**Exhibit 10.1**

 

 

ASSET PURCHASE AGREEMENT

 

Between

 

VIA WIRELESS LLC

 

and

 

GOLDENSTATE TOWERS, LLC

 

 

June 12, 2003

 

 

----

 

TABLE OF CONTENTS

 
| ARTICLE 1 CERTAIN DEFINITIONS; PURCHASE AND  SALE OF ASSETS; ASSUMPTION OF LIABILITIES |
|----------------------------------------------------------------------------------------|
|                                                                                   |   |
| Section 1.1.                                                                           | Certain Definitions. |
| Section 1.2.                                                                           | Purchased Assets. |
| Section 1.3.                                                                           | Excluded Assets |
| Section 1.4.                                                                           | Assumption of Liabilities. |
| Section 1.5.                                                                           | Excluded Liabilities. |
| Section 1.6.                                                                           | Assets Not Assignable. |
|                                                                                   |   |
| ARTICLE 2 PURCHASE PRICE                                                               |
|                                                                                   |   |
| Section 2.1.                                                                           | Purchase Price. |
| Section 2.2.                                                                           | Manner of Payment. |
| Section 2.3.                                                                           | Prorations. |
| Section 2.4.                                                                           | Allocation of Purchase Price. |
|                                                                                   |   |
| ARTICLE 3 THE CLOSING                                                                  |
|                                                                                   |   |
| Section 3.1.                                                                           | The Closing. |
|                                                                                   |   |
| ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF  SELLER                                    |
|                                                                                   |   |
| Section 4.1.                                                                           | Organization and Qualification. |
| Section 4.2.                                                                           | Authority. |
| Section 4.3.                                                                           | No Conflicts. |
| Section 4.4.                                                                           | Consents. |
| Section 4.5.                                                                           | Tax Matters. |
| Section 4.6.                                                                           | Leased Sites. |
| Section 4.7.                                                                           | Tower Leases |
| Section 4.8.                                                                           | FAA Compliance. |
| Section 4.9.                                                                           | Compliance with Laws. |
| Section 4.10.                                                                          | Permits. |
| Section 4.11.                                                                          | Litigation. |
| Section 4.12.                                                                          | Brokers’ and Finders’ Fees. |
| Section 4.13.                                                                          | Environmental Matters. |
| Section 4.14.                                                                          | Assumed Contracts. |
| Section 4.15.                                                                          | Absence of Changes or Events. |
| Section 4.16.                                                                          | Insurance. |
| Section 4.17.                                                                          | Disclosure. |
|                                                                                   |   |
| ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF  THE PURCHASER                             |
|                                                                                   |   |
| Section 5.1.                                                                           | Organization and Qualification. |
| Section 5.2.                                                                           | Authority. |
| Section 5.3.                                                                           | No Conflicts. |
| Section 5.4.                                                                           | Consents. |
| Section 5.5.                                                                           | Brokers’ and Finders’ Fees. |

 

i

----

 
| Section 5.6.                                             | Litigation.                                        |
|----------------------------------------------------------|----------------------------------------------------|
|                                                     |                                               |
| ARTICLE 6 COVENANTS OF SELLER AND PURCHASER              |
|                                                     |                                               |
| Section 6.1.                                             | Conduct of Business.                               |
| Section 6.2.                                             | Access to Information; Confidential  Information.  |
| Section 6.3.                                             | Agreement to Cooperate; Certain Other  Covenants.  |
| Section 6.4.                                             | Insurance.                                         |
| Section 6.5.                                             | Notification of Certain Matters.                   |
| Section 6.6.                                             | Execution of Tower Leases.                         |
| Section 6.7.                                             | Alternative Transactions.                          |
| Section 6.8.                                             | Natural Hazard Disclosure Requirement  Compliance. |
|                                                     |                                               |
| ARTICLE 7 CONDITIONS PRECEDENT TO CLOSE                  |
|                                                     |                                               |
| Section 7.1.                                             | Conditions to Obligations of Purchaser.            |
| Section 7.2.                                             | Conditions to Obligations of Seller.               |
| Section 7.3.                                             | Treatment of Certain Sites.                        |
|                                                     |                                               |
| ARTICLE 8 DUE DILIGENCE                                  |
|                                                     |                                               |
| Section 8.1.                                             | Title Review.                                      |
| Section 8.2.                                             | Due Diligence Review and Review Standards.         |
|                                                     |                                               |
| ARTICLE 9 DELIVERIES AT THE CLOSING; CLOSING  COSTS      |
|                                                     |                                               |
| Section 9.1.                                             | Seller’s Deliveries.                          |
| Section 9.2.                                             | Purchaser’s Deliveries.                       |
| Section 9.3.                                             | FCC Filing.                                        |
| Section 9.4.                                             | Closing Costs.                                     |
|                                                     |                                               |
| ARTICLE 10 SURVIVAL OF REPRESENTATIONS AND  WARRANTIES   |
|                                                     |                                               |
| Section 10.1.                                            | Survival of the Representations and  Warranties.   |
| Section 10.2.                                            | Due Diligence by Purchaser.                        |
|                                                     |                                               |
| ARTICLE 11 INDEMNIFICATION                               |
|                                                     |                                               |
| Section 11.1.                                            | Indemnification by Seller.                         |
| Section 11.2.                                            | Indemnification by Purchaser.                      |
| Section 11.3.                                            | Claims.                                            |
| Section 11.4.                                            | Limitations on Indemnification.                    |
|                                                     |                                               |
| ARTICLE 12 BREACHES AND DEFAULTS;  TERMINATION; REMEDIES |
|                                                     |                                               |
| Section 12.1.                                            | Termination.                                       |
| Section 12.2.                                            | Effect of Termination.                             |
|                                                     |                                               |
| ARTICLE 13 MISCELLANEOUS                                 |
|                                                     |                                               |
| Section 13.1.                                            | Expenses.                                          |
| Section 13.2.                                            | Further Assurances.                                |
| Section 13.3.                                            | Access to Records.                                 |
| Section 13.4.                                            | Severability.                                      |
| Section 13.5.                                            | Notices.                                           |
| Section 13.6.                                            | Entire Agreement.                                  |

 

ii

----

 
| Section 13.7.  | Amendments and Waivers.             |
|----------------|-------------------------------------|
| Section 13.8.  | Governing Applicable Law.           |
| Section 13.9.  | Assignment; Binding Effect.         |
| Section 13.10. | Beneficiaries of Agreement.         |
| Section 13.11. | Counterparts; Facsimile Signatures. |
| Section 13.12. | Exhibits and Schedules.             |
| Section 13.13. | Computation of Days; Holidays.      |
| Section 13.14. | Headings.                           |

 
| Schedules             |   |                                                               |
|-----------------------|--------|--------------------------------------------------------------------|
|                  |   |                                                               |
| Schedule 2.3(a)       | — | Security Deposits                                                  |
| Schedule 2.4          | — | Purchase Price Allocations                                         |
|                  |   |                                                               |
| Exhibits              |   |                                                               |
|                  |   |                                                               |
| Exhibit A             | — | Form of UbiquiTel Master Site Lease                                |
| Exhibit 6.6 (1 - 100) | — | Forms of 100 UbiquiTel Site Agreements                             |
| Exhibit 7.1(a)        | — | Form of Seller’s Officer’s Certificate                   |
| Exhibit 7.1(g)        | — | Form of Tower Lease Consent                                        |
| Exhibit 7.1(i)        | — | Form of Lessor Estoppel Certificate                                |
| Exhibit 7.2(a)        | — | Form of Purchaser’s Officer’s Certificate                |
| Exhibit 9.1(a)        | — | Form of Leased Site Lease Assignment                               |
| Exhibit 9.1(b)        | — | Form of Assignment and Assumption Agreement                        |
| Exhibit 9.1(c)        | — | Form of Bill of Sale                                               |
| Exhibit 9.1(k)        | — | Matters to be set forth in Legal Opinion of  Greenberg Traurig LLP |

 

iii

----

 

**ASSET PURCHASEAGREEMENT**

 

THIS ASSET PURCHASE AGREEMENT (the “Agreement”) is entered intothis 12th day of June, 2003 (the “Effective Date”) among VIA WirelessLLC, a California limited liability company (“Seller”), and GoldenStateTowers, LLC, a Delaware limited liability company (“Purchaser”).

 

W I T N E S S E T H:

 

WHEREAS, Seller has aleasehold interest in the Sites (as hereinafter defined) on which areconstructed improvements, including wireless communications towers and relatedfacilities;

 

WHEREAS, Seller is partyto certain collocation agreements, contracts, leases, subleases, licenses,sublicenses and other occupancy agreements with third parties pursuant to whichsuch third parties locate and operate wireless communications equipment oncertain of the Sites; and

 

WHEREAS, Seller desiresto sell, transfer, convey and assign to Purchaser, and Purchaser desires toacquire, all of Seller’s interests in the Sites at the Closing, subject to theterms and conditions of this Agreement.

 

NOW, THEREFORE, inconsideration of the promises and the mutual covenants and agreements containedherein, the parties hereto, intending to be legally bound hereby, agree asfollows:

 

ARTICLE 1

CERTAIN DEFINITIONS; PURCHASE AND SALE OF ASSETS;

ASSUMPTION OF LIABILITIES

 

Section 1.1.                                   CertainDefinitions.

 

As used in this Agreement,the following terms have the following meanings unless the context otherwiserequires:

 

“Accounting Firm”shall have the meaning set forth in Section 2.3(b).

 

“Additional TitleDisapproval Notice” shall have the meaning set forth in Section 8.1(b).

 

“Additional TitleMatters” shall have the meaning set forth in Section 8.1(b).

 

“Adjusted PurchasePrice” shall have the meaning set forth in Section 2.1(b).

 

“Affiliate” shall mean, with respect to any Person, any otherPerson that directly, or indirectly through one or more intermediaries,controls, is controlled by or is under common control with that Person.  For the purposes of this definition,“control” (including the terms “controlling” and “controlled”) means the powerto direct or cause the direction of the management and policies of a Person,whether through the ownership of securities or partnership or other ownershipinterest, by contract or otherwise.

 

----

 

“Agreement” shallhave the meaning set forth in the preamble.

 

“Assignment andAssumption Agreement” shall have meaning set forth in Section 9.1(b).

 

“Assumed Contracts”shall mean the service, supply, maintenance and management contracts of Sellerrelated to the Sites listed in Section 4.14 of the Seller Disclosure Schedule.

 

“Assumed Liabilities”shall have the meaning set forth in Section 1.4.

 

“Bills of Sale”shall have the meaning set forth in Section 9.1(c).

 

“Business Day”shall mean any day other than a Saturday, Sunday, legal holiday in the State ofNew York or other day of the year on which banks in the State of New York areauthorized or required by applicable law to close.

 

“Claim ofEnvironmental Liability” shall mean any actual or threatened claims,liabilities, obligations, charges, losses, fines, judgments, costs, penalties,expenses (including reasonable attorneys’ fees), settlements or damages,relating to, resulting from or arising from, directly or indirectly, in wholeor in part, (i) any suit, action, administrative proceeding, notice,investigation or demand asserted or threatened by any Person, including anyGovernmental Authority, arising under or relating, directly or indirectly, toany Environmental Law, (ii) requirements imposed by any GovernmentalAuthority under any Environmental Law, including costs of remediation orrestoration or costs incurred in complying with Environmental Laws, (iii) thepresence, Release or threat of Release into the environment of any HazardousSubstances, or (iv) personal injury, bodily injury or property damage arisingout of or allegedly arising out of the presence, Release or threat of Releaseof Hazardous Substances, whether or not such actual or threatened claims,liabilities, obligations, charges, losses, fines, judgments, costs, penalties,expenses or damages occur at a Site.

 

“Class 1 Leased Sites”shall mean the Leased Sites identified as Class 1 Leased Sites on Section4.6(a) of the Seller Disclosure Schedule.

 

“Class 2 Leased Sites”shall mean the Leased Sites identified as Class 2 Leased Sites on Section4.6(a) of the Seller Disclosure Schedule.

 

“Closing” shallhave the meaning set forth in Section 3.1.

 

“Closing Date”shall have the meaning set forth in Section 3.1.

 

“Code” shall meanthe Internal Revenue Code of 1986, as amended.

 

“Communications Act”shall have the meaning set forth in Section 4.8(c).

 

“CommunicationsEquipment” means equipment used in a communications system (including,without limitation, the antennas, antenna arrays and associated equipment for awireless communications system, which may include, without limitation,electronics equipment, transmission equipment, microwave dishes, GPS antennas,carrier shelters, coaxial cables, mounting brackets used to mount equipment onthe platform for location of equipment on a

 

2

----

 

Tower, cable trays, mounts, generators, hangers, brackets, and otheraccessories and equipment) installed, owned, maintained and operated by anyPerson other than Purchaser.

 

“ConfidentialInformation” shall have the meaning set forth in Section 6.2(b).

 

“Consent” shallmean any consent, approval, authorization, or waiver from, or notice to, anyPerson, including but not limited to any Governmental Authority.

 

“Contracts” shallmean with respect to any Person, any agreement, undertaking, franchise, permit,lease, loan, license, guarantee, understanding, commitment, contract, note,bond, indenture, mortgage, deed of trust or other obligation, instrument,documents, agreement or other arrangement of any kind (written or oral, expressor implied) to which such Person is a party or by which such Person, or anymaterial amount of such Person’s property, is bound.

 

“Cure Period”shall have the meaning set forth in Section 7.3(a).

 

“Effective Date”shall have the meaning set forth in the preamble.

 

“Environmental Law”shall mean any and all statutes, regulations, ordinances, rules, orders,directives, requirements, common law claims or adjudications of anyGovernmental Authority, without limitation in time or scope, which regulate orgovern or are related in any way to the protection of the environment, orworker, public, consumer or human health or safety, or are related in any wayto Hazardous Substances, including, without limitation, the following:  the Comprehensive Environmental ResponseCompensation and Liability Act, as amended, 42 U.S.C. §9601 et seq. (CERCLA),the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §6901 et seq.(RCRA), the Clean Air Act, as amended, 42 U.S.C. §7401 et seq. (CAA), theEmergency Planning and Community Right to Know Act, as amended, 42 U.S.C.§11001 et seq. (EPCRKA), the Safe Drinking Water Act, as amended, 42 U.S.C.§300 et seq. (SDWA), the Pollution Prevention Act of 1990, as amended, 42U.S.C. §13101 et seq. (PPA), the Clean Water Act, as amended, 33 U.S.C. §1251et seq. (CWA), the Federal Insecticide, Fungicide and Rodenticide Act, asamended, 7 U.S.C. §136 et seq. (FIFRA), the Toxic Substances Control Act, asamended, 15 U.S.C. §2601 et seq. (TSCA), and OSHA and any and all state andlocal statutes, laws, or ordinances corresponding to the foregoing federalstatutes.

 

“Environmental Permits”shall mean any Permit required to be obtained by Seller pursuant to anyEnvironmental Law in connection with Seller’s operation of the Leased Sites asa telecommunications facility.

