exv10w2



 






EXHIBIT 10.2


EXECUTION VERSION


CERTAIN PORTIONS OF THIS DOCUMENT INDICATED BY [*****] HAVE BEEN OMITTED PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT. THE OMITTED NON-PUBLIC PORTIONS HAVE BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.




EQUITY INTEREST PURCHASE AGREEMENT




By and Between




GLOBAL TOWER, LLC




and




DOBSON CELLULAR SYSTEMS, INC.




March 14, 2005





 









 








TABLE OF CONTENTS




	 	 	 	 	 	 	 
	ARTICLE 1
	 	DEFINED TERMS	 	 	1	 
	ARTICLE 2
	 	CONTRIBUTION OF ASSETS; ASSUMPTION OF LIABILITIES; PURCHASE AND SALE OF MEMBERSHIP INTERESTS	 	 	2	 
	2.1
	 	Assets	 	 	2	 
	2.2
	 	Excluded Assets	 	 	2	 
	2.3
	 	Assumption of Assumed Liabilities; Retained Liabilities	 	 	3	 
	2.4
	 	Purchase and Sale of Membership Interests	 	 	4	 
	ARTICLE 3
	 	PURCHASE PRICE; ADJUSTMENT; CLOSING	 	 	4	 
	3.1
	 	Purchase Price	 	 	4	 
	3.2
	 	Deposit	 	 	4	 
	3.3
	 	Certain Apportionments; Remedial Site Escrow	 	 	5	 
	3.4
	 	Purchase Price Allocation	 	 	8	 
	3.5
	 	Closing	 	 	8	 
	ARTICLE 4
	 	REPRESENTATIONS AND WARRANTIES OF SELLER	 	 	8	 
	4.1
	 	Organization and Business; Power and Authority; Effect of Transaction	 	 	9	 
	4.2
	 	Financial Information; Ordinary Course of Business; Absence of Events	 	 	10	 
	4.3
	 	Title to Properties; Real Property Leases	 	 	10	 
	4.4
	 	Compliance with Governmental Authorizations and Applicable Law; Legal Actions	 	 	11	 
	4.5
	 	Related Transactions	 	 	12	 
	4.6
	 	Utilities and Access	 	 	12	 
	4.7
	 	Tax Matters	 	 	12	 
	4.8
	 	Broker or Finder	 	 	13	 
	4.9
	 	Environmental Matters	 	 	13	 
	4.10
	 	Disclosure Schedule	 	 	14	 
	4.11
	 	No Insolvency	 	 	14	 
	4.12
	 	Valid Transaction	 	 	15	 
	4.13
	 	Insurance	 	 	15	 
	4.14
	 	Seller Sub	 	 	15	 
	4.15
	 	Accounts Receivable Aging	 	 	16	 
	ARTICLE 5
	 	REPRESENTATIONS AND WARRANTIES OF BUYER	 	 	16	 
	5.1
	 	Organization and Business; Power and Authority; Effect of Transaction	 	 	16	 






 









 






	 	 	 	 	 	 	 
	5.2
	 	Financing	 	 	17	 
	5.3
	 	Broker or Finder	 	 	17	 
	5.4
	 	Legal Actions	 	 	17	 
	ARTICLE 6
	 	COVENANTS	 	 	17	 
	6.1
	 	Access to Information	 	 	17	 
	6.2
	 	Agreement to Cooperate; Certain Other Covenants	 	 	18	 
	6.3
	 	Public Announcements	 	 	19	 
	6.4
	 	Notification of Certain Matters	 	 	19	 
	6.5
	 	Conduct of Business by Seller Pending the Closing	 	 	19	 
	6.6
	 	Environmental Site Assessments; Title Commitments and Surveys	 	 	21	 
	6.7
	 	Defective Sites	 	 	22	 
	6.8
	 	Accepted Sites; Rejected Sites; Remedial Sites	 	 	22	 
	6.9
	 	Cure Period	 	 	24	 
	6.10
	 	Relocation of Tower Light Controllers	 	 	25	 
	6.11
	 	Supplemental Disclosure	 	 	25	 
	6.12
	 	Contribution to Seller Sub	 	 	25	 
	6.13
	 	No Shop	 	 	26	 
	6.14
	 	Casualty Losses Relating to the Assets	 	 	26	 
	6.15
	 	Limited Right of First Refusal	 	 	26	 
	6.16
	 	Transition Services	 	 	26	 
	6.17
	 	Cash Flow Reports	 	 	27	 
	6.18
	 	Form of Tenant Lease	 	 	27	 
	6.19
	 	Pre-Closing Inspection	 	 	27	 
	ARTICLE 7
	 	CLOSING CONDITIONS	 	 	27	 
	7.1
	 	Conditions to Obligations of Each Party	 	 	27	 
	7.2
	 	Conditions to Obligations of Buyer	 	 	28	 
	7.3
	 	Conditions to Obligations of Seller	 	 	29	 
	ARTICLE 8
	 	TERMINATION	 	 	30	 
	8.1
	 	Termination	 	 	30	 
	8.2
	 	Effect of Termination	 	 	31	 
	ARTICLE 9
	 	INDEMNIFICATION	 	 	31	 
	9.1
	 	Survival	 	 	31	 
	9.2
	 	Indemnification	 	 	32	 
	9.3
	 	Limitation of Liability	 	 	32	 
	9.4
	 	Notice of Claims	 	 	33	 
	9.5
	 	Defense of Third Party Claims	 	 	33	 
	9.6
	 	Adjustment to Purchase Price	 	 	34	 
	ARTICLE 10
	 	GENERAL PROVISIONS	 	 	34	 






ii









 






	 	 	 	 	 	 	 
	10.1
	 	Bulk Transfer Laws	 	 	34	 
	10.2
	 	Specific Performance; Other Rights and Remedies	 	 	34	 
	10.3
	 	Waivers; Amendments	 	 	35	 
	10.4
	 	Fees, Expenses and Other Payments	 	 	35	 
	10.5
	 	Notices	 	 	35	 
	10.6
	 	Severability	 	 	36	 
	10.7
	 	Counterparts	 	 	36	 
	10.8
	 	Section Headings	 	 	37	 
	10.9
	 	Governing Law	 	 	37	 
	10.10
	 	Further Acts	 	 	37	 
	10.11
	 	Entire Agreement; Construction; No Implied Warranties	 	 	37	 
	10.12
	 	Assignment	 	 	38	 
	10.13
	 	Parties in Interest	 	 	38	 
	10.14
	 	Non-Recourse to Seller's Affiliates	 	 	38	 
	10.15
	 	Necessary Approvals, Consents and Waivers	 	 	38	 
	10.16
	 	Dispute Resolution	 	 	39	 






ATTACHMENTS:




	 	 	 
	APPENDIX A:

	 	Definitions






EXHIBITS:




	 	 	 	 	 
	

	 	EXHIBIT A:
	 	Form of Deposit Escrow Agreement (Section 3.2)
	

	 	EXHIBIT B:
	 	Form of Remedial Site Escrow Agreement (Section 3.3(d))
	

	 	EXHIBIT C:
	 	Form of Master Tower Lease from Buyer to Seller (Section 7.2(c))
	

	 	EXHIBIT D:
	 	Form of Tenant Lease Agreement (Section 6.18)
	

	 	EXHIBIT E:
	 	Seller Sub Certificate of Formation
	

	 	EXHIBIT F:
	 	Seller Sub Operating Agreement






DISCLOSURE SCHEDULE:




	 	 	 	 	 	 	 
	 	 	Section	 	Subject
	

	 	 	4.1	(c)	 	Required Consents
	

	 	 	4.2	(a)	 	Cash Flow Reports
	

	 	 	4.2	(b)	 	Deviations from Ordinary Course
	

	 	 	4.3	(a)	 	Owned Sites; Title Issues; Liens
	

	 	 	4.3	(b)	 	Site Leases and Tower Leases; Leasehold Issues; Oral Leases; Lease Breaches; Notices
of Termination or Expiration
	

	 	 	4.4	(a)	 	Governmental Authorizations
	

	 	 	4.4	(b)	 	Violations of Laws
	

	 	 	4.4	(c)	 	Legal Actions
	

	 	 	4.5	 	 	Related Transactions
	

	 	 	4.6	 	 	Utility and Access Issues
	

	 	 	4.9	 	 	Environmental Matters






iii









 






	 	 	 	 	 	 	 
	 	 	Section	 	Subject
	

	 	 	4.15	 	 	Receivables Aging
	

	 	 	6.5	 	 	Conduct of Business
	

	 	 	6.8	(b)	 	Remedial Sites; Rejected Sites






iv









 






EQUITY INTEREST PURCHASE AGREEMENT




     Equity Interest Purchase Agreement, dated as of March 14, 2005, by and between Global Tower,
LLC, a Delaware limited liability company (“Buyer”), and Dobson Cellular Systems, Inc., an Oklahoma
corporation (“Seller”).



WITNESSETH:




     WHEREAS, Seller owns, maintains and leases to others space on certain Tower Structures as part
of Seller’s and its Affiliates’ business of owning and operating wireless communications systems;
and



     WHEREAS, immediately prior to Closing, Seller will contribute to a newly formed Delaware
limited liability company, that is wholly-owned by Seller (“Seller Sub”), the Assets and Seller Sub
will assume from Seller the Assumed Liabilities; and



     WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell to Buyer, all of
the member interests in Seller Sub (the “Membership Interests”), all subject to the terms and
conditions set forth herein; and



     NOW, THEREFORE, in consideration of the premises and the representations, warranties,
covenants and agreements herein contained and other valuable consideration, the receipt and
adequacy whereof are hereby acknowledged, the parties hereto hereby, intending to be legally bound,
represent, warrant, covenant and agree as follows:



ARTICLE 1

DEFINED TERMS




     As used herein, unless the context otherwise requires, the terms defined in Appendix A shall
have the respective meanings set forth therein. Terms defined in the singular shall have a
comparable meaning when used in the plural, and vice versa, and the reference to any gender shall
be deemed to include all genders. Unless otherwise defined or the context otherwise clearly
requires, terms for which meanings are provided in this Agreement shall have such meanings when
used in the Disclosure Schedule and each Collateral Document executed or required to be executed
pursuant hereto or thereto or otherwise delivered, from time to time, pursuant hereto or thereto.
References to “hereof,” “herein” or similar terms are intended to refer to the Agreement as a whole
and not a particular section, and references to “this Section” or “this Article” are intended to
refer to the entire section or article and not a particular subsection thereof. The term “either
party” shall, unless the context otherwise requires, refer to Buyer, on the one hand, and Seller,
on the other hand.



 









 





ARTICLE 2

CONTRIBUTION OF ASSETS; ASSUMPTION OF LIABILITIES; PURCHASE AND SALE OF MEMBERSHIP INTERESTS




     2.1 Assets. On the terms and subject to the conditions set forth in this Agreement,
Seller shall contribute to Seller Sub on or before the Closing Date, all right, title and interest
of Seller in and to all of the Assets, free and clear of any Liens, except for Permitted Liens.
“Assets” shall mean all of the following assets (provided, that Assets designated as either
Rejected Sites or Remedial Sites shall not be contributed to Seller Sub and shall be retained by
Seller at Closing in accordance with Section 6.8, and the term “Assets”, when used to refer to
those assets being contributed by Seller to Seller Sub at Closing, shall be deemed to exclude any
Rejected Sites and Remedial Sites):



     (a) all Tower Structures;



     (b) all Tower Sites;



     (c) all Tower Related Assets; and



     (d) all of Seller’s rights under any Governmental Authorizations (excluding FCC
licenses or authorizations) held with respect to Seller’s ownership and use of the Tower
Structures and Tower Sites, except for the Excluded Governmental Authorizations.



     For the purpose of clarity, unless specifically included as an Asset, it is the intention of
the parties hereto that the Assets shall not include any assets located at a Tower Site used by
Seller in the operation of its wireless services business and are of a type which would typically
be supplied by a co-locating lessee on a Tower Site or assets which are the property of another
co-locating lessee on such Tower Site.



     2.2 Excluded Assets. Nothing in this Agreement shall be deemed to transfer the
Excluded Assets to Seller Sub, and all assets of Seller and its Affiliates not set forth in Section
2.1 above shall be excluded from the Assets and all right, title and interest therein shall be
retained by Seller and its Affiliates (other than Seller Sub), including, without limitation, the
following assets (collectively, “Excluded Assets”):



     (a) all equipment cabinets and shelters (other than equipment shelters included in the
Tower Structures) used or occupied exclusively by Seller or any of its Affiliates; mounting
platforms used or occupied by Seller or any of its Affiliates; above-ground fuel tanks;
electrical panels; the utility service lines connecting the power pole to any of Seller’s
or its Affiliates’ equipment power protection and connection boxes; microwave dishes;
antennas and antenna connection boxes;



     (b) all wiring; coaxial cabling; conduits used to protect coaxial cables that are
needed to power, monitor and operate Seller’s network equipment; microwave antennas and
other transport related equipment and housings; cable; equipment generators,



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communications
and other radio equipment and amplifiers; waveguides and ice bridges; combination locks and
padlocks for fence gates; cell-sites-on-wheels, cell-sites-on-light-trucks and any other
temporary transmitting equipment; all of the foregoing to the extent used by Seller or its
Affiliates exclusively for its telecommunications operations at a Tower Site;



     (c) the rights that accrue or will accrue to Seller under this Agreement or any of the
other Collateral Documents, including the consideration paid or to be paid to Seller
hereunder and all accounts receivable, including rents and other amounts under the Tower
Leases, in each case which accrue or are prorated prior to the Closing Date;



     (d) all books and records of Seller which do not specifically relate to the Assets
(provided that Seller shall have the right to retain one set of copies of all books and
records of Seller which do specifically relate to the Assets);



     (e) the rights to any of Seller’s claims for any Tax refunds, except to the extent
that such claims relate to the operation of the Assets following the Closing;



     (f) any claims or rights against third parties arising or relating to periods prior to
the Closing Date except to the extent that such claims or rights are included in the
Assumed Liabilities;



     (g) all assets, properties and rights related to Rejected Sites and, pending cure of
the pertinent Defect(s) in accordance with Section 6.9, Remedial Sites;



     (h) all cash on hand and in financial institutions, cash equivalents, marketable
securities, bonds and bank accounts (excluding any security deposits held on behalf of
tenants, subtenants or licensees);



     (i) all insurance policies and, except as otherwise provided in clause (iii) of the
definition of “Tower Related Assets”, all claims arising thereunder; and



     (j) the Excluded Governmental Authorizations.



     For the purpose of clarity, unless specifically included as an Asset, it is the intention of
the parties hereto that the Excluded Assets shall include all assets located at a Tower Site which
are used exclusively by Seller in the operation of its wireless services business and are of the
type which would typically be supplied by a co-locating lessee on such Tower Site.



     2.3 Assumption of Assumed Liabilities; Retained Liabilities.



     (a) Assumption of Assumed Liabilities. Subject to Section 2.3(b) below, on
the terms and subject to the conditions set forth in this Agreement, at the Closing and at
the same time as the contribution described in Section 2.1 above, Seller Sub shall,
effective as of the Closing, assume and undertake to perform and otherwise pay,
satisfy and discharge only the following liabilities (collectively, the “Assumed
Liabilities”):



- 3 -









 






          (i) all liabilities of Seller and its Affiliates under all Contracts included
in the Assets (including, without limitation, the Site Leases and Tower Leases), but
only to the extent such liabilities accrue or relate to the period from and after
the Closing Date;




          (ii) the rents, Pro Ratable Taxes, charges and payments that are apportioned
for the account of Seller Sub pursuant to Section 3.3(a) hereof;




          (iii) all liabilities which arise in connection with or relate to the
ownership, lease, use or occupancy of or under the Assets from and after the Closing
other than (A) Liens that are not Permitted Liens or (B) Retained Liabilities; and




          (iv) all liabilities arising out of the granting of the use or enjoyment of the
benefits by Seller Sub under any Excluded Governmental Authorization pursuant to
Section 6.2(e).



     (b) Retained Liabilities. Notwithstanding anything to the contrary contained in this
Agreement, Seller Sub is not assuming under this Agreement or any Collateral Document, and Seller
Sub shall not be liable for, Retained Liabilities. “Retained Liabilities” shall mean any debt,
claim, obligation or other liability, including any Lien that is not a Permitted Lien, of Seller
or any of its Affiliates other than the Assumed Liabilities.



     2.4 Purchase and Sale of Membership Interests. Upon the terms and subject to the
conditions contained herein, on the Closing Date, Seller agrees to sell to Buyer, and Buyer agrees
to purchase from Seller, the Membership Interests, free and clear of all Liens other than Permitted
Liens.



ARTICLE 3

PURCHASE PRICE; ADJUSTMENT; CLOSING




     3.1 Purchase Price. The purchase price for all of the Membership Interests (the
“Purchase Price”) shall be an amount equal to (subject to adjustment pursuant to Sections 3.2 and
3.3) fifty-two million, three hundred eighty-four thousand, nine hundred fifty-one dollars
($52,384,951), minus an amount for each Rejected Site equal to the product of (x) the Purchase
Price Cash Flow Multiple and (y) the amount set forth in Section 4.2(a) of the Disclosure Schedule
in the column titled “Tower Cash Flow” for the applicable Rejected Site. At Closing, Buyer will
pay to Seller the Purchase Price minus an amount for each Remedial site and each Rejected Site
equal to the product of (x) the Purchase Price Cash Flow Multiple and (y) the amount set forth in
Section 4.2(a) of the Disclosure Schedule in the column titled “Tower Cash Flow” for the applicable
Remedial Site or Rejected Site (as adjusted, the “Initial Purchase Price”).



