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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
------------------------------
Date of Report (date of earliest event reported): January 27, 1998
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TELETOUCH COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
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Delaware 0-24992 75-2556090
(State or other jurisdiction (Commission File Number) (I.R.S. Employer
of incorporation) Identification No.)
110 North College, Suite 200
Tyler, Texas 75702
(Address of principal executive offices)
Registrant's telephone number, including area code: (903) 595-8800
------------------------------
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Item 5. OTHER EVENTS.
On January 27, 1998, Teletouch Communications, Inc. ("Registrant") sold
twenty (20) communications towers for approximately $8.7 million. Proceeds from
the tower sale will be used to reduce the Registrant's indebtedness. Subsequent
to the tower sale, Teletouch will continue to have access to the use of the
towers through the lease of antenna space.
The Press Release announcing the event is attached hereto as Exhibit 99.1
and is incorporated herein by reference.
Item 7. FINANCIAL STATEMENTS.
(a) None.
(b) None.
(c) Exhibits:
10.1 Contract of Sale, by and between Registrant and Pinnacle
Towers Inc., effective December 31, 1997. (A list of
exhibits and schedules to the Contract of Sale is set
forth therein. The Registrant agrees to furnish to the
Commission, upon request, a copy of any such exhibits or
schedules not otherwise filed herewith).
10.2 First Amendment to Contract of Sale, by and between
Registrant and Pinnacle Towers Inc., effective January
22, 1998.
10.3 Master Antenna Site Lease by and between Pinnacle Towers
Inc., as Lessor, and Registrant, as Lessee.
99.1 Press Release of the Company, dated January 28, 1998.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TELETOUCH COMMUNICATIONS, INC.
(Registrant)
Date: February 12, 1998 By: /s/ Thomas R. McLemore
--------------------------------
Thomas R. McLemore
Executive Vice President and
Chief Financial Officer
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Exhibit 10.1
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CONTRACT OF SALE
This Contract of Sale ("Contract") is made and entered into by and between
TELETOUCH COMMUNICATIONS, INC. ("Seller") and PINNACLE TOWERS INC. ("Buyer"),
effective as of December 31, 1997 (the "Effective Date").
ARTICLE I
DEFINED TERMS AND EXHIBITS
--------------------------
1.1 As used herein, the following terms shall have the meanings respectively
indicated:
"Books" means those portions of Seller's books, records, files which relate
to the Tower Business.
"Closing" means the consummation of the purchase of the Property by Buyer
from Seller in accordance with the terms and provisions hereof.
"Closing Date" means the date on which the Closing will be held.
"Improvements" means all Towers (as hereinafter defined), buildings,
structures and improvements on the Leased Real Property (as hereinafter defined)
and Owned Real Property (as hereinafter defined) and including, without
limitation, all mechanical systems, fixtures and equipment; electrical systems,
fixtures and equipment; heating systems, fixtures and equipment; air
conditioning systems, fixtures and equipment; but excluding (a) all property
owned by third parties, (b) all property leased by third parties other than from
Seller and (c) any antennas, lines, transmitters and other related items which
are affixed to the Towers or are located nearby and which will remain on the
Property pursuant to the Master Lease.
"Land Leases" means the land and ground lease agreements whereby Seller is
the lessee of the Leased Real Property, which are more particularly described on
Exhibit "E" attached hereto.
- -----------
"Leased Real Property" means the property leased by Seller and more
particularly described on Exhibit "A" attached hereto.
-----------
"Owned Real Property" means the property owned by Seller and more
particularly described on Exhibit "B" attached hereto.
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"Permits" means any of Seller's approvals, permits, licenses and similar
rights from governmental agencies to the extent that they (i) relate exclusively
to the ownership or operation of the Towers (not including any such approvals,
permits, licenses and similar rights from governmental agencies which relate to
the ownership and operation of Seller's antennas, lines, transmitters and other
related items which are affixed to the Towers or are located nearby and which
will remain on the Property pursuant to the Master Lease) and (ii) are
transferable.
"Personalty" means all personal property of every kind and character owned
by the Seller and located in or on and used primarily in connection with the
Improvements or the operations thereon (excluding all property (a) all property
owned by third parties, (b) all property leased by third parties other than from
Seller and (c) any antennas, lines, transmitters and other related items which
are affixed to the Towers or are located nearby and which will remain on the
Property pursuant to the Master Lease) including without limitation all tangible
personal property related to the design, operation, and maintenance of the
Towers.
"Property" means Seller's interests in the Leased Real Property pursuant to
the Land Leases or otherwise, the Owned Real Property, the Personalty, the User
Contracts and the Improvements along with Seller's interests in: all related
agreements, contracts, security interests, guaranties, other similar
arrangements and rights thereunder, claims, deposits, prepayments, refunds,
causes of action, choses in action, rights of recovery, rights of set off,
rights of recoupment, related leaseholds and subleaseholds therein,
improvements, fixtures and fittings thereon, easements, rights appurtenant
thereto (such as appurtenant rights in and to public rights-of-way, and other
streets), Permits, and plats and architectural drawings related to the Towers.
"Purchase Price" means the total consideration to be paid by Buyer to
Seller for the purchase of the Property as set forth in Section 3.1 hereof. The
Purchase Price for the Property shall be allocated by and between Buyer and
Seller (the "Purchase Price Allocation").
"Towers" means the communication towers owned by Seller and located on the
Leased Real Property and Owned Real Property.
"Tower Business" means the business of owning and operating the Property
that is conducted by Seller.
"User Contracts" means the leases and subleases with customers relating to
the rental of space or the entitlement to install equipment on any of the Towers
and listed on Exhibit "C" hereto.
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1.2 The following Exhibits are attached hereto and incorporated herein for all
purposes:
Exhibit "A" - Leased Real Property
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Exhibit "B" - Owned Real Property
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Exhibit "C" - User Contracts
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Exhibit "D" - Master Antenna Site Lease from Buyer to Seller
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Exhibit "E" - Land Leases
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Exhibit "F" - Rental Allocation
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ARTICLE II
AGREEMENT OF PURCHASE AND SALE
------------------------------
2.1 Upon the terms and conditions hereinafter stated, Seller hereby sells,
assigns and conveys the Property to Buyer, and Buyer hereby purchases, assumes
and accepts the Property from Seller.