 

“Environmental Reports”shall have the meaning set forth in Section 4.13(b).

 

“Escrow Agent”shall have the meaning set forth in Section 2.2(a).

 

“Escrow Agreement”shall mean the Escrow Agreement of even date herewith among Seller, Purchaserand the Escrow Agent.

 

“Escrow Deposit”shall have the meaning set forth in Section 2.2(a).

 

“Excluded Assets”shall have the meaning set forth in Section 1.3.

 

3

----

 

“Excluded Liabilities”shall have the meaning set forth in Section 1.5.

 

“FAA” shall havethe meaning set forth in Section 4.8(a).

 

“FAA Tower Clearance”shall have the meaning set forth in Section 4.8(a).

 

“FCC” shall havethe meaning set forth in Section 4.8(a).

 

“FCC Tower Clearance”shall have the meaning set forth in Section 4.8(a).

 

“GAAP” shall meangenerally accepted accounting principles as in effect in the United States.

 

“GovernmentalAuthority” shall mean any governmental or quasi-governmental authority,whether administrative, executive, judicial, legislative or other, or anycombination thereof, including, without limitation, any federal, state,territorial, county, municipal or other government or governmental orquasi-governmental agency, arbitrator, authority, board, body, branch, bureau,or comparable agency or entity, commission, corporation, court, department,instrumentality, mediator, panel, system or other political unit or subdivisionor other entity of any of the foregoing, whether domestic or foreign,including, without limitation, the FCC.

 

“Hazardous Substances”shall mean and include, without limitation, any element, material, compound,mixture, chemical, substance, toxic substance, hazardous substance, toxicwaste, hazardous waste, pollutant or contaminant, including, withoutlimitation, asbestos, defined as a hazardous substance, pollutant orcontaminant (or words of similar connotation, import or meaning) or otherwiseregulated under or pursuant to any Environmental Law.  Any material or substance containing a Hazardous Substance shallalso be considered a Hazardous Substance.

 

“Holdback” shallhave the meaning set forth in Section 2.2(b).

 

“Improvements”shall mean the Tower, all Tower lighting systems, all Tower grounding systems,all buildings or structures at a Site owned by Seller other than carriershelters (buildings to include all building systems and equipment, and allcomponents thereof, including the roof, foundation, load-bearing walls andother structural elements thereof), the platform for location of the equipmenton a Tower (other than the mounting brackets used to mount equipment on suchplatform), Seller’s personal property located at a Site other than the ExcludedAssets, and the fixtures, irrigation and other water distribution systems, theunderground conduit not belonging to any public utility, wiring and cableinstallations included in or located at a Site.

 

“Indemnified Party”shall have the meaning set forth in Section 11.3(a).

 

“Indemnifying Party”shall have the meaning set forth in Section 11.3(a).

 

“Leased Sites”shall be the Class 1 Leased Sites and the Class 2 Leased Sites listed inSection 4.6(a) of the Seller Disclosure Schedule, including, withoutlimitation, the Licensed Sites, together with all easements, rights, rights ofway and similar rights that provide access to such sites, privileges,remainders, revisions and appurtenances thereunto belonging or in any wayappertaining, and all of Seller’s estate, right, title, interest, claim anddemand therein, in the

 

4

----

 

streets and ways adjacent thereto and in the beds thereof, either atlaw or in equity, in possession or expectancy.

 

“Leased Site LeaseAssignments” shall have the meaning set forth in Section 9.1(a).

 

“Leased Site LeaseConsents” shall have the meaning set forth in Section 4.6(a).

 

“Leased Site Leases”shall have the meaning set forth in Section 4.6(a).

 

“Lessor EstoppelCertificate” shall have the meaning set forth in Section 7.1(i).

 

“Licensed Sites”shall mean the Leased Sites listed on Part II of Section 4.6(a) of the SellerDisclosure Schedule.

 

“Lien” shall meanany mortgage, pledge, hypothecation, assignment, deposit arrangement,encumbrance, lien (statutory or other), charge or other security interest,preemptive right, existing or claimed right of first refusal, right of firstoffer, right of consent, put right, default or similar right, or right of athird party or other adverse claim of any kind or nature whatsoever (including,without limitation, any conditional sale or other title retention agreement).

 

“Losses” shallhave the meaning set forth in Section 11.1.

 

“Material AdverseEffect” shall mean (i) any change, event, occurrence, fact, condition,effect or development that would have a materially adverse effect on the operationby Purchaser of more than six (6) Class 1 Leased Sites or of more than fifteen(15) Leased Sites as wireless telecommunication tower facilities, (ii) anychange, occurrence, or development that would have a materially adverse effecton the ability to co-locate additional wireless communication carriers on theTowers located on more than six (6) Class 1 Leased Sites or on more thanfifteen (15) Leased Sites, or (iii) any change, event, occurrence, fact,condition, effect or development that would have a materially adverse effect onSeller’s ability to perform its obligations under this Agreement; provided,however, that no change or effect arising out of or in connection withor resulting from any of the following will be deemed to constitute or contributeto a “Material Adverse Effect”: (i) general financial market conditions orfluctuations; or (ii) conditions affecting the telecommunications industrygenerally.

 

“Natural HazardDisclosure Report” shall have the meaning set forth in Section 6.8.

 

“Natural Hazard Expert”shall have the meaning set forth in Section 6.8.

 

“Outside Date”shall have the meaning set forth in Section 12.1(b).

 

“Permits” shallhave the meaning set forth in Section 4.10.

 

“Permitted Liens”shall mean, in the case of a Leased Site, any: (i) lien for current real andpersonal property Taxes and assessments not yet due and payable, which shall beprorated in accordance with Section 2.3, (ii) any Tower Leases or Leased SiteLeases with respect to the Sites (except to the extent a Lien arises out of abreach by Seller of such Tower Leases or Leased

 

5

----

 

Site Leases); (iii) the printed exceptions that appear in the standardform owner’s policy of title insurance issued by the Title Company for theSites; (iv) any other covenant, condition, restriction, right of way, easement,title policy exception, or other matter disclosed in the applicable PreliminaryTitle Report which is approved or deemed approved by Purchaser pursuant toSection 8.1; (v) any other title matters objected to by Purchaser whichobjections are subsequently waived by Purchaser; and (vi) any mortgage or deedof trust encumbering the fee simple interest on a Site prior to Seller’srecorded interest in such Site for which a valid non-disturbance agreementreasonably acceptable to Purchaser has been obtained and is in full force andeffect.  Any mortgage or deed of trustlien created by Seller or its Affiliates that encumbers a Site will not be aPermitted Lien.

 

“Person” shallmean any individual, corporation, limited liability company, partnership,limited liability partnership, firm, joint venture, association, joint-stockcompany, trust, unincorporated organization, Governmental Authority or otherentity.

 

“Preliminary TitleReport” shall have the meaning set forth in Section 8.1(a).

 

“Purchase Price”shall have the meaning set forth in Section 2.1(a).

 

“Purchased Assets”shall have the meaning set forth in Section 1.2.

 

“Purchaser” shallhave the meaning set forth in the preamble.

 

“Purchaser IndemnifiedParties” shall have the meaning set forth in Section 11.1.

 

“Real Property Laws”shall have the meaning set forth in Section 4.6(c).

 

“Release” shallmean any release, spill, emission, leaking, pumping, injection, deposit, disposal,discharge, dispersal, leaching, placement, distribution, production, sale,generation, transpiration or migration into the environment.

 

“Restricted Interest”shall have the meaning set forth in Section 1.6.

 

“Seller” shallhave the meaning set forth in the preamble.

 

“Seller DisclosureSchedule” shall mean the disclosure schedule delivered concurrentlyherewith by Seller to Purchaser.

 

“Seller IndemnifiedParties” shall have the meaning set forth in Section 11.2.

 

“Seller’s Knowledge”or similar phrase shall mean the actualknowledge after reasonable inquiry, without taking into account anyconstructive or imputed knowledge, of David Zylka, Jim Ames, Fred Ritter,Andrew Buffmire, and William Warburton, who are the employees of Seller or itsAffiliates whose primary responsibility is the operation of the PurchasedAssets, but such individuals shall not have any personal liability inconnection herewith.

 

“Site Permits”shall have the meaning set forth in Section 4.6(d).

 

6

----

 

“Sites” shall meanLeased Sites.

 

“Tax” shall meanany federal, state, local or foreign income, gross receipts, license, payroll,employment, excise, severance, stamp, occupation, premium, windfall profits,environmental (including taxes under Section 59A of the Code), customs duties,capital stock, franchise, profits, withholding, social security (or similar),unemployment, disability, real property, personal property, sales, use,transfer, registration, value added, alternative or add-on minimum, estimated,or other tax of any kind whatsoever, including any interest, penalty oraddition thereto, whether disputed or not.

 

“Tax Return” shallmean any return, declaration, report, claim for refund, or information returnor statement relating to Taxes, including any schedule or attachment thereto,and including any amendment thereof.

 

“Third-Party Claim”shall have the meaning set forth in Section 11.3(a).

 

“Title Company”shall mean Commonwealth Land Title Insurance Company.

 

“Title ObjectionNotice” shall have the meaning set forth in Section 8.1(a).

 

“Title Policies”shall have the meaning set forth in Section 7.1(e).

 

“Title Review Period”shall have the meaning set forth in Section 8.1(a).

 

“Tower Leases”shall mean the leases, subleases, collocation agreements, licenses,sublicenses, occupancy agreements or other Contracts by which Seller hasgranted third parties the right to use space on the Towers located on theSites.

 

“Towers” shallmean all towers set forth in Section 4.7(b) of the Seller Disclosure Schedule,ground radials, guy anchors and related equipment owned by Seller and locatedon the Sites other than Excluded Assets.

 

“UbiquiTel Master SiteLease” shall mean the form of master site lease attached hereto as ExhibitA, to be entered into at Closing between Purchaser, as lessor, andUbiquiTel Leasing Company, as lessee.

 

“UbiquiTel SiteAgreement” shall have the meaning set forth in Section 6.6.

 

When a reference is madein this Agreement to an Article or a Section, such reference shall be to anArticle or a Section of this Agreement unless otherwise indicated.  Unless the context otherwise requires, theterms defined hereunder shall have the meanings therein specified for allpurposes of this Agreement, applicable to both the singular and plural forms ofany of the terms defined herein. Whenever the words “include,” “includes” or “including” are used in thisAgreement, they shall be deemed to be followed by the words “without limitation.”  The use of a gender herein shall be deemedto include the neuter, masculine and feminine genders whenever necessary orappropriate.  Whenever the word “herein”or “hereof” is used in this Agreement, it shall be deemed to refer to thisAgreement and not to a particular Section of this Agreement unless expresslystated otherwise.

 

7

----

 

Section 1.2.                                   Purchased Assets.

 

Subject to the provisionsof this Agreement, Seller agrees to sell, assign, transfer and deliver toPurchaser, free and clear of all Liens except Permitted Liens, and Purchaseragrees to purchase and acquire from Seller, as of the Closing Date, all assetslocated at the Sites (other than Excluded Assets), which are currently used orheld for use by Seller in connection with or relating to the Sites, including,without limitation, the following (collectively, the “Purchased Assets”):

 

(i)                                     all rights of Seller under the LeasedSite Leases, including, without limitation, Seller’s right to occupy the LeasedSites, and to assert claims and take other rightful actions in respect ofbreaches, defaults and other violations thereunder;

 

(ii)                                  all rights, title and interest of Sellerin the Improvements;

 

(iii)                               all rights of Seller under the Tower Leases,including, without limitation, Seller’s right to receive payment thereunder,and to assert claims and take other rightful actions in respect of breaches,defaults and other violations thereunder;

 

(iv)                              all rights of Seller under the AssumedContracts, including, without limitation, Seller’s right to receive payment orgoods and services thereunder, and to assert claims and take other rightfulactions in respect of breaches, defaults and other violations thereunder;

 

(v)                                 all Permits (but specifically excludingpermits or licenses granted by the FCC relating to communications frequencies,spectrum or channel usage for wireless communications services and permits orlicenses held by Seller with respect to the operation of  Seller’s communications equipment at a Site)used in or relating to the Sites, to the extent transferable;

 

(vi)                              all warranties, indemnities andguarantees and similar rights related to the Sites and the Improvements, to theextent assignable;

 

(vii)                           all files, books, records, manuals, technicalinformation, surveys, drawings and specifications, and studies relating to orused in connection with the Sites (in any form or medium), including, withoutlimitation, the original documents relating to the Tower Leases, the LeasedSite Leases and the Assumed Contracts, to the extent available and if notavailable, copies thereof (provided, however, to the extent theforegoing are indivisible from assets to be maintained by Seller or arenecessary for the continued ownership, operation or maintenance of assetsretained by Seller, Seller’s delivery obligation shall be limited to copies);

 

(viii)                        all rights to proceeds from applicable insurancepolicies that Purchaser is entitled to receive pursuant to Section 6.4, withrespect to the Sites that are sold, transferred and assigned to Purchaserhereunder; and

 

8

----

 

(ix)                                subject to Section 1.3(iv), all rights tocauses of action, lawsuits, judgments, claims and demands of any nature withrespect to the ownership, use, function or value of any Purchased Asset,whether arising by way of counterclaim or otherwise.

 

Section 1.3.                                   ExcludedAssets

 

The following items shallbe deemed “Excluded Assets”: (i) the Communications Equipment, (ii) theelectrical utility meter, circuit breakers and branch circuits that serve theCommunications Equipment and the associated telephone inside company wiring forthe Communications Equipment at each Site, in each case belonging to any publicutility, (iii) any Purchased Assets that are or become Excluded Assets pursuantto Articles 7 and 8 of this Agreement, (iv) Seller’s rights, claims or causesof action against third parties arising under or in connection with theExcluded Liabilities, and (v) other assets of Seller which are not included inPurchased Assets.

 

Section 1.4.                                   Assumptionof Liabilities.

 

Subject to the provisionsof this Agreement, Purchaser shall assume as of the Closing Date and agrees topay, perform and discharge when due, all obligations and liabilities arisingunder or in connection with the Leased Site Leases, the Tower Leases, theImprovements, the Sites, the Permits and the Assumed Contracts (the “AssumedLiabilities”); provided,however, that in no event shallPurchaser assume any liability relating or arising from the breach or violationby Seller of any Leased Site Lease, Tower Lease, Assumed Contract or Permit.

 

Section 1.5.                                   ExcludedLiabilities.

