EXHIBIT 10.1
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement") is entered into this 15th day of
September, 2000 ("Effective Date"), by and among TeleCorp Realty, LLC, a
Delaware limited liability company ("TeleCorp Realty, LLC"), TeleCorp Puerto
Rico Realty, Inc., a Puerto Rico corporation ("TeleCorp PR"), and TeleCorp
Communications, Inc., a Delaware corporation ("TCI") (TeleCorp Realty, TeleCorp
PR and TCI, collectively "TeleCorp" and individually a "TeleCorp Party"), SBA
Towers, Inc., a Florida corporation ("SBA") and SBA Telecommunications, Inc.
WHEREAS, TeleCorp is a wireless communications company which provides PCS
service;
WHEREAS, TeleCorp leases the real property referred to in the Prime Leases
(as such term is hereinafter defined) ("Site" or collectively "Sites") upon
which TeleCorp has constructed certain improvements including, but not limited,
to towers and related facilities and for which TeleCorp has entered into
Collocation Agreements (as that term is hereinafter defined) which Prime Leases,
improvements and Collocation Agreements are more particularly described in
Schedule I attached hereto;
WHEREAS, TeleCorp desires to assign, sell and convey certain leases, towers
and related facilities in connection with Two Hundred Thirteen (213) Sites to
SBA and then lease space on the Sites from SBA;
WHEREAS, to facilitate such sale and lease-back transaction, TeleCorp
intends to assign, sell and convey such leases, towers and related facilities to
a Delaware corporation to be formed and wholly owned by TeleCorp ("NewCo") and
then sell and convey all of the issued and outstanding shares of capital stock
of NewCo ("Shares") to SBA;
WHEREAS, to facilitate such sale and lease-back transaction, SBA desires to
purchase the Shares from TeleCorp; and
WHEREAS, TeleCorp desires to lease space on the Sites from NewCo subsequent
to the sale of the Shares of NewCo to SBA;
NOW THEREFORE, TeleCorp and SBA do hereby agree as follows:
1. Assets Purchased by NewCo from TeleCorp. At Closing, TeleCorp agrees
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to grant, bargain, sell, convey and assign to NewCo, TeleCorp's entire right,
title and interest in and to the following (collectively, the "Assets"):
(a) those ground leases specified in Schedule I attached hereto and
any addenda thereto ("Prime Leases") together with any and all easements for
ingress, egress and utilities which are attendant to the Prime Leases;
(b) those towers, tower foundations, utilities, fences, landscaping
and other improvements owned by TeleCorp which are constructed upon or
appurtenant to the real property described in the Prime Leases (collectively
"Tower Facilities") (excluding (i) TeleCorp's antennas, cabling, RBS units,
equipment grounding grids, and related appurtenances) and (ii) antennas and
other equipment owned by tenants under Collocation Agreements (as defined in
paragraph 1(c) below)) specified in Schedule I attached hereto;
(c) those subleases, licenses and other agreements which grant others
a right to use or occupy a portion of the real property described in the Prime
Leases or grant a right to use or occupy space on the Tower Facilities owned by
TeleCorp which are located on the real property described in the Prime Leases
("Collocation Agreements"). Said Collocation Agreements are specified in
Schedule I attached hereto;
(d) all right, title and interest of TeleCorp, if any, in and to all
(i) covenants, restrictions, agreements, development rights, air rights, density
rights, drainage rights, riparian and/or littoral rights benefiting the Sites,
(ii) utility mains, service laterals, hydrants, valves and appurtenances
servicing the Sites, (iii) utility deposits and reservation fees paid by or on
behalf of TeleCorp with respect to the Sites, and (iv) oil, gas, minerals, soil,
flowers, shrubs, crops, trees, timber, compacted soil, submerged lands and fill
appurtenant to the Sites.
(e) the following items for each Site (to the extent available and
assignable):
(i) the Federal Aviation Administration application, responses,
approvals and registration numbers submitted or received by TeleCorp;
(ii) the zoning permits and approvals, variances, building permits
and such other federal, state or local governmental approvals which have been
gained or for which TeleCorp has made application;
(iii) the construction, engineering, architectural or other plans
or drawings and related site plans, plats and surveys pertaining to the
construction of the Tower Facilities;
(iv) the geotechnical report which has been commissioned by
TeleCorp;
(v) the title reports, commitments for title insurance, ownership
and encumbrance reports, title opinion letters, copies of instruments in the
chain of title or any other information which may have been produced regarding
title to the Site;
(vi) the environmental assessments, including Phase I reports, and
any environmental reports involving contemporaneous or subsequent intrusive
testing, the "FCC Checklist" performed pursuant to NEPA requirements and any
other information which may have been produced regarding the environmental
condition of the Sites or neighboring real property; and
(vii) any development rights and other information written or
otherwise regarding the due diligence investigation made by TeleCorp or its
agents, independent contractors or employees regarding the Site.
The items described in paragraph 1(e) may hereinafter be collectively referred
to as "Due Diligence Items" and shall be more particularly described in the
Assignment of Prime Lease for each Site, a copy of the prototype Assignment of
Prime Lease is attached hereto as Attachment A. The Prime Leases, Tower
Facilities, Collocation Agreements and Due Diligence Items may hereinafter be
collectively referred to in this Agreement as the "Assets."
2. Stock Purchase. At Closing, subject to the terms and conditions of
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this Purchase Agreement, TeleCorp will sell and transfer all of the Shares to
SBA and SBA will purchase all of the Shares from TeleCorp. SBA and SBA
Telecommunications, Inc. covenant that within twelve (12) months of the Closing,
SBA and SBA Telecommunications, Inc. shall merge NewCo with or transfer the
assets of NewCo
to SBA Properties, Inc. provided that at the date which is twelve (12) months
after the Closing Date there is no pending litigation against NewCo with damage
allegations in excess of in the aggregate sum of Five Hundred Thousand and
No/100 Dollars ($500,000.00). SBA Properties, Inc. covenants that it shall
consent to the merger of NewCo or, if applicable in the instance of an transfer
of the assets of NewCo, shall assume and agree to perform all liabilities and
obligations of NewCo.
3. Purchase Price.
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(a) The purchase price for the Shares shall be Sixty-Nine Million
Seven Hundred Fifty-Seven Thousand Five Hundred and No/100 Dollars
($69,757,500.00), subject to all adjustments, credits and prorations provided
for in this Agreement (the "Purchase Price"). SBA shall within ten (10) days
after the date of this Agreement place ten percent (10%) of the Purchase Price
in escrow (the "Deposit"). The Deposit shall thereafter be subject to and
governed by the terms of the Escrow Agreement which is attached hereto and
incorporated by reference herein as Attachment B. The Deposit shall be paid to
TeleCorp by the escrow agent at Closing. The failure of SBA to place the
Deposit in escrow pursuant to the Escrow Agreement with ten (10) days after the
date of this Agreement shall give TeleCorp the right, but not the obligation to
declare SBA in breach of this Agreement, in which case TeleCorp shall be
entitled to such remedies against SBA for breach of contract which may be
available to TeleCorp at law or in equity, including but not limited to, an
action for damages and specific performance and the right to terminate this
Agreement. The remainder of the Purchase Price shall be paid to TeleCorp by SBA
at closing by wire transfer of immediately available funds to an account or
accounts identified by TeleCorp at or prior to Closing. The parties acknowledge
and agree that the number of Sites which may be transferred pursuant to this
Agreement cannot exceed Two Hundred Thirteen (213) due to limitations placed
upon TeleCorp under the terms of existing credit agreement with Chase Manhattan
Bank and certain other lenders and parties thereto (the "Credit Agreement"). In
the event that the Credit Agreement is amended to permit more Sites to be
transferred, the parties will amend this Agreement to increase the number of
Sites up to and including Two Hundred Seventy-Five (275) completed Sites and the
aggregate purchase price to Ninety Million Sixty Two Thousand Five Hundred and
No/100 Dollars ($90,062,500.00). The additional Sites which will become
subject to this Agreement in the event that the Credit Agreement is amended to
permit more Sites to be transferred are or shall be set forth on Schedule IA
attached hereto. In the event that Schedule IA does not include sixty two (62)
additional sites and the Credit Agreement is amended to permit the sale of these
additional sites, TeleCorp shall supplement Schedule IA after the Effective
Date to bring the total number of sites on Schedule IA to sixty two (62)
provided that SBA shall have ninety (90) days from the date that any Site is
added to Schedule IA to complete its due diligence under Section 7(a) for that
Site. The Purchase Price may also be subject to reduction in accordance with
Section 7(f) of this Agreement for any Excluded Sites.
(b) (i) All taxes, real estate assessments, utility charges, rents
payable under the Prime Leases and similar expenses will be prorated as of 12:01
A.M. on the Closing Date on the basis of a 365-day year; provided, however, that
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TeleCorp shall pay through the month following the Closing Date, rent under the
Prime Leases and shall be entitled to reimbursement from SBA for the prorated
amount thereof as of the Closing Date. Rents and other fees accruing under
Collocation Agreements on the Sites that are not more than thirty (30) days
delinquent will be prorated as of 12:01 a.m. on the Closing Date on the basis of
a 30-day month. If TeleCorp receives any rents or other receipts subsequent to
the Closing Date which relate to any period of time subsequent to the Closing
Date, TeleCorp will immediately pay to SBA that portion of the rents
attributable to the period of time subsequent to the Closing Date. If SBA
receives (whether from a tenant or from TeleCorp) any rents or other receipts
subsequent to the Closing Date which relate to any period of time prior to
thirty (30) days prior to the Closing Date, SBA will immediately pay to TeleCorp
the portion of the rents attributable to the period of time prior to thirty (30)
days prior to the Closing Date. Any rents or other receipts received subsequent
to the Closing Date shall be applied first to
current sums due and, thereafter, to delinquencies in inverse order of maturity.
All utility deposits and reservation fees paid by or on behalf of TeleCorp in
connection with the Sites will be assigned and transferred to NewCo.
(ii) If, on the Closing Date, the current real property tax bill with
respect to the Sites is not available, the amount of real property taxes will be
apportioned based on the prior year's tax. Any apportionment of taxes based
upon any figures other than a final current year tax bill will, at the request
of either TeleCorp or SBA, be subsequently reapportioned based upon receipt of
the final tax bill for the current year.
(iii) If any of the prorations cannot be calculated accurately on the
Closing Date, then the same will be calculated within sixty (60) days after the
Closing Date and either party owing the other party a sum of money based on such
subsequent prorations will promptly pay the sum to the other party. The terms
of this Section 3 will survive the Closing.
(iv) The parties acknowledge and agree that the transfer anticipated
by this transaction will be taxable under section 1060 of the Internal Revenue
Code. The parties agree that they will each file the appropriate forms with the
IRS in reporting this transaction. SBA covenants that it will prepare said
filings and cause NewCo to prepare such filings consistently with allocations
made by TeleCorp.