ARTICLE III
PURCHASE PRICE
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3.1 The Purchase Price. The Purchase Price to be paid by Buyer to Seller
------------------
for the Property shall be Eight Million Six Hundred Twenty-Seven Thousand One
Hundred Ninety-Eight and 40/100 Dollars ($8,627,198.40).
3.2 Wire Transfer. The Purchase Price (less the Escrowed Funds (as
-------------
hereinafter defined) and the Rental Prepayment (as hereinafter defined)) shall
be paid to Seller at Closing in cash or by wire transfer of funds.
ARTICLE IV
BUYER'S DUE DILIGENCE
---------------------
4.1 Inspection, Feasibility Study, Review. Buyer, and its employees and
-------------------------------------
agents, shall have the right to enter upon the Property to inspect the Property,
including Seller's books, records and files relating thereto, and to conduct any
tests, studies, appraisals, or inspections deemed necessary by Buyer, including
but not limited to an environmental compliance and conditions review
satisfactory to Buyer, and to make all inquiries of third parties with respect
to the Property ("Inspections"). For good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by Buyer, and in order
to induce Seller to grant Buyer the rights set forth in this section, Buyer
agrees to indemnify and defend Seller, and hold Seller, Seller's agents,
representatives, employees and affiliates harmless, from and against, and
reimburse Seller, Seller's agents, representatives, employees and affiliates
with respect to, any and all liabilities, debts, damages, losses, claims, causes
of action, suit or suits, costs, and expenses of any nature whatsoever
(including, but not limited to, court costs and reasonable attorneys' fees) that
such parties may suffer or incur as a result of or arising out of Buyer's (or
Buyer's agents' or
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employees') entry upon the Property or Buyer's exercise of its rights under this
section; provided, however, in no event shall the foregoing indemnity extend to
the negligence or willful misconduct of Seller or Seller's agents or employees.
Notwithstanding anything to the contrary, the agreements of Buyer to indemnify
Seller, Seller's agents, representatives, employees and affiliates set forth in
the immediately preceding sentence shall survive any Closing or any termination
of this Contract. In conducting its Inspections, Buyer covenants and agrees (i)
not to interfere with the activity of any tenant or any person occupying or
providing services to the Property, (ii) not to reveal to any third party not
approved in writing by Seller (other than in a compulsory legal proceeding or to
the Buyer's counsel, lenders, investors or consultants) the results of its
Inspections, and (iii) to restore the Property to its original condition upon
the conclusion of its Inspections. Buyer also agrees to provide Seller with a
copy of any Inspections.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
---------------------------------------
Buyer hereby represents and warrants to Seller as of the Effective Date as
follows:
5.1 Authority. Buyer represents, warrants, covenants and agrees with
---------
Seller that Buyer has the full right, power and authority to purchase the
Property from Seller as provided in this Contract and to carry out its
obligations hereunder and that all required action necessary to authorize Buyer
to enter into this Contract and to carry out its obligations hereunder has been
taken.
5.2 Violation. To the best of Buyer's current, actual knowledge, neither
---------
the execution and performance of this Contract or the agreements contemplated
hereby, nor the consummation of the transactions contemplated hereby or thereby
by Buyer will conflict with, result in a violation or breach of, or constitute a
default under any agreement or other instrument under which Buyer is bound
5.3 Consents. No consent from any of Buyer's lenders or board of
--------
directors (other than any such consents which have already been obtained by
Buyer) is required to authorize, or is required in connection with, the
execution, delivery, or performance of this Contract or related documents on the
part of Buyer.
Buyer agrees to promptly notify Seller if any of its representations set
forth above become or are likely to become untrue or otherwise misleading.
Buyer agrees to notify Seller of any of the following which occurs prior to
Closing: (a) a change in Buyer's lender or lender status, (b) the proposed or
actual disposition of substantially all of Buyer's assets (whether by stock,
merger or otherwise) or (c) any change in control of Buyer.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF SELLER
----------------------------------------
Seller hereby represents and warrants to Buyer as of the Effective Date as
follows:
6.1 Authority. Seller represents, warrants, covenants and agrees with
---------
Buyer that Seller has the full right, power and authority to sell, transfer and
assign the Property to Buyer as provided in this Contract and to carry out its
obligations hereunder and that all required action necessary to authorize Seller
to enter into this Contract and to carry out its obligations hereunder has been
taken.
6.2 Title. To the best of Seller's current, actual knowledge, except
-----
for liens and encumbrances that (i) will be paid in full from the Purchase Price
proceeds or (ii) do not materially affect the Buyer's ability to operate the
Tower Business, Seller has good and indefeasible title to the Property. All
Property of the Tower Business on the date hereof is reflected on Exhibits "A",
-------------
"B" and "C".
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6.3 Contracts. Attached to this Contract as Exhibit "C" and Exhibit "E"
--------- ----------- -----------
are materially true and complete schedules of all User Contracts and Land Leases
(collectively, the "Leases"), respectively. The copies of all Leases delivered
by Seller to Buyer are true, correct and complete in all material respects. To
the best of Seller's current, actual knowledge: (i) neither the Seller nor any
other party is in material default of any of the Leases (for purposes of this
Section 6.3, a "material default" under a Lease shall be a default which would
entitle the other party to the Lease to terminate such Lease) and (ii) there are
no disputes regarding any of the Leases. Moreover, Seller has not actually
received any written notice or threat of cancellation or termination of any of
the Leases and, except as provided for in the Leases, to the best of Seller's
current, actual knowledge, Seller has not granted any currently outstanding
options to purchase or rights of first refusal regarding the Property.
6.4 Violation. To the best of Seller's current, actual knowledge, neither
---------
the execution and performance of this Contract or the agreements contemplated
hereby, nor the consummation of the transactions contemplated hereby or thereby
by Seller will conflict with, result in a violation or breach of, or constitute
a default under any agreement or other instrument under which Seller is bound or
to which the Property is subject. Furthermore, Seller has not actually received
any written notice of a material violation of any law in connection with the
Property.