     3.2 Deposit.



- 4 -









 





     (a) Simultaneously with the execution of this Agreement, Buyer is depositing as a good faith
deposit one million, forty-seven thousand, six hundred ninety-nine dollars ($1,047,699) (the
“Deposit”) with Sun Trust Bank (the “Deposit Escrow Agent”), to be held, invested and disbursed
pursuant to the terms of a Deposit Escrow Agreement in the form of Exhibit A attached hereto (the
“Deposit Escrow Agreement”).



     (b) If the Closing occurs, then the Deposit and all earnings on the Deposit (collectively, the
“Escrowed Funds”) shall be retained by the Deposit Escrow Agent in its capacity as the escrow agent
under the Remedial Site Escrow Agreement (the “Remedial Site Escrow Agent”), the Deposit Escrow
Agreement shall automatically terminate and the Escrowed Funds (or, if applicable, a lesser amount
as provided for in Section 3.3(d)), shall become the Remedial Site Escrow Amount, and the full
amount of the Escrowed Funds as of the Closing Date shall be credited against and deducted from the
Initial Purchase Price to be paid at Closing by Buyer for the Membership Interests.



     (c) If Seller terminates this Agreement in accordance with the provisions of either (i)
Section 8.1(c)(ii)(A) resulting from a failure by Buyer to satisfy the requirements of Section
7.3(a), (c), (d), (e) or (f) or (ii) Section 8.1(c)(ii)(B), then Seller shall be entitled to
liquidated damages in an amount equal to the Liquidated Damages Amount, and pursuant to the Deposit
Escrow Agreement but subject to Section 8.2(b), the Escrowed Funds shall be released to Seller in
partial satisfaction of the Liquidated Damages Amount payable to Seller.



     (d) In any other case if the Closing does not occur prior to the Termination Date, but subject
to Section 8.2(b), then, pursuant to the Deposit Escrow Agreement, the Escrowed Funds shall be
released to Buyer. For the avoidance of doubt, if Buyer terminates this Agreement pursuant to
Section 8.1(d)(ii)(B), the Escrowed Funds shall be released to Buyer as soon as practicable in
accordance with the terms of the Deposit Escrow Agreement.



     (e) All payments by the Deposit Escrow Agent shall be made in accordance with the procedures
and other provisions set forth in the Deposit Escrow Agreement.



     3.3 Certain Apportionments; Remedial Site Escrow.



     (a) Notwithstanding any provision to the contrary in this Section 3.3(a) or elsewhere in this
Agreement, at the Closing (or on any subsequent Conveyance Date with respect to the Cured Sites
then being conveyed) the following items, to the extent they are related to the Assets (including
any Accepted Sites but excluding any Rejected Sites and any Remedial Sites), shall be apportioned
between Seller, on the one hand, and Seller Sub, on the other hand (the “Apportionments”): (i)
rents and revenues under all Contracts included in the Assets; (ii) prepaid expenses relating to
the Assets; (iii) Pro Ratable Taxes paid or payable with respect to the Assets; (iv) charges and
payments under all Contracts included in the Assets; (v) charges and payments for tower light
monitoring; (vi) charges for utilities (including, without limitation, telephone communications services); and (vii) all other items of income and expense with
respect to the Tower Sites that are ordinarily prorated as of Closing in real estate transactions.
Such Apportionments shall be made pro rata on a per diem basis as of the Closing Date so that all
such rents, revenues, Pro Ratable Taxes, charges and payments attributable to the period prior



- 5 -









 







to
and including the Closing Date are for the account of Seller (such expenses being included in
Retained Liabilities); and all such rents, revenues, Pro Ratable Taxes, charges and payments
attributable to the period after the Closing Date (or the Subsequent Conveyance Date of any Cured
Site) are for the account of Seller Sub (such expenses being included in Assumed Liabilities). In
no event shall the Apportionments take into account any Excluded Asset or Retained Liability.



     (b) Seller shall prepare and submit to Buyer, not later than seven (7) Business Days prior to
the Closing Date, a written good faith estimate of the amount of the Apportionments (“Seller’s
Estimate”). Seller’s Estimate shall be accompanied by detailed supporting documents, work papers,
subscriber records and other data (“Support Documents”) supporting each Apportionment. Seller’s
Estimate shall be accompanied by a certificate signed by an officer of Seller certifying that
Seller’s Estimate was calculated in good faith and in accordance with the provisions of this
Section 3.3. If Buyer disputes any portion of Seller’s Estimate, Buyer and Seller shall use their
respective commercially reasonable efforts to attempt in good faith to resolve such dispute prior
to the Closing. If the dispute regarding the Seller’s Estimate relates to an amount that is less
than or equal to fifty-nine thousand, eight hundred fifty dollars ($59,850), the Closing shall
proceed with the Apportionments based upon Seller’s Estimate. If the dispute regarding the
Seller’s Estimate relates to an amount that is greater than fifty-nine thousand, eight hundred
fifty dollars ($59,850), then the arithmetic average of the Seller’s Estimate and the Buyer’s
estimate of such Apportionment shall be used for purposes of Closing.



     (c) Within sixty (60) days after the Closing Date, Buyer shall deliver to Seller a certificate
(the “Closing Certificate”) signed by an officer of Buyer providing a compilation of the
Apportionments to be made pursuant to Section 3.3(a) as of the Closing Date including any changes
in the Apportionments used at Closing, together with a copy of any Support Documents relating to
such Closing Certificate and such other supporting evidence as Seller may reasonably request either
prior to or after delivery thereof. If Seller shall conclude that the Closing Certificate does not
accurately reflect the Apportionments to be made in accordance with this Section 3.3, Seller shall,
within thirty (30) days after its receipt of the Closing Certificate (such 30 day period being
referred to as the “Response Period”), deliver to Buyer a written statement of any discrepancies
believed to exist. If Seller fails to so notify Buyer of any discrepancies, then the calculation
of the Apportionments set forth in the Buyer’s Closing Certificate shall be controlling for all
purposes hereof and Buyer or Seller, as the case may be, shall, on or before the fifth
(5th) Business Day following the expiration of the Response Period, pay to the other the
amount which it is obligated to pay in accordance with the Closing Certificate. On or before the
fifth (5th) Business Day following the earlier to occur of the expiration of the
Response Period and the date Buyer receives Seller’s statement of discrepancies, Buyer or Seller,
as the case may be, shall pay the other the amount, if any, as to which there is no discrepancy.
Buyer and Seller shall use good faith efforts to jointly resolve their discrepancies within twenty
(20) days of Buyer’s receipt of Seller’s written statement of discrepancies, which resolution, if
achieved, shall be binding upon the parties and not subject to further dispute or review. In the
event Buyer and Seller are unable to resolve their differences within such twenty (20) day period, then either
party may request that the matter be resolved by PricewaterhouseCoopers (the “Independent
Accountants”). In submitting a dispute to the Independent Accountants, each of the parties shall
furnish, at its own expense, the Independent Accountants and the other party with such Support



- 6 -









 







Documents and information as the Independent Accountants may reasonably request. Each party may
also furnish to the Independent Accounts such other information and documents as it deems relevant
with the appropriate copies and notification being given to the other party. The Independent
Accountants may conduct a conference concerning the disagreements between Seller and Buyer at which
conference each party shall have the right to present additional documents, material and other
evidence and to have present its advisors, accountants and counsel. The Independent Accountants
shall promptly render a decision on the issues presented only, and such decision shall be final and
binding on the parties. The fees and expenses of the Independent Accountants shall be divided
equally between Buyer and Seller. Within five (5) days of receipt of the Independent Accountants’
decision with respect to such dispute, if Buyer is determined to owe an amount to Seller, Buyer
shall pay such amount thereof to Seller, and if Seller is determined to owe an amount to Buyer,
Seller shall pay such amount to Buyer. All amounts owed by Buyer or Seller to the other in
accordance with this Section 3.3(c) shall be paid by wire transfer of immediately available funds
and shall not bear any interest. All past due real estate and personal property taxes, if any,
shall be paid by Seller at or before the applicable Closing. Seller expressly agrees that if it
receives any rents, revenues or other payments under the Site Leases and Tower Leases after the
applicable Closing Date, it shall promptly apportion such amounts in accordance with the terms of
this Section 3.3 and deliver to Buyer the amount, if any, to which Buyer is entitled pursuant to
the terms hereof.



     (d) At the Closing, with respect to those Assets which are classified as Remedial Sites and
pursuant to Section 3.2, Buyer shall be deemed to have deposited with the Remedial Site Escrow
Agent an amount equal to the lesser of (x) the Escrowed Funds and (y) two percent (2%) of the
portion of the Purchase Price attributable to the Remedial Sites. Such amount shall be held,
invested and disbursed pursuant to the terms of a Remedial Site Escrow Agreement in the form of
Exhibit B attached hereto (the “Remedial Site Escrow Agreement”). On the first Business Day of the
fourth (4th), seventh (7th), tenth (10th) and thirteenth
(13th) month following the month in which the Closing occurs or on any other date or
dates mutually agreed to by Buyer and Seller, with respect to all Remedial Sites, if any, which
have become a Cured Site in accordance with Section 6.9 (a “Subsequent Conveyance Date”) and which
have not yet been conveyed to Buyer, Buyer shall (i) cause Seller Sub to pay to Seller, by wire
transfer of immediately available funds an amount equal to the sum of (a) 98% of the aggregate
Remedial Site Amounts for all such Remedial Sites which became Cured Sites since the Closing Date
or the preceding Subsequent Conveyance Date and (b) an amount equal to the applicable Remedial Site
Apportionments Estimates relating to such Cured Sites (provided, that the terms and conditions of
Section 3.3(c) shall apply, mutatis mutandis, to any dispute or true-up of the Remedial Site
Apportionments), and (ii) instruct the Remedial Site Escrow Agent to release to Seller that portion
of the Escrowed Funds that is equal to 2% of the aggregate Remedial Site Amounts of all such
Remedial Sites which became Cured Sites since the Closing Date or the preceding Subsequent
Conveyance Date. On such Subsequent Conveyance Date all such Cured Sites shall be transferred and
conveyed to Seller Sub (or to another Person designated in writing by Buyer) pursuant to a bill of
sale, Special Warranty Deed or assignment and assumption agreement, as appropriate, and, in any
case, a “bring-down” certificate with respect to the Cured
Sites being conveyed, in each case identical in all material respects, mutatis mutandis, to
those delivered at Closing, and Buyer and Seller shall cause the Master Lease to be amended to
include such Cured Sites as assets leased thereunder. If Seller Sub fails to pay such amount or
direct the Remedial Site Escrow Agent to release such amount from the Escrowed Funds on the
applicable



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Subsequent Conveyance Date, Seller shall at its option then be entitled to withdraw such
amount pursuant to the Remedial Site Escrow Agreement. Any amount left on deposit with the
Remedial Site Escrow Agent under the Remedial Site Escrow Agreement after the twelve month
anniversary of the Closing Date, less any outstanding, unpaid portion of the Purchase Price
attributable to Remedial Sites that have become Cured Sites, shall thereafter be returned to Buyer
together with all earnings thereon, and the Purchase Price shall be correspondingly reduced by such
amount (other than with respect to such earnings).



     3.4 Purchase Price Allocation. Buyer and Seller shall mutually agree upon a statement
(the “Tax Allocation Schedule”) setting forth the value of the Assets, which shall be used for the
allocation of the Purchase Price (together with the Assumed Liabilities) among the Assets. Seller
and Buyer agree to report an allocation of such Purchase Price among the Assets in a manner
entirely consistent with the Tax Allocation Schedule and agree to act in accordance with such Tax
Allocation Schedule in the preparation of financial statements and filing of all Tax Returns
(including, without limitation, filing Internal Revenue Service Form 8594 with its federal income
tax return for the taxable year that includes the Closing Date) and in the course of any Tax audit,
Tax review or Tax litigation matter relating hereto.



     3.5 Closing. Unless this Agreement shall have been terminated pursuant to Section 8.1
and subject to the satisfaction or, to the extent permitted by Applicable Law, waiver of the
conditions set forth in Article 7 hereof, the closing (or if there are Remedial Sites, then the
initial closing) of the Transactions (the “Closing”) will take place, at 10:00 a.m., on the Closing
Date, at the offices of Edwards & Angell, LLP, 2800 Financial Plaza, Providence, Rhode Island 02903
on the Business Day that is the seventh (7th) Business Day after the date on which all of the
conditions set forth in Article 7 (other than those which require delivery of opinions or documents
at the Closing) shall have been satisfied or waived, unless another date, time or place is agreed
to in writing by the parties. The date on which the Closing occurs is herein referred to as the
“Closing Date.” At the Closing, each of the parties shall deliver such bills of sale, assignments,
Special Warranty Deeds, landlord consents, estoppels, assumptions of liabilities, opinions and
other instruments and documents as are described in this Agreement or as may be otherwise
reasonably requested by the parties and their respective counsel. At Closing, the Initial Purchase
Price shall be paid by (a) the Deposit Escrow Agent delivering to the Remedial Site Escrow Agent,
by wire transfer of immediately available funds or internal book entry, the amount of Escrowed
Funds determined in accordance with Section 3.3(d), (b) the Deposit Escrow Agent delivering to
Seller, by wire transfer of immediately available funds, the difference, if any, between (x) the
amount of Escrowed Funds and (y) the amount of Escrowed Funds deposited or deemed deposited with
the Remedial Site Escrow Agent pursuant to clause (a) above and (c) Buyer delivering to Seller, by
wire transfer of immediately available funds, the balance of the Initial Purchase Price. All
payments shall be made to such account (or accounts) in the United States as Seller shall designate
in written instructions to Buyer, the Deposit Escrow Agent and the Remedial Site Escrow Agent not later than two (2)
Business Days prior to the Closing.



ARTICLE 4

REPRESENTATIONS AND WARRANTIES OF SELLER




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     Seller hereby represents and warrants to Buyer as follows:



     4.1 Organization and Business; Power and Authority; Effect of Transaction.



     (a) Seller is a corporation duly organized, validly existing and in good standing under the
Laws of its jurisdiction of organization, has all requisite corporate power and authority to own or
hold under lease its properties and to conduct its business as now conducted and is duly qualified
and in good standing as a foreign corporation in each other jurisdiction in which the character of
the property owned or leased by it or the nature of its business or operations requires such
qualification, except for such qualifications the failure of which to obtain, individually or in
the aggregate, has not had and will not reasonably be expected to have a Material Adverse Effect.



     (b) Seller has all requisite corporate power and authority necessary to enable it to execute
and deliver, and to perform its obligations under, this Agreement and each Collateral Document
executed or required to be executed by it pursuant hereto or thereto and to consummate the
Transactions; and the execution, delivery and performance by Seller of this Agreement and each
Collateral Document executed or required to be executed by it pursuant hereto or thereto have been
duly authorized by all requisite corporate and stockholder action on the part of Seller. This
Agreement has been duly executed and delivered by Seller and constitutes, and each Collateral
Document executed or required to be executed by it pursuant hereto or thereto or to consummate the
Transactions when executed and delivered by Seller will constitute, legal, valid and binding
obligations of Seller, enforceable against Seller in accordance with their respective terms, except
as such enforceability may be subject to bankruptcy, moratorium, insolvency, reorganization,
arrangement, voidable preference, fraudulent conveyance and other similar Laws relating to or
affecting the rights or remedies of creditors and obligations of debtors generally and except as
the same may be subject to the effect of general principles of equity.



     (c) Except for compliance with any applicable requirements of the Hart-Scott-Rodino Act, and
the consents, authorizations and approvals set forth in Section 4.1(c) of the Disclosure Schedule
(collectively the “Required Consents”), neither the execution and delivery by Seller of this
Agreement or any Collateral Document executed or required to be executed by it pursuant hereto or
thereto, nor the consummation of the Transactions by Seller will conflict with or result in a
breach of any term, condition or provision of, or require the consent, authorization or approval
of, any Person or Authority, under:




          (i) any governing document of Seller or Seller Sub;




          (ii) any Law applicable to Seller or Seller Sub;




          (iii) any Tower Lease or Site Lease; or




          (iv) any Governmental Authorization set forth in Section 4.4(a) of the Disclosure
Schedule.



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     (d) Immediately prior to the Closing, Seller Sub will be a limited liability company duly
organized and validly existing under the laws of the State of Delaware, and will have all necessary
power and authority to own and operate the Assets as they are now being operated. A true and
complete copy of the Certificate of Formation and operating agreement of Seller Sub are attached
hereto as Exhibits E and F, respectively.



     4.2 Financial Information; Ordinary Course of Business; Absence of Events



     (a) Section 4.2(a) of the Disclosure Schedule contains a list of certain financial information
and cash flow reports (the “Cash Flow Reports”) relating to the Assets that have been previously
furnished by Seller to Buyer with respect to the cash flow of each of the Tower Sites. The Cash
Flow Reports are true and correct in all material respects. Section 4.2(a) of the Disclosure
Schedule contains the true and correct Tower Cash Flow of Seller with respect to each Tower Site as
of the Effective Date and has been calculated in accordance with the definition of Tower Cash Flow.