4. Closing.
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(a) Time and Place. Subject to those provisions of Section 12
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permitting the termination of this Agreement prior to Closing, the closing
("Closing") of the sale and purchase of the Shares shall take place on the 1st
day of March, 2001 ("Closing Date") at TeleCorp's offices in Arlington,
Virginia, or at such other time or at such other place as the parties may agree
in writing. If the Closing has not occurred on or prior to the 1st day of May,
2001, then either TeleCorp or SBA may elect to terminate this Agreement. In the
event that SBA rejects less than twelve (12) of the Sites on Schedule I or, in
the event that the Credit Agreement is amended to permit Two Hundred Seventy-
Five (275) Sites to be subject to this Agreement and in such event SBA rejects
less than fifteen (15) of the Sites set forth on Schedules I and IA, those Sites
not rejected by SBA shall be transferred to NewCo in accordance with the terms
of this Agreement and NewCo shall be acquired by SBA on the date which is ten
(10) days following the expiration of the Due Diligence Period or at such other
date as the parties may mutually agree but in no event later than the date which
is thirty (30) days after the expiration of the Due Diligence Period and the
Purchase Price for the Sites being transferred at the initial Closing shall be
reduced by an amount equal to the number of Sites which are not subject to the
Closing multiplied by Three Hundred Twenty Seven Thousand Five Hundred and
No/100 Dollars ($327,500.00). Notwithstanding the First Closing, SBA shall
remain obligated to attempt to cure Defects associated with those Sites rejected
by SBA in accordance with the terms of this Agreement. Upon the completion of
any Curative Action on the remaining Sites which have been rejected by SBA,
those Sites shall be transferred to NewCo and NewCo shall be obligated to
purchase each Site on the Closing Date utilizing the same form of Documents for
the transfer to NewCo. SBA shall pay, as the purchase price for the Sites being
transferred at such subsequent closing, an amount equal to the number of Sites
which are subject to the closing multiplied by Three Hundred Twenty Seven
Thousand Five Hundred and No/100 Dollars ($327,500.00).
(b) Obligations of TeleCorp at the Closing. At the Closing, TeleCorp
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shall deliver to SBA the following:
(i) one or more assignments of leases conveying all of the Prime
Leases to NewCo in substantially the same form as set forth in Attachment A. To
the extent that an affiliate of
TeleCorp has entered into a guaranty, surety or other agreement in which the
affiliate has committed to secure the payment of rent or the performance of
TeleCorp's obligations under the Prime Lease ("TeleCorp Guarantor") , SBA shall
use commercially reasonable efforts to obtain a release of the TeleCorp
Guarantor which efforts shall include but necessarily be limited to the offer of
a guaranty, surety or other agreement by SBA and/or an entity owned or
controlled by SBA other than SBA Communications Corporation ("SBA Guaranty") to
secure the performance of NewCo under the Prime Lease and the disclosure to the
lessor under the Prime Lease of the financials of SBA and/or the other entities
which SBA proposes to act in the capacity of a guarantor, provided, however,
that the inability of SBA or NewCo to obtain a release of the TeleCorp Guarantor
after the use of commercially reasonable efforts shall not allow TeleCorp to
terminate this Agreement as it relates to the Site or Sites for which SBA has
been unable to obtain releases of the TeleCorp Guarantors. It is understood and
agreed by SBA and TeleCorp that NewCo is a special purpose entity whose
obligations cannot be the subject of an SBA Guaranty and, as a result, another
company ("NewCo II") shall be established into which those leases for which an
SBA Guaranty has or shall be given shall be transferred. In the event that NewCo
II is established for this purpose, SBA shall be obligated to acquire the stock
of NewCo II and the parties shall be subject to those obligations, duties and
liabilities imposed by this Agreement with regard to NewCo II and the Sites
transferred to NewCo II as are imposed by this Agreement for Sites transferred
to NewCo;
(ii) one or more bills of sale from TeleCorp or its Vendors
conveying all of the Tower Facilities and Assets to NewCo, in substantially the
same form as set forth in Attachment C;
(iii) one or more assignments of leases conveying all of the
Collocation Agreements to NewCo in substantially the same form as set forth in
Attachment D;
(iv) a certificate by an executive officer of TeleCorp, confirming
the matters set forth in Section 10;
(v) a certificate of the secretary of TeleCorp attesting to (A)
the organizational documents of TeleCorp and the organizational documents of
NewCo, (B) the resolutions adopted by the board of directors (or similar body)
of TeleCorp duly authorizing the execution, delivery and performance of this
Agreement by TeleCorp and the execution and delivery by TeleCorp and NewCo, as
applicable, of all instruments and documents contemplated hereby, and (C) the
signatures of the officers or authorized representatives of TeleCorp who have
been authorized on behalf of TeleCorp to execute and deliver this Agreement and
any other agreement executed or to be executed in connection herewith;
(vi) a good standing certificate of TeleCorp from the Secretary of
State of Delaware;
(vii) a good standing certificate of NewCo in Delaware;
(viii) originals of all Due Diligence Items in TeleCorp's or NewCo's
(or their agents or affiliates) possession relating to the use, operation, and
management of the Assets (including all original files), including the Prime
Leases and Collocation Agreements; provided, however, that SBA shall copy all
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original documents provided by TeleCorp and NewCo and return a copy of such
documents to TeleCorp promptly after Closing and upon request from TeleCorp from
time to time, but in no event later than thirty (30) days after the Closing
Date;
(ix) an opinion of counsel (subject to qualifications and
limitations customary for transactions of the type contemplated by this
Agreement) under Massachusetts law to TeleCorp and NewCo addressed to SBA and in
a form and substance reasonably satisfactory to SBA (a) that TeleCorp and
NewCo are duly organized, validly existing and in good standing in the states of
their organization, that TeleCorp is duly qualified to transact business in all
applicable jurisdictions and that TeleCorp and NewCo have the corporate power
and authority to own their properties, transact their respective business and
enter into this Agreement and the documents contemplated hereby, (b) that this
Agreement and the Master Build-to-Suit Agreement and the Master Site Agreement
attached hereto as Attachments E and F have been duly authorized, executed and
delivered by TeleCorp and NewCo, are valid, binding and enforceable in
accordance with their respective terms, and do not violate the articles of
incorporation or by-laws of TeleCorp or NewCo or to the knowledge of such
counsel, assuming the receipt of the approvals referenced in Schedule II, any
agreement known to such counsel to which TeleCorp or NewCo is a party or by
which the Assets are bound, result in the creation of a lien or other
encumbrance upon any of the Assets, violate a judgment or decree of any
governmental authority, provided that no such opinions shall be given with
respect to the Prime Leases or the Collocation Agreements, (c) that there are no
judicial actions or proceedings pending or threatened against TeleCorp or NewCo
which are known to such counsel that challenge the validity of this Agreement or
the transactions or documents contemplated hereby, and (d) that the Shares have
been duly and validly issued, fully paid and are non-assessable.
(x) such certificates of officers and other documents as
reasonably may be requested by SBA prior to the Closing to consummate this
Agreement and the transactions contemplated hereby;
(xi) an affidavit to SBA's title insurer, in form and substance
reasonably acceptable to SBA, which will be sufficient to have the standard
printed exceptions deleted from the title insurance policies to be obtained by
SBA for NewCo and to obtain a non-imputation endorsement with respect to such
policies;
(xii) affidavits that the TeleCorp Parties are not "foreign
persons" under Section 1445(f)(3) of the Code; and
(xiii) all keys and other securities devices to the Site
Facilities.
(c) Obligations of SBA at the Closing. At the Closing, SBA shall
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execute, or cause to be executed, and shall deliver to TeleCorp such
certificates of officers and other documents as reasonably may be requested by
TeleCorp prior to the Closing to consummate this Agreement and the transactions
contemplated hereby. At the Closing, SBA shall deliver to TeleCorp the
following:
(i) a certificate by an executive officer of SBA, confirming the
matters set forth in Section 11;
(ii) a certificate of the secretary of SBA attesting to (i) the
organizational documents of SBA, (ii) the resolutions adopted by the board of
directors of SBA duly authorizing the execution, delivery and performance of
this Agreement by SBA and the execution and delivery by SBA of all instruments
and documents contemplated hereby, and (iii) the signatures of the officers or
authorized representatives of SBA who have been authorized on behalf of SBA to
execute and deliver this Agreement and any other agreement executed or to be
executed in connection herewith;
(iii) a certificate of authority showing that SBA is qualified
to conduct business in the State of Florida;
(iv) such certificates of officers and other documents as
reasonably may be requested by TeleCorp prior to the Closing to consummate this
Agreement and the transactions contemplated hereby; and
(v) an opinion of counsel (subject to qualifications and
limitations customary for transactions of the type contemplated by this
Agreement) under Florida law to SBA addressed to TeleCorp and in a form and
substance reasonably satisfactory to TeleCorp (a) that SBA is duly organized,
validly existing and in good standing in the state of its organization, is duly
qualified to transact business in all applicable jurisdictions and has the power
and authority to own the properties to be transferred to NewCo, transact
business and enter into this Agreement and the documents contemplated hereby,
(b) that this Agreement and the Master Build-to-Suit Agreement, and the Master
Site Agreement attached hereto as Attachments E and F have been duly authorized,
executed and delivered by SBA, are valid, binding and enforceable in accordance
with their respective terms, and do not violate the articles of incorporation or
by-laws of SBA or any agreement known to such counsel to which SBA is a party or
by which the assets will be bound, result in the creation of a lien or other
encumbrance upon any of the Assets, or violate a judgment or decree of any
governmental authority, provided that no such opinions shall be given with
respect to the Prime Leases or Collocation Agreements, and (c) that there are no
judicial actions or proceedings pending or threatened against SBA which are
known to such counsel that challenge the validity of this Agreement or the
transactions or documents contemplated hereby (provided, however, such counsel
shall be permitted to assume that the law of Virginia is the same as the law of
Florida); and
(vi) the Purchase Price.
(d) TeleCorp's Conditions Precedent to Closing. It shall be a
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condition precedent to TeleCorp's obligation to consummate the transactions
contemplated by this Agreement that the following conditions shall be satisfied
(or waived in writing by TeleCorp in its sole and absolute discretion) on or
prior to the Closing Date:
(i) any applicable waiting period under the HSR Act shall have
expired or been terminated;
(ii) all representations and warranties of SBA are true without
giving effect to any qualification on SBA's knowledge to any such representation
and warranty made in this Agreement shall have been as of the Effective Date of
this Agreement, and shall be on and as of the Closing Date with the same force
and effect as if such representations and warranties were made on and as of the
Closing Date, true and correct in all material respects;
(iii) all of the terms, covenants and conditions of this Agreement
to be complied with and performed by SBA on or prior to the Closing Date shall
have been complied with and performed in all material respects;
(iv) no action shall have been instituted or threatened by any
person, entity or governmental authority, involving any challenge to, or seeking
damages or other relief in connection with, any of the transactions contemplated
hereby or that may have the effect of preventing, delaying, making illegal or
otherwise interfering with any of the transactions contemplated hereby or the
enjoyment of the benefits thereof;
(v) SBA shall have delivered or caused to be delivered to TeleCorp
at Closing those items specified in Section 4(c) and all other items required to
be delivered by SBA pursuant to this Agreement;
(vi) neither the consummation nor the performance of the
transactions contemplated hereby will (with or without notice or passage of
time), directly or indirectly, materially contravene, or conflict, or result in
a material violation of, or cause TeleCorp or any person or entity affiliated
with TeleCorp to suffer any material adverse consequences under any existing,
published, introduced or otherwise proposed, legal requirement or order;
(vii) SBA shall, at the Closing, pay or cause to be paid the
Purchase Price;
(viii) TeleCorp shall have obtained the all of the third party
approvals set forth on Schedule II;
(ix) SBA shall have executed and delivered to TeleCorp (A) a Master
Build-to-Suit Agreement in the form attached hereto as Attachment E which
provides that SBA is to develop and construct not fewer than two hundred (200)
communications towers and tower sites for TeleCorp, and (B) a Master Site
Agreement in the form attached hereto as Attachment F together with SLAs, as
that term is defined in the MSA, for each Site which is conveyed to SBA at
Closing;
(x) If the transactions contemplated by this Agreement are
consummated, SBA shall on the Closing Date or thereafter as directed by TeleCorp
reimburse TeleCorp for (A) the cost of all deed or other transfer taxes
resulting directly from the transfer of the Assets to NewCo (including all
documentary stamp taxes) and any sales and other transfer taxes resulting from
any of the transactions contemplated by this Agreement, and (B) all recording
costs of the deeds and the Assignment of Prime Leases (other than recording
costs associated with releases and other documents required to clear title or to
comply with TeleCorp's obligations hereunder, which costs will be paid by
TeleCorp) upon receipt of invoices for the same;
(xi) TeleCorp waiving its rights to avoid this Agreement pursuant
to section 7(g) if SBA rejects more than twelve (12) Sites or, in the event that
the Credit Agreement is amended to permit Two Hundred Seventy-Five (275) Sites
to be subject to this Agreement and in such event SBA rejects less than fifteen
(15) of the Sites set forth on Schedules I and IA, pursuant to section 7(b) of
this Agreement; and
(xii) TeleCorp obtaining written instruments in a form and content
reasonably acceptable to TeleCorp from not less than fifty (50) percent of the
ground lessor's for those Sites which are subject to this Agreement which
instruments grant TeleCorp the right to cure any default by NewCo under the
terms of the Prime Lease.