6.5 Taxes. To the best of Seller's current, actual knowledge, Seller is
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not delinquent in the payment of any sales tax on the rentals paid to it under
the User Contracts, any sales tax on the rentals paid by it under the Land
Leases or any ad valorem taxes on any of the Owned Real Property.
6.6 Consents. No consent from any of Seller's lenders or landlords under
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the Land Leases (other than those consents which will be obtained by Seller
prior to Closing) is required
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to authorize, or is required in connection with, the execution, delivery, or
performance of this Contract or related documents on the part of Seller.
6.7 Litigation. To the best of Seller's current, actual knowledge, there
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is no litigation against or affecting the Property or Tower Business and Seller
is not subject to or in default of any continuing court or administrative order,
judgment, writ, injunction, or decree applicable specifically to Seller, the
Tower Business or the Property.
6.8 Environmental. To the best of Seller's current, actual knowledge
-------------
(except as otherwise disclosed in the environmental reports submitted by Seller
to Buyer or as revealed by Buyer's Inspections), the Property is in material
compliance with all applicable environmental laws. Seller has provided Buyer
with all environmental studies, records and reports in Seller's actual
possession, and all correspondence with any governmental entities, in Seller's
actual possession, concerning environmental conditions of the Property. Except
as otherwise disclosed in the environmental reports submitted by Seller to Buyer
or as revealed by Buyer's Inspections: (i) Seller has not placed or released any
hazardous materials on the Property in material violation of any environmental
law and (ii) Seller has no current, actual knowledge of any underground storage
tanks on the Property in material violation of any environmental law.
6.9 Real Estate Matters. Seller has not actually received written
-------------------
notice of any fact or circumstance that may result in the termination or
reduction of the access from each parcel of real estate included in the Property
to the existing public roads. To the best of Seller's current, actual
knowledge, each parcel of real estate included in the Property abuts on and has
direct vehicular access to a public road, or has such access via an easement,
license or lease benefitting such real estate.
For purposes of this Contract, the phrase "to the best of Seller's
knowledge", or words of like import, means that the facts in question are
actually known (as opposed to imputed, inquiry or constructive knowledge) to,
and the phrase "Seller's actual possession or receipt" means in the actual
possession or receipt of Seller, without any further due diligence or duty of
inquiry. Seller shall have no duty of investigation with respect to any
representation made to the best of its knowledge and shall not be charged with
"constructive", "imputed" or "deemed" knowledge. Further, Seller's
obligations to disclose matters "known to Seller" or words of like import as
used in this Contract shall be deemed breached only if Seller, had actual
knowledge (as opposed to imputed or constructive knowledge) of such matter not
disclosed to Buyer.
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ARTICLE VII
AS-IS/WHERE IS
--------------
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS CONTRACT: (1) THE PROPERTY
SHALL BE CONVEYED "AS-IS," "WHERE-IS" AND WITH ANY AND ALL LATENT AND PATENT
DEFECTS AND (2) SELLER MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND,
EXPRESSED OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING BUT NOT LIMITED TO
THE AVAILABILITY OF UTILITIES, ACCESS TO PUBLIC ROADS, ZONING, INGRESS OR
EGRESS, VALUATION, GOVERNMENTAL APPROVALS, GOVERNMENTAL REGULATIONS, PHYSICAL
AND ENVIRONMENTAL CONDITION OR ANY OTHER MATTER OR THING RELATING TO OR
AFFECTING THE PROPERTY. NO WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, MATERIALS, WORKMANSHIP OR APPLIANCES HAS BEEN MADE OR IS
EXPRESSED OR IMPLIED BY THIS CONVEYANCE. SELLER EXPRESSLY DISCLAIMS ANY
WARRANTY OF HABITABILITY, GOOD AND WORKMANLIKE CONSTRUCTION, SUITABILITY, OR
DESIGN. BUYER HAS CONDUCTED, WITH SELLER'S FULL COOPERATION, ITS OWN
INDEPENDENT INSPECTION OF THE PROPERTY AND EXCEPT FOR SELLER'S REPRESENTATIONS
EXPRESSLY SET FORTH IN THIS CONTRACT, HAS AGREED NOT TO RELY ON ANY
REPRESENTATIONS MADE BY SELLER BUT RATHER, AS A SIGNIFICANT PORTION OF THE
CONSIDERATION GIVEN TO SELLER FOR THIS CONVEYANCE, HAS AGREED TO RELY SOLELY AND
EXCLUSIVELY UPON ITS OWN EVALUATION AND INSPECTION OF THE PROPERTY. BUYER
REPRESENTS THAT IT IS A KNOWLEDGEABLE BUYER AND, EXCEPT FOR SELLER'S
REPRESENTATIONS EXPRESSLY SET FORTH IN THIS CONTRACT, THAT IT IS RELYING SOLELY
ON ITS OWN EXPERTISE AND THAT OF BUYER'S CONSULTANTS IN PURCHASING THE PROPERTY.
MOREOVER, EXCEPT FOR SELLER'S REPRESENTATIONS EXPRESSLY SET FORTH IN THIS
CONTRACT, BUYER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT
LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT BE REVEALED
BY BUYER'S INSPECTIONS AND INVESTIGATIONS. BUYER FURTHER ACKNOWLEDGES AND
AGREES THAT THERE ARE NO ORAL AGREEMENTS, WARRANTIES, OR REPRESENTATIONS,
COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLER, ANY AGENT OF SELLER OR ANY
THIRD PARTY. THE TERMS AND CONDITIONS OF THIS SECTION SHALL EXPRESSLY SURVIVE
THE CLOSING, NOT MERGE WITH THE PROVISIONS OF ANY CLOSING DOCUMENTS AND SHALL BE
INCORPORATED INTO THE DEED(S) AND ANY OTHER CONVEYANCE DOCUMENTS EXECUTED
PURSUANT HERETO. THE PROVISIONS CONTAINED HEREIN ARE THE RESULT OF EXTENSIVE
NEGOTIATIONS BETWEEN THE BUYER AND SELLER AND NO ASSURANCES, REPRESENTATIONS, OR
WARRANTIES ABOUT THE QUALITY, CONDITION, OR STATE OF THE PROPERTY WERE MADE OR
GIVEN BY SELLER IN THE INDUCEMENT THEREOF. BUYER FURTHER ACKNOWLEDGES THAT ANY
INFORMATION PROVIDED BY THE SELLER, ANY AGENT OF SELLER OR
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ANY THIRD PARTY OR TO BE PROVIDED WITH RESPECT TO THE PROPERTY WAS OBTAINED FROM
A VARIETY OF SOURCES AND SELLER (i) HAS NOT MADE ANY INDEPENDENT INVESTIGATION
OR VERIFICATION OF SUCH INFORMATION; AND (ii) EXCEPT FOR SELLER'S
REPRESENTATIONS EXPRESSLY SET FORTH IN THIS CONTRACT, MAKES NO REPRESENTATIONS
OR WARRANTIES AS TO THE ACCURACY OR COMPLETENESS OF SUCH INFORMATION.