     (b) From January 1, 2005 to the date hereof, except as described on Section 4.2(b) of the
Disclosure Schedule and except in connection with effecting the Transactions, with respect to the
ownership and operation of the Assets, Seller has operated the Assets in the Ordinary Course of
Business, used its reasonable business efforts to maintain and preserve the Assets and has not
disposed of any of the Tower Assets, except for obsolescence and repairs and replacements in the
Ordinary Course of Business.



     (c) Since January 1, 2005, no Material Adverse Effect has occurred.



     4.3 Title to Properties; Real Property Leases.



     (a) Section 4.3(a) of the Disclosure Schedule sets forth a description of all Owned Sites
included in the Assets. Except as set forth on Section 4.3(a) of the Disclosure Schedule, Seller
has good and marketable title to all Owned Sites, and a valid leasehold interest in all leased real
property, and good and valid title to all tangible and intangible assets that are not interests in
real property comprising the Assets, free and clear of all Liens, except (i) Permitted Liens and
(ii) Liens set forth on Section 4.3(a) of the Disclosure Schedule, which Liens will be released
prior to Closing. As of the Closing Date to Seller’s knowledge, all of the transmitting towers,
ground radials, guy anchors, transmitting buildings and related improvements, if any, included in
the Assets and located on the Owned Sites are located entirely within the boundaries of the Owned
Sites on which they are located or the necessary easements for any material
encroachment have been obtained. There is no pending or, to Seller’s knowledge, threatened
legal proceeding to take by eminent domain any material part of any Owned Site included in the
Assets. The material items of tangible personal property included in the Assets, including,
without limitation, the ground radials, guy anchors, transmitting buildings and related
improvements and other material items of personal property are in a state of good repair and
maintenance, normal wear and tear excepted and are useable in the ordinary course of business
consistent with Seller’s past practice. Seller has full power, right and authority to assign and
contribute to Seller Sub good and valid title to the Assets, free and clear of all Liens except (i)
Permitted Liens and (ii) Liens set forth on Section 4.3(a) of the Disclosure Schedule which Liens
will be released prior to Closing.



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     (b) Section 4.3(b) of the Disclosure Schedule sets forth a description of all Site Leases and
Tower Leases included in the Assets. Except as otherwise set forth in Section 4.3(b) of the
Disclosure Schedule, each of the Site Leases and Tower Leases have been duly authorized, executed
and delivered by Seller and, to Seller’s knowledge, each of the other parties thereto, and is a
legal, valid and binding obligation of Seller, and, to Seller’s knowledge, each of the other
parties thereto, enforceable in accordance with its terms, except as such enforceability may be
limited by bankruptcy, moratorium, insolvency, reorganization and similar Laws affecting the rights
and remedies of creditors and obligations of debtors generally and except as the same may be
subject to the effect of general principles of equity. Except as set forth in Section 4.3(b) of
the Disclosure Schedule, Seller has a valid leasehold interest in and to (or with respect to any
licenses held by Seller, a valid right of use of) the real property encumbered by the Site Leases.
Furthermore, Seller enjoys peaceful and undisturbed possession of the real property encumbered by
the Site Leases. True, accurate and complete copies of each of the Site Leases and the Tower
Leases have been furnished by Seller to Buyer (and descriptions thereof have been as set forth in
Section 4.3(b) of the Disclosure Schedule with respect to those leases that are oral). Except as
set forth in Section 4.3(b) of the Disclosure Schedule, neither Seller, nor to the knowledge of
Seller, any other party to a Site Lease or Tower Lease, has violated in any material respect any
provision of, or committed or failed to perform any act that, with or without notice, lapse of time
or both, would constitute a default under the provisions of such Site Lease or Tower Lease. Except
as set forth in Section 4.3(b) of the Disclosure schedule, Seller has not received any
correspondence or notice from any counterparty to a Site Lease or Tower Lease giving notice of an
intention to terminate such agreement or of an intention not to renew any such agreement following
the expiration of the current term. There are no agreements to which a third party has the right
to market or lease space to any Person at a Tower Site pursuant to a marketing or management
agreement. There are no rights of first refusal or similar pre-emptive rights with respect to any
of the Tower Leases or Site Leases.



     4.4 Compliance with Governmental Authorizations and Applicable Law; Legal Actions.



     (a) Section 4.4(a) of the Disclosure Schedule sets forth a description of each Governmental
Authorization issued to Seller. To the Knowledge of Seller all of the Tower Sites have been
constructed and operated in accordance with all material Governmental Authorizations. Seller has
obtained all material Governmental Authorizations required under
applicable Law for Seller to own and operate the Assets. All such Governmental Authorizations
are valid and in full force and effect, and Seller is not in material breach or violation of any
such Governmental Authorizations, including without limitation with all lighting and marking
requirements imposed by the FAA and FCC. All reports, forms and statements required to be filed by
Seller with all Authorities with respect to its ownership and operation of the Assets have been
filed, except where the failure to do so would not reasonably be expected to have a Material
Adverse Effect. No such Governmental Authorization is the subject of any pending or, to Seller’s
knowledge, threatened challenge or proceeding to revoke or terminate any such Governmental
Authorization, or to fine or admonish Seller.



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     (b) Except as otherwise specifically set forth in Section 4.4(b) of the Disclosure Schedule,
Seller’s ownership and operation of the Assets is in accordance, in all material respects, with all
applicable Laws. Except as otherwise described in Section 4.4(b) of the Disclosure Schedule,
Seller is not in, and Seller has not received any written notice from any Authority alleging,
breach or violation of, or default in the performance, observance or fulfillment of, any applicable
Law relating to Seller’s ownership and operation of the Assets.



     (c) Except as set forth in Section 4.4(c) of the Disclosure Schedule, there are no Legal
Actions pending or, to Seller’s knowledge, threatened against Seller, and no Judgment outstanding,
in either case relating to Seller’s ownership or operation of the Assets.



     (d) There are no NOTAMs associated with any of the Tower Sites that have not been properly
closed or extended in accordance with applicable Law.



     (e) Seller has not received written notice of any condemnation or eminent domain proceedings
with respect to any Tower Site.



     (f) All improvements of Seller on each Tower Site are in compliance with applicable zoning,
wetlands, the National Historic Preservation Act and any related or similar Laws, land use Laws and
applicable title covenants, conditions, restrictions and reservations in all respects, except for
such exceptions as, individually or in the aggregate, have not had and are reasonably expected not
to have a Material Adverse Effect.



     4.5 Related Transactions. Seller is not a party or subject to any Contractual
Obligation relating to the ownership or operation of the Assets between Seller and any of its
officers or directors or any Affiliate, including without limitation any Contractual Obligation
providing for the furnishing of services to or by, providing for rental of property, real, personal
or mixed, to or from, or providing for the lending or borrowing of money to or from or otherwise
requiring payments to or from, any such Person, other than (a) Contractual Obligations between
Seller and any of the foregoing that will be terminated, at no cost or expense to Buyer, prior to
the Closing, or (b) as specifically set forth in Section 4.5 of the Disclosure Schedule.



     4.6 Utilities and Access. Except as set forth in Section 4.6 of the Disclosure
Schedule, (a) to the Knowledge of Seller, the utility services currently available to each Tower
Site are adequate for the present use of each such site by Seller
and are being supplied by utility companies with the necessary utilities for the present use
of each such site by Seller, and (b) Seller has obtained all easements and rights-of-way that are
reasonably necessary for ingress and egress to and from each Owned Site and each Tower Site that is
the subject of a Site Lease, and no action is pending or to the Knowledge of Seller threatened, nor
to the Seller’s Knowledge is any Event existing, which, individually or in the aggregate, would
have the effect of terminating or limiting such access.



     4.7 Tax Matters. Seller has timely filed all Tax Returns required to be filed and all
Taxes owed (whether or not shown or required to be shown on such Tax Returns) have been paid or
remitted. All such Tax Returns were true, complete and correct in all material respects and were
prepared in accordance with applicable Law. No portion of any Tax Return that relates to



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the
Assets is currently the subject of any audit, or Legal Action by any Taxing Authority, and no such
audit or Legal Action is, to the knowledge of Seller, threatened. Seller is not currently the
beneficiary of any extension of time within which to file any Tax Return with respect to the
Assets, and Seller has not waived any statute of limitation with respect to any Tax or agreed to
any extension of time with respect to a Tax assessment or deficiency with respect to the Assets.
There are no Tax Liens (other than Liens for Taxes not yet due and payable) on any of the Assets
that will not be paid prior to Closing or, to the knowledge of Seller any Lien, action, suit,
proceeding, investigation, audit, examination or assessment with regard to any Taxes that relate to
the Assets, or for which Buyer could be liable, or which could result in a Lien on any of the
Assets.



     4.8 Broker or Finder. No Person assisted in or brought about the negotiation of this
Agreement or the Transactions in the capacity of broker, agent or finder or in any similar capacity
on behalf of Seller, other than Daniels and Associates, whose fees and expenses will be paid by
Seller.



     4.9 Environmental Matters. Except as set forth in such Section 4.9 of the Disclosure
Schedule, (a) with regard to the Owned Sites included in the Assets:




          (i) Seller has not been notified in writing that it is potentially liable under, and,
to Seller’s knowledge, is not a “potentially responsible party” under, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, the Resource
Conservation Recovery Act, as amended, or any similar state Law;




          (ii) Seller has not entered into or received any consent decree, compliance order or
administrative order issued pursuant to any Environmental Law;




          (iii) Seller is not a party in interest or in default under any Judgment issued
pursuant to any Environmental Law;




          (iv) Seller is in material compliance with, and has, to Seller’s knowledge, obtained
all Environmental Permits required under Environmental Laws and has not received any written
notice that any Environmental Permit is not in full force and effect;




          (v) (A) there are no Hazardous Materials on, at, in or under any of the Tower Sites
that requires or, upon notification to an Authority, would require, remediation under

Environmental Law, and (B) the on-site operations of Seller at the Tower Sites have not, and
do not currently, involve the generation, transportation, treatment, recycling or disposal
of, hazardous waste, as defined under any Environmental Law, except for amounts that would
qualify a Site as a small quantity generator or a conditionally exempt small quantity
generator under any Environmental Law; and




          (vi) Seller is in compliance in all material respects with all Environmental Laws, and
is not the subject of any pending or, to Seller’s knowledge, threatened, Legal Action with
respect to violations or breaches of any Environmental Law; and



- 13 -









 





     (b) with regard to the Tower Sites included in the Assets and designated as leased sites in
Section 4.3(b) of the Disclosure Schedule (excluding any Rejected Sites), Seller:




          (i) Seller is not a party in interest or in default under any Judgment issued pursuant
to any Environmental Law;




          (ii) Seller is in material compliance with and has, to Seller’s knowledge, obtained all
Environmental Permits required under Environmental Laws, and has not received any written
notice that any Environmental Permit is not in full force and effect;




          (iii) (A) to Seller’s Knowledge there are no Hazardous Materials on, at, in or under
any of the Tower Sites that requires or, upon notification to an Authority, would require,
remediation under Environmental Law, and (B) the on-site operations of Seller at the Tower
Sites have not, and do not currently, involve the generation, transportation, treatment,
recycling or disposal of, hazardous waste, as defined under any Environmental Law, except
for amounts that would qualify a Site as a small quantity generator or a conditionally
exempt small quantity generator under any Environmental Law; and




          (iv) Seller is in compliance in all material respects with all Environmental Laws and
is not the subject of any pending or, to Seller’s Knowledge, threatened, Legal Action with
respect to violations or breaches of any Environmental Law; and




          (v) to Seller’s Knowledge, is unaware of any current material violations of
Environmental Laws committed by the owner of such leased Tower Sites.



     Copies of all environmental studies, surveys and reports commissioned by Seller and in
Seller’s possession, with respect to the Tower Sites, together with all agreements between Seller
and the Environmental Protection Agency relating to such Tower Sites, have been furnished to Buyer.



     4.10 Disclosure Schedule. Seller has delivered to Buyer a Disclosure Schedule which
includes numbered schedules corresponding to certain sections or subsections of this Agreement or
as otherwise specifically referred to in this Article 4. The representations and warranties of
Seller in this Article 4 are made and given subject to the
Disclosure Schedule. Inclusion of an item in the Disclosure Schedule or delivery of a

document pursuant to the Disclosure Schedule, this Agreement or any of the Collateral Documents is
not an admission of liability or materiality with respect to such item or document. Any reference
in the Disclosure Schedule to a contract, agreement, instrument, document, order, decree or
judgment shall be deemed to include a reference to all amendments and modifications thereof, if
any, so long as such amendments and modifications are or have been made available to Buyer as part
of its due diligence investigation.



     4.11 No Insolvency. Seller is not and, immediately prior to and following the
transfer of the Assets to Seller Sub will not be, insolvent, as determined under any applicable
bankruptcy, insolvency, fraudulent conveyance or similar Laws of any applicable jurisdiction.



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     4.12 Valid Transaction. Any transfer made by Seller of any right, title or interest
in or to the Assets does not and will not constitute a fraudulent conveyance under any applicable
Law. Without limiting the generality of the foregoing, Seller acknowledges and agrees that such
transfer is being made for a valid business purpose and for fair consideration. Seller has not
taken any action with the intent to hinder or delay payment to any of its creditors.



     4.13 Insurance. Seller maintains policies of title, liability, property and casualty,
fire, worker’s compensation and other forms of insurance (including bonds) that relate to the
Assets and which insure against risks and liabilities to an extent and in a manner customary in the
communications tower industry. All such insurance policies and binders are in full force and
effect. Seller has not received any notice of cancellation or non-renewal of any such policy or
binder. No insurance carrier has canceled or reduced any insurance coverage for Seller or has
given any notice or other indication of its intention to cancel or reduce any such coverage. Seller
has complied in all material respects with each of such insurance policies and binders, and has not
failed to give any notice or present any claim thereunder in a due and timely manner.



     4.14 Seller Sub.



     (a) Immediately prior to the Closing, (i) Seller will be the sole member of Seller Sub; (ii)
there will be no subscriptions, warrants, options, convertible securities, calls, rights,
contracts, understandings or commitments of any character obligating Seller Sub to issue, deliver
or sell any interest in Seller Sub to any Person; (iii) Seller will have satisfied all capital
calls, contribution requirements and similar obligations to make contributions or investments in
Seller Sub; and (iv) Seller Sub will not have any outstanding debt for borrowed money.



     (b) The Membership Interests will have been duly authorized and validly issued to and fully
paid for by Seller prior to Closing, and Seller will own the Membership Interests free and clear of
all Liens.



     (c) Seller has furnished to Buyer a true and complete copy of Seller Sub’s governing
documents, as amended to date. Such governing documents are in full force and effect.



     (d) Seller Sub has been formed for the sole purpose of consummating the transactions
contemplated by this Agreement. Prior to the contribution of the Assets pursuant hereto, Seller
Sub will not have (i) ever owned any interest in real property and (ii) ever owned a subleasehold
or sublicense interest as a sublessee or sublicensee in any real property.



     (e) Seller Sub has entered into no guarantees or similar obligations (including surety bonds
or letters of credit), including any guarantees or similar obligations relating to obligations or
liabilities of Seller or any Affiliate of Seller.



     (f) Seller Sub has no, and has never had, any (i) employees, (ii) employee pension benefit
plans; (iii) employee welfare benefit plans or (iv) any other employee benefit plans.



     (g) Seller Sub has no subsidiaries or any equity, partnership, limited liability company or
other ownership interest in any Person.



- 15 -









 





     (h) Seller Sub has not at any time in its existence been, and it is not currently, engaged in
any business, directly or indirectly. At all times during its existence Seller Sub has not owned
any other assets other than incidental personal property necessary for its existence. At all times
during its existence Seller Sub has maintained its books and records and bank accounts separate
from those of its members and Affiliates and from any other Person. At all times during its
existence, Seller Sub has held itself out to the public as a legal entity separate and distinct
from any other Person (including any of its members and Affiliates) and not as a department or
division of any Person. Seller Sub has at no time during its existence acquired, by purchase or
otherwise, any stock or beneficial ownership of, any Person.



     (i) Seller Sub is, and has always been, disregarded for federal income tax purposes and no
election has been made to change such status.



     4.15 Accounts Receivable Aging. Section 4.15 of the Disclosure Schedule sets forth a
true, complete and accurate list as of the end of the month immediately preceding the date hereof
of the total amounts of Seller’s accounts receivable relating to the Assets and the aging of such
accounts receivable based on the following schedule: 0-30 days, 31-60 days, 61-90 days and over 90
days.



ARTICLE 5

REPRESENTATIONS AND WARRANTIES OF BUYER 




     Buyer hereby represents and warrants to Seller as follows:



     5.1 Organization and Business; Power and Authority; Effect of Transaction.



     (a) Buyer is a limited liability company, is duly organized, validly existing and in good
standing under the Laws of its jurisdiction of organization, has all requisite power and
authority to own or hold under lease its properties and to conduct its business as now
conducted and is duly qualified and in good standing as a foreign limited liability company, in
each other jurisdiction in which the character of the property owned or leased by it or the nature
of its business or operations requires such qualification, except for such qualifications the
failure of which to obtain, individually or in the aggregate, have not had and will not reasonably
be expected to have a material adverse effect on Buyer.