(e) SBA's Conditions Precedent to Closing. It shall be a condition
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precedent to SBA's obligation to consummate the transactions contemplated by
this Agreement that the following conditions shall be satisfied (or waived in
writing by SBA in its sole and absolute discretion) on or prior to the Closing
Date:
(i) Any applicable waiting period under the HSR Act shall have
expired or been terminated;
(ii) All representations and warranties of TeleCorp are true
without giving effect to any qualification on TeleCorp's knowledge to any such
representation and warranty made in this Agreement shall have been as of the
Effective Date of this Agreement, and shall be on and as of the Closing Date
with the same force and effect as if such representations and warranties were
made on and as of the Closing Date, true and correct in all material respects;
(iii) All of the terms, covenants and conditions of this
Agreement to be complied with and performed by TeleCorp and/or NewCo on or prior
to the Closing Date shall have been complied with and performed in all material
respects;
(iv) No actions shall have been instituted or threatened by
any person, entity or governmental authority involving any challenge to, or
seeking damages or other relief in connection with, any of the transactions
contemplated hereby or that may have the effect of preventing, delaying, making
illegal or otherwise interfering with any of the transactions contemplated
hereby or the enjoyment of the benefits hereof;
(v) TeleCorp shall have delivered or caused to be delivered
to NewCo and SBA at Closing those items specified in Section 4(b) and all other
items required to be delivered by TeleCorp pursuant to this Agreement;
(vi) Neither the consummation nor the performance of the
transactions contemplated hereby will (with or without notice or passage of
time), directly or indirectly, materially contravene, or conflict, or result in
a material violation of, or cause SBA or any person or entity affiliated with
SBA, to suffer any material adverse consequences under any existing, published,
introduced, or otherwise proposed, legal requirement or order;
(vii) No claim shall have been asserted or threatened by any
person or entity asserting that such person or entity is the holder or the
beneficial owner of, or has the right to acquire or to obtain beneficial
ownership of, any stock of, or any other voting, equity or ownership interests
in, NewCo or the Assets or is entitled to all or any portion of the
consideration payable for the Shares;
(viii) TeleCorp shall have good title to the Shares free and
clear of all liens and encumbrances;
(ix) TeleCorp shall have executed and delivered to SBA (A) a
Master Build-to-Suit Agreement in the form attached hereto as Attachment E which
provides that SBA is to develop and construct not fewer than two hundred (200)
communications towers and tower sites for TeleCorp and (B) a Master Site
Agreement in the form attached hereto as Attachment F together with SLAs, as
that term is defined in the MSA, for each Site which is conveyed to SBA at
Closing;
(x) NewCo shall have good and marketable title to the
Assets, free and clear of all liens and encumbrances; and
(xi) NewCo and SBA shall have obtained all third party
approvals and/or non-disturbance agreements from all governmental and regulatory
agencies, mortgagees, secured parties or other third parties deemed necessary by
SBA in order to consummate the transactions contemplated by this Agreement and
in order for SBA to obtain title insurance for NewCo's contemplated interest in
the Sites other than (A) approvals or estoppels from the landlords under the
Prime Leases or (B) approvals or non-disturbance agreements from mortgagees and
secured parties having liens or security interests upon the fee simple interest
in the real property leased under any of the Prime Leases; provided, however,
that not obtaining such approvals or non-disturbance agreements shall not affect
or otherwise limit SBA's rights under Section 7(b)(ix) of this Agreement.
5. TeleCorp's and NewCo's Operation of Business Prior to Closing.
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Between the Effective Date of this Agreement and the Closing Date, TeleCorp
will, and to the extent applicable will cause NewCo to:
(a) continue to operate the Assets in the usual and ordinary course
(i.e., actions taken in the ordinary course of the normal day to day operations
of TeleCorp consistent with the past practices of TeleCorp, not required to be
authorized by the board of directors of any TeleCorp Party (or by any person or
group of persons exercising similar authority) and similar in nature and
magnitude to actions customarily taken by TeleCorp) and in substantial
conformity with all applicable laws, ordinances, regulations, rules, or orders;
(b) at Closing assign and transfer all of the Assets from TeleCorp to
NewCo pursuant to documents and instruments acceptable to SBA;
(c) except as set forth in clause (b) above, not assign, sell, or
otherwise transfer or dispose of, or grant a lien upon or security interest in,
or otherwise encumber, any of the Assets or Shares. Notwithstanding the
foregoing, any Sites which are rejected by SBA and constitute Excluded Sites
shall no longer be subject to this section 5(c).
(d) maintain all of the Assets in their present condition, reasonable
wear and tear, casualty and ordinary usage excepted;
(e) maintain all governmental permits and approvals affecting the
Assets or the operation of the Assets;
(f) maintain existing relations and goodwill with ground lessors,
tenants, suppliers, customers, creditors, agents and all other having business
relationship with TeleCorp to the extent those relationships arise out of or are
related to the Assets;
(g) cause the Prime Leases, Collocation Agreements and any other
agreement, contract, obligation, promise or undertaking (whether written or oral
and whether expressed or implied) to which the TeleCorp Entities are parties or
by which the Assets are bound (collectively, "Other Contracts") to have been
paid and performed in all material respects by the TeleCorp Entities to the
extent required to be performed as of the Closing Date;
(h) not enter into any Prime Lease, Collocation Agreement or Other
Contract related to the Sites identified on Schedule I attached hereto other
than those identified on Schedule I attached hereto or disclosed in the closing
binders for the Sites provided to SBA by TeleCorp ("Closing Binders"), or
modifications of these agreements without the prior consent of SBA which consent
shall not be unreasonably withheld or delayed and Collocation Agreements
satisfactory to SBA in its reasonable discretion. Notwithstanding the
foregoing, any Sites which are rejected by SBA and constitute Excluded Sites
shall no longer be subject to this section 5(h);
(i) not renew, modify or terminate the Prime Leases, Collocation
Agreements and Other Contracts set forth on Schedule I attached hereto without
the consent of SBA, not to be unreasonably withheld;
(j) permit SBA to, without any obligation to do so, contact any
governmental authority about any permits or legal requirements concerning
TeleCorp, NewCo or the Sites and contact any party to any of the Prime Leases,
Collocation Agreements or Other Contracts related to the Sites, Prime Leases or
Collocation Agreements or other Person about TeleCorp or the Prime Leases or the
Collocation Agreements or any other aspects of the Property. TeleCorp covenants
that it shall within fifteen (15) days after the Effective Date for each Site
which is listed on Schedule I and shall within fifteen (15) days after the date
that
any Site listed on Schedule IA becomes subject to subject to this Agreement send
correspondence to each Prime Lessor in a form (w) which is mutually agreeable to
TeleCorp and SBA, (x) which requests that the Prime Lessor consent to the
proposed assignment of the Prime Lease to NewCo and the subsequent acquisition
of the stock in NewCo by SBA, (y) which includes certain estoppel information
and (z) which includes a covenant allowing TeleCorp the right to cure any
default by SBA under the terms of the Prime Leases ("Prime Lease Consents"). In
the event that TeleCorp fails to send the Prime Lease Consents on or before the
date which is fifteen (15) days after the Effective Date, the Due Diligence
Period shall be extended for each Site for which the Prime Lease Consents have
not been sent by one (1) day for each day after said fifteen (15) day period
until the Prime Lease Consents are sent. SBA may contact Prime Lessors, tenants
under Collocation Agreements and parties to the Other Contracts related to the
Site but shall only contact the Prime Lessors after TeleCorp has sent the Prime
Lease Consents and in the instance of the Collocation Agreements and Other
Contracts TeleCorp, shall only contact these entities after TeleCorp has
disclosed the existence of this transaction to these entities;
(k) cause all officers and directors of NewCo to resign from all such
positions with NewCo as of the Closing Date and release NewCo from any claims
they may have against NewCo; provided, that NewCo provides a full release of any
claims it may have against all such officers which release shall contain a
covenant of NewCo to continue its indemnification under NewCo's articles of
incorporation and by-laws as in effect on the date immediately preceding the
Closing Date;
(l) execute and file the Certificate of Incorporation attached hereto
and incorporated in this Agreement as Attachment H with the Secretary of State
of the State of Delaware and adopt those Bylaws attached hereto and incorporated
in this Agreement as Attachment I;
(m) not allow NewCo to conduct any business outside those activities
described in the Articles of Incorporation attached hereto as Attachment H;
(n) maintain insurance coverage with respect to the Assets at
presently existing levels so long as such insurance is available at commercially
reasonable rates;
(o) not allow NewCo to make a capital expenditure;
(p) not allow NewCo to incur any indebtedness;
(q) except as required by law or regulation, not provide any
confidential or proprietary information with respect to NewCo's business to any
person other than SBA or its Affiliates;
(r) not take any action which could be reasonably expected to prevent
or materially delay the consummation of the transactions contemplated in this
Agreement;
(s) not allow NewCo to make any distributions of cash;
(t) not allow NewCo to guarantee any indebtedness or make any loans
of any nature whatsoever (provided, however, that NewCo shall be permitted to
assume the obligations of the TeleCorp Entities under the Prime Leases and
Collocation Agreements);
(u) send copies of all mail and/or other correspondence addressed to
NewCo or relating to the Assets to SBA; and
(v) not take any action or fail to take any action that would
constitute a default in any material respect under the Prime Leases, Collocation
Agreements or Other Contracts.
6. Access to Site and Information. At reasonable times prior to the
------------------------------
Closing Date, TeleCorp will provide SBA and its representatives with reasonable
access during business hours to the Assets; provided, however, that SBA shall
-------- -------
provide TeleCorp twenty-four (24) hours notice prior to entry and in no event
shall SBA, its representatives, agents, contractors, architects, engineers or
invitees interfere with or impede TeleCorp's activities on any Site. SBA will
repair any damage to any Site caused by SBA. SBA will indemnify and hold
TeleCorp harmless from any claims suffered or incurred by TeleCorp as a result
of SBA's, its representatives, agents, contractors, architects, engineers and
invitees entry upon any Site prior to the Closing.