ARTICLE VIII
EXPRESS COVENANTS OF SELLER
---------------------------
8.1 Between the Effective Date and the Closing, Seller, expressly
covenants and agrees that:
(a) Seller shall not commit waste of the Property.
(b) Seller shall give to Buyer immediate written notice of the
institution of or receipt of notice of any material litigation or
threatened litigation affecting Seller or the Property which would in any
way constitute or have the effect of presently or in the future creating a
lien, claim or obligation of any kind against the Property.
(c) Other than mechanics' and materialmen's liens which arise in the
Seller's ordinary course of business, Seller shall not impose, nor permit
to be imposed upon the Property any new or additional encumbrances to title
and shall discharge, or cause to be discharged, any claims of lien or liens
imposed upon the Property following the date of execution of this Contract
by Seller.
(d) Seller shall maintain its current or comparable insurance on the
Property.
(e) Seller shall notify Buyer of any material emergency or other
material change in the Property and of any pending or threatened
governmental complaints, investigations or hearings that might have a
material adverse effect on the Property.
(f) Seller shall not accelerate, modify or cancel any Lease, or other
agreement constituting a part of the Property.
(g) Seller shall not enter into any other commitment or transaction
that could materially and adversely affect the Tower Business or the
Property.
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(h) Seller shall not engage in, solicit or authorize any negotiations
or proposal for the purchase of the Property, except with Buyer.
(i) Seller shall obtain releases, terminations and/or satisfactions
of all mortgages, liens and financing statements affecting the Property
which were granted by Seller.
8.2 Seller agrees that all Owned Real Property and Leased Real Property,
for which the Requirements (as hereinafter defined) are not satisfied prior to
Closing, shall be subject to the Escrow Agreement (as hereinafter defined).
ARTICLE IX
CONDITIONS PRECEDENT TO BUYER'S PERFORMANCE
-------------------------------------------
9.1 Buyer shall not be obligated to consummate the sale contemplated by
this Contract unless:
(a) Closing Documents. Seller shall have provided to Buyer at
-----------------
Closing, each of the documents and other items required pursuant to Section
11.2(a) hereof.
(b) Seller's Warranties, Representations and Covenants. Each of
--------------------------------------------------
Seller's warranties and representations set forth herein shall be true and
correct in all material respects as of the Effective Date and as of Closing
and Seller shall have performed all its covenants as set forth in this
Contract.
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ARTICLE X
CONDITION PRECEDENT TO SELLER'S PERFORMANCE
-------------------------------------------
10.1 Seller shall not be obligated to consummate the sale contemplated by
this Contract unless:
(a) Closing Documents. Buyer shall have provided to Seller at
-----------------
Closing, each of the documents required pursuant to Section 11.2(b) hereof.
(b) Buyer's Warranties and Representations. Each of Buyer's
--------------------------------------
warranties and representations set forth herein shall be true and correct
in all material respects as of the Effective Date and as of Closing.
(c) Credit Facility Amendment. Seller shall have renegotiated the
-------------------------
terms of its Credit Agreement with its existing lenders upon terms
satisfactory to Seller in its sole discretion.
ARTICLE XI
CLOSING
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11.1 Date and Place of Closing. The Closing hereunder shall take place in
-------------------------
the offices of Bracewell & Patterson, L.L.P., 711 Louisiana Street, Suite 2900,
Houston, Texas 77002, or at such other place as Seller and Buyer may mutually
agree. The Closing Date shall be latter of (a) the date which is three (3)
business days following Buyer's receipt of written notice from Seller of
Seller's desire to close the transaction contemplated hereby and (b) January 9,
1998. If the transaction has not closed by March 31, 1998, either Buyer or
Seller may terminate this Contract by providing written notice to the other.
11.2 Items to be Delivered
---------------------
(a) Seller. Seller hereby delivers to Buyer the following items:
------
(i) A special warranty deed, for each of the Owned Real
Properties, duly executed and acknowledged by Seller
subject to all exceptions and restrictions then
affecting such Owned Real Properties including any
items that would be revealed by a survey (the
"Deed(s)").
(ii) A counterpart of an assignment and assumption of
leasehold estate for each of the Leased Real Properties
("Assignment of Leases") duly executed and acknowledged
by Seller assigning and transferring to Buyer all of
Seller's right, title, and interest as the lessee,
without warranty except as otherwise expressly set
forth in this Contract.
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(iii) Originals of all written User Contracts which are
assignable, together with one counterpart of an
assignment and assumption of such User Contracts
("Assignment of Contracts"), duly executed and
acknowledged by Seller, whereby Seller assigns and
transfers to Buyer all of Seller's right, title, and
interest therein, without warranty (except as otherwise
expressly set forth in this Contract), and whereby Buyer
assumes all of Seller's obligations (regardless of when
such obligations may have arisen) under such User
Contracts.
(iv) A counterpart of the Purchase Price Allocation executed
by Seller.
(v) A counterpart of a Master Antenna Site Lease ("Master
Lease") whereby Buyer agrees to lease space on the Towers
to Seller pursuant to the terms of and in the form of the
agreement attached hereto as Exhibit "D".
(vi) A bill of sale conveying to Buyer all of Seller's right,
title, and interest in and to the Personalty, without
warranty.