 

Except as expresslyprovided in Section 1.4, Purchaser shall not assume any liability or obligationof Seller of any nature whatsoever, whether known or unknown, direct orindirect, contingent or accrued, matured or unmatured (the “ExcludedLiabilities”).  Without limiting thegenerality of the foregoing, Purchaser shall not assume any of the followingExcluded Liabilities:

 

(i)                                     liabilities arising out of any actual oralleged breach or nonperformance by Seller prior to the Closing Date under anyLeased Site Lease, Tower Lease, Assumed Contract or Permit;

 

(ii)                                  any liability under any Contract notspecifically included as an Assumed Liability;

 

(iii)                               any liability, obligation, commitment or debt ofSeller relating to any of Seller’s current or former employee’s terms orconditions of employment, compensation or benefits, including, withoutlimitation, termination of any such employee or the failure of Purchaser to hireany such employee;

 

(iv)                              any liability or obligation relating to,resulting from or arising from, directly or indirectly, any matter disclosed inthe Environmental Reports or any Claim of Environmental Liability pertaining toReleases on any Site that occurred prior to the Closing Date;

 

9

----

 

(v)                                 any liability or obligation, actual oralleged, that relates to, results or arises from, directly or indirectly, anyaction or failure to act by Seller with respect to, or the operation orownership of any Site (or the Purchased Assets relating thereto), prior to theClosing Date;

 

(vi)                              any liability, obligation or agreementwith respect to Taxes relating to any Site (or the related Purchased Assets),owing in respect of any period prior to the Closing Date, including, withoutlimitation, Taxes payable in respect of the matters set forth on Section 4.5(b)of the Seller Disclosure Schedule; and

 

(vii)                           any other liability or obligation, known or unknown,which is not specifically and expressly included within the definition ofAssumed Liabilities.

 

Section 1.6.                                   AssetsNot Assignable.

 

To the extent that anyinterest in the Purchased Assets is not capable of being assigned, transferredor conveyed without the consent, waiver or authorization of a third Person, orif such assignment, transfer or conveyance or attempted assignment, transfer orconveyance would constitute a breach of any of the Leased Site Leases or otherPurchased Assets, or a violation of any applicable law, or is not immediatelypracticable, this Agreement shall not constitute an assignment, transfer orconveyance of such interest, or an attempted assignment, transfer or conveyanceof such interest (any such interest being referred to herein as a “RestrictedInterest”).  Anything in thisAgreement to the contrary notwithstanding, Seller shall not be obligated totransfer to Purchaser any Restricted Interest without the required consent,waiver or authorization necessary for such transfer first having been obtained;provided, however, that any Restricted Interest shall betransferred within five (5) Business Days after receipt of such requiredconsent, waiver or authorization.

 

ARTICLE 2

PURCHASE PRICE

 

Section 2.1.                                   Purchase Price.

 

(a)                                  In connection with the sale, transfer andassignment of the Purchased Assets to Purchaser, Purchaser shall pay to Sellerthe amount of $11,500,000 (the “Purchase Price”).

 

(b)                                 If one or more Sites are excluded byPurchaser pursuant to Section 7.3 or 8.1, the Purchase Price shall be reducedby $150,700 per excluded Class 1 Leased Site and $80,700 per excluded Class 2Leased Site.  “Adjusted PurchasePrice” shall mean the Purchase Price, as adjusted pursuant to thisparagraph.

 

Section 2.2.                                   Manner ofPayment.

 

The Purchase Price shallbe paid to Seller by Purchaser as follows:

 

(a)                                  Escrow Deposit. Concurrently herewith, Purchaser shall deliver Five Hundred Seventy FiveThousand Dollars ($575,000) (which deposit, together with all interest earnedthereon, is herein called the “Escrow Deposit”) to Commonwealth LandTitle Company at its

 

10

----

 

offices at 525 Market, Suite 2320, San Francisco, California, 94105,Attention: Ms. Linda Rae Paul (“Escrow Agent”).  The Escrow Deposit shall be delivered toEscrow Agent by wire transfer of immediately available federal funds or by bankor cashier’s check drawn on a national bank reasonably satisfactory toSeller.  The Escrow Deposit shall beheld by Escrow Agent as a deposit against the Purchase Price in accordance withthe terms and provisions of the Escrow Agreement.  At all times that the Escrow Deposit is being held by the EscrowAgent, the Escrow Deposit shall be invested by Escrow Agent in the followinginvestments:  (i) United States Treasuryobligations, (ii) United States Treasury-backed repurchase agreementsissued by a major money center banking institution reasonably acceptable toSeller and Purchaser, or (iii) such other manner as may be reasonably agreed toby Seller and Purchaser.  The EscrowDeposit shall be disposed of by Escrow Agent only as provided in the EscrowAgreement.

 

(b)                                 Closing Payment. At Closing, Purchaser shall (i) deposit with the Escrow Agent, assecurity for the payment obligations of Seller (if any) under Section 9.4 andArticle 11, an amount that when added to the Escrow Deposit shall be equal toten percent (10%) of the Adjusted Purchase Price(which funds, together with allinterest earned thereon, is herein called the “Holdback”), to be heldand disbursed by the Escrow Agent in accordance with the terms of the EscrowAgreement, and (ii) pay to Seller (or to any other Person as Seller may directin writing) by wire transfer of immediately available funds to such banks andaccounts thereat as shall be specified in writing by Seller, an amount equal tothe Adjusted Purchase Price less the Holdback.

 

Section 2.3.                                   Prorations.

 

(a)                                  At the Closing, a proration adjustmentshall be made with respect to the Sites (and the Purchased Assets relatingthereto) to be transferred to Purchaser as of 11:59 PM (Pacific Standard Time)on the day immediately preceding the Closing Date with respect to rental andlease payments, utilities, real property taxes, personal property taxes,operating expenses, security deposits set forth on Schedule 2.3(a) andall other items of income and expense due or payable under any Leased SiteLeases, Tower Leases or Assumed Contracts, in each case, including all items ofincome and expense that are prepaid or payable in arrears and of a natureordinarily prorated as of closing in real estate transactions.  Seller will be entitled to all income(whether received by the time of the Closing Date or not) and responsible forall expenses relating to all periods prior to the Closing Date, and Purchaserwill be entitled to all such income and responsible for all such expensesrelating to all periods on or subsequent to the Closing Date.  If Purchaser receives any rents or otherreceipts subsequent to the Closing Date which relate to any period of timeprior to the Closing Date, Purchaser will immediately pay to Seller in currentfunds that portion of the rents or other receipts attributable to the period oftime prior to the Closing Date.  Allutility deposits and reservation fees paid by or on behalf of Seller inconnection with the Sites shall be reimbursed by Purchaser to Seller on theClosing Date.  In no event shall Sellerbe charged with or be responsible for any increase in the taxes arising from anincrease in the assessed value of the Purchased Assets resulting from the saleof the Purchased Assets or from any improvements made or leases entered into onor after the Closing Date.  If anyassessments on the Purchased Assets are payable in installments, then the installmentfor the period that includes the Closing Date shall be prorated (with Purchaserassuming the obligation to pay that portion of any installments due in respectof the period from and after the Closing Date).  The prorations and payments shall be made on the basis of awritten statement approved

 

11

----

 

by Purchaser and Seller.  Anyitem which cannot be finally prorated because of the unavailability ofinformation shall be tentatively prorated on the basis of the best data thenavailable and reprorated after the Closing Date in accordance with thefollowing procedures.  Within thirty(30) days after the Closing Date, Purchaser shall provide Seller with itscalculation of the post-Closing prorations. Seller shall give written notice of any objection within ten (10)Business Days of the delivery by Purchaser of its calculation.  If Seller does not object to suchpost-Closing prorations within ten (10) Business Days following the delivery toSeller of such calculation, Purchaser’s calculation of the post-Closingprorations shall be deemed accepted, and the party owing the other party a sumof money based on the agreed upon post-Closing prorations shall pay said sum tothe other within three (3) Business Days after such ten (10) Business Dayperiod.  If Seller disputes Purchaser’scalculation of the prorations, cash payment shall be made of only theundisputed amount of the prorations; and payment with respect to the disputedamount shall be made upon the final determination of such dispute in accordancewith Section 2.3(b).

 

(b)                                 In the event that Seller disputesPurchaser’s calculation of the proration within ten (10) Business Daysfollowing the delivery to Seller of such calculation, the parties will attemptto resolve such dispute within a thirty (30) day period following notice ofsuch dispute.  If such dispute cannot beresolved within such period, then Ernst & Young LLP (“Accounting Firm”),shall be retained to review the matter under dispute and to resolve the disputerelating to the post-Closing proration. The determination by the Accounting Firm shall be final and binding onthe parties hereto, and shall be based upon a review of any relevant books andrecords or other documents or information relating to the dispute which arereasonably requested by Accounting Firm. Seller and Purchaser shall be afforded the opportunity to present to theAccounting Firm any material or information relating to the matters indispute.  Seller and Purchaser shalleach bear and pay one-half of the fees and disbursements of the Accounting Firmin connection with its determination. The aforesaid post-Closing adjustment shall be the only post-Closingadjustment of the items to be prorated under this Section 2.3.  The provisions of this Section 2.3 shall notaffect the obligations of Seller and Purchaser under this Agreement withrespect to the Excluded Liabilities and the Assumed Liabilities, respectively.

 

Section 2.4.                                   Allocationof Purchase Price.

 

Purchaser and Seller agree that the Purchase Price shall be allocated amongthe Purchased Assets in accordance with Schedule 2.4.  Such allocation shall be binding uponPurchaser and Seller for all tax purposes. Purchaser and Seller also each agree to report the transactionscontemplated by this Agreement in a manner consistent with this Agreement,including the allocation under Schedule 2.4, and each agrees not to takean inconsistent position in any Tax Return or any judicial or administrativeproceeding.

 

ARTICLE 3

THE CLOSING

 

Section 3.1.                                   The Closing.

 

Unless this Agreementshall have been earlier terminated in accordance with the terms hereof, thetransactions contemplated by this Agreement shall be consummated (the “Closing”)

 

12

----

 

at the offices of Friedman Kaplan Seiler & Adelman LLP, 1633Broadway, New York, New York 10019, on the later of (x) July 10, 2003 and (y)the Business Day that is the fifth (5th) Business Day after the date on whichall the conditions set forth in Article 7 shall have been satisfied or waived(except for those conditions which by their terms cannot be satisfied prior tothe Closing Date so long as it is reasonably apparent that such conditions willbe able to be satisfied on the Closing Date), unless another date, time orplace is agreed to in writing by the parties. The date on which the Closing shall occur is referred to in thisAgreement as the “Closing Date”. The Closing shall be deemed to have occurred as of 12:01 a.m. on theClosing Date.

 

ARTICLE 4

REPRESENTATIONS AND WARRANTIES OF SELLER

 

Seller represents andwarrants to Purchaser as follows (it being understood and agreed that exceptfor the representations and warranties specifically set forth in this Article4, Seller has not made any representations or warranties with respect to the PurchasedAssets):

 

Section 4.1.                                   Organization andQualification.

 

Seller is a limitedliability company duly organized, validly existing and in good standing underthe laws of the State of California and has the requisite limited liabilitycompany power and authority to own and use the Purchased Assets (in the placeswhere the Purchased Assets are owned, leased or operated).

 

Section 4.2.                                   Authority.

 

Seller has all limitedliability power and authority to execute, deliver and enter into this Agreementand to perform fully its obligations hereunder and consummate the transactionscontemplated hereby.  The execution anddelivery of this Agreement and the consummation of the transactionscontemplated hereby have been duly and validly authorized by all necessarylimited liability company action on the part of Seller.  This Agreement has been duly executed anddelivered by Seller.  Assuming dueauthorization, execution and delivery by Purchaser, this Agreement constitutesthe valid and binding obligation of Seller, enforceable against Seller inaccordance with its terms, subject to bankruptcy, insolvency, fraudulenttransfer, reorganization, moratorium and similar laws of general applicabilityrelating to or affecting creditors’ rights and to general principles of equity.

 

Section 4.3.                                   NoConflicts.

 

The execution anddelivery of this Agreement by Seller does not, and the performance of thisAgreement by Seller will not, (i) conflict with the Articles of Formation orthe Operating Agreement of Seller, (ii) violate any law, rule, regulation,order, judgment or decree applicable to Seller by which Seller or itsproperties are bound, or (iii) subject to obtaining the third party Consentsreferred to in this Section 4.3, result in any breach of or constitute adefault (or an event that with notice or lapse of time or both would become adefault) under, or impair the rights of Seller under, or give to others anyrights of termination, amendment, acceleration or cancellation of, or result inthe creation of a Lien on any of the Purchased Assets pursuant to, any Contractto which Seller is a party, or to Seller’s Knowledge, by which any of thePurchased Assets are

 

13

----

 

bound, except, with respect to clauses (ii) and (iii), for any suchviolations, defaults or other occurrences that would not reasonably be expectedto have a Material Adverse Effect. Section 4.3 of the Seller Disclosure Schedule lists all Consents,waivers and approvals under any of Seller’s Contracts required to be obtainedin connection with the consummation of the transactions contemplatedhereby.  Except as set forth in Section4.3 of the Seller Disclosure Schedule, Seller is not a party to any Contractthat limits, impairs or otherwise adversely affects Seller’s ability to enterinto this Agreement and consummate the transactions contemplated hereby.

 

Section 4.4.                                   Consents.

 

Except as set forth inSection 4.4 of the Seller Disclosure Schedule, no Consent from, approval of,order or authorization of, or registration, declaration or filing with anyGovernmental Authority that has not been made or obtained is required to bemade or obtained by Seller in connection with the execution and delivery ofthis Agreement or the consummation of the transactions contemplated hereby.

 

Section 4.5.                                   TaxMatters.

 

(a)                                  Except as set forth in Section 4.5(a) ofthe Seller Disclosure Schedule, there are no Taxes relating to the PurchasedAssets prior to the Closing Date for which Purchaser could be held liable thathave not been or will not be paid by Seller.

 

(b)                                 Seller has filed or caused to be filed ina timely manner (within any applicable extension periods) all Tax Returns,reports and forms required to be filed by Seller, and has timely paid all Taxesdue and payable by Seller, pursuant to the Code or by applicable state, localor foreign Tax laws, in each case to the extent applicable to the PurchasedAssets.  To Seller’s Knowledge, no TaxLiens have been filed with respect to any of the Purchased Assets, and noclaims are being asserted or threatened against Seller with respect to anyTaxes due in connection with the Purchased Assets.  Except as set forth in Section 4.5(b) of the Seller DisclosureSchedule, to Seller’s Knowledge, there are no pending investigations or auditsof any Seller Tax Returns applicable to Purchased Assets.

 

(c)                                  Seller is not a “foreign person” withinthe meaning of Section 1445 of the Code.

 

Section 4.6.                                   Leased Sites.