7. Due Diligence and Adjustments to Schedule "I".
---------------------------------------------
(a) Due Diligence. SBA shall, commencing of the Effective Date of
-------------
this Agreement and concluding on or before the date which is ninety (90) days
after the Effective Date, complete its review of the Due Diligence Items and any
other due diligence investigation of NewCo and the Assets which it deems
necessary (the "Due Diligence Period"). In the event that the Credit Agreement
is amended to permit Two Hundred Seventy-Five (275) Sites to be subject to this
Agreement, the Due Diligence period for the Sites on Schedule IA shall begin on
the date that notice of the Amendment to the Credit Agreement is received by SBA
and shall extend for a period of ninety (90) days thereafter, provided, however,
that the inclusion of these additional sites shall not affect the commencement
or expiration of the Due Diligence Period for those Sites on Schedule I.
TeleCorp warrants and represents that the copies of the Due Diligence Items
provided to SBA are and will be true and correct copies of the Due Diligence
Items which were prepared by TeleCorp or on TeleCorp's behalf relating to NewCo
and the Assets. SBA acknowledges that some of the Due Diligence Items were
obtained by TeleCorp before or at the time the Assets were constructed and that
changes to the Assets which may have occurred subsequent to the preparation of
the Due Diligence Items will not be reflected therein. TeleCorp does not
warrant the accuracy or completeness of any Due Diligence Items which were
prepared on its behalf by third party vendors.
(b) Rejection of Sites. If SBA discovers a Defect associated with any
------------------
Asset, SBA shall be entitled, on or before the date which is ninety (90) days
after the Effective Date to reject the Site and all Assets to which such Asset
is related, subject, however, to TeleCorp's right under Section 7(c) and 7(d)
below. For the purposes hereof, the term "Defect" shall mean and refer to one
of the following defects in any Asset:
(i) Investigation of Title. Any lien or encumbrance upon or any
----------------------
matter which as to such lien, encumbrance or other matter does or could
materially prohibit, restrict, impair or adversely affect SBA's or NewCo's
intended use of the Site as a multi-user telecommunications facility (the
"Intended Use"), including, without limitation, any such lien or encumbrance
upon an Asset, any such lien or encumbrance upon the real property leased under
any Prime Lease securing liabilities in excess of $100,000 as to which non-
disturbance has not been afforded to the tenant under the Prime Lease pursuant
to a non-disturbance agreement reasonably satisfactory to SBA, the failure of
NewCo to have title to any Asset, the failure of any ground lessor under any of
the Prime Leases to have title to the real property which is the subject of such
Prime Lease, any material defect in the legal description of any property
subject to a Prime Lease, any matter affecting title to the real property which
is the subject of any Prime Lease which does or could prohibit, restrict, impair
or adversely affect in any manner the use and operation of the Sites or Assets
for the Intended Use; and
(ii) Surveys. Any matter revealed by a survey of any Site which does
-------
or could prevent, restrict, impair or adversely affect in any material respect
any Site or Asset from being used by SBA or NewCo for the Intended Use,
including, without limitation, any discrepancy between the legal description for
the applicable parcel of real property shown on the applicable survey and that
set forth in the title evidence for the applicable Site, any of the Assets for
the applicable Site shown to be outside of the boundaries of the applicable
parcel of real property, any encroachments of improvements from adjoining
parcels of real property, evidence of rights of claims of parties in possession
other than the ground lessors under the Prime Leases or the tenants under the
Collocation Agreements, evidence of overlaps or boundary line disputes or
evidence of easements not of public record interfering with the Intended Use of
the Assets; and
(iii) Environmental Assessments. Any Phase I environmental assessment
-------------------------
which indicates any Site having in the past been used, or presently being used,
for the handling, storage, transportation, or disposal of hazardous or toxic
substances, materials, pollutants or waste (or similar items under applicable
environmental laws, rules or regulations) or any of the foregoing having been
released upon such Site (provided, however, that no soil samples, borings or
-------- -------
other invasive environmental testing may be performed prior to the Closing Date
without the prior written consent of TeleCorp but the failure to grant such
consent in the event SBA shall have obtained a Phase I environmental assessment
which recommends such testing shall constitute a Defect for the purposes
hereof);
(iv) Zoning and Other Compliance. The use and operation of any Site
---------------------------
or applicable Assets for the Intended Use not complying with any applicable law,
ordinance, order, rule or regulation of any federal, state, county, town or
other entity exercising executive, legislative, judicial, regulatory or
administrative functions (in each instance a "Governmental Authority") including
all building, zoning, land use, subdivision, setback, platting, FAA or FCC
matters or any easements, restrictive covenants or similar matters of record
which pertain to the Site or Asset, or any permit, license, authorization,
certificate of occupancy, certificate of completion, variance or similar
approval of any Governmental Authority (in each instance, a "Permit") failing to
have been validly issued and in full force and effect and fully paid for.
(v) Defects. The existence of any material physical, structural or
-------
mechanical defects in any of the Assets or the failure of any of the
communications towers included in the Assets to have been constructed to its
intended capacity as contemplated by the building plans contained in the Due
Diligence Items made available to SBA.
(vi) Utilities. The failure of any electric, telephone, drainage
---------
facilities or other utilities required for the use and operation of the Site or
Assets to be installed up to the boundaries of the Site within valid, written,
recorded easements or the failure of such utilities to be in good working order,
meet all current legal requirements or to be of adequate size and capacity to
service the Site and Assets.
(vii) Access. The failure of any Site to have adequate, direct,
------
indefeasible legal and practical pedestrian and vehicular access to public
roads.
(viii) Condemnation. Any Site (or a portion thereof) as to which
------------
there are present or pending legal or administrative proceedings relating to
condemnation or other taking by any Governmental Authority would adversely
affect SBA's and NewCo's Intended Use.
(ix) Prime Leases. Either TeleCorp (prior to the Closing Date) or
------------
NewCo (on the Closing Date) failing to hold a valid leasehold interest under the
applicable Prime Lease, the applicable Prime Lease failing to be in full force
and effect, the Prime Lease having been modified or amended except
as set forth on Schedule I attached hereto or as disclosed in the Closing
Binders for the Sites, any person or entity other than TeleCorp (prior to the
Closing Date) or NewCo (on the Closing Date) or sublessees, sublicensees or
licensees under the Collocation Agreements to be in possession of the premises
under the applicable Prime Lease, TeleCorp not having paid the rent set forth in
each of the Prime Leases on a current basis through the Closing Date, NewCo
being obligated to pay any rent or other charges to any of the lessors under the
Prime Leases other than as set forth in documents identified on Schedule I or as
disclosed in the Closing Binders for the Sites, any default under any of the
Prime Leases or event which, with the giving of notice or the passage of time or
both, would constitute such a default, the applicable Prime Lease failing to
have at least fifteen (15) years remaining in the term thereof (including any
renewal terms which the tenant thereunder is entitled to exercise without
limitation), the applicable Prime Lease containing any "payment in kind"
arrangements or the inability of TeleCorp and SBA to obtain a properly executed
Prime Lease Consent from each Prime Lessor in substantially the same form as
have been approved by Telecorp and SBA.
(x) Collocation Agreements. The failure of TeleCorp (prior to the
----------------------
Closing Date) or NewCo (after the Closing Date) to have a valid landlord's or
licensor's interest under the applicable Collocation Agreement, the applicable
Collocation Agreement failing to be in full force and effect, the applicable
Collocation Agreement having been modified or amended except as set forth on
Schedule I or as disclosed in the Closing Binders for the Sites, any tenant
under a Collocation Agreement being entitled to any rental concession or
abatements in rent except as set forth in the Collocation Agreement set forth on
Schedule I or as disclosed in the Closing Binders for the Sites, any material
default under the applicable Collocation Agreements or event which, with the
giving of notice or the passage of time or both, would constitute such a
default, any tenant under the applicable Collocation Agreements asserting any
claims, offsets or defenses of any nature whatsoever to the performance of its
obligation under its Collocation Agreement or event which, with the giving of
notice or the passage of time or both, would constitute the basis of such claim,
offset or defense or there being any leases, subleases, licenses or other
occupancy agreements (written or oral) other than the Collocation Agreements set
forth on Schedule I which grant any possessory interest in or to the applicable
Site or Assets.
(xi) Taxes. There being any real or personal property taxes for the
-----
Sites or Assets unpaid for any tax year prior to the current tax year.
(xii) Accuracy of Representations. The failure of any representation
---------------------------
or warranty of TeleCorp made in this Agreement to have been true and correct in
all material respects with respect to the applicable Site and Assets as of the
Effective Date and the Closing Date.
In no event shall SBA disclose to any governmental agency the existence of
any actual or alleged failure of any Site to comply with any governmental
requirements unless such disclosure is required by any applicable law,
ordinance, rule or regulation and SBA first gives notice of such proposed
disclosure to TeleCorp. In the event that SBA rejects a Site pursuant to this
provision, it shall provide TeleCorp with written notice of such rejection which
sets forth with particularity the nature of the Defect and curative action which
SBA believes must be undertaken to cure such Defect (in each instance, a
"Curative Action"). Any Site for which TeleCorp does not receive a detailed,
specific, written rejection from SBA on or before the date which is ninety (90)
days after the Effective Date shall be deemed accepted, and SBA shall have no
right thereafter to reject such Site.
(c) TeleCorp's Right to Effect a Cure. TeleCorp shall have the right
---------------------------------
but not the obligation to cure or to require SBA to attempt to cure on or before
the date which is one hundred eighty (180) days after the Effective Date any
Defects which are alleged by SBA pursuant to paragraph 7(b) with respect to a
rejected Site. TeleCorp and SBA shall use commercially reasonable efforts to
cure all Defects
it alleges on or before the Date which is one hundred eighty (180) days after
the Effective Date. In the event that SBA is unable to complete the Curative
Actions suggested by it but TeleCorp desires to undertake other curative
actions, TeleCorp shall provide SBA with written notice of alternate curative
action which TeleCorp proposes be undertaken (including a budget of any costs
anticipated to be incurred in connection therewith) (in each instance,
"Alternate Curative Action") to permit SBA to evaluate TeleCorp's proposed
Alternative Curative Action. In the event that SBA reasonably believes that
TeleCorp's Alternate Curative Action will not adequately cure the alleged
Defects, may expose SBA, NewCo or the applicable Site or Assets to potential
liability or damage or the budgeted costs are commercially unreasonable (unless
TeleCorp agrees to pay the portion of such costs which are deemed to be
unreasonable), such Site shall continue to be a rejected Site. SBA shall review
all evidence of Alternative Curative Actions pursuant to this paragraph and
either approve or reject TeleCorp's Alternative Curative Action with respect to
such Defect within fifteen (15) business days following the submission of the
evidence by TeleCorp. In the event SBA neither rejects nor accepts the
Alternative Curative Action within such fifteen (15) business day period, the
Defect shall be deemed to be cured. SBA shall be responsible for the first Two
Million and No/100 Dollars ($2,000,000.00) of costs and expenses associated with
Curative Actions undertaken by SBA or TeleCorp with respect to all Sites
("Curative Threshold"); provided, however, that SBA shall not be responsible for
any costs incurred by TeleCorp which are not included within the budget
submitted with any Alternative Curative Action. Sums paid by SBA to consultants
and other third parties as part of their due diligence investigation of the
Assets, including, but not limited to, attorneys, title examiners, Phase I
environmental assessment companies, and surveyors shall not be included in said
Curative Actions or applied to the Curative Threshold. Notwithstanding the fact
that SBA maybe precluded from asserting a Defect as a result of the materiality
requirements set forth in section 7(b), SBA shall be entitled to apply any sums
paid by SBA for Curative Actions for matters which would constitute Defects but
for the materiality standards in Section 7(b) against the Curative Threshold. In
the event that TeleCorp terminates this Agreement pursuant to section 7(g),
TeleCorp shall reimburse SBA for the actual costs of fees and expenses paid to
third parties for Curative Actions which have been completed as of the date that
TeleCorp seeks to terminate or avoid this Agreement pursuant to the foregoing
provisions, but in no event shall TeleCorp be obligated to reimburse SBA for the
fees or expenses incurred by SBA in conducting any due diligence activities. In
the event that TeleCorp seeks to avoid this Agreement by the assertion of the
conditions precedent in sections 4(d)(viii) or 4(d)(xii), then, and only in
these instances, TeleCorp shall reimburse SBA for the actual costs of Curative
Actions which have been completed as of the date that TeleCorp seeks to
terminate or avoid this Agreement pursuant to the foregoing provisions plus a
lump sum fee Five Hundred Thousand and No/100 Dollars ($500,000.00) as
compensation for the due diligence activities undertaken by SBA pursuant to this
Agreement.