(vii) A Land Lease Agreement (in form and substance reasonably
acceptable to Buyer and Seller) relating to the Tyler,
Texas property granting to Buyer, in exchange for a
rental payment of $1.00 per month, certain non-exclusive
rights to use land owned by Seller to access the Tower
being conveyed to Buyer hereunder for an initial period
of ten (10) years with two additional rights to extend
for periods of ten (10) years each upon similar terms
(the "Tyler Lease").
(viii) An amount of money (the "Rental Prepayment") equal to the
product of (a) .11111 and (b) the sum of rents allocable
to those Leased Real Properties and Owned Real
Properties, as set forth on Exhibit "F" attached hereto
("Allocable Rent"), for which the Requirements (as
hereinafter defined) are not satisfied prior to Closing.
The Rental Prepayment shall be applied to Seller's rental
obligations under the Master Lease.
(ix) A counterpart of an escrow agreement pursuant to which,
Seller shall escrow an amount equal to the product of (a)
.88889 and (b) the sum of Allocable Rent for each Leased
Real Property and each Owned Real Property for which the
Requirements are not satisfied prior to Closing (the
"Escrowed Funds"), with a party to be agreed upon by and
between Buyer and Seller ("Escrow Agent"), to secure
Seller's obligations under the Master Lease (the "Escrow
Agreement"). The Escrow Agreement shall provide that the
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Escrowed Funds will be retained by the Escrow Agent until
Buyer has been able to obtain with respect to each Leased
Real Property and each Owned Real Property, in form and
substance reasonably acceptable to Buyer: (w) a survey
and a title insurance commitment covering such property
together with all related easements, containing no
exceptions which are reasonably likely to have an adverse
effect on Buyer's ability to operate the Towers, (x)
documentation of all Land Leases in writing in recordable
form (for each Leased Real Property only), (y) landlord
estoppel, consent and nondisturbance agreements from each
of the landlords under the Land Leases (for each Leased
Real Property only) and (z) all easements reasonably
necessary for access to the parcel, or for the location
of guy wires supporting any Tower on the subject parcel
(collectively, the "Requirements"). The Escrow Agreement
shall also provide that the Escrowed Funds shall be
released as follows: (a) on the ninetieth (90th) day
following the Closing, (1) Seller shall receive an amount
equal to the product of (A) .88889 and (B) the sum of the
Allocable Rent for each Leased Real Property and each
Owned Real Property for which the Requirements have been
satisfied and (2) Buyer shall receive an amount equal to
the product of (A) .33333 and (B) the sum of the
Allocable Rent for each Leased Real Property and each
Owned Real Property for which the Requirements remain
unsatisfied, (b) on the first anniversary of the Closing
Date, (1) Seller shall receive an amount equal to the
product of (A) .55556 and (B) the sum of the Allocable
Rent for each Leased Real Property and each Owned Real
Property for which the Requirements have been satisfied
and (2) Buyer shall receive an amount equal to the
product of (A) .44444 and (B) the sum of the Allocable
Rent for each Leased Real Property and each Owned Real
Property for which the Requirements remain unsatisfied
and (c) on the second anniversary of the Closing Date,
(1) Seller shall receive an amount equal to the product
of (A) .11111 and (B) the sum of the Allocable Rent for
each Leased Real Property and each Owned Real Property
for which the Requirements have been satisfied and (2)
Buyer shall receive an amount equal to the product of (A)
.11111 and (B) the sum of the Allocable Rent for each
Leased Real Property and each Owned Real Property for
which the Requirements remain unsatisfied. All sums
released to Buyer under the Escrow Agreement shall be
applied to Seller's rental obligations under the Master
Lease.
12
<PAGE>
(x) All keys to each site, facilities, and equipment
transferred to Buyer and all security and access codes,
if any, applicable to each site, facilities, and
equipment.
(xi) Copies of Seller's Books.
(xii) All additional documents and instruments or which Buyer's
counsel and Seller's counsel may mutually and reasonably
determine are necessary to the proper consummation of
this transaction.
(b) Buyer. Buyer shall deliver to the Seller each of the following
----- items:
(i) The total Purchase Price (less the Escrowed Funds and the
Rental Prepayment) after deducting therefrom any credits
to which Buyer may be entitled.
(ii) A counterpart of the Assignment of Leases duly executed
and acknowledged by Buyer whereby Buyer assumes all of
Seller's obligations (regardless of when such obligations
may have arisen) under the leases for the Leased Real
Properties.
(iii) A counterpart of the Assignment of Contracts duly
executed and acknowledged by Buyer.
(iv) A counterpart of the Master Lease duly executed and
acknowledged by Buyer.
(v) A counterpart of the Purchase Price Allocation executed
by Buyer.
(vi) A counterpart of the Tyler Lease.
(vii) All additional documents and instruments which Buyer's
counsel and Seller's counsel may mutually and reasonably
determine are necessary to the proper consummation of
this transaction.
11.3 Credits/Prorations. Current ad valorem and personal property taxes,
------------------
and any rents or other fees and charges associated with the Property shall be
prorated through the Closing Date. If the amount of the ad valorem (or personal
property) taxes for the year in which the sale
13
<PAGE>
is closed is not available, proration of taxes shall be made on the basis of
taxes assessed in the previous year, with a subsequent cash adjustment of such
proration to be made between Seller and Buyer, if necessary, when actual tax
figures are available.
All prepaid rents under User Contracts shall be delivered to Buyer or
otherwise credited against the cash due from Buyer to Seller. Seller will
furnish Buyer with a schedule of delinquent rents for the Property. Unpaid rents
due from tenants will not be prorated. Buyer shall pay Seller's pro rata share
of any delinquent rents due from tenants, net of any reasonable out of pocket
cost of collection, if, as, and when they are collected by Buyer, it being
understood and agreed that all rents collected by Buyer which are not
specifically designated by the tenants to be on account of their obligation for
any period before the Closing Date shall be applied to current rental periods
and second to satisfy rental obligations arising from past rental periods.
All other income and expenses of the Property (except as may otherwise be
provided herein) shall be prorated through the Closing Date.