 

(a)                                  Section 4.6(a) of the Seller DisclosureSchedule contains a complete list of the Leased Sites Leases together with theaddress of each Leased Site, the landlord and the amount of rent payable underthe applicable Leased Site Lease (each Leased Site is categorized as a Class 1Leased Site or a Class 2 Leased Site for the purposes of this Agreement).  Seller has delivered to Purchaser correctand complete copies of the leases between Seller, as lessee, and a third partylessor relating to the Leased Sites (together with all amendments and supplementsthereto, the “Leased Site Leases”). Each Leased Site Lease is the legal, valid, binding and enforceableobligation of Seller and, to Seller’s Knowledge, of the lessor, and each LeasedSite Lease is in full force and effect. Neither Seller nor, to Seller’s Knowledge, the lessor is in default,violation or breach in any respect under any Leased Site Lease, and no eventhas occurred and is continuing that constitutes or, with notice or the passageof time or both, would

 

14

----

 

constitute a default, violation or breach in any respect under anyLeased Site Lease.  Seller has made allpayments required to be paid under each of the Leased Site Leases.  Except as disclosed in Section 4.3 of theSeller Disclosure Schedule, no written Consent for the assignment of the LeasedSite Leases from the landlord (the landlord Consents with respect to theassignment of the Leased Site Leases being herein referred to as the “LeasedSite Lease Consents”) is required under any of the Leased Site Leases inorder for the Leased Site Leases to be assigned by Seller to Purchaser or forPurchaser to enjoy the full benefits of the Leased Site Leases uponconsummation of the transactions contemplated hereby.  Each Leased Site Lease (other than the Licensed Sites) grantsSeller the exclusive right to use and occupy the applicable Leased Site.  Seller has the right to use each of theLicensed Sites.  Seller enjoys peacefuland undisturbed possession under the Leased Site Leases.  Seller has access to the Leased Sites,either via easement or public road, and access to utilities sufficient for theuse and occupancy of the Leased Sites as currently used and occupied.  Seller does not presently, and in the futurewill not, owe any brokerage commissions or finder’s fees with respect to anyLeased Site Lease.

 

(b)                                 Except for the Tower Leases set forth inSection 4.7(a)(i) of the Seller Disclosure Schedule, Seller has not subleased,licensed or otherwise granted any Person the right to use or occupy any Site orany portion thereof.  There are noeminent domain or other similar proceedings pending or, to Seller’s Knowledge,threatened affecting any portion of the Sites. There is no writ, injunction, decree, order or judgment, nor any action,claim, suit or proceeding, pending or, to Seller’s Knowledge, threatened,relating to Seller’s lease, use, occupancy or operation of any Sites.

 

(c)                                  To Seller’s Knowledge, Seller’s use ofthe Sites is in compliance with all applicable building, zoning, subdivision,health, safety, environmental and other land use and similar laws affecting theSites, including, without limitation, all Environmental Laws and The Americanswith Disabilities Act of 1990, as amended, and all insurance requirementsaffecting the Sites (collectively, the “Real Property Laws”), and Sellerhas not received any written notice of violation or claimed violation of anyReal Property Law.  To Seller’sKnowledge, there is no basis for the issuance of any such notice or the takingof any action for such violation.

 

(d)                                 All certificates of occupancy, permits,licenses, franchises, zoning approvals, zoning waivers, building permits,approvals and authorizations (collectively, the “Site Permits”) of allGovernmental Authorities or any other entity having jurisdiction over theSites, which are required for Seller’s use or occupancy of the Sites ascurrently used have been issued and are in full force and effect.  Seller has delivered to Purchaser true andcomplete copies of all Site Permits. Seller has not received any notice from any governmental authority orother entity having jurisdiction over the Sites threatening a suspension,revocation, modification or cancellation of any Site Permit and, to Seller’sKnowledge, there is no basis for the issuance of any such notice or the takingof any such action.

 

(e)                                  To Seller’s Knowledge, none of theImprovements (including, with respect to the Towers, supporting guys andassociated structures) encroach on any land which is not included in the Sitesor on any easement affecting such Sites, or violate any building lines orset-back lines, and there are no encroachments onto any of the Sites, or anyportion thereof, which encroachment would interfere with the use or occupancyof such Sites or the continued operation of Seller’s business as currently conductedthereon.

 

15

----

 

(f)                                    Except as disclosed in Section 4.6(f) ofthe Seller Disclosure Schedule, Seller has good and valid title to theImprovements on each Site, free and clear of any Lien other than PermittedLiens.

 

Section 4.7.                                   Tower Leases

 

(a)                                  Section 4.7(a)(i)of the Seller Disclosure Schedule contains a complete and correct list of theTower Leases together with the name of the tenant and the amount of rentpayable under each Tower Lease.  Sellerhas delivered to Purchaser correct and complete copies of the Tower Leases(with all the amendments and supplements thereto) and there are no Contractsrelating to any Tower or Site to which Seller or any Affiliate of Seller is aparty that have not been set forth or described in Section 4.7(a)(i) of theSeller Disclosure Schedule.  Each Tower Lease is the legal, valid,binding and enforceable obligation of Seller and, to Seller’s Knowledge, of thetenant thereunder and each Tower Lease is in full force and effect.  Except as set forth in Section 4.7(a)(i) of the Seller DisclosureSchedule, no tenant under a Tower Lease is in default under any Tower Lease,and no event has occurred and is continuing that constitutes or, with notice orthe passage of time or both, would constitute a default, violation or breach inany respect under any Tower Lease.  Selleris not in default, violation or breach in any material respect under any TowerLease, and, to Seller’s Knowledge, no event has occurred and is continuing thatconstitutes or, with notice or the passage of time or both, would constitute adefault, violation or breach in any respect under any Tower Lease.  Except as disclosed in Section 4.3 of theSeller Disclosure Schedule, no Consent is required under any of the TowerLeases in order for the Tower Leases to be assigned by Seller to Purchaser orfor Purchaser to enjoy the full benefits of the Tower Leases upon consummationof the transactions contemplated hereby. Except as disclosed in Section 4.7(a)(ii) of the Seller DisclosureSchedule, Seller has not received notice ofany termination of any Tower Lease or of any intention to terminate, modify, oramend any of the Tower Leases and Seller does not have any knowledge of anyfacts or circumstances that would or are reasonably likely to result in thereceipt of such a notice.  Seller hasnot received notice of any claim for free or reduced rent or for reduction,deduction or set-off against Seller of the rent due or to become due under anyof the Tower Leases, and Seller does not have any knowledge of any facts orcircumstances that would or are reasonably likely to result in the receipt ofsuch a notice.  Except as set forth inthe Tower Leases, Seller has granted no rental concessions or abatements.  Seller has the sole right to collect therent under the Tower Leases.  Except asis otherwise indicated in Section 4.7(a)(i) of the Seller Disclosure Schedule,Seller has received no payment of rent more than 30 days in advance of the duedate therefor.  Except as disclosed inSection 4.7(a)(i) of the Seller Disclosure Schedule, no amount due and owing toSeller under any Tower Lease is more than thirty (30) days past due.

 

(b)                                 Section 4.7(b) of the Seller DisclosureSchedule sets forth a list containing the address of each Tower, its height andtype of construction.  The Improvements are in all material respects adequate for thepurposes for which such assets are currently used or are held for useand are in good condition and repair. To Seller’s Knowledge, (i) there are no structural deficiencies orlatent defects affecting any of the Improvements and (ii) there are no facts orconditions affecting any of the Improvements which would, individually or inthe aggregate, interfere in any respect with the use or occupancy of theImprovements or any portion thereof in the use of the Purchased Assets ascurrently used.

 

16

----

 

Section 4.8.                                   FAACompliance.

 

(a)                                  Prior to Seller’s commencement ofoperation from each Site, to the extent required by law, (i) the FederalAviation Administration (“FAA”) issued a determination of “No Hazard” toair navigation under Part 77 of the Federal Aviation Rules, 47 C.F.R. Part 77(“FAA Tower Clearance”), and (ii) the Antenna Survey Branch of the FederalCommunications Commission (“FCC”) issued a clearance (the “FCC TowerClearance”).

 

(b)                                 To Seller’s Knowledge, the FAA TowerClearance and the FCC Tower Clearance described in Section 4.8(a) are valid, ingood standing, and in full force and effect.

 

(c)                                  To Seller’s Knowledge, the Towers wereconstructed and have at all times been operated in full compliance with allapplicable municipal, state and federal laws, rules and regulations, including,without limitation, the Communications Act of 1934, as amended, 47 U.S.C. §151,et. seq., and all rules and regulations promulgated thereunder (the “CommunicationsAct”),  and all FAA’s rules andregulations.  Seller has no knowledge ofany condition imposed by the FCC or the FAA on the Towers which is not (i) setforth on the face of the FAA Tower Clearance or the FCC Tower Clearance asissued by the FAA or FCC or (ii) applicable to communications towersgenerally.  Each Tower currently ispainted and lighted in accordance with all FAA and FCC rules, regulations andpolicies, and all relevant permits and clearances issued by the FAA or theFCC.  Each Tower is not now operatingunder a Notice of Extinguishment or Improper Functioning of Lights, asspecified in the FCC’s ruling.

 

Section 4.9.                                   Compliancewith Laws.

 

Except with respect toenvironmental matters, which are the subject of Section 4.13, Seller is not inconflict with, or in default or violation of, any law, rule, regulation, order,judgment, ordinance, permit or decree applicable to the Purchased Assets, exceptfor any conflicts, defaults or violations that would not reasonably be expectedto have a Material Adverse Effect. Seller has received no notice from any Governmental Authority havingjurisdiction over the Sites to the effect that the Sites are not in compliancewith applicable laws, rules, regulations, orders, judgments, ordinances,permits or decrees.

 

Section 4.10.                             Permits.

 

All required licenses,zoning approvals, zoning waivers, building permits and authorizations(collectively, “Permits”) to be issued to Seller by a GovernmentalAuthority in connection with the use or operation of the Improvements (butspecifically excluding permits or licenses granted by the FCC relating tocommunications frequencies, spectrum or channel usage for wireless communicationsservices and permits or licenses held by Seller with respect to the operationof  Seller’s communications equipment ata Site) have been obtained by Seller and are in full force and effect.  Seller has complied in all material respectswith all requirements imposed pursuant to the Permits.

 

Section 4.11.                             Litigation.

 

Except as set forth in Section 4.11 of the Seller Disclosure Schedule,there is no action, suit or proceeding of any nature pending or to Seller’sKnowledge, threatened against or

 

17

----

 

affecting the Purchased Assets or that in any manner challenges orseeks to prevent, enjoin, alter or delay any of the transactions contemplatedby this Agreement.

 

Section 4.12.                             Brokers’ and Finders’Fees.

 

Seller has not incurred,nor will it incur, directly or indirectly, any liability for brokerage orfinders’ fees or agents’ commissions or any similar charges in connection withthis Agreement or any transaction contemplated hereby.

 

Section 4.13.                             Environmental Matters.

 

(a)                                  Except as described in Section 4.13(a) ofthe Seller Disclosure Schedule, Seller has obtained all EnvironmentalPermits.  Each Environmental Permit isvalid and enforceable and in full force and effect, and to its Knowledge,Seller is in compliance with the terms and conditions of all EnvironmentalPermits.

 

(b)                                 Except as set forth in the environmentalreports listed in Section 4.13(b) of the Seller Disclosure Schedule (the “EnvironmentalReports”), which reports have been provided to Purchaser, (i) no HazardousSubstances generated by, used by, or originating from Seller’s activities onthe Purchased Assets have been Released or threatened to be Released into theenvironment, whether by Seller, or to Seller’s Knowledge, by third parties, atany Site, (ii) no oral or written notification of a Release or threatenedRelease of a Hazardous Substance has been made or filed by or on behalf ofSeller with respect to the Purchased Assets with any Governmental Authority andSeller has received no notice that a Site is subject to investigation orclean-up under any Environmental Law. Seller has provided Purchaser with copies of all environmentalinvestigations, studies, audits, tests, reviews and other analyses conducted byor on behalf of, or that are in the possession of, Seller in relation to anyPurchased Asset now owned, operated, occupied, utilized or leased bySeller.  Seller has not received anynotice of intention to commence suit under any Environmental Law with respectto the Purchased Assets, nor has Seller received any request for informationfrom any Governmental Authority under any Environmental Law with respect to thePurchased Assets.

 

(c)                                  Seller is in compliance in all materialrespects with all applicable Environmental Laws pertaining to the PurchasedAssets (and the use, ownership or transferability thereof).  Except as set forth in the EnvironmentalReports, Seller has no liability, contingent or otherwise, under anyEnvironmental Law arising out of actions or omissions of Seller and to itsKnowledge, arising out of actions of any third party.  No Person has alleged any violation by Seller of any applicableEnvironmental Law relating to the use, ownership or transferability of thePurchased Assets.  Seller has not causedor permitted the use, generation, manufacture, refining, transportation,treatment, storage, handling, disposal, production or processing of anyHazardous Substances in connection with the Purchased Assets except incompliance with applicable Environmental Law and all applicable federal, stateand local laws and regulations.

 

(d)                                 To Seller’s Knowledge, the PurchasedAssets are not subject to any Lien arising pursuant to any EnvironmentalLaw.  Except as set forth in theEnvironmental Reports, to Seller’s Knowledge, the Purchased Assets are notsubject to any prohibition or limitation

 

18

----

 

regarding the protection of wetlands, woodlands or the like under anyEnvironmental Law or other law or statutory land use regulation.

 

Section 4.14.                             AssumedContracts.

 

Section 4.14 of theSeller Disclosure Schedule contains a complete and correct list of the AssumedContracts.  Seller has delivered toPurchaser correct and complete copies of each Assumed Contract.  Each Assumed Contract is the legal, valid,binding and enforceable obligation of Seller and, to Seller’s Knowledge, of theother party to the Assumed Contract and each Assumed Contact is in full forceand effect.  Neither Seller nor, toSeller’s Knowledge, the other party to the Assumed Contract, is in default,violation or breach in any material respect under any Assumed Contract, and, toSeller’s Knowledge, no event has occurred and is continuing that constitutesor, with notice or the passage of time or both, would constitute a default,violation or breach in any respect under any Assumed Contract.  Except as disclosed in Section 4.3 of theSeller Disclosure Schedule, no Consent is required under any of the AssumedContracts in order for the Assumed Contracts to be assigned by Seller toPurchaser or for Purchaser to enjoy the full benefits of the Assumed Contractsupon consummation of the transactions contemplated hereby.

 

Section 4.15.                             Absence of Changes orEvents.

 

Except as disclosed inSection 4.15 of the Seller Disclosure Schedule, since January 1, 2003, withrespect to the Purchased Assets, there has been no (a) Material Adverse Effect;(b) damage, destruction or loss (whether or not covered by insurance) which,individually or in the aggregate, has had or could reasonably be expected tohave a Material Adverse Effect; (c) statute, order, judgment, writ, injunction,decree, permit, rule or regulation of any Governmental Authority adopted,enacted, imposed or proposed which, individually or in the aggregate, has had orcould reasonably be expected to have a Material Adverse Effect; (d) significantchange in the operations of the Purchased Assets; (e) waiver by Seller of anymaterial claims or rights under Assumed Contracts; (f)  modification,amendment, termination or lapse of any lease of, or reciprocal easementagreement, operating agreement or other material agreement relating to, theSites, to Seller’s Knowledge; or (g) agreement, whether in writing orotherwise, by Seller to do any of the foregoing.  Except as disclosed in Section 4.15 of the Seller DisclosureSchedule, since January 1, 2003, Seller has used the Purchased Assets in theordinary course and in substantially the same manner as used prior to suchdate.