(d) TeleCorp's Right to Cure by Substitution. TeleCorp shall have the
----------------------------------------
right to substitute an alternate Site (in each instance, a "Substitute Site")
for any Site which is rejected by SBA pursuant to paragraph 7(b) above;
provided, however that such Substitute Site shall be substantially similar in
- -------- -------
character to the Site which was rejected including the tower type, height, basic
character of the location of the tower as either rural, urban or suburban, and
annual net operating income. In the event that TeleCorp elects to cure a Site
by proposing a Substitute Site, TeleCorp shall provide SBA with copies of the
Due Diligence Items for such Substitute Site, and SBA shall have a right to
review such materials and reject such Substitute Site in accordance with this
paragraph 7 as if the Substitute Site were originally listed on Schedule I
except that the time period for rejection shall be extended as necessary to
ensure that SBA has a minimum of fifteen (15) business days to determine whether
a substitute site is substantially similar and reject such Site and a minimum of
thirty (30) days to review the Due Diligence Items and reject such Substitute
Site.
(e) Defects Not Alleged by SBA. SBA acknowledges that many of the Due
--------------------------
Diligence Items have been provided to it by TeleCorp prior to the execution of
this Agreement and that SBA has had and shall continue to have until the date
which is ninety (90) days after the Effective Date the opportunity
to review the Due Diligence items and that SBA has been or will be provided the
opportunity to reject Sites which it alleges to be defective in accordance with
this paragraph 7. SBA's failure to allege any Defect which actually was or could
have been discovered by SBA using commercially reasonable diligence during its
review of the Due Diligence Items on or before the expiration of the Due
Diligence Period shall thereafter constitute an irrevocable waiver of the right
to assert such Defect. TeleCorp shall not be liable to NewCo or SBA for any
Defect in any Site or Asset which actually was or could have been discovered by
SBA using commercially reasonable diligence during its review of the Due
Diligence Items but was not alleged by SBA in accordance with this paragraph 7
and SBA hereby releases TeleCorp from any liabilities relating to or arising
from any Defect which actually was or could have been discovered by SBA using
commercially reasonable diligence during its review of the Due Diligence Items
but was not alleged by SBA in accordance with this paragraph 7.
(f) Termination With Respect to Rejected Sites. If a Site or Sites
-------------------------------------------
are rejected by SBA under the terms of section 7(b) hereof, and TeleCorp does
not cure (or cause a cure) under section 7(c) hereof or TeleCorp does not
substitute a Site under Section 7(d) hereof, then SBA may, by written notice to
TeleCorp, rescind this Agreement with respect to the Site, and all Assets
related thereto, and such Site and Assets shall be removed and excluded from the
list of Sites on Schedule "I" ("Excluded Site"). The Purchase Price shall be
reduced by an amount equal to Three Hundred Twenty-Seven Thousand Five Hundred
and No/100 Dollars ($327,500.00) per Excluded Site.
(g) Rejection Limitation and SBA Rejection Threshold. In no event
------------------------------------------------
shall TeleCorp be obligated to consummate the transactions contemplated by this
Agreement and TeleCorp may in its sole and absolute discretion terminate this
Agreement in the event SBA rejects more than twelve (12) of the Sites which are
included on Schedule I (the "Rejection Limitation"). In the event that the
Credit Agreement is amended to permit more Sites to be transferred, the parties
will amend this Agreement to increase the number of Sites to Two Hundred
Seventy-Five (275) and, in such event, the Rejection Limitation shall be
increased from twelve (12) to fifteen (15) sites. TeleCorp may assert its
right to terminate this Agreement in the event that the Rejection Limitation is
exceeded by tendering written notice to SBA of the desire of TeleCorp to
terminate this Agreement for this purpose which notice must be received by SBA
or said rights shall be irrevocably waived if said notice is not received by SBA
on or before the expiration of the date which is thirty (30) calendar days after
the Due Diligence Period. In the event that TeleCorp timely terminates this
Agreement in accordance with this Section, this Agreement shall thereafter be of
no further force or effect except for any provisions which specifically survive
the termination hereof and neither party shall thereafter owe any further
duties, liabilities or obligations to the other except with respect to
provisions which specifically survive termination hereof. In no event shall SBA
be obligated to consummate the transactions contemplated by this Agreement and
SBA may in its sole and absolute discretion terminate this Agreement in the
event that SBA rejects in accordance with section 7(b) of this Agreement more
than thirty (30) of the Sites which are included on Schedule I (the "SBA
Rejection Threshold") and this Agreement shall thereafter be of no further force
or effect except for any provisions which specifically survive the termination
hereof and neither party shall thereafter owe any further duties, liabilities or
obligations to the other except with respect to provisions which specifically
survive termination hereof. SBA may assert its right to terminate this
Agreement in the event that the SBA Rejection Threshold is exceeded by tendering
written notice to TeleCorp of the desire of SBA to terminate this Agreement for
this purpose which notice must be received by TeleCorp or said rights shall be
irrevocably waived if said notice is not received by TeleCorp on or before the
expiration of the Due Diligence Period.
8. No Solicitation. Following the execution of this Agreement and until
---------------
the date that a Site becomes an Excluded Site or TeleCorp exercises its election
to terminate this Agreement in accordance with Section 7(g), TeleCorp shall not,
nor shall it permit, any officer, director or employee of or any investment
banker, attorney, accountant or other representative retained by any of them to
(i) solicit, initiate or encourage any other bid for the purchase of any Site,
(ii) enter into any agreement with respect to any other bid for the purchase of
any Site, or (iii) participate in any discussions or negotiations regarding, or
furnish to any person any information with respect to, or take any other action
to facilitate any inquiry or making of any proposal that constitutes, or may
reasonably be expected to lead to, any other bid for the purchase of any Site.
Without limiting the foregoing, it is understood that any violation of the
restrictions set forth in the preceding sentence by any executive officer of
TeleCorp or any investment banker, attorney or other advisor or representative
of TeleCorp whether or not such person is purporting to act on behalf of
TeleCorp or otherwise, shall be deemed to be in breach of this Agreement.
9. Commercially Reasonable Efforts.
-------------------------------
(a) By TeleCorp. TeleCorp will use commercially reasonable efforts to
-----------
effectuate the transactions contemplated by this Agreement and to fulfill all
the conditions of TeleCorp's obligations under this Agreement, and will do all
acts and things as may be required to carry out TeleCorp's obligations under
this Agreement and to consummate and complete this Agreement.
(b) By SBA. SBA will use commercially reasonable efforts to
------
effectuate the transactions contemplated by this Agreement and to fulfill all
the conditions of SBA's obligations under this Agreement, and will do all acts
and things as may be reasonably required to carry out SBA's obligations under
this Agreement and to consummate and complete this Agreement.
10. Representations and Warranties of TeleCorp. TeleCorp represents and
------------------------------------------
warrants to SBA as follows:
(a) Company Existence. Each of the TeleCorp Parties is now, and on
-----------------
the Closing Date will be, a limited liability company or a corporation, as
applicable, duly organized, validly existing and in good standing under the laws
of the State of Delaware or the Commonwealth of Puerto Rico, have all requisite
power and authority to own and operate their properties and assets and carry on
their business and are good standing in each jurisdiction in which such
qualification is required. On the Closing Date, NewCo will be a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, have all requisite power and authority to own and operate the
Assets.
(b) Company Power and Authorization. Subject to the receipt of board
-------------------------------
approval, TeleCorp has full power, capacity and authority to execute and deliver
this Agreement and any other agreement to be executed and delivered by TeleCorp
in connection herewith, and to carry out the transactions contemplated hereby.
The execution and delivery of this Agreement and any other agreement to be
executed or delivered by TeleCorp in connection herewith and the consummation of
the transactions contemplated hereby have been duly authorized by all necessary
company and member action. No other company proceedings by TeleCorp will be
necessary to authorize this Agreement or any other agreement to be executed or
delivered by TeleCorp in connection herewith or the carrying out of the
transactions contemplated hereby. This Agreement constitutes a valid and
binding agreement of TeleCorp enforceable against TeleCorp in accordance with
its terms. Upon execution and delivery by TeleCorp, any other agreement to be
executed and delivered by TeleCorp in connection herewith will constitute a
valid and binding agreement of TeleCorp enforceable against TeleCorp in
accordance with its terms.
(c) Conflict with Other Agreements and Approvals. With respect to (i)
--------------------------------------------
the organizational documents of TeleCorp or NewCo or any resolution or action
adopted by TeleCorp or NewCo, (ii) any applicable law, statute, rule or
regulation, (iii) assuming the receipt of the approvals referenced in Schedule
II, any contract to which TeleCorp or NewCo is or will be a party or may be
bound other than the
Prime Leases or Collocation Agreements, or (iv) except as related to the Prime
Leases and Collocation Agreements, any judgment, order, injunction, decree or
ruling of any court or governmental authority to which TeleCorp or NewCo is or
will be a party or subject or the Assets are subject, the execution and delivery
by TeleCorp of this Agreement and any other agreement to be executed and
delivered by TeleCorp in connection herewith and the consummation of the
transactions contemplated hereby or thereby will not (a) result in any material
violation, conflict or default, or give to others any interest or rights,
including rights of termination, cancellation or acceleration, (b) require any
authorization, approval, exemption or other action by, person or entity,
including any court or administrative or governmental body, which has not been
obtained, or any notice to or filing with any court or administrative or
governmental body, which has not been given or done, (c) result in the
imposition or creating of any encumbrance upon or with respect to any of the
Assets. TeleCorp makes no representation or warranty to NewCo or SBA as to
whether the Prime Leases and Collocation Agreements are assignable to NewCo
without the consent of the Prime Lessor's or whether the acquisition of NewCo by
SBA is prohibited by or constitutes an event of default under the Prime Leases.
(d) Litigation. Except as set forth on Schedule III, TeleCorp has no
----------
knowledge of any claim, litigation, proceeding, or investigation pending or
threatened against TeleCorp that might result in any material adverse change in
the condition of Assets or NewCo.
(e) Brokerage. TeleCorp has not employed any broker, finder or
---------
similar agent in connection with the transactions contemplated by this
Agreement, or taken action that would give rise to a valid claim against any
party for a brokerage commission, finder's fee, or similar compensation.
(f) Accuracy of Representations and Warranties. None of the
------------------------------------------
representations or warranties of TeleCorp contain or will contain any untrue
statement of a material fact or omit or will omit or misstate a material fact
necessary in order to make statements in this Agreement not misleading.