     (b) Buyer has all requisite power and authority necessary to enable it to execute and deliver,
and to perform its obligations under, this Agreement and each Collateral Document executed or
required to be executed by it pursuant hereto or thereto and to consummate the Transactions; and
the execution, delivery and performance by Buyer of this Agreement and each Collateral Document
executed or required to be executed by it pursuant hereto or thereto have been duly authorized by
all requisite action on the part of Buyer. This Agreement has been duly executed and delivered by
Buyer and constitutes, and each Collateral Document executed or required to be executed by each of
them pursuant hereto or thereto or to consummate the Transactions when executed and delivered by
Buyer, will constitute, legal, valid and binding obligations of Buyer, enforceable in accordance
with their respective terms, except as such



- 16 -









 







enforceability may be limited by bankruptcy,
moratorium, insolvency and similar Laws affecting the rights and remedies of creditors and
obligations of debtors generally and by general principles of equity.



     (c) Except for any applicable requirements of the Hart-Scott-Rodino Act, neither the execution
and delivery by Buyer of this Agreement nor any Collateral Document executed or required to be
executed by it pursuant hereto or thereto, nor the consummation of the Transactions, by Buyer will
result in a breach under any term, condition or provision of, or require the consent, authorization
or approval of, any Person or Authority under:




          (i) any governing document of Buyer;




          (ii) any Law applicable to Buyer;




          (iii) any contract, agreement or governmental authorization to which Buyer is a
party or by which it is bound; or




          (iv) any order of any Authority applicable to Buyer or any of its properties or
assets.



     5.2 Financing. Buyer has, and at Closing will have, sufficient funds available to pay
the Purchase Price and to satisfy all of its obligations under this Agreement.



     5.3 Broker or Finder. No agent, broker, investment banker, financial advisor other
firm or Person engaged by or on behalf of Buyer or any of its Affiliates is or will be entitled to
a fee or commission in connection with the Transactions.



     5.4 Legal Actions. There are no Legal Actions pending or, to Buyer’s knowledge,
threatened against Buyer which would prevent Buyer from consummating the Transactions.



ARTICLE 6

COVENANTS




     6.1 Access to Information.



     (a) Seller shall afford Buyer and its accountants, counsel, consultants, financial advisors,
and other representatives (collectively, the “Representatives”) access during normal business hours
throughout the period prior to the Closing Date to its (x) properties, books, contracts, studies
and reports, environmental studies and reports, commitments and records as it reasonably requests
to the extent such documents relate to the Assets or Seller Sub, and Buyer shall be permitted to
make extracts and copies of such books and records; provided that such access shall not interfere
with the normal business operations of Seller and (y) officers and other senior management
personnel who have oversight responsibility for the Assets. All Confidential Information furnished
pursuant to the provisions of this Agreement, including without limitation this Section, will be
kept confidential by Buyer in accordance with the terms and conditions of



- 17 -









 







the Confidentiality
Agreement dated as of October 22, 2004 between Buyer and Daniels & Associates, L.P., on behalf of,
and as agent for, Seller (the “Confidentiality Agreement”).



     (b) In the event that this Agreement is terminated in accordance with its terms, Buyer shall
(and Buyer shall cause its Representatives to) upon the written request of Seller promptly return
all written Confidential Information provided pursuant to this Section or any other provision of
this Agreement or otherwise in connection with the Transactions and shall not retain any copies,
extracts or other reproductions in whole or in part of such written material, other than one copy
thereof which shall be delivered to independent counsel for such party and Buyer and its
Representatives shall continue to be bound by the provisions of Section 6.1(a) and the
Confidentiality Agreement.



     6.2 Agreement to Cooperate; Certain Other Covenants.



     (a) Each of the parties hereto shall use its commercially reasonable efforts to take, or cause
to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable
under applicable Law to consummate the Transactions, including using its commercially reasonable
efforts (i) to prepare and file with the applicable Authorities as promptly as practicable after
the execution of this Agreement all applications and amendments thereto, together with related
information, data and exhibits, necessary to request issuance of all requisite orders approving the
Transactions by all such applicable Authorities, (ii) to obtain all necessary or appropriate
waivers, consents and approvals, (iii) to effect all necessary registrations, filings and
submissions (including, without limitation, filings within twenty (20) Business Days of the date of
this Agreement under the Hart-Scott-Rodino Act and all filings necessary for Buyer to own the
Membership Interests), (iv) to lift any injunction or other legal
bar to the Transactions (and, in such case, to proceed with the Transactions as expeditiously
as possible), and (v) to obtain the satisfaction of the conditions specified in Article 7 at the
earliest practicable date.



     (b) The parties shall cooperate with one another in the preparation of all Tax Returns,
questionnaires, applications or other documents regarding any Taxes or transfer, recording,
registration or other fees which become payable in connection with the Transactions that are
required to be filed on or before the Closing Date.



     (c) Buyer shall promptly provide to Seller all information reasonably required by third
parties as a condition to their consent to the Transactions.



     (d) As soon as reasonably practicable after Closing, but in no event later than thirty (30)
days after the Closing Date, Buyer shall make all required filings with the Authorities to reflect
the changed ownership of the Assets.



     (e) To the extent legally permitted (in Seller’s counsel’s opinion) and reasonably necessary
for Seller Sub’s operation of the Assets after Closing, during the six (6) month period following
Closing Seller shall use its commercially reasonable efforts to give Seller Sub the benefit of the
Excluded Governmental Authorizations to the extent that Buyer was unable to obtain replacements of
such Excluded Governmental Authorizations in its own name or in the



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name of Seller Sub prior to
Closing. During such six (6) month period Buyer shall use its commercially reasonable efforts to
obtain such replacement authorizations at its expense and shall, on a monthly basis, reimburse
Seller for any direct expenses incurred by Seller in giving Seller Sub the benefit of such Excluded
Governmental Authorizations. Seller’s obligation hereunder shall automatically terminate upon the
earlier of (i) Seller’s counsel’s determination that Seller is likely to be in violation of Law if
it continues to perform its obligations under this Section 6.2(e), and (ii) the expiration of the
above-referenced six (6) month period.



     6.3 Public Announcements. Until the earlier of Closing or the termination of this
Agreement, each party shall consult with the other before issuing any press release or otherwise
making any public statements with respect to this Agreement or the Transactions and shall not issue
any such press release or make any such public statement without the prior written approval of the
other, which approval shall not be unreasonably withheld or delayed. Notwithstanding the
foregoing, the parties acknowledge and agree that they may, without each other’s prior consent,
issue such press releases or make such public statements as may be required by applicable Law, in
which case the issuing party shall use all commercially reasonable efforts to consult with the
other party and agree upon the nature, content and form of such press release or public statement.



     6.4 Notification of Certain Matters. Each party shall give prompt notice to the other
of (a) any material breach of any representation or warranty made by it in this Agreement or (b)
its failure to comply with or satisfy, in any material respect, any covenant, condition or
agreement under this Agreement; provided, however, that the delivery of any notice pursuant to this
Section shall not (i) limit or otherwise affect the rights and remedies available hereunder to the
party receiving such notice or
the obligations of the party delivering such notice, (ii) be deemed to be an admission by the
party delivering such notice and (iii) affect the representations, warranties, covenants and
agreements of the parties or the conditions to their respective obligations under this Agreement
unless the other party accepts such notice, in which case the Disclosure Schedule will be updated
accordingly. Notwithstanding the immediately preceding sentence, nothing herein shall be deemed to
alter or modify the provisions of Section 6.8 or Section 6.9.



     6.5 Conduct of Business by Seller Pending the Closing. Except as set forth in Section
6.5 of the Disclosure Schedule or as otherwise required or expressly permitted by this Agreement,
after the date hereof and prior to the Closing Date or the earlier termination of this Agreement,
unless Seller complies with the last paragraph of this Section 6.5, Seller shall:



     (a) Operate the Assets in the Ordinary Course of Business which shall include, without
limitation, (i) keeping each of the Tower Assets free of debris and excessive vegetation and in
good commercial working order (including all gates, work, doors, locks and fences), and (ii) not
taking any action or failing to take any action which would reasonably be expected to result in a
NOTAM;



     (b) comply, in all material respects, with applicable Laws, including, without limitation,
Environmental Laws;



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     (c) not sell, lease, license, pledge, dispose of or encumber the Membership Interests or any
of the Tower Sites, or, except in the Ordinary Course of Business or as permitted by this
Agreement, any material properties or assets included in the Assets;



     (d) use its commercially reasonable efforts to preserve intact the goodwill and business
relationships with lessees under the Tower Leases and landlords under the Site Leases;



     (e) maintain (i) the Assets in their current condition, ordinary wear and tear excepted and
(ii) insurance on the Assets in such amounts and against such risks and losses as are consistent
with Seller’s current practice;



     (f) not increase (i) the number, size or weight of Seller’s or any of its Affiliate’s
equipment on any Tower Site or Tower Structure, including, without limitation, coaxial cables,
wires, lines, conduits, antennae, dishes, microwave dishes, mounting structures, frames, panels and
other similar equipment at such Tower Site or Tower Structure, or (ii) Seller’s or its Affiliate’s
use of ground space or space on mounting assemblies on any Tower Site or Tower Structure, in the
case of each of the foregoing restrictions, beyond such levels as they existed at a particular
Tower Site or Tower Structure as of the date of this Agreement;



     (g) not enter into, modify, amend or terminate in any material respect any contracts,
arrangements, understandings or arrangements that will adversely affect any of the Assets
(excluding any Rejected Sites), including but not limited to any Governmental Authorization, Site
Lease or Tower Lease;



     (h) use its commercially reasonable efforts to maintain, in accordance with past practice,
relations with the suppliers, agents, lessees and any others having business relations relating
primarily to the Assets;



     (i) adhere to current practice with respect to collection of accounts relating primarily to
the Assets and collect accounts receivable relating primarily to the Assets;



     (j) not add, change or modify any equipment on any Tower Structure outside of the Ordinary
Course of Business;



     (k) not incur or assume any indebtedness for borrowed money or guarantee any such obligations
to the extent such indebtedness or obligations would constitute an Assumed Liability;



     (l) not make changes in Tax practices relating to the Assets except as may be required under
applicable Law or GAAP;



     (m) not fail to pay when due any liability that, if unpaid, would become a Lien upon any of
the Assets;



     (n) not remove from any Tower Site any article of personal property included in the Assets
except as may be necessary for repairs, or the discarding of worn out or useless items, provided,
however, that any article removed for repairs shall be returned to such Tower Site



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promptly upon
its repair and shall remain a part of the Assets whether such article shall be located on such
Tower Site at the time of the applicable Closing, and any article so discarded shall be replaced
with a new article of similar quality and utility;



     (o) not to undertake or commence any renovations or alterations on the Assets outside of the
Ordinary Course of Business, except those necessary to comply with any of the provisions of this
Agreement;



     (p) not apply any of the security deposits relating to the Tower Leases, whether to a default
of a tenant or otherwise;



     (q) promptly notify Buyer in writing of any event, circumstance or condition of which such
Seller obtains knowledge following the Effective Date that would reasonably have been expected to
have a Material Adverse Effect;



     (r) terminate all management or marketing agreements relating to any Tower Site; and



     (s) not agree or commit to take any of the actions prohibited by this Section 6.5.



     In the event that Seller desires to take any of the actions prohibited by the provisions of
this Section, it shall give prompt written notice to Buyer, referring to the provisions of this
Section. In the event that Buyer does not object in writing to the taking of such action (within
five (5) Business Days of receipt of such notice (which shall include a reasonable description of
such proposed action and the reason for it), Seller shall have the right to take such action;
provided that such waiver shall be deemed an approval by Buyer for the specific requested action
only and not any future actions, even if similar in nature.



     6.6 Environmental Site Assessments; Title Commitments and Surveys.



     (a) As promptly as practicable after the execution of this Agreement, but in no event later
than ninety (90) days after the date of this Agreement, Buyer may, at its own cost and expense,
enter upon, inspect, investigate and conduct legal, financial, business, environmental, technical
and any other due diligence that Buyer determines is reasonably necessary with respect to the
Assets, including without limitation obtaining a Phase I environmental report, a title commitment
to issue standard ALTA title insurance and/or a survey on any Owned Site included in the Assets,
and/or a structural survey of a structural engineer on any Tower Structure included in the Assets.
Environmental site assessments, title commitments and surveys shall be conducted by such
consultants and professionals as are reasonably acceptable to Seller and Buyer, and access to the
Tower Sites shall be arranged for times mutually convenient to the parties, and to the extent
involving Tower Structures situated on land which is the subject of a Site Lease, in accordance
with and subject to the restrictions of any such Site Lease. Each of Seller and Buyer shall be
entitled to have representatives present at the time such activities are conducted and Buyer shall
provide to Seller, within three (3) days after receipt or issuance of the same, a complete and
accurate copy of each such environmental report, title commitment and/or surveys, and any updates
thereto, in both draft and final form. Buyer shall not, and Buyer shall cause Buyer’s
Representatives to not, conduct any subsurface investigation or otherwise engage in any



- 21 -









 







soil
disturbance without the prior express written consent of Seller, which consent may be withheld in
its sole discretion. Buyer shall restore any Tower Site to its present condition in the event
Buyer or any of Buyer’s Representatives causes any damage thereto. In addition, Buyer agrees to
indemnify and hold harmless Seller for any physical damage to the Tower Sites and personal injury
resulting from Buyer’s and/or any of its Representatives’ entry onto or activities on the Tower
Sites.



     (b) Seller shall furnish Buyer access to all reports, documents, records and information in
its possession as Buyer may reasonably request to permit Buyer to perform its due diligence
investigation with respect to the Assets, including without limitation, the Due Diligence Items.



     6.7 Defective Sites. Buyer shall promptly, and in any event no later than (x) in the
case of Defects of the type described in clause (b) of the definition thereof which were not
disclosed to Buyer prior to Closing and which could not reasonably have been discovered by Buyer
prior to Closing (each, a “Post-Closing Structural Defect”), ninety (90) days after Closing, (y) in
the case of Defects of the type described in clause (d) of the definition thereof, nine (9) days
prior to the Closing Date and (z) in the case of any other Defect, ninety (90) days after the date
of this Agreement, deliver to Seller written notice of any Defect in respect of an Asset (a “Defect
Notice”). Each such Defect Notice shall (i) identify the relevant Assets and (ii) include both a
reasonably detailed description of the facts giving rise to the Defect and copies of all supporting
documents evidencing the existence of such Defect. A failure by Buyer to notify Seller of a Defect
in respect of an Asset within the applicable time
period shall constitute a waiver by Buyer of its right to claim such Defect, and Seller shall
no longer be obligated to provide any Buyer Indemnified Party with any right of indemnification or
other recovery with respect to such Defect and any loss or liability arising from or relating to
such Defect, all applicable representations, warranties and covenants contained herein shall be
deemed modified solely to reflect the existence of such Defect, and such Defect shall be deemed to
be an Assumed Liability; and provided, further, that except as set forth in Section 7.1(d), in no
event shall the existence of a Defect entitle Buyer to delay the Closing Date, unless otherwise
agreed by Seller.



     6.8 Accepted Sites; Rejected Sites; Remedial Sites.



     (a) On or prior to the tenth (10th) day prior to the Closing Date, Buyer may elect,
by notice in writing to Seller, to waive the Defect(s) identified in any prior Defect Notice and
consent to the contribution of such Defective Site (which Defective Site shall thereafter be
designated an Accepted Site) to Seller Sub, in which case (a) there shall be no reduction made to
the Purchase Price pursuant to Section 3.1 with respect to such Accepted Site and all pertinent
Tower Related Assets, (b) the certificate to be delivered by Seller pursuant to Section 7.2(a)
shall be modified to qualify the representations and warranties of Seller accordingly, and (c)
Seller shall no longer be obligated to provide any Buyer Indemnified Party with any right of
indemnification or other recovery with respect to the Defect(s) accepted by Buyer and any loss or
liability arising from or relating to such Defect(s). Accepted Sites shall be contributed to
Seller Sub subject to both the applicable Defect and any Permitted Liens.



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     (b) With respect to the Defects identified in a Defect Notice (other than Post-Closing
Structural Defects, to which this clause (b) shall not apply) that have not been cured in
accordance with Section 6.9 prior to eight (8) days before the Closing Date, Seller shall have the
right to designate five (5) days prior to the Closing Date, by notice in writing to Buyer, any such
Defective Site as (A) a Rejected Site or (B) an Asset which shall be retained by Seller pending
cure of the applicable Defect in accordance with Section 6.9 (a “Remedial Site”). Assets
designated as either Remedial Sites or Rejected Sites shall be placed in Section 6.8(b) of the
Disclosure Schedule, will not be transferred to Buyer at the initial Closing, and the Purchase
Price shall be adjusted as provided in Section 3.1.