 

Section 4.16.                             Insurance.

 

Set forth on Section 4.16of the Seller Disclosure Schedule is a list of all policies of insurance bywhich the Purchased Assets are covered as of the date of this Agreement.  Except as set forth on Section 4.16 of theSeller Disclosure Schedule, all such policies are in full force and effect and,there are no claims pending as of the date hereof relating to the PurchasedAssets, under any of such policies where underwriters have reserved theirrights or disclaimed coverage under such policy.

 

19

----

 

Section 4.17.                             Disclosure.

 

No representation orwarranty contained in this Article 4, and no statement contained in anydocument, certificate or Seller Disclosure Schedule attached hereto, containsor will contain any untrue statement of a material fact, or omits or will omitto state any material fact necessary, in light of the circumstances under whichit was or will be made, in order to make the statements herein or therein notmisleading.

 

ARTICLE 5

REPRESENTATIONS AND WARRANTIES OF THE PURCHASER

 

Purchaser represents,warrants and acknowledges to Seller as follows:

 

Section 5.1.                                   Organizationand Qualification.

 

Purchaser is a limitedliability company duly organized, validly existing and in good standing underthe laws of the State of Delaware and has the requisite limited liabilitycompany power and authority to own and operate its business as currentlyconducted.

 

Section 5.2.                                   Authority.

 

Purchaser has allrequisite limited liability company power and authority to execute, deliver andenter into this Agreement and to perform fully its obligations hereunder andconsummate the transactions contemplated hereby.  The execution and delivery of this Agreement and the consummationof the transactions contemplated hereby have been duly and validly authorizedby all necessary limited liability company action on the part ofPurchaser.  This Agreement has been dulyexecuted and delivered by Purchaser. Assuming due authorization, execution and delivery by Seller, thisAgreement constitutes the valid and binding obligation of Purchaser,enforceable against Purchaser in accordance with its terms, subject tobankruptcy, insolvency, fraudulent transfer, reorganization, moratorium andsimilar laws of general applicability relating to or affecting creditors’rights and to general principles of equity.

 

Section 5.3.                                   No Conflicts.

 

The execution anddelivery of this Agreement by Purchaser does not, and the performance of thisAgreement by Purchaser will not, (i) conflict with the Certificate of Formationor Limited Liability Company Agreement of Purchaser, (ii) subject to compliancewith the requirements set forth in Section 5.4, violate any law, rule,regulation, order, judgment or decree applicable to Purchaser or by which itsproperties are bound or affected, or (iii) result in any breach of orconstitute a default (or an event that with notice or lapse of time or bothwould become a default) under, or impair the rights of Purchaser or any of itssubsidiaries under, or give to others any rights of termination, amendment,acceleration or cancellation of, or result in the creation of a Lien on any of the properties or assets ofPurchaser pursuant to, any Contract to which Purchaser is a party or by whichPurchaser or its properties are bound, except, with respect to clauses (ii) and(iii), for any such violations, defaults or other occurrences that would notimpair Purchaser’s ability to perform its obligations under this Agreement.

 

20

----

 

Section 5.4.                                   Consents.

 

No Consent, approval,order or authorization of, or registration, declaration or filing with anyGovernmental Authority that has not been made or obtained is required to bemade or obtained by Purchaser in connection with the execution and delivery ofthis Agreement or the consummation of the transactions contemplated hereby,except such Consents, approvals, orders, authorizations, registrations,declarations and filings as may be required under applicable state and federalsecurities laws.

 

Section 5.5.                                   Brokers’ andFinders’ Fees.

 

Except for the fees ofVeronis Suhler Stevenson LLC, which will be paid by Purchaser, Purchaser hasnot incurred, nor will it incur, directly or indirectly, any liability forbrokerage or finders’ fees or agents’ commissions or any similar charges inconnection with this Agreement or the transactions contemplated hereby.

 

Section 5.6.                                   Litigation.

 

There is no action, suit,proceeding or investigation pending or, to Purchaser’s knowledge, threatenedagainst Purchaser that in any manner challenges or seeks to prevent, enjoin,alter or delay any of the transactions contemplated by this Agreement.

 

ARTICLE 6

COVENANTS OF SELLER AND PURCHASER

 

Seller and Purchasercovenant and agree with each other as follows:

 

Section 6.1.                                   Conduct of Business.

 

Except as otherwiseexpressly permitted or required by this Agreement, during the period from thedate hereof until the Closing Date, Seller shall:

 

(a)                                  use the Purchased Assets in the ordinarycourse of business, in substantially the same manner as heretofore used, and incompliance with all applicable laws and regulations and, to the extentconsistent therewith, use all reasonable efforts to keep the Purchased Assetsin good working condition;

 

(b)                                 not sell, lease, mortgage, pledge ordispose of any of the Purchased Assets or create a lien upon any of thePurchased Assets;

 

(c)                                  not enter into or assume without writtenconsent of Purchaser any Contract relating to the Purchased Assets, including,without limitation, a Tower Lease, or enter into or permit any amendment,supplement, waiver or other modification in respect thereof; and

 

(d)                                 not agree in writing to or otherwise takeany of the foregoing actions.

 

21

----

 

Section 6.2.                                   Accessto Information; Confidential Information.

 

(a)                                  From the date hereof until the ClosingDate, Purchaser shall have access, through its employees and representatives,to inspect the Purchased Assets upon reasonable notice to Seller and shall havethe right to make copies of or extracts from the books and records of Sellerrelating to the Purchased Assets.

 

(b)                                 All Confidential Information furnishedpursuant to the provisions of this Agreement, including, without limitation,this Section, will be kept confidential and shall not, without the priorwritten consent of the party disclosing such Confidential Information, bedisclosed by the other party in any manner whatsoever, in whole or in part,except as required by applicable law or stock exchange or stock systemregulations, and shall not be used for any purposes, other than in connectionwith the transactions contemplated hereby. Except as otherwise herein provided, each party agrees to reveal suchConfidential Information only to those of its representatives or other Personswhom it believes need to know such Confidential Information for the purpose ofevaluating and consummating the Purchase. For purposes of this Agreement, “Confidential Information” shallmean any and all information related to the business or businesses of Purchaserand its Affiliates or Seller and its Affiliates, including any of theirrespective successors and assigns, other than information that (i) has been oris obtained from a source independent of the disclosing party that, to thereceiving party’s knowledge, is not subject to any confidentiality restriction,(ii) is or becomes generally available to the public other than as a result ofunauthorized disclosure by the receiving party, or (iii) is independentlydeveloped by the receiving party without reliance in any way on informationprovided by the disclosing party or a third party independent of the disclosingparty that, to the receiving party’s knowledge, is not subject to anyconfidentiality restrictions.

 

(c)                                  Purchaser and Seller will consult witheach other before issuing any press release or otherwise making any publicstatement with respect to this Agreement and the transactions and will notissue any such press release or make any such public statement prior to suchconsultation and the approval of the other party, which shall not beunreasonably withheld, except as may be required by applicable law or stockexchange or stock system regulations.

 

Section 6.3.                                   Agreementto Cooperate; Certain Other Covenants.

 

From the date hereofuntil the Closing Date each of the parties hereto shall use commerciallyreasonable efforts to: (i) consummate and make effective the transactionscontemplated by this Agreement including, without limitation, the satisfactionof the closing conditions set forth in Article 7 and the making of any requiredgovernmental filing; (ii) refrain from taking any action or doing any thingwhich could impede or impair the consummation of the transactions contemplatedby this Agreement; and (iii) cooperate with the other party in connection withthe other party’s obligations under this Agreement and keep the other partyinformed in connection with this Agreement.

 

Section 6.4.                                   Insurance.

 

Seller shall keep allinsurance policies currently in effect for the Purchased Assets in full forceand effect through the close of business on the Closing Date.  In the event that any Site has

 

22

----

 

been damaged prior to the Closing Date by a casualty covered byinsurance, Seller shall collect the amounts due (if any) in respect of suchdamaged Site under applicable insurance policies, and shall apply such amountsto repair or replace the damaged Site. If any such amounts are received by Seller or any of its Affiliatesprior to the Closing Date and are not applied to repair or replace a damagedSite, Seller shall remit such amounts to Purchaser at Closing; and if any suchamounts are received by Seller or any of its Affiliates on or after the ClosingDate, Seller shall promptly remit such amounts to Purchaser.

 

Section 6.5.                                   Notificationof Certain Matters.

 

From the date hereofuntil the Closing Date each party shall give prompt notice to the other of theoccurrence or non-occurrence of any event that would cause (a) anyrepresentation or warranty made by it contained in this Agreement to be untrueor inaccurate in any material respect or (b) any failure by it to comply withor satisfy, or be able to comply with or satisfy, in any material respect, anycovenant, condition or agreement to be complied with or satisfied by it underthis Agreement in any material respect, such that, in any such case, one ormore of the conditions of Closing would not be satisfied; provided, however,that the delivery of any notice pursuant to this Section shall not limit orotherwise affect the rights and remedies available hereunder to the partyreceiving such notice or the obligations of the party delivering such noticeand shall not, in any event, affect the representations, warranties, covenantsand agreements of the parties or the conditions to their respective obligationsunder this Agreement.

 

Section 6.6.                                   Executionof Tower Leases.

 

At the Closing, Purchaser shall, and Seller shall cause UbiquiTelLeasing Company to, execute the UbiquiTel Master Site Lease and, for each Sitebeing transferred at Closing, tower leases in the applicable forms attachedhereto as Exhibit 6.6(1 - 100) (each a “UbiquiTel Site Agreement”).

 

Section 6.7.                                   AlternativeTransactions.

 

Seller agrees that priorto the earlier of the Closing (or with respect to certain Sites (and therelated Purchased Assets) with respect to which Purchaser has made an electionpursuant to Section 7.3(a)(ii), the subsequent closing) or the termination ofthis Agreement in accordance with its terms, none of its directors, officers,members, managers, employees, attorneys, investment bankers, accountants orother agents or representatives shall solicit or respond to any inquiries,proposals, offers or bids from, or negotiate or enter into any agreement orother Contract with any Person or entity other than Purchaser relating to, thesale, transfer or other disposition of the Purchased Assets or otherwise takeany affirmative action (including providing any information or entering intoany discussions, agreement or other Contract or letter-of-intent with respectthereto) to cause, promote or assist the purchase of the Purchased Assets by athird party.

 

Section 6.8.                                   Natural HazardDisclosure Requirement Compliance.

 

Seller has employed theservices of Natural Hazards Disclosure, LLC, 16654 Soledad Canyon Road, #501,Santa Clarita, California  91387, Tel:(800) 317-7919 (the “Natural Hazard Expert”), an expert in naturalhazard discovery, to examine the maps and other information

 

23

----

 

specifically made available to the public by government agencies and toreport the result of its examination in writing (the “Natural HazardDisclosure Report”) to Seller and Purchaser, using substantially the formof the “Natural Hazard Disclosure Statement” set forth in California Civil CodeSection 1103.2, for the purpose of enabling Seller to fulfill its disclosureobligations.  Seller shall cause theNatural Hazard Expert to deliver the Natural Hazard Disclosure Report toPurchaser, prior to Closing, in order to fulfill its disclosure obligationsreferred to in the previous sentence, including, without limitation, thesatisfaction of provisions of California Civil Code Section 1103.4.

 

ARTICLE 7

CONDITIONS PRECEDENT TO CLOSE

 

Section 7.1.                                   Conditions toObligations of Purchaser.

 

The obligations ofPurchaser to consummate the transactions provided for herein on the ClosingDate are subject to the fulfillment, at or prior to the Closing Date, of thefollowing conditions (all or any of which may be waived in writing in whole orin part by Purchaser in its sole discretion); it being understood and agreedthat if with respect to any Site, any of such conditions are not fulfilled (orwaived) pursuant to the terms of this Agreement, Purchaser shall have the rightpursuant to Section 7.3, but subject to Section 7.1(k), to exclude the Site andits related Purchased Assets with respect to which the condition precedent hasnot been satisfied:

 

(a)                                  Representations and Warranties, Covenants. (i) The representations and warranties contained in Article 4 of thisAgreement shall be true and correct in all material respects as of the datehereof and as of the Closing Date as though made on and as of such date (exceptfor such representations and warranties (x) which are qualified as tomateriality or (y) which are set forth in the third sentence of Section 4.6(a),Section 4.6(f) and the third sentence and tenth sentence of Section 4.7(a)which in each case shall be true and correct), (ii) Seller shall have performedand complied with all obligations and covenants required by this Agreement tobe performed or complied with by it at or prior to the Closing Date, and (iii)Seller shall have executed and delivered to Purchaser a certificate of anauthorized officer of Seller, dated the Closing Date, in the form attachedhereto as Exhibit 7.1(a).

 

(b)                                 Consents and Approvals. All Consents to or from any Governmental Authority or any other Personnecessary to permit Seller to perform its obligations under this Agreement, andall documents and agreements to be executed and delivered by Seller inconnection herewith and to consummate the transactions contemplated hereby andthereby shall have been duly obtained, made or given and shall be in full forceand effect for the benefit of Purchaser.

 

(c)                                  No Adverse Proceedings. No action, suit or proceeding before any Governmental Authority shallhave been commenced, no investigation by any Governmental Authority oradministrative agency or instrumentality shall have been commenced, and noaction, suit or proceeding by any Governmental Authority or administrativeagency or instrumentality shall have been threatened in writing, in any suchcase seeking to restrain, prevent, enjoin or materially change the transactionscontemplated hereby or questioning the validity or legality of any of suchtransactions or seeking damages in connection with any of such transactions.

 

24

----

 

(d)                                 Closing Date Deliveries. Seller shall have executed and delivered to Purchaser the agreements andother instruments required to be executed and delivered by it concurrently withthe Closing under Article 9.

 

(e)                                  Title Insurance on Closing. On the Closing Date, Title Company shall be unconditionally andirrevocably prepared to issue a CLTA leasehold insurance policy for each LeasedSite, other than the Licensed Sites, subject only to the Permitted Liens,insuring Purchaser’s legal, valid, binding and enforceable leasehold interestin such Leased Site, as of the Closing Date (including all recorded appurtenanteasements, insured as separate legal parcels), in the amount set forth for suchLeased Site on Schedule 2.4 (the “Title Policies”).

 

(f)                                    Leased Site Lease Consents. To the extent required under a Leased Site Lease, Seller shall haveobtained and delivered to Purchaser a Leased Site Lease Consent which will bemade a part of the estoppel required pursuant to Section 7.1(i).

 

(g)                                 Tower Lease Consents. Seller, to the extent required under a Tower Lease, shall have obtainedand delivered to Purchaser a written Consent for the assignment of such TowerLeases in the form attached hereto as Exhibit 7.1(g).

 

(h)                                 Assumed Contract Consents. To the extent required under any of the Assumed Contracts, Seller shallhave obtained and delivered to Purchaser a written Consent for the assignmentof each of the Assumed Contracts in form and substance satisfactory toPurchaser.