TeleCorp knows of no fact that has resulted, or that in the reasonable judgment
of TeleCorp will result in a material change in NewCo or the Assets that has not
been set forth in this Agreement.
(g) NewCo. As of the Closing Date, the correct and complete
-----
authorized stock of NewCo will consist of ______ shares of common stock,
$_________ par value per share, of which _______ shares will be issued and
outstanding. As of the Closing Date, there will be no agreements of any type
relating to issuance, delivery, sale, or transfer of any equity securities or
other securities of NewCo other than this Agreement. On the Closing Date,
TeleCorp will be the sole record and beneficial owner and holder of the Shares,
free and clear of all encumbrances. None of the Shares will be subject to
preemptive or similar rights, either pursuant to any organizational document,
legal requirement or contract, and no person or entity has any preemptive rights
or similar rights to purchase or receive any equity securities or other
securities of NewCo. The books of account, minute books, stock record books and
all other records of NewCo will be made available to SBA and will be true,
correct and complete in all respects. Attached hereto as Schedule IV is a true,
correct and complete schedule of all assets and liabilities of any nature that
NewCo will have as of the Closing Date. NewCo has not filed and will not file
prior to the Closing Date any tax returns. NewCo has never had any employees
and has never established, sponsored, maintained, contributed or otherwise
participated in or had any obligation to establish, sponsor, maintain,
contribute to or otherwise participate in, any compensation, profit sharing,
bonus, deferred compensation, savings, insurance, pension, retirement, or other
employee benefit plan or arrangement which is or was governed by or subject to
the Employment Retirement Income Security Act of 1974, or any successor law, or
any regulations or rules issued pursuant to that Act or any successor law.
(h) Liens. No right or interest in or property of any kind of NewCo,
-----
whether real, personal, or mixed or whether tangible or intangible, including,
without limitation, the Assets, is or will be
subject to any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or otherwise) charge or any other security interest
or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement or any lease having
substantially the same economic effect of any of the foregoing.
(i) Completeness of Copies. All agreements, contracts, documents,
----------------------
reports, leases, title insurance policies, title opinions, surveys, and other
items relating to the Assets or NewCo and delivered to SBA pursuant to this
Agreement (and any amendment or supplement hereto) are, and as of the Closing
Date will be, true, correct and complete copies of what is in the possession or
control of TeleCorp; and
(j) Contracts. Attached hereto as Schedule I is a true, correct and
---------
complete listing of all Prime Leases, Collocation Agreements, Other Contracts
and all modifications and amendments thereto.
11. Representations and Warranties of SBA. SBA represents and warrants as
-------------------------------------
follows:
(a) Corporate Existence. SBA is now, and on the Closing Date will be,
-------------------
a corporation duly organized, validly existing and in good standing under the
laws of the State of Florida, has all requisite corporate power and authority to
enter into this Agreement and perform its obligations hereunder and has all
requisite corporate power and authority to own its properties and assets and
carry on its business and is good standing in each jurisdiction in which such
qualification is required.
(b) Authorization. SBA has full corporate authority to execute and
-------------
deliver this Agreement and any other agreement to be executed and delivered by
SBA in connection herewith, and to carry out the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate and shareholder action. No other corporate proceedings by SBA will be
necessary to authorize this Agreement or the carrying out of the transactions
contemplated hereby. SBA Telecommunications, Inc. represents and warrants that
it is the corporate parent of SBA Towers, Inc. and SBA Towers, Inc. represents
that it is the corporate parent of SBA Properties, Inc. and SBA
Telecommunications, Inc. has the full corporate authority to execute and deliver
this Agreement and to carry out the obligations imposed upon SBA
Telecommunications, Inc. by Section 2 of this Agreement. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate and shareholder
action of SBA Telecommunications, Inc. No other corporate proceedings by SBA
Telecommunications, Inc. will be necessary to authorize this Agreement or the
carrying out of the transactions contemplated hereby.
(c) Conflict with Other Agreements, Consents and Approvals. With
------------------------------------------------------
respect to (i) the articles of incorporation or bylaws of SBA, (ii) any
applicable law, statute, rule or regulation, (iii) any contract to which SBA is
a party or may be bound, or (iv) any judgment, order, injunction, decree or
ruling of any court or governmental authority to which SBA is a party or
subject, the execution and delivery by SBA of this Agreement and any other
agreement to be executed and delivered by SBA in connection herewith and the
consummation of the transactions contemplated hereby will not (a) result in any
violation, conflict or default, or give to others any interest or rights,
including rights of termination, cancellation or acceleration, or (b) require
any authorization, consent, approval, exemption or other action by any court or
administrative or governmental body which has not been obtained, or any notice
to or filing with any court or administrative or governmental body which has not
been given or done.
(d) Litigation. SBA has no knowledge of any claim, litigation,
----------
proceeding, or investigation pending or threatened against SBA that might result
in or threatens or challenges the transactions contemplated hereby or SBA's
ability to Close hereunder.
(e) Brokerage. SBA has not employed any broker, finder or similar
---------
agent in connection with the transactions contemplated by this Agreement, or
taken action that would give rise to a valid claim against any party for a
brokerage commission, finder's fee, or similar compensation.
(f) Accuracy of Representations and Warranties. None of the
------------------------------------------
representations or warranties of SBA contain or will contain any untrue
statement of a material fact or omit or will omit or misstate a material fact
necessary in order to make the statements contained herein not misleading. SBA
knows of no fact that has resulted, or that in the reasonable judgment of SBA
will result in a material change in the business, operations, or assets of SBA
that has not been set forth in this Agreement or otherwise disclosed to
TeleCorp.
12. Termination. Anything herein or elsewhere to the contrary
-----------
notwithstanding, this Agreement may be terminated by written notice of
termination at any time before the Closing Date only as follows:
(a) By mutual consent of TeleCorp and SBA, without liability;
(b) By SBA, upon written notice to TeleCorp, given at any time before
the Closing Date if the representations and warranties of TeleCorp contained
herein were materially incorrect when made or would be materially incorrect on
the Closing Date or, if TeleCorp has materially violated any covenants contained
in this Agreement and required to be performed by TeleCorp on or prior to the
Closing Date has not been performed and such breach, violation or non-
performance is not cured by TeleCorp within fourteen (14) days of such
notification of intent to terminate;
(c) By TeleCorp, upon written notice to SBA, given at any time before
the Closing Date if the representations and warranties of SBA contained in this
Agreement were materially incorrect when made or would be materially incorrect
on the Closing Date, or if any other material agreement contained herein and
required to be performed by SBA on or prior to the Closing Date has not been
performed and such breach, violation or non-performance is not cured within
fourteen (14) days of such notification of intent to terminate;
(d) By either TeleCorp or SBA in writing, without liability, if any
governmental or third party consent, authorization or approval has been denied
or refused which would have an adverse effect on the transactions contemplated
hereby or if there shall be any order, writ, injunction or decree of any court
or governmental or regulatory agency binding on SBA or TeleCorp which prohibits
either of them from consummating the transactions contemplated hereby, provided
that SBA and TeleCorp shall have used their commercially reasonable efforts to
have any such order, writ, injunction or decree lifted and the same shall not
have been lifted within thirty (30) days after entry, by any such court or
governmental or regulatory agency; and
13. Risk of Loss. The risk of loss, damage, destruction, condemnation or
------------
other taking of the Assets including any of the equipment, inventory, or other
personal property to be conveyed to SBA under this Agreement shall be borne by
TeleCorp or its Vendors (as applicable) to the time of Closing and SBA shall
bear such risk from the Closing forward. In the event of such loss, damage, or
destruction prior to Closing, TeleCorp, to the extent reasonable, shall replace
the lost property or repair or cause to be repaired the damaged property to its
condition prior to the damage. TeleCorp shall maintain fire and extended
coverage casualty insurance through and including the date of Closing covering
all of the Tower Facilities in an amount not less than the full replacement
value of all of the Tower Facilities. If such loss, damage or destruction
cannot be repaired prior to Closing, TeleCorp shall receive all such insurance
or condemnation proceeds for any loss occurring prior to Closing and such Site
shall no longer be subject to this Agreement, and the Purchase Price shall be
reduced by a pro-rata share of the Purchase Price in the manner set forth in
Section 7(f) hereof.
14. Survival of Representations and Warranties. All representations and
------------------------------------------
warranties made in this Agreement shall survive the Closing of this Agreement
for a period of one year, except that any party to whom a representation or
warranty has been made in this Agreement shall be deemed to have waived any
misrepresentation or breach of representation or warranty of which such party
had knowledge prior to Closing and further provided that any such indemnity
obligation shall survive for the balance of any applicable statute of
limitations for breach of contract with respect to any claim for damages which
arises within such one year period after Closing and for which the non-breaching
party has given notice to breaching party within such one-year period. Any
party learning of a misrepresentation or breach of representation or warranty
under this Agreement shall immediately give written notice thereof to all other
parties to this Agreement.
15. Indemnification by TeleCorp.
---------------------------
(a) The TeleCorp Parties hereby agree, jointly and severally, to
defend, indemnify, and hold SBA and NewCo, their successors, and assigns
harmless from and against:
(i) Any and all damages, losses, claims, liabilities, deficiencies
and obligations of every kind and description, contingent or otherwise
(including without limitation reasonable auditors' and attorneys' fees), arising
out of or related to (A) any breach or violation of any representation,
warranty, covenant or obligation of TeleCorp in this Agreement, the schedules
and exhibits hereto and any supplement hereto, or any other certificate,
document or instrument delivered by TeleCorp pursuant to this Agreement, (B) the
operation of TeleCorp's business and the products and services provided by
TeleCorp prior to Closing as it and they relate to the Assets, except for (A)
damages, losses, claims, liabilities, deficiencies and obligations of TeleCorp
expressly assumed by NewCo or for which SBA has waived recourse against TeleCorp
pursuant to this Agreement, (B) damages, losses, claims, liabilities,
deficiencies and obligations paid by insurance maintained by TeleCorp, (C)
damages, losses, claims, liabilities, deficiencies and obligations arising out
of or related to the acts or omissions of SBA, or its officers, directors,
employees, agents, contractors or invitees and, after the Closing Date, NewCo,
or its officers, directors, employees, agents, contractors or invitees; or (D)
Defects which were or could have been discovered by SBA using commercially
reasonable diligence during the Due Diligence Period but were not alleged by SBA
in accordance with paragraph 7 of this Agreement; and
(ii) any liability or obligation of TeleCorp or NewCo arising
before the Closing Date under the Prime Leases, Collocation Agreements and Other
Contracts disclosed to SBA prior to closing and transferred to NewCo hereunder
excepting Defects which could have been discovered by SBA using commercially
reasonable diligence during its review of the Due Diligence Items but were not
alleged by SBA in accordance with paragraph 7 of this Agreement and after the
Closing, any contractual liability or obligation imposed upon TeleCorp under the
MSA.
(b) TeleCorp's indemnity obligations hereunder shall be subject to the
following:
(i) If any claim is asserted against SBA or NewCo that would give
rise to a claim by SBA or NewCo against TeleCorp for indemnification under the
provisions of this Section, then SBA shall promptly give written notice to
TeleCorp concerning such claim and TeleCorp shall, at no expense to SBA or NewCo
and with legal counsel reasonably acceptable to SBA, defend the claim. However,
the failure of SBA or NewCo to provide such notice will not relieve TeleCorp of
any liability that it may have to SBA or NewCo, except to the extent the defense
of such action is prejudiced by SBA's or NewCo's failure to give such notice.