Buyer shall receive a credit against the Purchase Price for the amounts of
all security deposits (including without limitation, rent deposits, damage or
similar deposits and excluding all application fees or deposits which are non-
refundable or which as of the Closing Date have been forfeited) which may have
been delivered by tenants under the User Contracts except, to the extent that
Seller documents to Buyer's reasonable satisfaction that the same have been
applied to delinquent sums or to damages as provided in the User Contracts.
11.4 Delinquent Rents. Seller shall retain title to all delinquent rents
----------------
existing as of the Closing Date or otherwise allocable to the period of time
prior to the Closing Date under the User Contracts, and shall have the right to
collect such delinquent rents at Seller's sole cost and expense; provided,
however, that in pursuance of such collection efforts, Seller shall not exercise
any of the lessor's or landlord's rights under any User Contracts. The Buyer
agrees to cooperate with Seller, at no cost to Buyer, in connection with such
collections, and to promptly remit to Seller all such delinquent rents collected
by the Buyer after the Closing Date; provided, however, that all rents that (i)
are received after the date hereof from such delinquent tenants and (ii) are not
designated by such tenants to be on account of their obligations for any period
before the Closing Date, shall be applied first against the then-current portion
of such tenant's rent obligation and then against the delinquent portion due to
Seller. The provisions of this Section 11.4 shall survive the Closing.
11.5 Costs of Closing.
----------------
Seller agrees to pay:
(a) Seller's attorneys' fees;
14
<PAGE>
(b) One half (1/2) of any escrow fees charged by the Title Company or the
Escrow Agent pursuant hereto; and
(c) Recording fees charged to release any liens on the Property prior to
or after the Closing Date.
Buyer agrees to pay:
(a) Buyer's attorneys' fees;
(b) One half (1/2) of any escrow fees and all of the recording fees
charged by the Title Company or the Escrow Agent pursuant hereto;
(c) All fees in connection with recording the Deed(s) and the Easement;
(d) All fees in connection with satisfying the Requirements (specifically
excluding any legal fees and other incidental costs incurred by Seller
pursuant to Section 12.11 and any other expenses for which Seller is
responsible under the terms of this Contract);
(e) The cost of any title policies or surveys obtained by Buyer; and
(f) The costs of any Inspections conducted by Buyer.
All other costs, fees, penalties and other expenses incurred shall be paid by
Seller and/or Buyer as is customarily done in connection with a closing in
Harris County, Texas of the type of transaction contemplated by this Contract.
11.6 Utilities. Buyer and Seller shall mutually endeavor to have utility
---------
meters read, final bills sent to the Seller, and all utility (including
telephones) services to be placed in the Buyer's name, effective as of the
Closing Date.
ARTICLE XII
MISCELLANEOUS
-------------
12.1 References. All references to "Article", "Articles", "Section", or
----------
"Sections" contained herein are, unless specifically indicated otherwise,
references to Articles and Sections of this Contract.
12.2 Exhibits. All references to "Exhibits" contained herein are
--------
references to exhibits attached hereto, all of which are made a part hereof for
all purposes.
15
<PAGE>
12.3 Captions. The captions, headings and arrangements used in this
--------
Contract are for convenience only and do not in any way affect, limit, amplify
or modify the terms and provisions hereof.
12.4 Number and Gender of Words. Whenever herein the singular number is
--------------------------
used, the same shall include the plural where appropriate and words of any
gender shall include each other gender where appropriate.
12.5 Governing Law. This Contract is being executed and delivered and is
-------------
intended to be performed in the State of Texas, and the laws of such State shall
govern the validity, construction, enforcement and interpretation of this
Contract, unless otherwise specified herein.
12.6 Attorneys Fees. If it shall be necessary for either Buyer or Seller
--------------
to employ an attorney to enforce their respective rights pursuant to this
Contract because of the default of the other party, the non-prevailing party in
any legal action shall reimburse the prevailing party for its reasonable
attorneys' fees.
12.7 Entirety and Amendments. This Contract embodies the entire agreement
-----------------------
between the parties and supersedes all prior agreements and understandings, if
any, relating to the Property and may be amended or supplemented only by an
instrument in writing executed by the party against whom enforcement is sought.
12.8 Invalid Provisions. If any provision of this Contract is held to be
------------------
illegal, invalid, or unenforceable under present or future laws, such provisions
shall be fully severable the same as if such invalid or unenforceable provisions
had never comprised a part of the Contract; and the remaining provisions of the
Contract shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance from this
Contract. Furthermore, in lieu of such illegal, invalid or unenforceable
provision, there shall be automatically as a part of this Contract, a provision
as similar in terms to such illegal, invalid or unenforceable provision as may
be possible and be legal, valid and enforceable.
12.9 Multiple Counterparts. This Contract may be executed in a number of
---------------------
original or facsimile identical counterparts. If so executed, each of such
counterparts is to be deemed an original for all purposes and all such
counterparts shall, collectively, constitute one agreement, but, in making proof
of this Contract, it shall not be necessary to produce or account for more than
one such counterpart.
12.10 Parties Bound. This Contract shall be binding upon and inure solely
-------------
to the benefit of Seller and Buyer and their respective heirs, personal
representatives, successors and permitted assigns and no third party is intended
to be a beneficiary of this Contract.
16
<PAGE>
12.11 Further Acts. In addition to the acts and deeds recited herein and
------------
contemplated to be performed, executed and/or delivered by Seller and Buyer,
Seller and Buyer agree to perform, execute and/or deliver or cause to be
performed, executed and/or delivered after the closing any and all such further
acts, deeds and assurances as may be reasonably necessary to consummate the
transactions contemplated hereby. Seller expressly agrees that it shall, at its
sole cost and expense, cooperate and assist (in all reasonable respects) Buyer
in order to satisfy all Requirements (including, without limitation, obtaining
any agreements or information which are reasonably necessary in such regard)
pertaining to the Leased Real Property and Owned Real Property that is subject
to the Escrow Agreement (it being understood and agreed that, notwithstanding
anything set forth herein to the contrary, Buyer shall be responsible for the
payment of all title insurance premiums, survey costs and other Buyer's expenses
enumerated in Section 11.5). In addition, Buyer and Seller agree to cooperate
(in all reasonable respects) with each other following the Closing to correct
any material title or survey defects relating to any of the Leased Real Property
or Owned Real Property (Seller further agrees to use commercially reasonable
efforts to make any such corrections within 180 days following Closing).