     (c) With respect to Post-Closing Structural Defects identified in a Defect Notice and that are
not cured prior to the expiration of the applicable Cure Period, Buyer shall have the right to
designate, within thirty (30) days after the expiration of the applicable Cure Period, by written
notice to Seller, any such Defective Site as a Rejected Site and to return such Defective Site to
Seller, and Buyer shall be entitled to receive from Seller a refund of the portion of the Purchase
Price attributable to such Defective Site together with any direct site expenses paid by Buyer
(subject to Seller’s receipt from Buyer of reasonably detailed supporting documentation) with
respect to such Defective Site from the period after the Closing Date until the date of return of
such Defective Site (the “Interim Period”), minus the sum of the aggregate amount of rental income
collected by Buyer during the Interim Period and the aggregate amounts paid by Seller to Buyer
under the Master Lease with respect to such Defective Site during the Interim Period.
Buyer and Seller shall cause the Master Lease to be amended to remove such Defective Site as a
site leased thereunder.



     (d) If either any Cash Flow Reports delivered by Seller pursuant to the terms of this
Agreement indicate, or Buyer discovers during the ninety (90) day period following the date hereof
that, the Tower Cash Flow with respect to a Tower Site is less than the Tower Cash Flow for such
Tower Site set forth on Section 4.2(a) of the Disclosure Schedule, Buyer shall give notice of such
difference to Seller (“Buyer Tower Cash Flow Notice”). In the event that the amount of the Tower
Cash Flow discrepancy with respect to any Tower Site is less than or equal to *****, the Purchase
Price attributable to such Tower Site shall be reduced by an amount equal to product of (x) the
Purchase Price Cash Flow Multiple, and (y) the difference between the Tower Cash Flow for such
Tower Site set forth on Section 4.2 of the Disclosure Schedule and the actual Tower Cash Flow with
respect to such Site. In the event that the amount of the Tower Cash Flow discrepancy with respect
to any Tower Site is greater than *****, Seller may, at is option, either (i) reject the applicable
Assets pursuant to Section 6.8(b) or (ii) reduce the Purchase Price attributable to such Tower
Site(s) by an amount for each such Tower Site equal to product of (x) the Purchase Price Cash Flow
Multiple, and (y) the difference between the Tower Cash Flow for such Tower Site set forth on
Section 4.2 of the Disclosure Schedule and the actual Tower Cash Flow with respect to such Site;
provided, however, that in either instance, the Purchase Price for such Tower Site(s) shall not be
so reduced and such site shall not be rejected if Seller provides to Buyer on or before the date
that is two (2) days prior to Closing, evidence reasonably satisfactory to Buyer that the actual
Tower Cash Flow for a Site is not less than the amount set forth in Section 4.2 of the Disclosure
Schedule. Each Buyer Tower Cash Flow Notice shall include Buyer’s calculation of the actual Tower
Cash Flow with respect to the applicable Tower Site and applicable work papers and supporting
papers with respect thereto.



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     6.9 Cure Period. Seller shall have the right, at any time up and until the day that
is twelve (12) months after the Closing Date (or, in the case of Post-Closing Structural Defects,
the date on which Seller receives the applicable Defect Notice) (the “Cure Period”), to cure
Defects that exist with respect to the Defective Sites and which have been identified pursuant to
Section 6.7. Seller agrees to use its commercially reasonable efforts to cure such Defects during
the Cure Period, and Buyer shall use commercially reasonable efforts to cooperate with Seller in
its efforts to cure such Defects, at no cost to Buyer. Seller shall provide Buyer with written
notice (a “Cure Notice”) of any proposed cure effected with respect to a Defective Site. The Cure
Notice shall (a) describe in reasonable detail the curative action taken (and shall include a copy
of any instrument, document or other writing which evidences the curative action taken) in respect
of such Cured Site and (b) if such Cure Notice is delivered to Buyer after the Closing Date,
include a written good faith estimate of the amount of the Apportionments (the “Remedial Site
Apportionments Estimate”) calculated in accordance with Section 3.3(a) (based on the applicable
Subsequent Conveyance Date rather than the Closing Date) with respect to such Cured Site and
supported by Support Documents supporting such Apportionments. Any such Remedial Site
Apportionments Estimate shall be accompanied by a certificate of the type specified in Section
3.3(b). If Buyer shall conclude that the curative actions taken with respect to a Defective Site
are insufficient to cure the applicable Defect(s), Buyer shall, within thirty (30) days after its
receipt of the applicable Cure Notice (such thirty (30) day period being referred to as the “Cure
Notice Response Period”), deliver to Seller a reasonably detailed written statement of its
objections, together with all supporting
documentation. Buyer and Seller shall use good faith efforts to jointly resolve any
disagreement with respect to the effectiveness of curative actions within twenty (20) days of
Seller’s receipt of Buyer’s written statement of its disagreement with respect to a Cure Notice,
which resolution, if achieved, shall be binding upon the parties and not subject to further dispute
or review. In the event Buyer and Seller are unable to resolve their disagreement within such
twenty (20) day period, then either party may request that the matter be settled by arbitration
proceedings in accordance with Section 10.15(b). If Buyer fails to so notify Seller of any
disagreements with respect to a Cure Notice, or if Buyer notifies Seller of its agreement that
curative actions taken with respect to a Defective Site are sufficient to cure the applicable
Defect(s), or upon an arbitrator’s agreement that curative actions taken with respect to a
Defective Site are sufficient to cure the applicable Defect(s), then such Defective Site shall be
considered to be a “Cured Site”, and such Cured Site will be transferred to Seller Sub on the
applicable Subsequent Conveyance Date using the Apportionments based on the Remedial Site
Apportionments Estimate. A Cured Site shall become part of the Assets to be contributed to Seller
Sub prior to Closing (or after Closing in accordance with Section 3.3(d), if such Asset has become
a Cured Site after the Closing Date). Any Remedial Sites which have not become Cured Sites prior
to the expiration of the Cure Period shall automatically become Rejected Sites (unless Seller and
Buyer agree otherwise), and all obligations of Buyer and Seller under this Section 6.9 shall
terminate, and the Remedial Site Escrow Agent shall return to Buyer any amounts left on deposit
under the Remedial Site Escrow Agreement.



     For the purposes of this Section 6.9 and subject to the dispute resolution procedure set forth
in this Section 6.9, the term “Cure” shall mean, with respect to any Defect: (i) with respect to
any Defect relating to a title matter, Seller will procure for the benefit of Buyer an irrevocable
commitment from a title company to insure against any and all loss incurred or that may be incurred
by Buyer as a result of such Defect (with all costs and expenses relating to curing such



- 24 -









 







Defect and
obtaining such commitment to be paid by Seller; the actual cost of such title insurance to be paid
by Buyer); (ii) as determined in Buyer’s reasonable discretion, Seller agrees, in writing, either
to reimburse Buyer (or provide Buyer with a credit against the Purchase Price at the applicable
Closing) an amount equal to the cost to repair the Defect or the actual loss in the value of the
Asset as a result of the Defect; (iii) with respect to any Defect relating to any Tower Lease as
described in Section (e) of the definition of Defect, Seller either signs a new lease with the
counterparty to such Tower Lease or agrees to reduce the Purchase Price attributable to such Tower
Site in accordance with the methodology set forth in Section 6.8(d); or (iv) Seller has taken any
other action with respect to the Defect that causes such condition or matter to no longer
constitute a Defect, as determined in Buyer’s reasonable discretion.



     6.10 Relocation of Tower Light Controllers. Buyer agrees that within one hundred
eighty (180) days after Closing, Buyer will, or will cause Seller Sub to, relocate or cause to be
relocated to a location elsewhere at the applicable Tower Site, at Buyer’s sole cost and expense,
any tower marking and light controllers and related equipment located within any equipment shelter
which is an Excluded Asset. During such time period Seller shall continue to power and cause all
such tower light controllers to remain lit in accordance with the terms of the Transition Services
Agreement. Such relocation shall be performed by a qualified contractor in a workmanlike manner
without any interference, damage or destruction to any other equipment, structures or operations of
Seller or any other Person (and Buyer will reimburse Seller for the costs of remedying any such
interference, damage or destruction occasioned by such relocation, if applicable).



     6.11 Supplemental Disclosure. Seller shall promptly from time to time prior to the
Closing Date supplement in writing the Disclosure Schedule with respect to any event, matter,
condition or circumstance that, if existing or known as of the date of this Agreement, would have
been required to be set forth or described in the Disclosure Schedule (collectively, the
“Updates”); provided, that no Update shall be deemed to cure any violation or breach of any
representation, warranty, covenant or agreement of Seller made in this Agreement unless Buyer
explicitly consents in writing to any such Update within ten (10) Business days after Buyer’s
receipt thereof. Notwithstanding the foregoing, any update to Section 4.2(a) of the Disclosure
Schedule that results in an adjustment of the Purchase Price as contemplated by Section 6.8(d)
shall be deemed to cure the violation or breach of the representations and warranties set forth in
Section 4.2(a) hereof that relate to such adjustment and Buyer shall have no right of indemnity for
any such violation or breach relating to such adjustment.



     6.12 Contribution to Seller Sub. Seller shall contribute the Assets to Seller Sub
immediately prior to Closing, and Seller shall use its commercially reasonable efforts to obtain
all consents and give all notices necessary to do so and shall furnish copies of such consents and
notices to Buyer.



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     6.13 No Shop.



     (a) Prior to the Closing, Seller shall not (and shall cause its Affiliates to not), directly
or indirectly, sell, agree to sell, solicit inquiries or proposals or furnish any information with
respect to, or initiate or participate in any negotiations or discussions whatsoever concerning any
acquisition or purchase of, (i) any or all of the Assets, except as otherwise permitted by this
Agreement, and (ii) the Membership Interests (collectively, a “Third-Party Proposal”). During such
period, Seller shall promptly inform Buyer of the occurrence of a Third-Party Proposal and the
terms thereof (including the identity of the prospective purchaser or soliciting party).



     (b) If Seller or any of its Affiliates breaches or threatens to commit a breach of, any of the
provisions of Section 6.13(a), Buyer shall have the right (in addition to any other rights and
remedies available to Buyer at law or in equity) to equitable relief (including injunctions)
against such breach or threatened breach, it being acknowledged and agreed that any such breach or
threatened breach will cause irreparable harm to Buyer and that money damages would not be an
adequate remedy to Buyer.



     6.14 Casualty Losses Relating to the Assets. In the event that there shall have been
suffered between the date hereof and the Closing any loss or damage relating to the Assets, Seller
will promptly notify Buyer of such event. Buyer shall elect, at its option, either to (a) cause
Seller to repair, rebuild or replace the portion of the Assets damaged, destroyed or lost prior to
the Closing Date at Seller’s cost and expense, or (b) cause Seller to assign to Buyer at Closing
all claims to insurance proceeds or other rights (the “Casualty Claims”) of Seller against third
parties arising from such casualty
loss. To the extent any Casualty Claim is not assignable, such claim may be pursued by Buyer
or Seller Sub after Closing, for its own account and benefit, in the name of Seller, and Seller
shall cooperate with Buyer and Seller Sub with respect to pursuing such Casualty Claim. Buyer must
make its election within five (5) days of being advised by Seller of the occurrence of any such
loss or damage, and if Buyer fails to timely make such election, Seller may make such election for
Buyer.



     6.15 Limited Right of First Refusal. For a period of twelve (12) months after the
Closing Date, Seller hereby agrees that it will notify Buyer in writing if Seller determines that
it desires to sell to an unaffiliated third party any additional Tower Structures and Tower Related
Assets. For sixty (60) days after the date of Seller’s written notice to Buyer, Buyer shall have a
right of first refusal to acquire the Tower Structures and Tower Related Assets in question on the
same terms and for the same Purchase Price Cash Flow Multiple that are contained in this Agreement.
Buyer hereby agrees to promptly notify Seller in writing upon its determination that it does not
wish to exercise the foregoing limited right of first refusal. Upon the earlier of Seller’s
receipt of Buyer’s written notice indicating that it will not exercise its limited right of first
refusal and the expiration of the above-referenced sixty (60) day period, Seller shall be free to
sell the Tower Structures and Tower Related Assets in question to a third party.



     6.16 Transition Services. On the Closing Date, Seller Sub and Seller shall enter into
a transition services agreement in form and substance reasonably acceptable to Buyer and Seller
(the “Transition Services Agreement”).



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     6.17 Cash Flow Reports. Seller will deliver to Buyer as soon as possible, but in any
event within ten (10) days after the end of each month (commencing with the month of April, 2005)
through the month of Closing, a Cash Flow Report relating to the Assets as of the end of such month
that fairly presents the cash flows of the Assets as of the end of such month.



     6.18 Form of Tenant Lease. To the extent that Seller proposes to enter into any new
Tower Lease between the Effective Date and any applicable Closing Date, Seller shall use a form of
tenant lease agreement in substantially the form attached hereto as Exhibit D and shall submit each
such new Tower Lease to Buyer for its approval, which approval shall not be unreasonably withheld,
delayed or conditioned. Buyer will review all proposed new Tower Leases and either approve or
reject (in Buyer’s reasonable discretion) such new Tower Leases within ten (10) Business Days
following Buyer’s receipt thereof. If Buyer approves, or does not deliver written notice to Seller
of its rejection of the proposed new Tower Lease within such ten (10) Business Day period, Buyer
will be deemed to have consented to the proposed new Tower Lease and Seller may enter into the
proposed new Tenant Lease.



     6.19 Pre-Closing Inspection. Prior to the applicable Closing, Seller shall afford
Buyer and its Representatives reasonable access to each of the Tower Sites to ensure that Seller
has complied with its obligations set forth in Section 6.5.



ARTICLE 7

CLOSING CONDITIONS




     7.1 Conditions to Obligations of Each Party. The respective obligations of each party
to consummate the Transactions shall, except as hereinafter provided in this Section, be subject to
the satisfaction at or prior to the Closing Date of the following conditions, any or all of which
may be waived, in whole or in part, to the extent permitted by applicable Law:



     (a) As of the Closing Date, no Legal Action shall be pending before any Authority seeking to
enjoin, restrain, prohibit or make illegal the consummation of the Transactions or the Other
Transactions or to obtain substantial damages with respect to the consummation of the Transactions
or the Other Transactions, and there shall not be in effect any order, injunction, judgment decree,
ruling or arbitration award of a Authority of competent jurisdiction restraining, enjoining or
otherwise prohibiting the consummation of the Transactions or the Other Transactions;



     (b) Any waiting period (and any extension thereof) applicable to the consummation of the
Transactions or the Other Transactions under the Hart-Scott-Rodino Act shall have expired or early
termination shall have been granted;



     (c) Except with respect to the Hart-Scott-Rodino Act (which is addressed in Section 7.1(b))
all authorizations, consents or approvals required to be obtained from all Authorities prior to the
consummation of the Transactions and the Other Transactions, shall have been obtained from all such
Authorities, except for such authorizations, consents and approvals the failure to obtain would not
reasonably be expected to have a Material Adverse Effect;



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     (d) No more than forty percent (40%) of the Tower Sites and Tower Structures under this
Agreement and the Other Purchase Agreement, taken in the aggregate, have been designated as either
Rejected Sites or Remedial Sites



     (e) All of the closing conditions contained in Article 7 of the Other Purchase Agreement shall
have been satisfied or waived in accordance with the terms thereof, and the initial closing of the
Other Transactions shall be occurring simultaneously with the Closing hereunder; and



     (f) The Escrow Agent shall have executed and delivered the Remedial Site Escrow Agreement, if
applicable.



     7.2 Conditions to Obligations of Buyer. The obligation of Buyer to consummate the
Transactions shall be subject to the satisfaction of the following conditions, any or all of which
may be waived, in whole or in part, by Buyer:



     (a) (i) The representations and warranties of Seller contained in this Agreement shall be true
and correct in all material respects at and as of the Closing Date with the same force and effect
as though made on and as of such date; provided, however, that for the purpose of determining the
accuracy of such representations and warranties that are already qualified by materiality
(including by reference to “Material Adverse Effect”), such representations and warranties shall be
true and correct in all respects; (ii) each and all of the agreements and covenants to be performed
or satisfied by Seller hereunder at or prior to the Closing Date shall have been duly performed or
satisfied in all material respects; and (iii) Seller shall have furnished Buyer with a certificate
of an officer of Seller to the effect that each of the conditions specified in this Section 7.2(a)
is satisfied;



     (b) Since the date of this Agreement, there shall not have been any event, change,
circumstance or occurrence that has had or could reasonably be expected to have a Material Adverse
Effect;



     (c) Seller shall have delivered to Buyer a duly executed counterpart to a master tower lease
agreement relating to the use by Seller of the Assets, including schedules thereto relating to each
such tower, substantially in the form attached hereto as Exhibit C and made a part hereof (the
“Master Lease”);



     (d) Seller shall have delivered to Buyer a duly executed counterpart to the Transition
Services Agreement;



     (e) Seller shall have delivered the Membership Interests to Buyer;



     (f) Seller shall have delivered to Buyer each of the following executed documents, each in
customary form reasonably acceptable to Buyer:



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          (i) a contribution agreement evidencing the contribution of the Assets (other than
those relating to Rejected Sites or Remedial Sites) to Seller Sub and the assumption by
Seller Sub of the Assumed Liabilities; and




          (ii) Special Warranty Deeds conveying to Seller Sub the Owned Sites, in forms
acceptable for recording in the state and county where each applicable Owned Site is
located, together with such other forms as may be required to record such deeds;




          (iii) Any reasonable and customary affidavits reasonably required by, and satisfactory
to, the title company in order that an owner’s title insurance policy and any leasehold
title insurance policy may be issued free and clear of the standard exceptions which a title
company is permitted by applicable law to remove or modify upon delivery of such affidavits;




          (iv) A copy of resolutions of the board of directors of Seller authorizing the
execution, delivery and performance of this Agreement and the other Collateral Documents by
Seller, and an officer’s certificate of Seller, dated the Closing Date, that such
resolutions were duly adopted and are in full force and effect; and




          (v) assignment and assumption agreements of the Tower Leases and Site Leases;



     (g) Seller shall have delivered to Buyer a FIRPTA certificate in accordance with Section 1445
of the Code certifying that Seller is not a foreign Person;



     (h) Seller shall have executed and delivered the Remedial Site Escrow Agreement, if
applicable; and



     (i) Seller shall have caused its counsel to deliver to Buyer and its lenders a written legal
opinion with respect to the existence, due incorporation and authority of Seller to enter into this
Agreement and the Collateral Documents and to consummate the transactions contemplated hereby.