If notice of claim is given to TeleCorp and TeleCorp does not, within ten (10)
days after receipt of the notice, give notice to SBA and NewCo of its election
to assume the defense of such claim, TeleCorp will be bound by any determination
made with respect to such claim or any compromise or settlement effected by SBA
or NewCo. If TeleCorp assumes the defense of a claim, it will be conclusively
established for purposes of this Agreement that such claim is within the scope
of and subject to indemnification. Notwithstanding the foregoing, if SBA or
NewCo determines in good faith that there is a reasonable probability that a
claim may adversely affect it other than as a result of monetary damages for
which it would be entitled to indemnification under this Agreement, SBA or NewCo
may, by notice to TeleCorp, assume the exclusive right to defend, compromise, or
settle such claim, but TeleCorp will not be bound by any determination of a
claim so defended or any compromise or settlement effected without its consent
(which may not be unreasonably withheld).
(ii) TeleCorp shall not be required to indemnify SBA or NewCo nor
shall TeleCorp have any liability to SBA or NewCo with respect to any claim (or
any portion thereof) arising under or pursuant to this Agreement for an amount
that exceeds ten percent (10%) of the Purchase Price actually paid by SBA for
all of the Sites transferred to SBA as of the date on which the claim under the
indemnity is asserted ("Global Cap"). In the event that any claim under the
indemnity is paid by TeleCorp, the amount of such payment shall be credited
against the Global Cap.
(iii) SBA and NewCo shall not settle or compromise any claim as to
which TeleCorp has assumed the defense thereof, without TeleCorp's prior written
consent, such consent not to be unreasonably withheld or delayed. In the event
that SBA or NewCo settles or compromises any claim as to which TeleCorp has
assumed the defense thereof without TeleCorp's prior written consent, SBA and
NewCo shall be deemed to have waived any indemnity claim against TeleCorp which
is related to such claim. No compromise or settlement of a claim as to which
TeleCorp has assumed the defense thereof may be effected by TeleCorp without
SBA's and NewCo's consent unless there is no finding or admission of any
violation of legal requirements or any violation of the rights of any person or
entity and no effect on any other claims that may be made against SBA or NewCo
or TeleCorp obtains a release of such claims, and the sole relief provided is
monetary damages that are paid in full by TeleCorp. Neither SBA nor NewCo will
have any liability with respect to any compromise or settlement of claims
requiring their consent effected without their prior written consent, such
consent not to be unreasonably withheld or delayed.
(iv) TeleCorp shall be subrogated to all of SBA's and NewCo's right
title and interest in and to any claim against a third party for any matter for
which TeleCorp has indemnified SBA hereunder.
(v) TeleCorp shall have no liability or obligation, and SBA shall
have no rights, with respect to indemnification under this Section 15 and no
right for breach of any representation, warranty or covenant hereunder with
respect to the first Two Million and No/100 Dollars ($2,000,000) of damages,
losses, claims, liabilities, deficiencies or obligations for which SBA would
otherwise be entitled to indemnification under Section 15 less any portion of
the Curative Threshold which has actually been incurred by SBA under Section
7(c) of this Agreement.
(c) Limitations on Indemnifiable Damages. Except as otherwise
------------------------------------
provided in this Section 15, SBA shall not be entitled to recover indemnifiable
damages with respect to any matter which was known by or disclosed to SBA prior
to the Closing Date. If TeleCorp proves by a preponderance of the evidence
that, as of the Closing, SBA had actual knowledge of the matter which forms a
basis for SBA's claim for indemnifiable damages and, in the case of an alleged
Defect, SBA had not alleged a Defect in accordance with Section 7 in connection
with such matter, then SBA shall be deemed to have waived its claim for
indemnifiable damages with respect to such matter.
(d) Survival of Indemnification. TeleCorp's obligation to pay
---------------------------
indemnifiable damages to SBA or NewCo for any claims within the scope of Section
15 shall survive the Closing Date for any claims for indemnification made by SBA
or NewCo within one (1) year after the Closing Date. No claim for recovery of
indemnifiable damages for any claims within the scope of Section 15(a) may be
asserted by SBA or NewCo after the date that is one (1) year after the Closing
Date except that said limitation period shall not apply to obligations of
TeleCorp under the MSA a breach of which shall be governed by the applicable
statute of limitations.
16. Indemnification by SBA.
----------------------
(a) SBA and NewCo jointly and severally agree to defend, indemnify,
and hold harmless TeleCorp from and against:
(i) any and all damages, losses, claims, liabilities,
deficiencies or obligations of every kind and description, contingent or
otherwise (including without limitation auditors' and attorneys' fees) arising
out of or related to the operation of the Assets following Closing (unless the
same relates to a Defect) and arising out of SBA's or NewCo's failure to perform
obligations of TeleCorp assumed by SBA or NewCo pursuant to this Agreement;
(ii) after the Closing, any contractual liability or obligation
of TeleCorp which is included on the Other Contracts listed on Schedule V and
TeleCorp's obligations under all agreements assumed by NewCo including the Prime
Leases, Collocation Agreements and the MSA;
(iii) any and all damages, losses, claims, liabilities,
deficiencies or obligations resulting from any material misrepresentation,
breach of warranty or covenant, or nonfulfillment of any agreement on the part
of SBA under this Agreement; and
(iv) any and all actions, suits, claims, proceedings,
investigation, audits, demands, assessments, fines, judgments, costs and other
expenses (including, without limitation, reasonable audit and attorneys fees)
incident to any of the foregoing.
(b) SBA's indemnity obligations hereunder shall be subject to the
following:
(i) If any claim is asserted against TeleCorp that would give
rise to a claim by TeleCorp against SBA for indemnification under the provisions
of this Section, then TeleCorp shall promptly give written notice to SBA
concerning such claim and SBA shall, at no expense to TeleCorp and with legal
counsel reasonably acceptable to TeleCorp, defend the claim. However, the
failure of TeleCorp to provide such notice will not relieve SBA of any liability
that it may have to TeleCorp, except to the extent the defense of such action is
prejudiced by TeleCorp's failure to give such notice. If notice of claim is
given to SBA and SBA does not, within ten (10) days after receipt of the notice,
give notice to TeleCorp of its election to assume the defense of such claim, SBA
will be bound by any determination made with respect to such claim or any
compromise or settlement effected by TeleCorp. If SBA assumes the defense of a
claim, it will be conclusively established for purposes of this Agreement that
such claim is within the scope of and subject to indemnification.
Notwithstanding the foregoing, if TeleCorp determines in good faith that there
is a reasonable probability that a claim may adversely affect it other than as a
result of monetary damages for which it would be entitled to indemnification
under this Agreement, TeleCorp may, by notice to SBA, assume the exclusive right
to defend, compromise, or settle such claim, but SBA will not be bound by any
determination of a claim so defended or any compromise or settlement effected
without its consent (which may not be unreasonably withheld).
(ii) TeleCorp shall not settle or compromise any claim as to
which SBA has assumed the defense thereof, without SBA's prior written consent,
such consent not to be unreasonably withheld or delayed. In the event that
TeleCorp settles or compromises any claim as to which SBA has assumed the
defense thereof without SBA's prior written consent, TeleCorp shall be deemed to
have waived any indemnity claim against SBA which is related to such claim. No
compromise or settlement of a claim as to which SBA has assumed the defense
thereof may be effected by SBA without TeleCorp's consent unless there is no
finding or admission of any violation of legal requirements or any violation of
the rights of any person or entity and no effect on any other claims that may be
made against TeleCorp, and the sole relief provided is monetary damages that are
paid in full by SBA. TeleCorp will have no liability with respect to any
compromise or settlement of claims requiring its consent effected without its
prior written consent, such consent not to be unreasonably withheld or delayed.
(iv) SBA shall be subrogated to all of TeleCorp's right title
and interest in and to any claim against a third party for any matter for which
SBA has indemnified TeleCorp hereunder.
(c) Limitations on Indemnifiable Damages. Except as provided in this
------------------------------------
Section 16, TeleCorp shall not be entitled to recover indemnifiable damages with
respect to any matter (including any breach of this Agreement by SBA) which was
known by or disclosed to TeleCorp at or prior to the Closing Date. If SBA
proves by a preponderance of the evidence that, as of the Closing, TeleCorp had
actual knowledge of the matter which forms a basis for TeleCorp's claim for
indemnifiable damages, then TeleCorp shall be deemed to have waived its claim
for indemnifiable damages with respect to such matter.
(d) Survival of Indemnification. SBA's obligation to pay
---------------------------
indemnifiable damages to TeleCorp shall survive the Closing Date for any claims
for indemnification made by TeleCorp within one (1) year after the Closing Date.
No claim for recovery of indemnifiable damages may be asserted by TeleCorp after
the date that is one (1) year after the Closing Date except that said limitation
period shall not apply to obligations of TeleCorp assumed by SBA or NewCo
pursuant to this Agreement including but not limited to the Prime Leases,
Collocation Agreements, the MSA and Other Contracts a breach of which shall be
governed by the applicable statute of limitations.
17. Confidential Information. If for any reason the sale of Assets is not
------------------------
closed, SBA will not disclose to third parties any confidential information
received from TeleCorp in the course of investigating, negotiating, and
performing the transactions contemplated by this Agreement and will return all
such information on request.
18. Miscellaneous Provisions.
------------------------
(a) Notices. Any notice under this Agreement shall be in writing and
-------
shall be effective when actually delivered in person or received by the party at
the address stated in this Agreement or such other address as either party may
designate by written notice to the other.
SBA: SBA Towers, Inc.
One Town Center Road, 3rd Floor
Boca Raton, FL 33486
Attn: General Counsel
With a copy to: Gunster, Yoakley & Stewart, P.A.
777 South Flagler Drive
Suite 500-East Tower
West Palm Beach, FL 33401
Attn: Thomas P. Hunt, Esq.
TeleCorp: TeleCorp Realty, LLC
1010 N. Glebe Road, Suite 800
Arlington, Virginia 22201
Attention: Vice President-Legal
With a copy to: Lewellen & Frazier PLC
415 North McKinley, Suite 1240
Little Rock, AR 72205
Attention: Todd A. Lewellen
or at any other address as any party may, from time to time, designate by notice
given in compliance with this section.
(b) Time. Time is of the essence of this Agreement.
----
(c) Survival. Any of the terms and covenants contained in this
--------
Agreement which require the performance of either party after the Closing shall
survive the Closing.
(d) Waiver. Failure of either party at any time to require
------
performance of any provision of this Agreement shall not limit the party's right
to enforce the provision, nor shall any waiver of any breach of any provision be
a waiver of any succeeding breach of any provision or a waiver of the provision
itself for any other provision.
(e) Assignment. Except as otherwise provided within this Agreement,
----------
neither party hereto may transfer or assign this Agreement without prior written
consent of the other party.
(f) Law Governing. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of Virginia.
(g) Attorney Fees. In the event an arbitration, suit or action is
-------------
brought by any party under this Agreement to enforce any of its terms, or in any
appeal therefrom, it is agreed that the prevailing party shall be entitled to
reasonable attorneys' fees to be fixed by the arbitrator, trial court, and/or
appellate court.
(h) Presumption. This Agreement or any section thereof shall not be
-----------
construed against any party due to the fact that said Agreement or any section
thereof was drafted by said party.
(i) Titles and Captions. All article, section and paragraph titles or
-------------------
captions contained in this Agreement are for convenience only and shall not be
deemed part of the context nor affect the interpretation of this Agreement.
(j) Pronouns and Plurals. All pronouns and any variations thereof
--------------------
shall be deemed to refer to the masculine, feminine, neuter, singular or plural
as the identity of the Person or Persons may require.
