name: Name:
Title: Title:
52
MOBILEMEDIA PAGING, INC., MOBILECOMM OF TENNESSEE, INC.,
a Delaware corporation a Tennessee corporation
By:__________________________ By:__________________________
Name: Name:
Title: Title:
MOBILECOMM OF THE SOUTHEAST, MOBILECOMM NATIONWIDE OPERATIONS,
INC., a Delaware corporation INC., a Delaware corporation
By:__________________________ By:__________________________
Name: Name:
Title: Title:
MOBILECOMM OF THE NORTHEAST, MOBILEMEDIA COMMUNICATIONS, INC.
INC., a Delaware corporation (CALIFORNIA), a California
corporation
By:__________________________ By:__________________________
Name: Name:
Title: Title:
MOBILECOMM OF THE SOUTHEAST MOBILECOMM OF THE MIDSOUTH, INC.,
PRIVATE CARRIER OPERATIONS, a Missouri corporation
INC., a Georgia corporation
By:__________________________ By:__________________________
Name: Name:
Title: Title:
MOBILECOMM OF FLORIDA, INC., FWS RADIO, INC.,
a Florida corporation a Texas corporation
By:__________________________ By:__________________________
Name: Name:
Title: Title:
53