     7.3 Conditions to Obligations of Seller. The obligation of Seller to consummate the
Transactions shall be subject to the satisfaction of the following conditions, any or all of which
may be waived, in whole or in part, by Seller:



     (a) (i) The representations and warranties of Buyer contained in this Agreement shall be true
and correct in all material respects at and as of the Closing Date with the same force and effect
as though made on and as of such date; provided, however, that for the purpose of determining the
accuracy of such representations and warranties that are already qualified by materiality
(including by reference to “material adverse effect”), such representations and warranties shall be
true and correct in all respects, except to the extent that the failure of such representations and
warranties to be true and correct, individually or in the aggregate, has not had and is reasonably
expected not to have a material adverse effect on the Buyer’s ability to consummate and perform the
Transactions; (ii) each and all of the agreements and covenants to



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be performed or satisfied by
Buyer hereunder at or prior to the Closing Date shall have been duly performed or satisfied in all
material respects; and (iii) Buyer shall have furnished Seller a certificate of an officer of Buyer
to the effect that each of the conditions specified in Section 7.3(a) is satisfied;



     (b) Between the date of this Agreement and the Closing Date, there shall not have occurred and
be continuing any material adverse change in Buyer or the operation of its business;



     (c) Buyer shall have delivered to Seller a duly executed counterpart to the Master Lease;



     (d) Buyer shall have executed and delivered the Remedial Site Escrow Agreement, if applicable;



     (e) Buyer shall have caused its counsel to deliver to Seller a written legal opinion with
respect to the valid existence of Buyer and the authority of Buyer to enter into this
Agreement and the Collateral Documents and to consummate the transactions contemplated hereby;
and



     (f) Buyer shall have delivered a duly executed counterpart to the Transition Services
Agreement.



ARTICLE 8

TERMINATION




     8.1 Termination. This Agreement may be terminated at any time prior to the Closing
only pursuant to the following provisions:



     (a) by mutual consent of Seller and Buyer;



     (b) by Buyer or Seller if any injunction, decree or judgment of any Authority prohibiting
consummation of the Transactions shall have become final and nonappealable;



     (c) by Seller in the event (i) Seller is not then in material breach of this Agreement or the
Other Purchase Agreement, and (ii) either (A) the Termination Date has occurred without the
consummation of the Transactions and the Other Transactions, or (B) Buyer is in material breach of
this Agreement or the Other Purchase Agreement, and such breach has not been cured to Seller’s
reasonable satisfaction within thirty (30) days of written notice of the same from Seller, which
notice shall describe in reasonable detail the alleged breach; or



     (d) by Buyer in the event (i) Buyer is not then in material breach of this Agreement or the
Other Purchase Agreement, and (ii) either (A) the Termination Date has occurred without the
consummation of the Transactions and the Other Transactions, or (B) Seller is in material breach of
this Agreement or the Other Purchase Agreement (other than a breach caused by the existence



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of a
Defect), and such breach has not been cured to Buyer’s reasonable satisfaction within thirty (30)
days of written notice of the same from Buyer, which notice shall describe in reasonable detail the
alleged breach.



     The term “Termination Date” shall mean the date that is one hundred eighty (180) days after
the date of this Agreement, or such other date as the parties may, from time to time, mutually
agree in writing.



     8.2 Effect of Termination.



     (a) Except as provided in Sections 3.2(c) (liquidated damages upon termination), 3.2(d)
(occurrence of Termination Date), 6.1 (confidentiality), 6.3 (public announcements), 10.3 (fees and
expenses) and this Section, in the event this Agreement is validly terminated pursuant to Section
8.1(a) or Section 8.1(b), this Agreement shall forthwith become void, there shall be no liability
on the part of any party, or any of their respective stockholders, members, managers, officers or
directors, to the other and all rights and obligations of any party shall cease; provided, however,
that (i) such termination shall not relieve any party from liability for any breach of this
Agreement prior to the date of termination (except to the extent provided for in Section
8.1(b)) or fraud or any intentional misrepresentation or breach of any of its warranties, covenants
or agreements set forth in this Agreement or any Collateral Document, and (ii) the foregoing
provisions shall not limit or restrict the availability of injunctive relief and specific
performance set forth in Section 10.1.



     (b) In the event this Agreement is terminated by Seller pursuant to the provisions of Sections
8.1(c)(ii)(A) or 8.1(c)(ii)(B) or by Buyer pursuant to the provisions of Section 8.1(d)(ii)(B), and
either Seller or Buyer dispute whether and to whom the Escrowed Funds are to be released with
respect to such termination, then the Escrow Agent shall hold the Escrowed Funds pending resolution
of such dispute between the parties in accordance with the terms of the Deposit Escrow Agreement.



     (c) If Buyer owes the Liquidated Damages Amount to Seller pursuant to Section 3.2(c), Buyer
agrees to promptly pay to Seller the difference between the Escrowed Funds actually received by
Seller and the Liquidated Damages Amount within one (1) Business Day or a termination of this
Agreement as contemplated by Section 3.2(a).



ARTICLE 9

INDEMNIFICATION




     9.1 Survival.



     (a) The representations, warranties, covenants and agreements of the parties contained in or
made pursuant to this Agreement or any Collateral Document (including, for the avoidance of doubt,
in respect of any Defective Site which becomes a Cured Site, irrespective of the date on which such
transformation occurs) shall survive the Closing and shall remain operative and in full force and
effect for a period of eighteen (18) months after the Closing Date; provided, however that the
Exempt Representations and Warranties shall survive the Closing



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indefinitely. The term “Indemnity
Period” shall mean the applicable period with respect to which a representation, warranty, covenant
or agreement survives the Closing
as provided in this Section. No claim for indemnification, other
than with respect to fraud, may be asserted after the expiration of the Indemnity Period.
Notwithstanding anything herein to the contrary, any representation, warranty, covenant and
agreement which arises and is the subject of a claim which is properly asserted in writing prior to
the expiration of the Indemnity Period shall survive with respect to such claim until the final
resolution thereof.



     9.2 Indemnification.



     (a) Seller agrees that, except as otherwise provided in this Agreement, on and after the
Closing it shall indemnify and hold harmless Buyer and its stockholders, parties, members,
Affiliates, directors, officers, employees, agents and representatives, its successors and
permitted assigns (collectively, the “Buyer Indemnified Parties”) from and against any and all
direct damages, claims, losses, expenses, costs, obligations, and liabilities including, without
limiting the generality of the foregoing, liabilities for all reasonable attorneys’, accountants’
and experts’ fees (collectively, “Loss and Expense”), incurred by the Buyer Indemnified Parties
during the
Indemnity Period and caused by (i) any breach of a representation or warranty made by Seller
pursuant to this Agreement or any Collateral Document, (ii) any failure by Seller to perform or
fulfill any of its covenants or agreements set forth in this Agreement or any Collateral Document,
(iii) any Excluded Assets and (iv) any Retained Liability.



     (b) Buyer agrees that on and after the Closing it will indemnify and hold harmless Seller and
its stockholders, Affiliates, directors, officers, employees, agents and representatives, its
successors and permitted assigns (collectively, the “Seller Indemnified Parties”) from and against
all Loss and Expense incurred by the Seller Indemnified Parties during the Indemnity Period and
caused by (i) any breach of representation or warranty made by Buyer pursuant to this Agreement or
any Collateral Document, (ii) any failure by Buyer to perform or fulfill any of its covenants or
agreements set forth in this Agreement or any Collateral Document, (iii) the ownership or operation
of the Assets following the Closing and (iv) any Assumed Liability.



     (c) In the absence of fraud or intentional misrepresentation, from and after the Closing Date,
the sole and exclusive (except as otherwise provided in Section 6.6 with respect to Buyer’s duty to
indemnify Seller) remedy for any misrepresentation or any breach of a warranty or covenant under or
pursuant to this Agreement or the Collateral Documents or otherwise relating to the subject matter
of this Agreement shall be a claim for indemnification pursuant to this Article 9.



     9.3 Limitation of Liability.



     (a) Notwithstanding the provisions of Section 9.2, after the Closing, the Buyer Indemnified
Parties, on the one hand, and the Seller Indemnified Parties, on the other hand, shall be entitled
to recover their Loss and Expense in respect of any claim made pursuant to (x) Section 9.2(a)(i)
(excluding the Exempt Representations and Warranties and for Losses and Expenses incurred as a
result of fraud, for which claims may be made irrespective of the limitations set forth in this
Section 9.3(a)) or (y) 9.2(b)(i) above, as applicable, only (i) in the



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event that the aggregate of
all claims for Loss and Expense made by such party exceeds ***** (the “Basket”) in which event the
indemnified party shall be entitled to recover all such Loss and Expense in excess of the Basket.
Except with respect to Exempt Representations and Warranties and for Losses and Expenses incurred
as a result of fraud, in no event shall Seller’s liability pursuant to Section 9.2(a)(i) exceed
five million, two hundred thirty-eight thousand, four hundred ninety-five dollars ($5,238,495).



     (b) Any Loss and Expense claimed by a party shall be net of any proceeds received by such
party from any insurance policies with respect thereto.



     (c) Notwithstanding anything in this Agreement or in any Collateral Document, Seller will have
no liability pursuant to this Section 9 or otherwise on account of incidental, indirect,
consequential or punitive damages.



     (d) Seller will have no liability for indemnification in respect of any claims that relate to
the passing of, or any change in, after the Closing Date, any Laws or any accounting policy,
principle or practice or any change in Tax rates in effect on the Closing Date, even if any
such changes have retroactive effect or require action at a future date;



     (e) To the extent Seller indemnifies any Buyer Indemnified Party for a third party claim, such
Buyer Indemnified Party will assign to Seller, to the fullest extent allowable, its rights and
causes of action with respect to such third party claim, or if assignment is not permissible,
Seller will be allowed to pursue such third party claim in the name of such Buyer Indemnified Party
at Seller’s expense. Seller will be entitled to retain for its own account all recoveries made as
a result of any such action. The Buyer Indemnified Party will provide Seller with reasonable
assistance (at Seller’s expense) in prosecuting such third party claim; and



     (f) Seller will not be required to indemnify any Buyer Indemnified Party with respect to any
breach of this Agreement discovered after Closing if after Closing the applicable Buyer Indemnified
Party or its representatives disclose to any Authority or Person the occurrence giving rise to such
Buyer Indemnified Party’s indemnification claim unless such disclosure is required by applicable
Law.



     9.4 Notice of Claims. A party entitled to indemnification pursuant to this Article 9
shall notify the indemnifying party promptly in writing, and in any event within ten (10) Business
Days of the event or circumstance giving rise to such indemnification, describing such event or
circumstance and the resulting Loss and Expense with reasonable particularity, containing a
reference to the provisions of this Agreement giving rise to such party’s claim, and setting forth
the amount of such Loss and Expense. The failure of the indemnified party to give reasonably
prompt notice of any claim shall not release, waive or otherwise affect the indemnifying party’s
obligations with respect thereto except to the extent that the indemnifying party can demonstrate
actual loss and prejudice as a result of such failure.



     9.5 Defense of Third Party Claims. The indemnifying party shall have the right (but
not the obligation) to conduct and control, through counsel of its own choosing, any third party
Legal Action, but the indemnified party may, at its election, participate in the defense thereof at



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its sole cost and expense. After notice to the indemnified party from the indemnifying party of
such third party Legal Action, the indemnifying party shall not be liable to the indemnified party
under this Article 9 for any fees of other counsel or any other expenses with respect to the
defense or investigation of such third party Legal Action, in each case subsequently incurred by
the indemnified party in connection with the defense of such third party Legal Action unless and
until the indemnifying party notifies the indemnified party in writing that it is electing to not
assume the control of the defense of the third party Legal Action. The indemnifying party shall not
compromise or settle any such Legal Action (i) without the prior written consent of the indemnified
party, which consent shall not unreasonably be withheld, delayed or conditioned, or (ii) unless (A)
the sole relief provided is monetary damages and (B) such compromise or settlement does not include
any term or condition which would restrict in any manner the operations of the indemnified party.
The indemnified and indemnifying parties shall cooperate in the defense or prosecution of any Legal
Action covered by this Section 9.5. Such cooperation shall include access during normal business
hours afforded to the indemnifying party to, and reasonable retention by the
indemnified party of, records and information which are reasonably relevant to such third
party Legal Action, and making employees available on a mutually convenient basis to provide
additional information and explanation of any material provided hereunder; provided that the
parties agree to cooperate in such a manner as to preserve in full (to the extent possible) the
confidentiality of all confidential information and the attorney-client and work-product
privileges.



     9.6 Adjustment to Purchase Price. To the extent permitted by applicable Law, Seller
and Buyer will (and will cause their Affiliates to) treat any indemnification payment made or
received under this Agreement as an adjustment to the Purchase Price.



ARTICLE 10

GENERAL PROVISIONS




     10.1 Bulk Transfer Laws. Buyer hereby waives compliance by Seller with the provisions
of any and all Laws under the uniform commercial codes as adopted in the states where the Assets
are located relating to bulk transfer in connection with the sale of the Assets.



     10.2 Specific Performance; Other Rights and Remedies. Seller recognizes and agrees
that the Assets are unique assets that cannot be readily be obtained on the open market and that
Buyer will be irreparably injured if this Agreement is not specifically enforced. Therefore, in
addition to, and not in lieu of, any other remedies that Buyer may elect to pursue, Buyer shall
have the right to enforce specifically Seller’s performance under this Agreement, and Seller agrees
to waive the defense in any such suit that Buyer has an adequate remedy at law and to interpose no
opposition, legal or otherwise, as to the propriety of specific performance as a remedy.
Notwithstanding anything to the contrary contained in this Agreement, the Escrow Agreement or
otherwise, in the event of a termination of this Agreement by Seller pursuant to either (i) Section
8.1(c)(ii)(A) resulting from a failure by Buyer to satisfy the requirements of Section 7.3(a), (c),
(d), (e) or (f) or (ii) Section 8.1(c)(ii)(B), Seller’s recourse to Buyer shall be limited to the
amount of the Liquidated Damages Amount. Anything in this Agreement to the contrary
notwithstanding, in the event of any dispute between the parties which results in a Legal Action,
the prevailing party shall be entitled to receive from the non prevailing party



- 34 -









 







reimbursement for
reasonable legal fees and expenses incurred by such prevailing party in such Legal Action.



     10.3 Waivers; Amendments. Amendments to this Agreement may be made only with the
consent in writing of the parties hereto. No delay on the part of either party at any time or
times in the exercise of any right or remedy shall operate as a waiver thereof. The failure to
insist upon the strict compliance with the provisions of any covenant, term, condition or other
provision of this Agreement or to exercise any right or remedy thereunder shall not constitute a
waiver of any such covenant, term, condition or other provisions thereof or default in connection
therewith. The waiver of any covenant, term, condition or other provision thereof or default
thereunder shall not affect or alter this Agreement in any other respect, and each and every
covenant, term, condition or other provision of this Agreement shall, in such event, continue in
full force and effect, except as so
waived, and shall be operative with respect to any other then existing or subsequent default
in connection therewith.



     10.4 Fees, Expenses and Other Payments. Seller and Buyer shall each pay one half of
all applicable transfer Taxes. All other costs and expenses incurred in connection with any sales
Taxes, recording or documentary Taxes, stamps or other charges levied by any Taxing Authority in
connection with this Agreement and the consummation of the Transactions shall be borne by Buyer.
The Hart-Scott-Rodino Act filing fees and expenses, if any, shall be shared equally between Seller
and Buyer. All other costs and expenses incurred in connection with this Agreement and the
consummation of the Transactions, including without limitation fees and disbursements of counsel,
financial advisors and accountants incurred by the parties hereto, shall, unless otherwise provided
herein, be borne solely and entirely by the party that has incurred such costs and expenses.



     10.5 Notices. All notices and other communications which by any provision of this
Agreement are required or permitted to be given shall be given in writing and shall be deemed to
have been delivered (a) five (5) Business Days after being mailed by first-class or express mail,
postage prepaid, (b) the next day when sent overnight by recognized courier service, (c) upon
confirmation when sent by facsimile if sent before 5:00 p.m. (New York time) on a Business Day of
the recipient, confirmed by mailing (by first class or express mail, postage prepaid, or by
recognized courier service) written confirmation on the same day as such facsimile is sent, or (d)
upon delivery when personally delivered to the receiving party (which if other than an individual
shall be an officer or other responsible party of the receiving party). All such notices and
communications shall be mailed, sent or delivered as set forth below or to such other person(s),
facsimile number(s) or address(es) as the party to receive any such communication or notice may
have designated by written notice to the other party.