(k) Entire Agreement. This Agreement contains the entire
----------------
understanding between and among the parties and supersedes any prior
understandings and agreements among them respecting the subject matter of this
Agreement.
(l) Prior Agreements. This document is the entire, final and complete
----------------
agreement of the parties pertaining to the option to purchase of the Property,
and supersedes and replaces all prior or existing written and oral agreements
(including any earnest money agreement) between the parties or their
representatives relating to the Property.
(m) Agreement Binding. This Agreement shall be binding upon the
-----------------
heirs, executors, administrators, successors and permitted assigns of the
parties hereto.
(n) Further Action. The parties hereto shall execute and deliver all
--------------
documents, provide all information and take or forbear from all such action as
may be reasonably necessary or appropriate to achieve the purposes of this
Agreement.
(o) Good Faith, Cooperation and Due Diligence. The parties hereto
-----------------------------------------
covenant, warrant and represent to each other good faith, complete cooperation,
due diligence and honesty in fact in the performance of all obligations of the
parties pursuant to this Agreement. All promises and covenants are mutual and
dependent.
(p) Counterparts. This Agreement may be executed in several
------------
counterparts and all so executed shall constitute one Agreement, binding on all
the parties hereto even though all the parties are not signatories to the
original or the same counterpart.
(q) Parties in Interest. Nothing herein shall be construed to be to
-------------------
the benefit of any third party, nor is it intended that any provision shall be
for the benefit of any third party.
(r) Savings Clause. If any provision of this Agreement, or the
--------------
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby.
(s) Amendments. No purported amendment to or waiver of any term of
----------
this Agreement will be binding upon any part, or have any other force or effect
in any respect, unless the same is in writing and signed by the party to be
charged.
(t) Third Parties. Nothing in this Agreement, whether express or
-------------
implied, is intended to confer any rights or remedies to any persons other than
TeleCorp, SBA and their respective successors and permitted assigns.
IN WITNESS WHEREOF, SBA and TeleCorp have executed this Asset Purchase
Agreement as of the date and year first above written.
SBA TOWERS, INC.
By: /s/ Jeffery A. Stoops
---------------------------------
Name: Jeffery A. Stoops
---------------------------------
Title: President
---------------------------------
(CORPORATE SEAL)
TELECORP REALTY, LLC
By: TeleCorp Communications, Inc.
Its: Managing Member
By: /s/ Thomas H. Sullivan
---------------------------------
Name: Thomas H. Sullivan
Title: President
(CORPORATE SEAL)
TELECORP PUERTO RICO REALTY, INC.
By: /s/ Thomas H. Sullivan
---------------------------------
Name: Thomas H. Sullivan
Title: President
(CORPORATE SEAL)
TELECORP COMMUNICATIONS, INC.
By: /s/ Thomas H. Sullivan
---------------------------------
Name: Thomas H. Sullivan
Title: President
(CORPORATE SEAL)
THE UNDERSIGNED EXECUTES THIS AGREEMENT FOR PURPOSES OF BEING BOUND BY SECTIONS
2 AND 11(b) ONLY
SBA TELECOMMUNICATIONS, INC.
By: /s/ Jeffery A. Stoops
---------------------------------
Name: Jeffery A. Stoops
------------------------------
Title: President
-----------------------------
SCHEDULE I
SCHEDULE OF PRIME LEASES, TOWER FACILITIES AND COLLOCATION
AGREEMENTS
[TELECORP TO PROVIDE]
SCHEDULE IA
SUPPLEMENTAL SITES TO BE INCLUDED IF CREDIT AGREEMENT IS AMENDED
SCHEDULE II
===========
SCHEDULE OF TELECORP APPROVALS
==============================
SCHEDULE III
============
SCHEDULE OF LITIGATION
======================
TELECORP DISCLOSURE SCHEDULE
----------------------------
SCHEDULE IV
===========
SCHEDULE OF ASSETS AND LIABILITIES
==================================
SCHEDULE V
==========
SCHEDULE OF OTHER CONTRACTS
===========================
NONE
====
ATTACHMENT A
ASSIGNMENT OF PRIME LEASE
THIS ASSIGNMENT OF PRIME LEASE AGREEMENT ("Agreement") is made and entered
into as of the _____ day of ____________, 2000, by and between [NewCo]
("NewCo"), and [TeleCorp Realty, LLC ] ("TeleCorp").
WHEREAS, TeleCorp and SBA Towers, Inc have entered into that certain
Purchase Agreement dated the __ day of ___, 2000 ("Agreement") in which
contemplates the transfer to NewCo of certain of TeleCorp's real property
interests, including leases, licenses, and other similar agreements with third
parties granting such third parties the right to install certain communications
antennas and other equipment on the real property thereon ("Collocation
Agreements");
WHEREAS, TeleCorp has entered into a ground lease agreement or other
similar agreement (the "Prime Lease") for the lease of the real property more
particularly described in Exhibit "A" attached hereto (the "Property") upon
which TeleCorp has constructed a tower and related facilities and for an
easement for ingress, egress and utilities over the real property more
particularly described in the Prime Lease (the "Easement"); and
WHEREAS, NewCo desires to accept an assignment of the Prime Lease and to
thereafter sublease a portion of the space upon the tower facilities to TeleCorp
in accordance with that certain Master Site Lease Agreement entered into by and
between NewCo and TeleCorp on the _____ day of ___________, 2000.
NOW THEREFORE, for and in consideration of the mutual promises outlined
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, TeleCorp and NewCo do hereby agree as follows:
1. Recitals. The recitals set forth above are incorporated herein by
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reference and made a part of this Assignment.
2. Assignment and Assumption. TeleCorp does hereby assign, transfer, set
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over, and deliver to NewCo all of TeleCorp's rights, title and interests in and
to the Prime Lease, or such other contract through which TeleCorp has acquired
an interest in the Property, together with any Easements to the Property
(collectively, the "Assigned Agreements"). NewCo does hereby accept, assume and
agree to be bound by all the terms, conditions, liabilities and obligations
which are the responsibility of TeleCorp under the Assigned Agreements, and
which arise, are incurred, or are required to be performed from and after the
date of this Assignment.
3. Covenants of TeleCorp. TeleCorp covenants that it:
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(a) unconditionally and absolutely assigns, transfers, sets over and
conveys to NewCo, all of TeleCorp's right, title and interest in, to and under
the Prime Lease;
(b) shall warrant, indemnify and defend the leasehold title assigned
to against the lawful claims of all persons provided that such claim arises as
a result of an alleged transfer of TeleCorp's interest in the Prime Lease to
such person, but no further or otherwise except as set forth in the Purchase
Agreement, and except to the extent that an interest in real estate is subject
to ordinances and other matters of record; and
(c) has no knowledge or notice of any default, defense, offset,
claim, demand, counterclaim or cause of action which may presently exist under
the Prime Lease; and
(d) irrevocably assigns, transfer, conveys and sets over to NewCo
without warranty or representation and NewCo accepts from TeleCorp all of the
right, title and interest of TeleCorp under each and all of the following items
(without warranty that any of the following may be assigned):
(i) the Federal Aviation Administration application, responses,
approvals and registration numbers submitted or received by TeleCorp with
respect to the tower proposed to be constructed on the Property;
(ii) the zoning permits and approvals, variances, building
permits and such other federal, state or local governmental approvals which have
been gained or for which TeleCorp has made application;
(iii) the construction, engineering and architectural drawings
and related site plan and surveys pertaining to the construction of the Tower
Facilities on the Property;
(iv) the geotechnical report for the Property which has been
commissioned by TeleCorp;
(v) the title reports, commitments for title insurance,
ownership and encumbrance reports, title opinion letters, copies of instruments
in the chain of title or any other information which may have been produced
regarding title to the Property and the Easements;
(vi) the environmental assessments including phase I reports
and any reports relating contemporaneous or subsequent intrusive testing, the
"FCC Checklist" performed pursuant to NEPA requirements and any other
information which may have been produced regarding the environmental condition
of the Property, Easements or neighboring real property.
IN WITNESS WHEREOF, NewCo and TeleCorp have signed this Agreement as of
the date and year first above written.
TeleCorp: NEWCO:
TELECORP REALTY, LLC [NEWCO]
By: TeleCorp Communications, Inc.
Its: Managing Member
By: By:
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Name: Name:
------------------------- -----------------------
Title: Title:
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ACKNOWLEDGEMENTS
Acknowledgements
ATTACHMENT B
ESCROW AGREEMENT
ATTACHMENT C
BILL OF SALE FOR THE TOWER FACILITIES AND ASSETS
ATTACHMENT D
ASSIGNMENT OF COLLOCATION AGREEMENTS
This Assignment of Collocation Agreements ("Assignment") is made and
entered into effective as of the _____ day of __________, _____, by and between
TeleCorp Realty, LLC, a Delaware limited liability company ("TeleCorp"), and
NewCo, a Delaware corporation ("NewCo").
WITNESSETH:
WHEREAS, TeleCorp and SBA Towers, Inc have entered into that certain
Purchase Agreement dated the __ day of ___, 2000 ("Agreement") in which
contemplates the transfer to NewCo of certain of TeleCorp's real property
interests, including leases, licenses, and other similar agreements with third
parties granting such third parties the right to install certain communications
antennas and other equipment on the real property thereon ("Collocation
Agreements"); and
WHEREAS, TeleCorp desires to assign the Collocation Agreements to NewCo,
and NewCo desires to acquire and assume TeleCorp's rights and obligations under
such Collocation Agreements in connection with closing under the Agreement.
NOW, THEREFORE, for and in consideration of the foregoing, the sum of Ten
Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which is acknowledged, the parties hereto agree as follows:
1. Recitals. The recitals set forth above are incorporated herein by
reference and made a part of this Assignment.
2. Assignment and Assumption. TeleCorp does hereby assign, transfer, set
over, and deliver to NewCo all of TeleCorp's rights, title and interests in and
to the Collocation Agreements. NewCo does hereby accept, assume and agree to be
bound by all the terms, conditions, liabilities and obligations which are the
responsibility of the sublessor, sublicensor lessor or licensor (as the case may
be) under the Collocation Agreements, and which arise, are incurred, or are
required to be performed from and after the date of this Assignment.
3. Further Assurances. The parties hereby agree to perform, execute
and/or deliver or cause to be performed, executed and/or delivered any and all
such further acts and assurances as may reasonably be required to confirm the
transfers made pursuant to this Assignment.
4. Counterparts. This Assignment may be executed in two or more
counterparts, all of which taken together shall constitute one and the same
instrument.
5. Governing Law. This Assignment shall be governed and construed in
accordance with the laws of the state in which the Site is located, without
reference to its conflicts of laws principles.
6. Successors and Assigns. The terms and conditions of this Assignment
shall run with the property and shall be binding on and inure to the benefit of
the successors and permitted assignees of the respective parties.
In WITNESS WHEREOF, the parties hereto have signed this Assignment as of
the date and year first above written.
TeleCorp:
TeleCorp Realty, LLC
By: TeleCorp Communications, Inc.
Its: Managing Member
By:
-------------------------
Name:
-----------------------
Title:
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[NewCo]
By:
-------------------------
Name:
-----------------------
Title:
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ATTACHMENT E
MASTER BUILD TO SUIT AGREEMENT
ATTACHMENT F
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MASTER SITE AGREEMENT
ATTACHMENT G
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FORM OF ARTICLES OF INCORPORATION
ATTACHMENT H
FORM OF BYLAWS