 

(i)                                     Estoppels.  Prior to theClosing Date, Seller shall have obtained and delivered to Purchaser an estoppelfrom the lessor under each Leased Site Lease in the form of Exhibit 7.1(i)attached hereto (a “Lessor Estoppel Certificate”).

 

(j)                                     Memoranda of Leases. Prior to the Closing Date, Seller shall have delivered to Purchaserevidence that a memorandum of lease with respect to each Leased Site, otherthan the Licensed Sites, has been recorded.

 

(k)                                  Minimum Number of Sites. The conditions precedent set forth in paragraphs (a) through (j) aboveshall have been satisfied with respect to at least eighty (80) Sites, whichmust include at least forty-five (45) Class 1 Leased Sites.  Purchaser acknowledges that, if thecondition set forth in the preceding sentence is satisfied at or prior to theClosing Date, then Purchaser shall be obligated to purchase such Sites on theClosing Date in accordance with and subject to the other terms and conditionsof this Agreement.

 

Section 7.2.                                   Conditions toObligations of Seller.

 

The obligations of Sellerhereunder to consummate the transactions provided for herein on the Closing Dateare subject to the fulfillment, at or prior to the Closing Date, of thefollowing conditions (all or any of which may be waived in writing in whole orin part by Seller in its sole discretion):

 

(a)                                  Representations and Warranties, Covenants. (i) The representations and warranties contained in Article 5 of thisAgreement shall be true and correct in all material respects as of the datehereof and as of the Closing Date as though made on and as of such date (exceptfor such

 

25

----

 

representations and warranties which are qualified as to materiality,which shall be true and correct), (ii) Purchaser shall have performed andcomplied with all obligations and covenants required by this Agreement to beperformed or complied with by it at or prior to the Closing Date, and (iii)Purchaser shall have executed and delivered to Seller a certificate of anauthorized officer of Purchaser, dated the Closing Date, in the form attachedhereto as Exhibit 7.2(a).

 

(b)                                 Consents and Approvals. All Consents to or from any Governmental Authority or any other Personnecessary to permit Purchaser to perform its obligations under this Agreement,and all documents and agreements to be executed and delivered by Purchaser inconnection herewith and to consummate the transactions contemplated hereby andthereby shall have been duly obtained, made or given and shall be in full forceand effect for the benefit of Seller.

 

(c)                                  No Adverse Proceedings. No action, suit or proceeding before any Governmental Authority shallhave been commenced, no investigation by any Governmental Authority oradministrative agency or instrumentality shall have been commenced, and noaction, suit or proceeding by any Governmental Authority or administrativeagency or instrumentality shall have been threatened, in any such case seekingto restrain, prevent, enjoin or change the transactions contemplated hereby orquestioning the validity or legality of any of such transactions or seekingdamages in connection with any of such transactions.

 

(d)                                 Closing Date Deliveries. Purchaser shall have executed and delivered to Seller the PurchasePrice, the agreements and other instruments required to be executed anddelivered by it concurrently with the Closing under Article 9 below.

 

Section 7.3.                                   Treatment ofCertain Sites.

 

(a)                                  Election by Purchaser. Notwithstanding anything herein to the contrary, and in addition to anyrights that Purchaser may exercise pursuant to Section 8.1, if any of theconditions precedent set forth in Section 7.1(a) through (j) will not besatisfied on the Closing Date with respect to one or more Sites (which, forpurposes of this Section 7.3, shall include the related Purchased Assets),Purchaser shall notify Seller no later than two (2) Business Days prior to theClosing Date of Purchaser’s election to (i) waive such conditions with respectto one or more of such Sites for purposes of Section 7.1 or (ii) defer thepurchase and sale of one or more of such Sites (and the related PurchasedAssets) for 90 days or such longer period as Seller and Purchaser shallmutually agree, following the Closing Date in order to enable Seller to usecommercially reasonable efforts to cure the applicable conditions with respectto any of such Sites (the “Cure Period”).

 

(b)                                 Deferred/Excluded Sites. Subject to Section 7.3(c), in the event that Purchaser makes an electionpursuant to Section 7.3(a)(ii) with respect to one or more Sites, or if one ormore Sites are designated to be Excluded Assets pursuant to Section 8.1, at theClosing (i) the Purchase Price shall be reduced in accordance with Section2.1(b) and Purchaser shall pay to Seller the Adjusted Purchase Price, (ii) noneof the Purchased Assets relating exclusively to any such Sites shall be sold,transferred and assigned to Purchaser, (iii) Purchaser shall not assume any ofthe Assumed Liabilities relating to any such Sites including, withoutlimitation, the liabilities and obligations under the Leased Site Leases, theTower Leases, the Assumed Contracts and the Permits relating to such Sites,(iv) the parties shall amend the UbiquiTel

 

26

----

 

Master Site Lease to exclude such Sites, and shall not enter intoUbiquiTel Site Agreements with respect to such Sites, (v) prorations will notbe made pursuant to Section 2.3, and closing costs will not be paid pursuant toSection 9.4, with respect to such Sites, and (vi) the parties shall have nofurther liabilities or obligations with respect to such Sites pursuant to thisAgreement, except the obligations under Sections 6.2(b), 8.2 and 13.1.

 

(c)                                  Subsequent Closings. In the event that Purchaser makes an election pursuant to Section7.3(a)(ii) with respect to one or more Sites, Seller shall use commerciallyreasonable efforts to satisfy the applicable conditions precedent during theCure Period.  If such conditionsprecedent are not satisfied within the Cure Period, such Sites shall bedesignated as Excluded Assets for all purposes of this Agreement.  If such conditions precedent are satisfiedwithin the Cure Period, the purchase and sale of the applicable Sites shalltake place at a closing held on the fifth Business Day after the satisfactionof the last such condition to be satisfied and otherwise in accordance withSection 3.1.  At such closing, (x)Seller shall execute and deliver to Purchaser, with respect to each such Site,a Leased Site Lease Assignment, an Assignment and Assumption Agreement, a Billof Sale, originals (if available) or certified copies of the applicable LeasedSite Leases, Assumed Contracts, Permits and Tower Leases, and a certificate asprovided for in Section 7.1(a), and Seller shall cause UbiquiTel LeasingCompany to execute and deliver a UbiquiTel Site Agreement with respect to eachsuch Site, each of which shall be dated and effective as of the date of suchclosing; (y) Purchaser shall, with respect to each such Site, pay to Sellerthat portion of the Purchase Price allocable to such Site as set forth on Schedule2.4, and shall execute and deliver to Seller a Leased Site LeaseAssignment, an Assignment and Assumption Agreement, a Bill of Sale, a UbiquiTelSite Agreement, and a certificate as provided for in Section 7.2(a), each ofwhich shall be dated and effective as of the date of such closing; and (z) theUbiquiTel Master Site Lease shall be amended to include such Sites and theparties shall make the appropriate payments and filings referenced in Sections2.3, 9.3 and 9.4.

 

ARTICLE 8

DUE DILIGENCE

 

Section 8.1.                                   Title Review.

 

(a)                                  Preliminary Title Report. Seller shall cause Title Company to deliver to Purchaser within fifteen(15) Business Days from the Effective Date a preliminary title report for eachSite dated no more than thirty (30) days prior to the Effective Date (each suchreport being referred to herein as a “Preliminary Title Report”).  Within ten (10) Business Days of receipt ofa Preliminary Title Report for a Site (the “Title Review Period”),Purchaser shall have the right to object in writing to Seller as to anyexception to title shown on the Preliminary Title Report that would, in thereasonable business judgment of Purchaser, have a material adverse effect onthe applicable Site (a “Title Objection Notice”).  If Purchaser fails to deliver a TitleObjection Notice during the Title Review Period, Purchaser shall be deemed tohave approved the exceptions to title shown on the Preliminary TitleReport.  Upon receipt by Seller of atimely given Title Objection Notice, Seller shall have five (5) Business Daysfrom receipt of such Title Objection Notice within which to notify Purchaser asto each Site that is the subject of a Timely Objection Notice either that (i)Seller elects, in its sole and absolute discretion, to use good faith effortsto cause such disapproved title exception to be removed at least five (5)Business Days prior to the Closing Date (or otherwise take any action withrespect thereto), or (ii) Seller will not cause such

 

27

----

 

disapproved exception to be removed as of the Closing Date; provided,however, Seller shall have no liability if, after electing under (i) above,such additional disapproved title matters are not removed as of theClosing.  If Seller shall notifyPurchaser within the foregoing five (5) Business Day period that it does notelect to remove such exception or at any time later informs Purchaser inwriting that Seller is unable or unwilling to remove an exception with respectto a Site that is the subject of a Timely Objection Notice, Purchaser shallhave the option, in its sole discretion, either to accept such disapprovedexception as a Permitted Lien and thus continue to proceed to Closing (subjectto other conditions stated herein) without credit or reduction in the PurchasePrice, or to designate the Purchased Assets to which such title objectionrelates as an Excluded Asset and the Purchase Price shall be reduced inaccordance with Section 2.1(b) and such Site shall be excluded in accordancewith Section 7.3(b).  If Seller fails torespond to Purchaser’s Title Objection Notice, Seller shall be conclusivelydeemed to have elected not to remove the disapproved title exception withrespect to a Site that is the subject of a Timely Objection Notice.  If Purchaser fails to disapprove anyexception title noted in a Preliminary Title Report pursuant to and inaccordance with the procedure set forth in this Section 8.1(a), Purchaser shallbe deemed to have approved such exception(s) and shall have no further right ofobjection in connection therewith.

 

(b)                                 Additional Title Matters. Approval by Purchaser of any additional exceptions to title with respectto any Site disclosed by Seller to Purchaser in writing after the end of theTitle Review Period (“Additional Title Matters”) shall be a conditionprecedent to Purchaser’s obligations to purchase the Purchased Assets withrespect to the applicable Site (Purchaser hereby agreeing that its approval ofAdditional Title Matters shall not be unreasonably withheld).  Unless Purchaser gives written notice (“AdditionalTitle Disapproval Notice”) that it disapproves any Additional TitleMatters, stating the Additional Title Matters so disapproved, on or before thesooner to occur of the Closing Date or five (5) days after receipt of writtennotice of such Additional Title Matters, Purchaser shall be deemed to haveapproved such Additional Title Matters. Seller shall have up to thirty (30) days after its receipt of anyAdditional Title Disapproval Notice within which to remove the disapprovedAdditional Title Matters set forth therein from title or obtain from TitleCompany a commitment to issue an endorsement affirmatively insuring againstsuch items in a form reasonably acceptable to Purchaser at no cost or expenseto Purchaser (Seller having the right but not the obligation to do so), and theClosing Date shall be extended, at Seller’s option, with respect to theapplicable Site to allow for such thirty (30) day period.  In the event Seller determines at any timethat it is unable or unwilling to remove any one or more of such disapprovedAdditional Title Matters, Seller may give written notice to Purchaser to sucheffect; in such event, Purchaser may, at its option, exclude the applicableSite upon written notice to Seller and the Purchase Price shall be reduced inaccordance with Section 2.1(b) and such Site shall be excluded in accordancewith Section 7.3(b).  If Purchaser failsto give such termination notice, Purchaser shall be deemed to have waived itsobjection to, and approved, the matters set forth in Seller’s notice.

 

Section 8.2.                                   Due DiligenceReview and Review Standards.

 

Purchaser acknowledgesthat it has been provided, and Seller shall continue to provide Purchaser with,reasonable access to the Sites during normal business hours for the purpose ofPurchaser performing its due diligence examinations, reviews andinspections.  Seller will also makeavailable to Purchaser all reports, documents, records, and information asPurchaser may

 

28

----

 

reasonably request (but excluding appraisals, financing documents,investment, feasibility, leasing and marketing analyses) to permit Purchaser toperform its due diligence investigation with respect to the PurchasedAssets.  In no event, however, shallSeller be obligated to make available any confidential documents unrelated tothe Sites.  Purchaser shall at all timesconduct its due diligence review, inspections and examinations in a manner soas to not interfere with or disturb any tenant at a Site.  Purchaser will indemnify, defend and holdSeller harmless from and against the Losses specified in Section 11.2(c) (suchobligation surviving any termination of this Agreement).  Without limitation on the foregoing, in noevent shall Purchaser:  (a) make anyintrusive physical testing (environmental, structural or otherwise) at a Site(such as soil borings, water samplings or the like) without Seller’s expresswritten consent; (b) contact any tenant of a Site without Seller’s expresswritten consent, which consent shall not be unreasonably withheld; or (c)contact any Governmental Authority having jurisdiction over a Site withoutSeller’s express written consent, which consent shall not be unreasonablywithheld.  Seller shall have the right,at its option, to cause a representative of Seller to be present at allinspections, reviews and examinations conducted hereunder.  In the event of any termination of thisAgreement, Purchaser shall return or destroy all documents and other duediligence materials furnished by Seller hereunder.  Purchaser shall keep all information or data received ordiscovered in connection with any of the inspections, reviews or examinationsconfidential in accordance with Section 6.2.

 

ARTICLE 9

DELIVERIES AT THE CLOSING; CLOSING COSTS

 

Section 9.1.                                   Seller’sDeliveries.

 

Pursuant to Section7.1(d), the obligation of Purchaser to consummate the transactions provided forherein on the Closing Date is subject to receipt by Purchaser of the following:

 

(a)                                  an assignment and assumption agreementfor each of the Leased Site Leases being assigned (the “Leased Site LeaseAssignments”), each in the form of Exhibit 9.1(a), duly executed bySeller;

 

(b)                                 an assignment and assumption agreementfor the Tower Leases and the Assumed Contracts being assigned (the “Assignmentand Assumption Agreement”), in the form of Exhibit 9.1(b), dulyexecuted by Seller;

 

(c)                                  one or more bills of sale or instrumentsof conveyance (the “Bills of Sale”) for the Purchased Assets beingtransferred, each in the form of Exhibit 9.1(c), duly executed by theSeller;

 

(d)                                 the UbiquiTel Master Site Lease, dulyexecuted by UbiquiTel Leasing Company;

 

(e)                                  UbiquiTel Site Agreements for each of theSites being transferred, duly executed by UbiquiTel Leasing Company;

 

(f)                                    originals, if available, or certifiedcopies of the Leased Site Leases, the Assumed Contracts, the Permits, and theTower Leases set forth in Section 4.7(a)(i) of the Seller Disclosure Schedule;

 

29

----

 

(g)                                 a certificate duly executed by Sellercertifying that Seller is not a foreign person for purposes of the ForeignInvestment in Real Property Tax Act;

 

(h)                                 a certificate as provided for in Section7.1(a) executed by an authorized officer of Seller;

 

(i)                                     a certificate of the secretary of Sellerattesting to (i) the organizational documents of Seller, (ii) the resolutionsadopted by the managing member of Seller duly authorizing the execution,delivery and performance of this Agreement by Seller and the execution anddelivery by Seller of all instruments and documents contemplated hereby, and(iii) the signatures of the officers or authorized representatives of Sellerwho have been authorized on behalf of Seller to execute and deliver thisAgreement and any other agreement executed or to be executed in connectionherewith;

 

(j)                                     a good standing certificate of Sellerfrom the Secretary of State of California; and

 

(k)                                  a legal opinion, dated as of the ClosingDate, from Greenberg Traurig LLP, counsel to Seller, with respect to thematters set forth in Exhibit 9.1(k).