     (a) If to Buyer:


Global Tower, LLC

1801 Clint Moore Road, Suite 215

Boca Raton, FL 33487

Attention: Mr. Marc Ganzi, Chief Executive Officer

Facsimile No.: (561) 995-0321



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with a copy to (which shall not constitute notice to Buyer):


Kleinbard, Bell & Brecker LLP

1900 Market Street / Suite 700

Philadelphia, Pennsylvania 19103

Attention: Michael A. Frattone, Esq.

Facsimile No.: (215) 568-0140



     (b) If to Seller:


c/o Dobson Communications Corporation

14201 Wireless Way

Oklahoma City, Oklahoma 73134

Attention: Ronald L. Ripley, Senior Corporate Counsel

Facsimile No.: (405) 529-8765


with a copy to (which shall not constitute notice to Seller):


Edwards & Angell, LLP

101 Federal Street

Boston, MA 02110

Attention: Bruce W. Raphael, Esq.

Facsimile No.: (617) 439-4170



     10.6 Severability. If any term or provision of this Agreement shall be held or deemed
to be, or shall in fact be, invalid, inoperative, illegal or unenforceable as applied to any
particular case in any jurisdiction or jurisdictions, or in all jurisdictions or in all cases,
because of the conflicting of any provision with any constitution or statute or rule of public
policy or for any other reason, such circumstance shall not have the effect of rendering the
provision or provisions in question invalid, inoperative, illegal or unenforceable in any other
jurisdiction or in any other case or circumstance or of rendering any other provision or provisions
herein contained invalid, inoperative, illegal or unenforceable to the extent that such other
provisions are not themselves actually in conflict with such constitution, statute or rule of
public policy, but this Agreement shall be reformed and construed in any such jurisdiction or case
as if such invalid, inoperative, illegal or unenforceable provision had never been contained herein
and such provision reformed so that it would be valid, operative and enforceable to the maximum
extent permitted in such jurisdiction or in such case.



     10.7 Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument, binding upon all of the parties. In pleading or proving any provision of this
Agreement, it shall not be necessary to produce more than one set of such counterparts.



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     10.8 Section Headings. The headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of this Agreement.



     10.9 Governing Law. The validity, interpretation, construction and performance of
this Agreement and the Collateral Documents shall be governed by, and construed in accordance with,
the applicable Laws of the United States of America and the Laws of State of New York applicable to
contracts made and performed in such State and, in any event, without giving effect to any choice
or conflict of Laws provision or rule that would cause the application of domestic substantive Laws
of any other jurisdiction. In connection with any controversy arising out of or related to this
Agreement or the Collateral
Documents, Seller and Buyer hereby irrevocably consent to the jurisdiction of the United
States District Court for the District of New York, if a basis for federal court jurisdiction is
present, and, otherwise, in the state courts of the State of New York located in New York County.
Seller and Buyer each irrevocably consents to service of process out of the aforementioned courts
and waives any objection which it may now or hereafter have to the laying of venue of any action or
proceeding arising out of or in connection with this Agreement brought in the aforementioned
courts.



     10.10 Further Acts. Each party agrees that at any time, and from time to time, before
and after the consummation of the transactions contemplated by this Agreement, it will do all such
things and execute and deliver all such Collateral Documents and other assurances, as any other
party or its counsel reasonably deems necessary or desirable in order to carry out the terms and
conditions of this Agreement and the transactions contemplated hereby or to facilitate the
enjoyment of any of the rights created hereby or to be created hereunder.



     10.11 Entire Agreement; Construction; No Implied Warranties. This Agreement (together
with the Disclosure Schedule, the exhibits hereto and the other documents delivered or to be
delivered in connection herewith) constitute the entire agreement of the parties with respect to
the subject matter hereof and supersedes all prior agreements and contemporaneous, arrangements,
covenants, promises, conditions, undertakings, inducements, representations, warranties and
negotiations, expressed or implied, oral or written, between the parties, with respect to the
subject matter hereof, including without limitation any previously executed confidentiality
agreement and/or letter of intent. Each of the parties is a sophisticated Person that was advised
by experienced counsel and, to the extent it deemed necessary, other advisors in connection with
this Agreement. Each of the parties hereby acknowledges that (a) none of the parties has relied or
will rely in respect of this Agreement or the transactions contemplated hereby upon any document or
written or oral information previously furnished to or discovered by it or its representatives,
other than this Agreement (or such of the foregoing as are delivered at the Closing), (b) there are
no representations, warranties or covenants or agreements by or on behalf of any party or any of
its respective Affiliates or representatives other than those expressly set forth in this Agreement
and the Collateral Documents, and (c) the parties respective rights and obligations with respect to
this Agreement and the events giving rise thereto will be solely as set forth in this Agreement and
the Collateral Documents. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EACH PARTY HERETO
AGREES THAT, EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT AND ANY
COLLATERAL DOCUMENT, NONE OF THE PARTIES MAKES ANY OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, AT LAW



- 37 -









 





OR IN EQUITY, INCLUDING WITH RESPECT TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, AND EACH HEREBY DISCLAIMS ANY OTHER REPRESENTATIONS OR WARRANTIES MADE BY ITSELF OR ANY OF
ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, FINANCIAL AND LEGAL ADVISORS OR OTHER REPRESENTATIVES,
WITH RESPECT TO THE EXECUTION AND DELIVERY OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY, NOTWITHSTANDING THE DELIVERY OR DISCLOSURE TO THE OTHER OR THE
OTHER’S REPRESENTATIVES OF ANY DOCUMENTATION OR OTHER INFORMATION WITH RESPECT TO ANY ONE OR
MORE OF THE FOREGOING.



     10.12 Assignment. This Agreement shall not be assignable (by operation of law or
otherwise) by any party and any such assignment shall be null and void; provided, however, that (a)
(i) Buyer may assign its rights and obligations hereunder to any Affiliate (provided that no such
assignment shall relieve Buyer of its obligations hereunder), and (ii) Buyer may assign to its
lenders Buyer’s right to receive indemnification payments pursuant to Section 9.1 hereof, and (b)
Seller may assign its rights and obligations hereunder to any Person that acquires, directly or
indirectly, all or substantially all of the Assets or equity interests of Seller.



     10.13 Parties in Interest. This Agreement shall be binding upon and inure solely to
the benefit of each party, and nothing in this Agreement, express or implied, is intended to or
shall confer upon any Person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement, except as otherwise provided in Section 10.11.



     10.14 Non-Recourse to Seller’s Affiliates. The obligations of Seller to Buyer under
this Agreement, the Collateral Documents and any related agreements, instruments, documents or
certificates are non-recourse to Seller’s Affiliates and if Seller is in default hereunder or under
the Collateral Documents or such other agreements, instruments, documents or certificates, Buyer,
on behalf of itself and the other Buyer Indemnified Parties, hereby waives any right it or they may
have to seek, and agrees that neither it nor any of the other Buyer Indemnified Parties shall have,
any recourse to any of Seller’s Affiliates or their respective assets.



     10.15 Necessary Approvals, Consents and Waivers. Notwithstanding anything to the
contrary contained in this Agreement, Seller is not obligated to sell, assign, transfer or convey
to Buyer any of its rights and obligations in and to any Contract without first obtaining all
necessary approvals, consents or waivers from third parties. To the extent any Required Consents
have not been obtained by Seller as of the Closing and Buyer elects to proceed with the Closing,
Seller shall, during the Cure Period: (i) use all commercially reasonable efforts to obtain the
consent of any such third party; and (ii) cooperate with Buyer in any reasonable and lawful
arrangements designed to provide the benefits of such Contract to Buyer so long as Buyer performs
all obligations with respect to such Contract (and the payment of all expenses in connection
therewith); provided, however, that none of Buyer or Seller shall be obligated to pay any
consideration or other sums therefore (except for filing fees and other ordinary administrative
charges and except as set forth above) to the third party from whom such approval, consent or
waiver is requested.



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     10.16 Dispute Resolution. Except as otherwise provided in Section 3.3:



     (a) The parties shall first attempt to resolve any claim, controversy or dispute, whether
sounding in contract, statute, tort, fraud, misrepresentation or other legal theory, arising
between the parties to this Agreement through amicable settlement discussions. In the event the
parties are unable to settle such dispute within sixty (60) days after initiation of settlement
discussions, either party may refer the matter for final resolution by arbitration as prescribed in
this Section 10.16.



     (b) All controversies relating to this Agreement shall be settled by arbitration unless
otherwise expressly provided to the contrary elsewhere in this Agreement. The arbitration
proceedings shall be held in New York City, New York, and decided by one arbitrator selected by
Buyer and Seller. If Buyer and Seller cannot mutually agree upon an arbitrator within five (5)
days, then each shall select one arbitrator and those two arbitrators will select the arbitrator
within ten (10) days. The arbitrator’s decision shall be governed by the Commercial Arbitration
Rules of the American Arbitration Association, as they may exist at the time of the arbitration
(excluding payment of all fees and expenses of the parties relating to the arbitration, including
without limitation attorneys’ fees, and the costs and expenses of the arbitration proceeding, which
fees and expenses shall be borne by the losing party in the arbitration unless otherwise required
by the applicable state law), and otherwise in accordance with the governing law applicable
pursuant to Section 10.8. A judgment upon the award rendered by the arbitration may be entered in
any court of competent jurisdiction. All notices of judicial services in reference to arbitration
or enforcement shall be deemed given if transmitted as required by the aforesaid rules, unless
otherwise required by the governing law applicable pursuant to Section 10.8.



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IN WITNESS WHEREOF, the parties have executed this Agreement or caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date first written above.




	 	 	 	 	 
	 	 	BUYER:
	 
	 	 	 	 
	 	 	GLOBAL TOWER, LLC
	 
	 	 	 	 
	

	 	By:	 	 
	 	 	 
	

	 	 	 	Name:

Title:
	 
	 	 	 	 
	 	 	SELLER:
	 
	 	 	 	 
	 	 	DOBSON CELLULAR SYSTEMS, INC.
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 
	

	 	 	 	Name:

Title:






[Signature page to Equity Interest Purchase Agreement, dated as of March ___, _____, between

Dobson Cellular Systems, Inc. and Global Tower, LLC]




 









 








APPENDIX A




DEFINITIONS




     Accepted Site(s) means any Defective Sites with respect to which Buyer has elected, pursuant
to Section 6.8(a), to waive the Defect(s) relating to such Defective Sites and consent to the
contribution of such Assets to Seller Sub.



     Affiliate, Affiliated shall mean, with respect to any Person, any other Person at the time
directly or indirectly controlling, controlled by or under direct or indirect common control with
such Person, other than, in the case of Seller, Seller Sub (unless explicitly noted to the contrary
herein).



     Agreement shall mean this Equity Interest Purchase Agreement, including, unless the context
otherwise specifically requires, this Appendix A, the Disclosure Schedule, and all exhibits hereto,
and as any of the same may from time to time be supplemented, amended, modified or restated in the
manner herein or therein provided.



     Apportionments shall have the meaning given to it in Section 3.3(a).



     Assets shall have the meaning given to it in Section 2.1.



     Assumed Liabilities shall have the meaning given to it in Section 2.3(a).



     Authority shall mean any governmental or quasi-governmental authority, whether administrative,
executive, judicial, legislative or other, or any combination thereof, including without limitation
any federal, state territorial, county, municipal or other government or governmental or
quasi-governmental agency, arbitrator, authority, board, body, branch, bureau, or comparable
agency, commission, corporation, court, department, instrumentality, mediator, panel, system or
other political unit or subdivision or other Entity of any of the foregoing, whether domestic or
foreign, including without limitation the FCC and the FAA.



     Basket shall have the meaning given to it in Section 9.3(a).



     Business Day shall mean a day of the year on which banks are not required or authorized by Law
to close in Oklahoma City, Oklahoma or Boca Raton, Florida.



     Buyer shall have the meaning given to it in the Recitals to this Agreement.



     Buyer Indemnified Parties shall have the meaning given to it in Section 9.2(a).



     Buyer Tower Cash Flow Notice shall have the meaning given to it in Section 6.8(d).



     Cash Flow Reports shall have the meaning given to it in Section 4.2(a).



     Casualty Claim shall have the meaning given to it in Section 6.14.



 









 





     Closing shall have the meaning given to it in Section 3.5.



     Closing Certificate shall have the meaning given to it in Section 3.3(c).



     Closing Date shall have the meaning given to it in Section 3.5.



     Code means the Internal Revenue Code of 1986, as amended, and the Treasury Regulations
thereunder, or any subsequent legislative enactment thereof, as in effect from time to time.



     Collateral Documents shall mean the Deposit Escrow Agreement, the Remedial Site Escrow
Agreement, the Master Lease, the Transition Services Agreement and any other agreement,
certificate, contract, instrument, notice, or other document delivered or required to be delivered
pursuant to the provisions of this Agreement or any Collateral Document.



     Confidential Information means any and all information related to the business or businesses
of Seller and its Affiliates other than information that which (i) has been or is obtained from a
source independent of Seller that, to Buyer’s knowledge after due inquiry, is not subject to any
confidentiality restriction, or (ii) is or becomes generally available to the public other than as
a result of the unauthorized disclosure by Buyer or its Representatives.



     Confidentiality Agreement shall have the meaning given to it in Section 6.1(a).



     Contract or Contractual Obligation shall mean any agreement, arrangement, commitment,
contract, covenant, instrument, lease, or license that is included in the Assets and is binding on
Seller under applicable Law.



     Cure shall have the meaning given to it in Section 6.9.



     Cure Notice shall have the meaning given to it in Section 6.9.



     Cure Notice Response Period shall have the meaning given to it in Section 6.9.



     Cure Period shall have the meaning given to it in Section 6.9.



     Cured Site shall have the meaning given to it in Section 6.9.



     Defect shall mean, with respect to any Asset, the occurrence and continuation of any of the
following, provided that Buyer has provided notice of the same in accordance with the provisions of
Section 6.7:



     (a) Structural Matters. The existence of any structural defects in a Tower Structure
that either makes commercially impracticable for Seller’s current use of the Tower Structure or is
reasonably anticipated to cost in excess of ***** to Cure;



     (b) Environmental Assessments and Regulatory Matters. Any environmental condition or
non-compliance with FAA or FCC requirements currently affecting a Tower



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Structure that: (i) makes commercially impracticable Seller’s current use of the Tower
Structure; or (ii) is reasonably anticipated to cost in excess of ***** to Cure;



     (c) Inspection of Title. With respect to any Tower Site: (i) any exceptions to title
appearing on a title commitment for a Tower Site or any matters on a survey for a Tower Site which
are not Permitted Liens, or (ii) any Lien that encumbers Sellers’ interest in the Tower Structure
or Tower Site, other than Permitted Liens;



     (d) Site Leases. Any of the following conditions exists with respect to a Site Lease:
(i) Seller fails to hold a valid leasehold interest under the applicable Site Lease; (ii) such Site
Lease is not in full force and effect in all material respects; (iii) any Person other than Seller
or sublessees, sublicensees or licensees under the Tower Leases are in actual possession of the
premises occupied under the applicable Site Lease; or (iv) any material default on the part of the
Seller exists under such Site Lease;



     (e) Tower Leases. With respect to any Tower Lease, such lease has expired and such
lease does not expressly provide for a month-to-month tenancy following expiration, or any
unexpired lease is not valid, binding or is in material default (including any monetary default
greater than ninety (90) days);



     (f) Owned Site Rights. Seller fails to hold good, marketable and insurable title in
and to an Owned Site;



     (g) Third Party Rights. Seller shall have failed to obtain any of the following with
respect to a Tower Site or Tower Structure: (i) all Required Consents, (ii) waivers of rights of
first refusal and/or non-disturbance agreements from all Persons holding a right of first refusal,
and (iii) evidence of all terminations of Lien rights granted in favor of Seller’s creditors; or



     (h) Litigation. Any pending or threatened litigation with respect to any Tower
Structure or Tower Site that: (i) makes commercially impracticable Seller’s current use of the
Tower Structure or Tower Site; or (ii) is reasonably anticipated to result in Losses more than
seven thousand five hundred dollars ($7,500) per Tower Structure or Tower Site, as the case may be.



     Defective Site shall mean a Tower Site or Tower Structure with a Defect.



     Defect Notice shall have the meaning given to it in Section 6.7.



     Deposit shall have the meaning given to it in Section 3.2.



     Deposit Escrow Agent shall have the meaning given to it in Section 3.2.



     Deposit Escrow Agreement shall have the meaning given to it in the Section 3.2.



     Disclosure Schedule shall mean the Disclosure Schedule dated as of the date hereof and
heretofore delivered by Seller to Buyer, as such may be amended, supplemented or otherwise modified
in accordance with the terms hereof.