12.12 Time of the Essence. It is expressly agreed by the parties hereto
-------------------
that time is of the essence with respect to this Contract.
12.13 Real Estate Brokerage. Seller has not entered into any written
---------------------
agreement with any broker relating to the sale and purchase of the Property
contemplated hereby. Buyer has not entered into any written agreement with any
broker relating to the sale or purchase of the Property contemplated hereby.
The Texas Real Estate Licensing Act requires the real estate agent to advise
Buyer that it should have an attorney examine an abstract of title to the
property being purchased or a title policy should be obtained. Notice to that
effect is therefore given to the Buyer.
12.14 Waiver. It is not a waiver of breach if the nondefaulting party
------
fails to declare immediately a default or delays in taking any action. Pursuit
of any remedies set forth in this Contract does not preclude pursuit of other
remedies in this Contract. No waiver of any party's rights hereunder shall be
binding unless in writing and executed by an authorized signature of the party
to be so bound and any waiver by any party shall not be construed to be a waiver
of any matter other than the matter specifically waived in such writing.
12.15 Confidentiality. Except for compulsory disclosures in legal
---------------
proceedings, Buyer and Seller, and their respective agents, agree to keep
confidential the terms of this Contract and any other documents delivered
pursuant hereto and further covenant not to discuss the same with any third
party without first seeking the written consent of the other.
12.16 Survival. All covenants and agreements contained herein and
--------
intended to be performed subsequent to the Closing Date shall survive the
execution and delivery of the Deed(s) and other closing documents required
hereby and shall specifically not be deemed to be merged into or waived by any
instrument of closing, but shall expressly survive and be binding upon
17
<PAGE>
Seller and Buyer. Any liability of either party for misrepresentation or breach
of warranty contained herein shall survive the execution and delivery of the
Deed(s) and other closing documents required hereby for a period of eighteen
(18) months (except for all representations and warranties of title contained in
the Deed(s) which shall survive indefinitely), shall specifically not be deemed
to be merged into or waived by any instrument of closing, and such liability
shall expressly survive and be binding upon such party for such eighteen (18)
month period.
12.17 Notices. All notices, demands and requests and other communications
-------
required or permitted hereunder shall be in writing, shall be sent by certified
mail, return receipt requested, by courier, or by telephonic facsimile and shall
be deemed to be delivered (i) upon first attempted delivery if sent by mail or
by courier and (ii) upon transmittal (with receipt confirmation) if sent by
telephonic facsimile. Buyer's and Seller's respective addresses for purposes of
this Contract, and to which all notices required hereunder shall be sent, are as
follows:
If to the Seller: Teletouch Communications
1000 Louisiana Street
Suite 600
Houston, Texas 77002
Attn: Mr. Robert M. McMurrey
(713) 951-3351 (Facsimile)
(713) 951-0316 (Telephone)
with a copy to: Bracewell & Patterson, L.L.P.
711 Louisiana Street, Suite 2900
Houston, Texas 77002-2781
Attn: Mr. Thomas D. Manford, III
(713) 221-1212 (Facsimile)
(713) 221-1303 (Telephone)
18
<PAGE>
If to the Buyer: Pinnacle Towers, Inc.
1549 Ringling Boulevard
3rd Floor
Sarasota, Florida 34236
Attn: Mr. Robert J. Wolsey
(941) 364-8761 (Facsimile)
(941) 364-8886 (Telephone)
with a copy to: Holland & Knight, L.L.P.
400 North Ashley Drive
Suite 2300
Tampa, Florida 33602-4300
Attn: Mr. Trey Baldy
(813) 229-0134 (Facsimile)
(813) 227-8500 (Telephone)
Either party hereto may change its address for notice by giving three (3) days
prior written notice thereof to the other party.
12.18 Assignment of Contract. This Contract may not be assigned by either
----------------------
party hereto without the prior written consent of the other party.
12.19 Limitation on Buyer's Remedies. If Buyer discovers after Closing
------------------------------
that any of the representations made in Sections 6.2, 6.6 or 6.9 were untrue
when made, Buyer's sole and exclusive remedy shall be to obtain a release of any
Escrowed Funds relating to the Leased Real Property or Owned Real Property to
which the misrepresentation relates. Any release of Escrowed Funds pursuant to
this Section 12.19 or the Escrow Agreement shall be applied to Seller's rental
obligations under the Master Lease.
12.20 Limitation on Subsequent Sale. If the transaction contemplated by
-----------------------------
this Contract fails to close because Seller is unable to satisfy the condition
precedent set forth in Section 10.1(c) above or if Seller terminates this
Contract pursuant to Section 11.1 above, Seller shall not solicit, negotiate or
otherwise consummate a sale of the Property for a period of six (6) months
following the date this Contract is terminated.
12.21 Post Closing Audits. Seller shall, for a period of one (1) year
-------------------
following the Closing, cooperate (in all material respects) with Buyer and will
make available to Buyer and
19
<PAGE>
Buyer's accountants, Seller's financial books and records regarding the Property
in connection with audits of Buyer or Buyer's business pertaining to financing
done by Buyer after Closing.
EXECUTED effective as of the Effective Date.
SELLER:
TELETOUCH COMMUNICATIONS, INC.,
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
BUYER:
PINNACLE TOWERS INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
20
<PAGE>
Exhibit A - Leased Real Property
Exhibit B - Owned Real Property
Exhibit C - User Contracts
Exhibit D - Master Antenna Site Lease No.
Exhibit E - Land Leases
Exhibit F - Rental Allocation
21
<PAGE>
Exhibit 10.2
FIRST AMENDMENT TO CONTRACT OF SALE
THIS FIRST AMENDMENT TO CONTRACT OF SALE (this "Amendment") is entered
into effective as of January 22, 1998, by and between TELETOUCH COMMUNICATIONS,
INC. ("Seller") and PINNACLE TOWERS INC. (the "Buyer") for the purpose of
amending that certain Contract of Sale dated as of December 31, 1997 (the
"Contract").