 

(l)                                     Documentation, in form and substancereasonably satisfactory to Purchaser, sufficient to release the liens on thePurchased Assets set forth on Section 4.6(f) of the Seller Disclosure Schedule.

 

Section 9.2.                                   Purchaser’sDeliveries.

 

Pursuant to Section7.2(d), the obligation of Seller to consummate the transactions provided forherein on the Closing Date is subject to receipt by Seller of the following:

 

(a)                                  the amount specified in Section 2.2(b);

 

(b)                                 the Leased Site Lease Assignments, foreach of the Sites being assigned, duly executed by Purchaser;

 

(c)                                  the Assignment and Assumption Agreementfor the Tower Leases and the Assumed Contracts being assigned, duly executed byPurchaser;

 

(d)                                 the Bill of Sale, for the PurchasedAssets being transferred, duly executed by Purchaser;

 

(e)                                  the UbiquiTel Master Site Lease dulyexecuted by Purchaser;

 

(f)                                    UbiquiTel Site Agreements for each of theSites being transferred duly executed by Purchaser;

 

(g)                                 a certificate as provided for in Section7.2(a) executed by an authorized officer of Purchaser;

 

30

----

 

(h)                                 a certificate of the secretary ofPurchaser attesting to (i) the organizational documents of Purchaser, (ii) theresolutions adopted by the managing member of Purchaser duly authorizing theexecution, delivery and performance of this Agreement by Purchaser and theexecution and delivery by Purchaser of all instruments and documentscontemplated hereby, and (iii) the signatures of the officers or authorizedrepresentatives of Purchaser who have been authorized on behalf of Purchaser toexecute and deliver this Agreement and any other agreement executed or to beexecuted in connection herewith;

 

(i)                                     a good standing certificate of Purchaserfrom the Secretary of State of Delaware; and

 

(j)                                     any contractual Consents obtained byPurchaser.

 

Section 9.3.                                   FCCFiling.

 

Purchaser shall file withthe FCC an FCC Form 854 with respect to the Towers that are acquired as part ofthe Closing.

 

Section 9.4.                                   ClosingCosts.

 

Sellershall pay when due (1) all state and county real estate transfer taxes payablein connection with the sale contemplated herein, (2) fifty percent (50%) of anycity real estate transfer taxes payable in connection with the salecontemplated herein, (3) the title insurance premium for a CLTA standardcoverage policy with coverage with respect to each Site in the amount of theportion of the Purchase Price allocable to such Site and (4) all the costs ofobtaining the Natural Hazard Disclosure Reports pursuant to Section 6.8.  Purchaser shall pay when due (1) fiftypercent (50%) of all city real estate transfer taxes payable in connection withthe sale contemplated herein, (2) all sales tax on the Purchased Assets,(3) to the extent an ALTA leasehold title policy is requested by Purchaser, theamount by which the title insurance premium for the ALTA leasehold title policyand the cost of any endorsements exceeds the cost of CLTA standard coverage,(4) the costs for any survey, and (5) all fees, costs or expenses in connectionwith Purchaser’s due diligence reviews hereunder.  Any other closing costs shall be allocated in accordance withlocal custom.  The parties shallcoordinate with each other to arrange for the timely payment of the foregoingcosts.

 

ARTICLE 10

SURVIVAL OF REPRESENTATIONS AND WARRANTIES

 

Section 10.1.                             Survival of theRepresentations and Warranties.

 

The representations andwarranties contained in Article 4 and Article 5 herein shall survive theClosing Date until the first anniversary of the Closing Date (or, with respectto any Purchased Assets that are purchased at a subsequent closing pursuant toSection 7.3(c), until the first anniversary of the date of such closing),except with respect to claims which written notice specifying in reasonable detail,the nature and amount of the claim, has been given by Purchaser to Seller, orby Seller to Purchaser, as the case may be, prior to the expiration of theapplicable survival period.  Any claimfor which proper notice has been delivered pursuant to the preceding sentenceshall terminate, in the event settlement is not reached, if litigation is notcommenced with respect to the matter included in said notice within six (6)months after such notice is given.

 

31

----

 

Notwithstanding the foregoing, each of the representations andwarranties set forth under Sections 4.2, 4.5, 4.6(f), and 4.13 shall surviveuntil the expiration of the statute of limitations applicable thereto.  Notwithstanding the foregoing, Seller shallhave no liability (and Purchaser shall make no claim against Seller) for abreach of any representation or warranty which has been confirmed by a LessorEstoppel Certificate, provided, however, that Seller shall remain liable forany Losses arising out of any Excluded Liability or any intentionalmisrepresentation by Seller. Consummation of the transactions contemplated hereby shall not be deemedor construed to be a waiver of any right or remedy available to any partyhereto, notwithstanding that any party knew or should have known at the Closingthat such right or remedy existed.

 

Section 10.2.                             Due Diligence byPurchaser.

 

Notwithstanding anythingto the contrary contained in this Agreement, no investigation by Purchaser, andno knowledge that Purchaser may have regarding the Purchased Assets as of thedate of this Agreement or the Closing Date (regardless of whether suchknowledge was obtained by Purchaser in its due diligence investigation of thePurchased Assets or from any other source), shall affect or limit the rights ofPurchaser under this Agreement (including without limitation under Section11.1) in respect of any representation and warranty of Seller contained herein.

 

ARTICLE 11

INDEMNIFICATION

 

Section 11.1.                             Indemnification bySeller.

 

Subject to Section 10.1and Sections 11.3 and 11.4, Seller shall defend, indemnify and hold Purchaserand its Affiliates and the directors, officers, members, managers, shareholdersand employees of Purchaser and its Affiliates (together, the “Purchaser IndemnifiedParties”) harmless from and against all claims, charges, losses, damages,fines, penalties, expenses (including reasonable attorney’s fees and expensesand fees and expenses of experts in connection therewith), other costs, amountspaid in settlement, judgments and other liabilities (collectively, “Losses”)that they may suffer, sustain or incur or become subject to arising out of,based upon or in connection with any of the following:

 

(a)                                  any misrepresentation, violation orbreach of a representation, warranty, covenant or agreement made by Seller inthis Agreement or any other agreement or instrument delivered by Seller inconnection herewith; or

 

(b)                                 any Excluded Liabilities.

 

Section 11.2.                             Indemnificationby Purchaser.

 

Subject 10.1 and Sections11.3 and 11.4, Purchaser shall defend, indemnify and hold Seller and itsAffiliates and the directors, officers, members, managers, shareholders andemployees of Seller and its Affiliates (together, the “Seller IndemnifiedParties”) harmless from and against all Losses that they may suffer,sustain or incur or become subject to arising out of, based upon or inconnection with any of the following:

 

32

----

 

(a)                                  any misrepresentation, violation orbreach of a representation, warranty, covenant or agreement made by Purchaserin this Agreement or any other agreement or instrument delivered by Purchaserin connection herewith;

 

(b)                                 any Assumed Liability; or

 

(c)                                  any Losses incurred by Seller, solelywith respect to (i) any claim relating to the properties subject to the LeasedSite Leases, (ii) any claim by a tenant located on any of the Sites, or (iii)any damage to the Tower, Improvements or Communication Equipment located on anyof the Sites, in each case, to the extent that any such claim or damage arisesout of the conduct of Purchaser of its due diligence inspection at such Site.

 

Section 11.3.                             Claims.

 

(a)                                  Except as otherwise provided herein, whena party seeking indemnification under Sections 11.1 or 11.2 (the “IndemnifiedParty”) receives notice of any claim made by a third party (a “ThirdParty Claim”) which is to be the basis for a claim for indemnificationhereunder, the Indemnified Party shall give prompt written notice thereof tothe party from which indemnification is sought (the “Indemnifying Party”)reasonably indicating (to the extent known) the nature of such claim and thebasis thereof, but the Indemnifying Party’s obligations shall not be affectedby the failure to give such notice unless it can demonstrate that it wasmaterially prejudiced thereby.  Uponnotice from the Indemnified Party, the Indemnifying Party may (in lieu ofpromptly paying the Third Party Claim either in full or upon compromise agreedto by the Indemnifying Party), but shall not be required to, assume the defenseof any such Third Party Claim, including its compromise or settlement, and theIndemnifying Party shall pay all reasonable costs and expenses thereof andadverse judgments relating thereto and, in such case, the Indemnifying Partyshall have no obligation to pay any further costs and expenses of legal counselof the Indemnified Party in connection with such defense (it being understoodthat the Indemnified Party shall have the right to participate in such defensewith its own counsel).  No compromise orsettlement in respect of any Third Party Claim may be effected by theIndemnifying Party without the Indemnified Party’s prior written consent (whichconsent which shall not be unreasonably withheld), unless (i) such settlementdoes not impose any obligations or admit liability on behalf of the IndemnifiedParty, and (ii) such settlement includes an unconditional release of theIndemnified Party.  The IndemnifyingParty shall give notice to the Indemnified Party as to its intention to assumethe defense of any such Third Party Claim within twenty (20) Business Daysafter the date of receipt of the Indemnified Party’s notice in respect of suchThird Party Claim.  If the IndemnifyingParty does not, within twenty (20) Business Days after the Indemnified Party’snotice is given, give notice to the Indemnified Party of its assumption of thedefense of the Third Party Claim, the Indemnifying Party shall be deemed tohave waived its rights to control the defense thereof.

 

(b)                                 If the Indemnifying Party fails to takeaction within twenty (20) Business Days as set forth above, then theIndemnified Party shall have the right to pay, compromise or defend any ThirdParty Claim and to assert the amount of any payment on the Third Party Claimplus the expense of defense or settlement as an indemnity claim.  The Indemnified Party shall also have theright, exercisable in good faith and upon reasonable prior notice to theIndemnifying Party, to take such action as may be necessary to avoid a defaultprior to the assumption of the defense of

 

33

----

 

the Third Party Claim by the Indemnifying Party and any expensesincurred by so acting shall be paid by the Indemnifying Party.

 

(c)                                  Payment of Third Party Claims shall bemade in accordance with Sections 11.3(a) and 11.3(b) above.  With respect to all claims other than ThirdParty Claims, the Indemnifying Party shall promptly pay or reimburse theIndemnified Party in respect of any claim or liability to which the foregoingindemnities relate after receipt of written notice from the Indemnified Partyoutlining with reasonable particularity the nature and amount of theclaim(s).  In the event the IndemnifyingParty fails or refuses to make payment for such claims within a period oftwenty (20) days from the date of notice to the Indemnifying Party, theIndemnified Party shall be entitled to exercise all legal means of reliefavailable and also shall be entitled to receive from the Indemnifying Partyinterest on the full amount of such claims, such interest to accrue at themaximum rate allowable by applicable law from and after such twentieth dayuntil such claims are paid in full.

 

(d)                                 With respect to any claim forindemnification hereunder, the Indemnified Party will give to the IndemnifyingParty and its counsel, accountants and other representatives reasonable access,during normal business hours and upon the giving of reasonable prior notice, toits books and records relating to such claims, and to its employees,accountants, counsel and other representatives, all without charge to theIndemnifying Party, except for reimbursement of reasonable out-of-pocketexpenses.  In this regard, after theassertion of a claim for indemnity, the Indemnified Party agrees to maintainall of its books and records which may relate to the claim for indemnificationhereunder for such period of time as may be necessary to enable theIndemnifying Party to resolve such claim.

 

Section 11.4.                             Limitations onIndemnification.

 

(a)                                  Purchaser shall not be obligated pursuantto this Article 11 or for any other reason or cause to indemnify the SellerIndemnified Parties in an aggregate amount in excess of the Purchase Price,except that such limitation shall not apply to indemnification claims arisingunder Section 11.2(b) hereof.  Except asset forth in the following sentence, Seller shall not be obligated pursuant tothis Article 11 or for any other reason or cause to indemnify the PurchaserIndemnified Parties in an aggregate amount in excess of the Purchase Price,except that such limitation shall not apply to indemnification claims arisingunder Section 11.1(b) hereof.  Exceptfor claims seeking injunctive relief, the indemnification provisions of thisArticle 11 shall be the sole and exclusive remedy following the Closing for anyclaim of one party against the other under this Agreement for any matterarising out of the transactions contemplated hereby.

 

(b)                                 Purchaser Indemnified Parties shall notbe entitled to recovery of Losses under this Article 11 until the aggregateamount that Purchaser Indemnified Parties would recover under this Article 11exceeds $85,000, in which event Purchaser Indemnified Parties shall be entitledto recover all such Losses including such $85,000.

 

(c)                                  A party to this Agreement shall not beobligated pursuant to this Article 11 to indemnify the other party, for anyconsequential, incidental, or indirect loss or damage or any other special orpunitive damages.

 

34

----

 

(d)                                 Prior to making a claim forindemnification against Seller for breach of Seller’s representation set forthin Section 4.6(f), with respect to title to a leasehold estate under a LeasedSite Lease, Purchaser shall first seek recovery from Title Company pursuant tothe applicable Title Policy (it being understood and agreed that any such claimmade by Purchaser against Title Company will satisfy the requirement set forthin Section 10.1 that litigation be commenced within six (6) months after a noticeof claim for indemnification is given by Purchaser to Seller).

 

ARTICLE 12

BREACHES AND DEFAULTS; TERMINATION; REMEDIES

 

Section 12.1.                             Termination.

 

This Agreement may beterminated as follows:

 

(a)                                  bymutual written agreement of the parties hereto;

 

(b)                                 byeither Purchaser or Seller if the Closing shall not have taken place byDecember 31, 2003 (the “Outside Date”) by written notice to the otherparty at any time after the Outside Date, provided, however, that the right toterminate this Agreement pursuant to this paragraph (b) shall not be availableto any party whose failure to fulfill any obligation under this Agreement hasbeen a principal cause of or resulted in the failure of the Closing to occur onor before the Outside Date;

 

(c)                                  byPurchaser (i) if it is not satisfied with its due diligence review of thePurchased Assets for any reason, by written notice given to Seller withintwenty (20) Business Days of the Effective Date, or (ii) by written notice toSeller upon the occurrence of a Material Adverse Effect;

 

(d)                                 byeither Purchaser or Seller, by written notice to the other party, if theconsummation of the transactions shall be prohibited by a final, non-appealableorder, decree or injunction of a Governmental Authority, provided, however,that the right to terminate this Agreement pursuant to this paragraph (d) shallnot be available to any party whose failure to fulfill any obligation underthis Agreement or whose breach of a representation, warranty, covenant oragreement made in this Agreement or any other agreement or instrument deliveredin connection with this Agreement, has been a principal cause of or resulted insuch final, non-appealable order, decree or injunction of a GovernmentalAuthority; or

 

(e)                                  byeither Purchaser or Seller, if the other party breaches this Agreement in anymaterial respect, and the breach remains uncured for thirty (30) days afterreceipt of written notice thereof.