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     Due Diligence Items shall mean each of the following items relating to the Assets as such of
the following items as are in Seller’s possession:



     (a) True, correct and complete copies of all structural analyses, engineering reports and
condition reports for the Tower Structures;



     (b) True, correct and complete copies of all environmental reports and NEPA reports relating
to the Tower Sites;



     (c) True, correct and complete copies of all Tower Leases and Site Leases;



     (d) True, correct and complete copies of the most recent surveys, title commitments, title
policies or abstracts of title and corresponding legal opinions together with all copies of all
documents and instruments (as recorded where applicable) referred to or identified in the title
commitment, title policies or abstracts, including, but not limited to, all deeds and other
conveyance documents evidencing transfer of title into Seller, lien instruments, leases, plats,
reservations, restrictions and easements, and all curative documentation executed subsequent to the
commitment, policy or abstract, including any non-disturbance agreements;



     (e) True, correct and complete copies of the most recent construction, engineering,
architectural or other plans or drawings and related site plans, plats and approved drawings
pertaining to the construction of the Tower Structures;



     (f) The most recent real property tax bill for each Tower Site;



     (g) The zoning permits, variances, building and other permits, which have been gained or for
which Seller has made application;



     (h) Current tenant contact information;



     (i) the FCC and FAA applications, responses, approvals and registration numbers submitted or
received for each Tower Structure;



     (j) True, correct and complete copies of any and all non-confidential documents related to the
Assets contained in the Seller’s file for each Tower Site; and



     (k) Electronic versions, if any, of each of the items listed above.



     Effective Date shall have the meaning given to it in the Preamble.



     Entity shall mean any corporation, firm, unincorporated organization, association,
partnership, limited liability company, trust (inter vivos or testamentary), estate of a deceased,
insane or incompetent individual, business trust, joint stock company, joint venture or other
organization, entity or business, or any Authority.



     Environmental Law shall mean any Law relating to or otherwise imposing liability or standards
of conduct concerning Laws relating to health, safety or emissions, discharges, releases or
threatened releases of Hazardous Materials. Environmental Laws shall include without



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limitation the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C.
Section 9601 et seq.), the Hazardous Material Transportation Act (49 U.S.C. Section
1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Section 9601
et seq.), the Federal Water Pollution Control Act (33 U.S.C. Section 1251
et seq.), the Clean Air Act (42 U.S.C. Section 7401 et seq.), the
Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.), the Federal
Insecticide Fungicide and Rodenticide Act (7 U.S.C. Section 136 et seq.), and the
Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. Section 1201 et
seq.), and any analogous federal, state, local or foreign Laws, and the rules and
regulations promulgated thereunder all as from time to time in effect, and any reference to any
statutory or regulatory provision shall be deemed to be a reference to any successor statutory or
regulatory provision.



     Environmental Permit shall mean any Governmental Authorization required by or pursuant to any
Environmental Law with respect to the Owned Sites included in the Assets.



     Escrowed Funds shall have the meaning given to it in Section 3.2.



     Event shall mean the existence or occurrence of any act, action, activity, circumstance,
condition, event, fact, failure to act, omission, incident or practice, or any set or combination
of any of the foregoing.



     Excluded Assets shall have the meaning given to it in Section 2.2.



     Excluded Governmental Authorizations shall mean those Governmental Authorizations that are not
transferable to Seller Sub, as well as those Governmental Authorizations that are needed by Seller
in the operation of its businesses following the Closing and are accordingly retained by Seller as
an Excluded Asset.



     Exempt Representations and Warranties means the representations and warranties contained in
the following Sections: 4.1(a) (organization); 4.1(b) (authority); 4.3(a) (second sentence only,
title to assets); 4.8 (broker or finder) and 4.15 (Seller Sub).



     FAA shall mean the Federal Aviation Administration and shall include any successor Authority.



     FCC shall mean the Federal Communications Commission and shall include any successor
Authority.



     Governmental Authorizations shall mean all approvals, concessions, consents, franchises,
licenses, permits, plans, registrations and other authorizations of all Authorities in connection
with Seller’s ownership or operation of the Assets; provided, however, the Assets shall not include
any FCC licenses or authorizations held by Seller other than FCC antenna structure registrations or
similar tower related FCC applications.



     Hart-Scott-Rodino Act shall mean the Hart-Scott-Rodino Improvement Act of 1976, as from time
to time in effect.



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     Hazardous Materials shall mean and include any substance, material, waste, constituent,
compound, chemical, natural or man-made element or force (in whatever state of matter): (a) the
presence of which requires investigation or remediation under any Environmental Law; or (b) that is
defined as a “hazardous waste” or “hazardous substance” under any Environmental Law; or (c) that is
toxic, explosive, corrosive, etiologic, flammable, infectious, radioactive, carcinogenic, mutagenic
or otherwise hazardous and is regulated by any applicable Authority or subject to any Environmental
Law; or (d) that contains polychlorinated biphenyls (“PCBs”) and PCB-containing equipment, radon,
lead, asbestos or asbestos-containing materials, or urea formaldehyde foam insulation.



     Independent Accountants shall have the meaning given to it in Section 3.3(c).



     Initial Purchase Price shall have the meaning given to it in Section 3.1.



     Interim Period shall have the meaning given to it in Section 6.8(c).



     Judgments shall mean any judgment, order, writ, injunction, decree or award of any Authority.



     Knowledge of Seller shall have the same meaning as Seller’s knowledge.



     Law shall mean any (a) administrative, judicial, legislative or other action, code, consent
decree, constitution, decree, directive, enactment, finding, law, injunction, interpretation,
judgment, final, nonappealable order, ordinance, policy statement, proclamation, promulgation,
regulation, requirement, rule, rule of law, rule of public policy, settlement agreement, statute,
or writ of any Authority, domestic or foreign; or (b) arbitrator’s, mediator’s or referee’s final,
nonappealable award, decision, finding or recommendation.



     Legal Action shall mean, with respect to any Person, any and all litigation, arbitrations,
counterclaims, and proceedings before any Authority.



     Lien shall mean any of the following: mortgage; lien (statutory or other); or other security
agreement, arrangement or interest; hypothecation, pledge or other deposit arrangement; assignment;
charge; levy; executory seizure; attachment; garnishment; encumbrance (including any easement,
exception, reservation or limitation, right of way, and the like); conditional sale, title
retention or other similar agreement, arrangement, device or restriction; preemptive or similar
right; the filing of any financing statement under the Uniform Commercial Code or comparable Law;
restriction on sale, transfer, assignment, disposition or other alienation; or any acquisition
option.



     Liquidated Damages Amount shall mean two million, nine hundred ninety-two thousand, six
hundred twenty-two dollars ($2,992,622).



     Loss and Expense shall have the meaning given to it in Section 9.2(a).



     Master Lease shall have the meaning given to it in Section 7.2(c).



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     Material Adverse Effect means a material adverse effect on the business, operations, results
of operations, or financial condition of Seller or the Other Seller with respect to their ownership
or operation of the Assets and the Other Assets, taken as a whole, except any such effect
resulting from or arising in connection with (a) this Agreement, the Other Purchase Agreement, the
Transactions or the Other Transactions or (b) changes or conditions (including without limitation
changes in technology, Law, or regulatory or market environment) generally affecting the industry
in which the owners or users of communications tower structures operate.



     Membership Interests shall have the meaning given to it in the Recitals to this Agreement.



     NOTAM means a “Notice to Airman” issued by the FAA.



     Ordinary Course of Business means the Seller’s usual and ordinary course of business
consistent with past custom and practice relating to the Assets.



     Other Assets means the “Assets”, as such term is defined in the Other Purchase Agreement.



     Other Purchase Agreement means that certain Equity Interest Purchase Agreement, dated as of
the date hereof, between Buyer and American Cellular Corporation.



     Other Seller means American Cellular Corporation, as seller under the Other Purchase
Agreement.



     Other Transactions means the transactions contemplated to be consummated pursuant to the Other
Purchase Agreement and the agreements, instruments and documents related thereto (other than this
Agreement and the Collateral Documents).



     Owned Sites means the Tower Sites designated as Owned Sites in Section 4.3(a) of the
Disclosure Schedule (excluding any Rejected Sites) for which a fee simple ownership is held by
Seller.



     Permitted Liens shall mean (a) Liens for current taxes not yet due and payable or otherwise
being disputed by Seller in good faith by appropriate proceedings and for which adequate reserves
have been set aside on the books of Seller, but only so long as no foreclosure, distraint, sale of
similar enforcement proceedings have been commenced with respect thereto, (b) worker’s, carrier’s
and materialman’s liens not yet due and payable, (c) with respect to Tower Sites not owned by
Seller, any Liens or other matters caused by or placed upon such real property by the owners or
other lessees thereof, other than to secure obligations or liabilities of Seller, (d) easements,
rights of way or similar grants of rights to a third party for access to or access across, over or
beneath any real property or granted to any utility company or similar entity in connection with
electricity, water, sewage, telephone, gas or similar services which do not materially interfere
with the use of such property in the Ordinary Course of Business, (e) any Assumed Liabilities, and
(f) all easements, restrictions, encroachments, imperfections of title, encumbrances and other
matters of record, in addition to any so-called “standard title



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exceptions” which may appear in any title commitment or policy that do not materially
interfere with the use of an Asset for its intended purpose.



     Person shall mean any natural individual or any Entity.



     Post-Closing Structural Defect shall have the meaning given to it in Section 6.7.



     Pro Ratable Taxes shall mean, with respect to the Assets, real estate and other property
Taxes, ad valorem Taxes, gross receipts Taxes and similar Taxes, but shall not include federal,
state or local income Taxes, franchise Taxes or other Taxes measured by or based upon income or
gain on sale or other disposition of property or assets.



     Purchase Price shall have the meaning given to it in Section 3.1.



     Purchase Price Cash Flow Multiple shall mean the number *****.



     Rejected Sites shall mean either those Defective Sites that (i) will have Defects at Closing,
and Seller reasonably concludes, after consultation with Buyer, that such Defects are unlikely to
be cured within the Cure Period in accordance with Section 6.9 or (ii) Seller elects, in its sole
discretion, to not attempt to cure in accordance with such Section 6.9. Any Rejected Site (as well
as the pertinent Tower Related Assets) shall become an Excluded Asset and all liabilities relating
thereto shall become Retained Liabilities.



     Remedial Site shall have the meaning given to it in Section 6.8(b).



     Remedial Site Amount shall mean, with respect to each Remedial Site, an amount equal to the
product of (x) the Purchase Price Cash Flow Multiple, and (y) the amount set forth in Section
4.2(a) of the Disclosure Schedule in the column titled “Tower Cash Flow” for the applicable
Remedial Site.



     Remedial Site Apportionments Estimate shall have the meaning given to it in Section 6.9.



     Remedial Site Escrow Agent shall have the meaning given to it in Section 3.2(b).



     Remedial Site Escrow Agreement shall have the meaning given to it in Section 3.3(d).



     Representatives shall have the meaning given to it in Section 6.1(a).



     Required Consents shall have the meaning given to it in Section 4.1(c).



     Response Period shall have the meaning given to it in Section 3.3(c).



     Retained Liability shall have the meaning given to it in Section 2.3(b).



     Seller shall have the meaning given to it in the Recitals to this Agreement.



     Seller’s Estimate shall have the meaning given to it in Section 3.3(b).



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     Seller’s knowledge (or words of similar import) shall mean the actual knowledge, after
reasonable investigation, of Thomas A. Coates, Vice President of Seller, Timothy J. Duffy, Senior
Vice President and Chief Technical Officer, and Ronald L. Ripley, Senior Corporate Counsel, and
John Blystone and the knowledge that each such officer would be expected to have or acquire by
ordinary attentiveness to duty.



     Seller Sub shall have the meaning given to it in the Recitals to this Agreement.



     Site Leases means the ground leases, licenses or other right of use agreements pursuant to
which Seller holds a leasehold estate, leasehold interest, or other real property interest, or uses
or occupies a Tower Site (except for ground leases or licenses with respect to Rejected Sites).



     Special Warranty Deed shall mean a deed pursuant to which Seller warrants title as to Seller’s
period of ownership only.



     Subsequent Conveyance Date shall have the meaning given to it in Section 3.3(d).



     Support Documents shall have the meaning given to it in Section 3.3(b).



     Tax and Taxes shall mean, with respect to any Person, all taxes (domestic or foreign),
including without limitation any income (net, gross or other including recapture of any tax items
such as investment tax credits), alternative or add-on minimum tax, gross income, gross receipts,
gains, sales, use, leasing, lease, user, ad valorem, transfer, recording, franchise, profits,
property (real or personal, tangible or intangible), fuel, license, withholding on amounts paid to
or by such Person, payroll, employment, unemployment, social security, excise, severance, stamp,
occupation, premium, environmental or windfall profit tax, custom, duty or other tax, or other like
assessment or charge of any kind whatsoever, together with any interest, levies, assessments,
charges, penalties, additions to tax or additional amount imposed by any Taxing Authority.



     Tax Allocation Schedule shall have the meaning given to it in Section 3.4.



     Tax Return or Returns shall mean all returns required to be filed with any Taxing Authority
with respect to Taxes.



     Taxing Authority shall mean any Authority responsible for the imposition of any Tax.



     Termination Date shall have the meaning given to it in Section 8.1.



     Third-Party Proposal shall have the meaning given to it in Section 6.13(a).



     Tower Cash Flow means, with respect to any Tower Structure, the difference of: (A) an amount
equal to the product of twelve (12) times the monthly rent as of the Effective Date of each Tower
Lease that is duly executed, valid, binding, not in default and the term of which has not expired,
in each case as of the date hereof and without giving effect to any free rent provided for in any
Tower Lease; provided, however, such amount (i) shall not include any security deposits, prepaid
rents (unless taken into income by Buyer), refunds to tenants, sales, property, excise or similar
taxes imposed by Governmental Authorities and collected from subtenants and pass through expenses
collected from any tenants, (ii) shall not include the monthly rent for



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Tower Leases for which the tenant thereunder is more than 90 days past due in the payment of
rent, and (iii) shall include, in the case of prepaid rent, an apportioned amount of such prepaid
rent attributable to such monthly period; minus (B) an amount equal to the product of twelve (12)
times the sum of (i) the aggregate monthly amount of easement “rent” or ground rent as of the
Effective Date (ii) an assumed monthly monitoring and utility expense of ***** (for those Tower
Structures requiring monitoring under FAA Law), (iii) the monthly amount of real estate taxes and
personal property taxes (or similar type taxes), or in the absence of a 2004 tax bill, an assumed
monthly amount of *****, (iv) an assumed monthly insurance expense of *****, and (v) an assumed
monthly maintenance expense of *****.



     Tower Leases means the leases, licenses or other Contracts to which Seller is a party and
which Seller grants a Person a leasehold estate, leasehold interest or the right to use or occupy
space on the Tower Structures located on Tower Sites that are identified in Section 4.3(b) of the
Disclosure Schedule (except for leases or other Contracts or rights with respect to Rejected
Sites).



     Tower Related Assets shall mean (i) the Tower Leases and security deposits (if any) from
tenants under the Tower Leases, (ii) the Site Leases, (iii) all of Seller’s rights to any casualty
insurance proceeds payable after the execution of this Agreement and with respect to events
occurring prior to the Closing with regard to the Assets (but only to the extent the casualty to
which the proceeds relate has not been repaired or restored by Seller at its cost prior to the
Closing and Buyer has designated the applicable site as an Accepted Site), (iv) copies of, or
extracts from, all current, non-confidential files and records of Seller to the extent that such
files or records contain information related to the design, construction, maintenance, ownership,
or leasing of the Assets, (v) all privileges, rights, easements, hereditaments and appurtenances
belonging to or for the benefit of the Tower Sites, including all access easements appurtenant to
and for the benefit of any Tower Site for, and as the primary means of, access between the Tower
Site and a public right of way, or for any other use upon which lawful use of the Tower Site for
the purposes for which it is presently being used is dependent, and all rights existing in and to
any streets, alleys, passages and other rights-of-way included thereon or adjacent thereto (before
or after vacation thereof) and vaults beneath any such streets, (vi) all tenant applications for
Tower Leases that are pending as of Closing and maintenance contracts related to the Assets, (vii)
claims for any Tax refunds but only to the extent that such claims relate to the operation of the
Assets following the Closing; and (viii) all rights to any warranties held by Seller or any of its
Affiliates with respect to the Tower Sites, including without limitation the related Tower
Structures.



     Tower Sites shall mean the tracts of real property, either owned or leased, on which the Tower
Structures are located.



     Tower Structures shall mean communications tower structures and improvements (including
buildings) situated at the Tower Sites that are identified in Sections 4.3(a) and 4.3(b) of the
Disclosure Schedule (excluding any Rejected Sites and, pending cure of the pertinent Defect(s) in
accordance with Section 6.9, Remedial Sites), and owned by Seller, and all of Seller’s right, title
and interest therein or appurtenant thereto, including rights to all attached tower lighting
equipment; AM detuning systems; grounding systems (including tower



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foundations); storage, equipment shelters (including foundations) or other buildings
exclusively for use by third party tenants; temporary or portable on-site buildings that include
shared equipment; and physical improvements on each Tower Site, including without limitation
fencing; provided, however, that such term does not include any Excluded Assets or any equipment,
property or other assets placed upon the Tower Structures or Tower Sites by third parties pursuant
to Tower Leases or other Contracts.



     Transactions shall mean the transactions contemplated to be consummated by this Agreement and
the Collateral Documents.



     Transition Services Agreement shall have the meaning set forth in Section 6.16.



     Updates shall have the meaning set forth in Section 6.11.




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