 

Section 12.2.                             Effectof Termination.

 

(a)                                  Ifthe Agreement is terminated pursuant to Section 12.1(a), or by Purchaserpursuant to Section 12.1(c), 12.1(d) or 12.1(e), or if the Closing does notoccur by the Outside Date, then the Escrow Deposit shall be returned toPurchaser in accordance with and subject to the terms and conditions of theEscrow Agreement, and neither party shall have any further obligation orliability to the other except those that expressly survive terminationincluding the

 

35

----

 

obligations and indemnities contained in Sections 6.2(b) and 8.2 andArticle 13; provided, however, if the transactions hereunder shall fail toclose solely by reason of Seller’s default, and Purchaser shall have fullyperformed its obligations hereunder and shall be ready, willing and able toclose, then Purchaser shall be entitled to (1) specifically enforce thisAgreement (it being acknowledged and agreed that such default will causeirreparable harm to Purchaser and that money damages would not be an adequateremedy to Purchaser) and Seller agrees that it will not seek, and hereby waivesany requirement for, the securing or posting of a bond or proving actualdamages in such action or (2) terminate this Agreement and obtain a return ofthe Escrow Deposit and reimbursement by Seller of Purchaser’s actual out-of-pocketcosts paid in connection with the transactions hereunder (such reimbursementnot to exceed the amount of the Escrow Deposit in the aggregate) but no otheraction, for damages or otherwise, shall be permitted (except that, if specificperformance is not available due to Seller’s willful default, there will be nolimit on Purchaser’s right to damages hereunder).

 

**(b)****                                  INTHE EVENT THIS AGREEMENT IS TERMINATED BY SELLER PURSUANT TO SECTIONS 12.1(d)OR 12.1(e), THEN THE ESCROW DEPOSIT SHALL BE DELIVERED TO SELLER IN ACCORDANCEWITH AND SUBJECT TO THE TERMS AND CONDITIONS OF THE ESCROW AGREEMENT, AS FULLCOMPENSATION AND LIQUIDATED DAMAGES UNDER AND IN CONNECTION WITH THISAGREEMENT. IN CONNECTION WITH THE FOREGOING, THE PARTIES RECOGNIZE THAT SELLERWILL INCUR EXPENSE IN CONNECTION WITH THE TRANSACTION CONTEMPLATED BY THISAGREEMENT AND THAT THE PROPERTY WILL BE REMOVED FROM THE MARKET; FURTHER, THATIT IS EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN THE EXTENT OFDETRIMENT TO SELLER CAUSED BY THE BREACH BY PURCHASER UNDER THIS AGREEMENT ANDTHE FAILURE OF THE CONSUMMATION OF THE TRANSACTION CONTEMPLATED BY THISAGREEMENT OR THE AMOUNT OF COMPENSATION SELLER SHOULD RECEIVE AS A RESULT OFPURCHASER’S BREACH OR DEFAULT.  TAKINGINTO ACCOUNT THE CIRCUMSTANCES EXISTING ON THE DATE OF THIS AGREEMENT, THEESCROW DEPOSIT IS A REASONABLE ESTIMATE OF SELLER’S ACTUAL DAMAGES IN THE EVENTOF PURCHASER’S BREACH OR DEFAULT.  INTHE EVENT THE SALE OF THE PROPERTY SHALL NOT BE CONSUMMATED ON ACCOUNT OFPURCHASER’S DEFAULT, THEN THE RETENTION OF THE ESCROW DEPOSIT SHALL BE SELLER’SSOLE AND EXCLUSIVE REMEDY UNDER THIS AGREEMENT BY REASON OF SUCH DEFAULT,SUBJECT TO THE PROVISIONS OF THIS AGREEMENT THAT EXPRESSLY SURVIVE ATERMINATION OF THIS AGREEMENT.**

 
|   |                       |
|--------|----------------------------|
|   |                       |   |   |   |   |
|   | **Seller’s Initials** |   |   | **Purchaser’s Initials** |   |

 

36

----

 

ARTICLE 13

MISCELLANEOUS

 

Section 13.1.                             Expenses.

 

The parties to thisAgreement shall, except as otherwise specifically provided herein, bear theirrespective expenses incurred in connection with the preparation, negotiation,execution and performance of this Agreement and the transactions contemplatedhereby, including all fees and expenses of agents, representatives,consultants, counsel and accountants. If either Purchaser or Seller brings any suit or other proceeding,including an arbitration proceeding, with respect to the subject matter or theenforcement of this Agreement, the prevailing party (as determined by thecourt, agency, arbitrator or other authority before which such suit orproceeding is commenced), in addition to such other relief as may be awarded,shall be entitled to recover reasonable attorneys’ fees, expenses and costs ofinvestigation actually incurred.  Theforegoing includes reasonable attorneys’ fees, expenses and costs ofinvestigation (including those incurred in appellate proceedings), and costsincurred in establishing the right to indemnification.  The provisions of this Section 13.1 shallsurvive any termination of this Agreement.

 

Section 13.2.                             FurtherAssurances.

 

Each of the parties shallexecute such agreements and documents and take such further actions as may bereasonably required or desirable to carry out the provisions hereof and thetransactions contemplated hereby, including, without limitation, the promptremoval by Seller of any Tax Lien imposed on any of the Purchased Assets inconnection with the matters set forth in Section 4.5(b) of the SellerDisclosure Schedule.  Each such partyshall use commercially reasonable efforts to fulfill or obtain the fulfillmentof the conditions to the Closing, including the execution and delivery of anyother agreement or document, the execution and delivery of which are conditionsprecedent to the Closing.

 

Section 13.3.                             Access to Records.

 

From and after theClosing Date and until the seventh (7th) anniversary thereof, atreasonable times and upon reasonable advance written notice to one of Seller’sexecutive officers, Seller shall allow Purchaser, and its counsel, accountantsand other representatives, such access to Seller’s records that after theClosing are in the custody or control of Seller as Purchaser reasonablyrequires in order to comply with its obligations under applicable law or undercontracts constituting Assumed Liabilities. From and after the Closing Date, at reasonable times and upon reasonableadvance written notice to one of the Purchaser Executive Officers, Purchasershall allow Seller, and its counsel, accountants and other representatives,such access to records that after the Closing are in the custody or control ofPurchaser as Seller reasonably requires in order to comply with its obligationsunder applicable law.  Each party’saccess to the other party’s records pursuant to this Section 13.3 shall be donein such a manner so as not to unreasonably disrupt the other party’s conduct ofits business.

 

Section 13.4.                             Severability.

 

Any provision of thisAgreement that is prohibited or unenforceable in any jurisdiction shall, as tosuch jurisdiction, be ineffective to the extent of such prohibition orunenforceability

 

37

----

 

without invalidating the remaining provisions hereof, and any suchprohibition or unenforceability in any jurisdiction shall not invalidate orrender unenforceable such provision in any other jurisdiction.  If any court determines that any covenant,or any part of any covenant is invalid or unenforceable, such covenant shall beenforced to the extent permitted by such court, and all other covenants shall notthereby be affected and shall be given full effect, without regard to theinvalid portions.

 

Section 13.5.                             Notices.

 

Any notice or othercommunication required or permitted hereunder shall be in writing and shall be(a) personally delivered, (b) mailed by registered or certified U.S. mail,postage prepaid with return receipt requested, (c) delivered by Federal Expressor similar generally recognized overnight carrier regularly providing proof ofdelivery, or (d) delivered by facsimile transmission with a confirmatory copyby first class mail, addressed as follows:

 
|   | If to Seller, to:                                            |
|--------|--------------------------------------------------------------|
|   |                                                         |   |
|   |                                                         | VIA Wireless LLC |
|   |                                                         | c/o UbiquiTel Inc. |
|   |                                                         | One West Elm Street, Suite 400 |
|   |                                                         | Conshohocken, PA 19428 |
|   |                                                         | Facsimile: | (610) 832-0373 |
|   |                                                         | Attention: | Mr. Donald A. Harris |
|   |                                                         |   | President and Chief Executive Officer |
|   |                                                         |   |
|   | with a required copy (that shall not constitute  notice) to: |
|   |                                                         |   |
|   |                                                         | Patricia E. Knese, Esq. at the same address |
|   |                                                         | Fax: (610) 832-1076 |
|   |                                                         |   |
|   |                                                         | and |
|   |                                                         |   |
|   |                                                         | Greenberg Traurig, LLP |
|   |                                                         | 2450 Colorado Avenue, Suite 400E |
|   |                                                         | Santa Monica, California  90404 |
|   |                                                         | Fax:  (310)  586-7800 |
|   |                                                         | Attention:   Gregg Bernhard, Esq. |

 

38

----

 
|   | If to Purchaser, to:                                         |
|--------|--------------------------------------------------------------|
|   |                                                         |   |
|   |                                                         | GoldenState Towers, LLC |
|   |                                                         | 125 Ryan Industrial Court, Suite 109 |
|   |                                                         | San Ramon, CA 94583 |
|   |                                                         | Facsimile: | 925-837-9999 |
|   |                                                         | Attention: | John F. Ricci, Chief Executive Officer |
|   |                                                         |   |
|   | with a required copy (that shall not constitute  notice) to: |
|   |                                                         |   |
|   |                                                         | Veronis Suhler Stevenson LLC |
|   |                                                         | 350 Park Avenue - 7th Floor |
|   |                                                         | New York, New York 10022 |
|   |                                                         | Facsimile: | 212-832-6371 |
|   |                                                         | Attention: | Jonathan D. Drucker |
|   |                                                         |   |
|   |                                                         | and |
|   |                                                         |   |
|   |                                                         | Friedman Kaplan Seiler & Adelman LLP |
|   |                                                         | 1633 Broadway |
|   |                                                         | New York, New York 10019 |
|   |                                                         | Facsimile: | 212-833-1250 |
|   |                                                         | Attention: | Gregg S. Lerner |

 

Any notice given by U.S.mail or overnight courier shall be deemed to have been given as of the date ofdelivery (whether accepted or refused) established by U.S. Post Office returnreceipt or the overnight carrier’s proof of delivery, as the case may be.  Notices delivered by facsimile transmissionshall be deemed given upon receipt by the sender of the transmissionconfirmation provided such facsimile is received on a Business Day on or before4:00 PM (Eastern Standard Time); otherwise, a facsimile shall be deemed giventhe following Business Day.  Any partymay, by notice given in accordance with this Section to the other parties,designate another address or person for receipt of notices hereunder.

 

Section 13.6.                             EntireAgreement.

 

This Agreement (includingthe Schedules and Exhibits) and the agreements, certificates and otherdocuments delivered or to be delivered hereunder contain the entire agreementbetween the parties with respect to the transactions described herein, andsupersede all prior agreements, written or oral, with respect thereto.  In the event of any inconsistency betweenthis Agreement and the Escrow Agreement, the Escrow Agreement shall govern.

 

Section 13.7.                             Amendments and Waivers.

 

This Agreement may bemodified or amended, and the terms hereof may be waived, only by a writteninstrument signed by the parties or, in the case of a waiver, by the partywaiving compliance.  No delay on thepart of any party in exercising any right, power or privilege

 

39

----

 

hereunder shall operate as a waiver thereof, nor shall any waiver onthe part of any party of any such right, power or privilege, nor any single orpartial exercise of any such right, power or privilege, preclude any furtherexercise thereof or the exercise of any other such right, power or privilege.

 

Section 13.8.                             Governing ApplicableLaw.

 

This Agreement shall begoverned and construed in accordance with the applicable laws of the State ofCalifornia without regard to principles of conflicts of applicable law or anyrule of interpretation or construction as to which party drafted thisAgreement.

 

Section 13.9.                             Assignment; BindingEffect.

 

Neither this Agreementnor any of the rights or obligations hereunder may be assigned (including byoperation of applicable law) by any party without the prior written consent ofthe other party, except that (i) Seller may merge with UbiquiTel OperatingCompany or UbiquiTel Leasing Company, so long as the surviving entity aftersuch transaction shall, by operation of law or by written agreement satisfactoryto Purchaser, assume all of Seller’s obligations under this Agreement and underany agreement or other instrument executed by Seller in connection herewith,and (ii) Purchaser may assign its rights and remedies hereunder to any bank orother financial institution that has loaned funds or otherwise extended creditto Purchaser (any such assignment shall not relieve Purchaser of itsobligations hereunder).  Subject to theforegoing, this Agreement shall be binding upon and inure to the benefit of theparties hereto and their respective successors and permitted assigns.

 

Section 13.10.                       Beneficiaries of Agreement.

 

The representations,warranties, covenants and agreements expressed in this Agreement are for thesole benefit of the other parties hereto (except for the provisions of Article11, which are also for the benefit of the persons entitled to indemnificationthereunder) and are not intended to benefit, and may not be relied upon orenforced by, any other party as a third-party beneficiary or otherwise.

 

Section 13.11.                       Counterparts; FacsimileSignatures.

 

This Agreement may beexecuted by the parties hereto in separate counterparts, each of which when soexecuted and delivered shall be an original, but all such counterparts shalltogether constitute one and the same instrument.  Each counterpart may consist of a number of copies hereof eachsigned by less than all, but together signed by all of the parties hereto.  Facsimile signatures on this Agreement andany of the agreements and documents executed in connection herewith shall bedeemed original signatures.

 

Section 13.12.                       Exhibitsand Schedules.

 

The Exhibits andSchedules are a part of this Agreement as if fully set forth herein.  All references herein to Sections,subsections, clauses, Exhibits and Schedules shall be deemed references to thisAgreement, unless the context shall otherwise require.

 

40

----

 

Section 13.13.                       Computation of Days;Holidays.

 

Whenever this Agreementprovides for a period of time that is expressed in terms of a numbers of daysprior to or within which actions or events are to occur or not occur, such timeperiod shall be measured in calendar days unless otherwise expresslyprovided.  Whenever this Agreementprovides for a date, day or period of time on or prior to which actions orevents are to occur or not occur, and if such date, day or last day of suchperiod of time falls on a day that is not a Business Day, then the same shallbe deemed to fall on the immediately following Business Day.

 

Section 13.14.                       Headings.

 

The headings in thisAgreement are for reference only, and shall not affect the meaning orinterpretation of this Agreement.

 

(Signature Page Follows)

 

41

----

 

IN WITNESS WHEREOF, the parties have executed this Agreement as of thedate first above written.

 
|   | VIA WIRELESS LLC,                       |
|--------|-----------------------------------------|
|   | a California limited  liability company |
|   |                                    |
|   |                                    |
|   | By:                                     |   |   |
|   |                                    | Name: |
|   |                                    | Title: |
|   |                                    |
|   |                                    |
|   | GOLDENSTATE TOWERS, LLC                 |
|   | a Delaware limited liability company    |
|   |                                    |
|   |                                    |
|   | By:                                     |   |   |
|   |                                    | Name: John F. Ricci |
|   |                                    | Title: Chief Executive Officer |

 

42

----