WHEREAS, Buyer and Seller have mutually agreed to increase the Purchase
Price (as defined in the Contract) to be paid by Buyer to Seller.
NOW THEREFORE, in consideration of the mutual promises contained
herein, and other good and valuable consideration, the receipt and sufficiency
which are hereby acknowledged, the parties agree as follows:
1. Section 3.1 of the Contract is deleted in its entirety and
replaced with the following:
"3.1 The Purchase Price. The Purchase Price to be paid by
Buyer to Seller for the Property shall be Eight
Million Seven Hundred Twenty Thousand Seventy Eight
and 40/100 Dollars ($8,720,078.40)."
2. Exhibit "B" of the Contract is amended by substituting the
legal description attached hereto as Schedule 1 for the legal
description of the Tyler, TX/Site No. 3001.
3. Exhibit "C" of the Contract is amended and replaced in its
entirety with Schedule 2 attached hereto.
4. Buyer and Seller agree to negotiate in good faith and execute
the Purchase Price Allocation (as defined in the Contract) on
a post closing basis.
Except as specifically provided for herein, all terms and conditions of
the Contract shall remain in full force and effect. This Amendment may be
executed in any number of counterparts, each of which when so executed and
delivered shall be an original but all such counterparts shall together
constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
SELLER
TELETOUCH COMMUNICATIONS, INC.
By: /s/ Robert M. McMurrey
------------------------------------
Robert M. McMurrey
Chairman and Chief Executive Officer
BUYER
PINNACLE TOWERS, INC.
By: /s/ Stephen R. Wolsey
------------------------------------
Name: Stephen R. Wolsey
---------------------------------
Title: Project Manager
---------------------------------
2
<PAGE>
SCHEDULE 1
Legal Description for Tyler, TX/Site No. 3001
---------------------------------------------
3
<PAGE>
SCHEDULE 2
User Contracts
--------------
4
<PAGE>
Exhibit 10.3
MASTER ANTENNA SITE LEASE NO. ____
================================================================================
LESSOR: Pinnacle Towers Inc. LESSEE: Teletouch Communications, Inc.
Third Floor 110 North College Street,
1549 Ringling Boulevard Suite 200
Sarasota, Florida 34236 Tyler, Texas 75702
================================================================================
This Master Tower Site Lease ( the "Lease") is entered pursuant to a
Contract of Sale dated December 31, 1997, between Lessor and Lessee (the
"Purchase Agreement"). Capitalized terms used but not defined in this Lease have
the meanings ascribed to them in the Purchase Agreement. Lessee acknowledges and
agrees that Lessee's entering into and performing under this Lease is a material
inducement to Lessor's purchase of the Property under the Purchase Agreement.
Lessor operates the antenna site(s) described in the Antenna Site Lease
Schedule(s) executed and delivered by Lessor and Lessee pursuant to this Lease
from time to time (each a "Schedule" and, collectively, the "Schedules"). Lessor
desires to lease to Lessee and Lessee desires to lease from Lessor certain space
at the site for the continuing operation of Lessee's equipment which is
currently installed and equipment which may be installed in the future on the
terms set forth in the Schedule(s) and herein. If the terms of a Schedule
conflict with this Lease, the Schedule shall control.
1. Leased Premises. Lessor hereby leases to Lessee space at the
site as specified and described in a Schedule. If a Schedule provides that
Lessee's equipment will be connected to a multiplexer, Lessee shall be
responsible for all costs of multiplexer modules and other equipment required
for the connection.
2. Term.
(a) The initial term and, if applicable, renewal terms of this
Lease for any antenna system shall be for a period of ten (10) years beginning
on the date of execution of this Lease. Provided Lessee is not in default, the
lease term may, by mutual agreement, be renewed for one or more five-year terms,
at a rental rate to be mutually agreed upon.
(b) If Lessee holds over the leased premises after the final
term of this Lease, then this Lease shall revert to a month-to-month term, and
rent shall be 150% of the rent for the last month of the preceding term. Lessor
shall have the right during such month-to-month term to terminate this Lease
without cause upon thirty (30) days notice to Lessee.
3. Rent.
(a) Lessee shall pay rent at the rate of $48,140.50 per month.
Such rental rate shall increase by 1.5% on each of the first four annual
anniversary dates of this Lease, and by 2.5% on each of the fifth through ninth
anniversary dates of this Lease. Rent for any fractional month at the beginning
or end of a term shall be prorated. Monthly rent as specified above applies to
the cumulative equipment currently in operation by Lessee at the twenty sites to
be acquired by Lessor pursuant to the Purchase Agreement.
(b) Lessee shall pay rent by electronic transfer or direct to
Lessor's lockbox account at Pinnacle Towers Inc., P.O. Box 550094, Tampa, FL
33655-0094 no later than the first day of each calendar month with respect to
which it is payable. If payment is not received by the 10th of any month, Lessor
has the option to charge a late fee equal to the greater of $25 or 12% per month
of the amount due.
(c) Any security deposit required by this Lease will be held
in a non-interest bearing account and shall be returned to Lessee thirty (30)
days following the conclusion of the lease term of the Schedule, provided Lessee
is not in default.
(d) Lessee shall pay all sales or use taxes applicable to rent
payable under this Lease or as a direct result of Lessee's equipment being
located on the leased premises.
4. Installation.
(a) Lessor and Lessee acknowledge that Lessee currently has
certain equipment installed at the sites, which equipment is subject to the
terms of this Lease. Additionally, Lessor acknowledges that Lessee may wish to
install additional equipment at the sites in the future.
(b) Lessee shall install and operate only the equipment
currently in place on the leased premises and identified in the Schedules, and
the cost of Lessee's installation and licensing fees shall be borne solely by
Lessee. Lessee shall comply with all site rules and standards contained in
Exhibit A to this Lease with respect to any equipment that Lessor subsequently
agrees may be added to
Exhibit "D"
<PAGE>
the Schedules, but will not be required to so comply with respect to the
equipment currently in place on the leased premises and identified in the
Schedules on the date of this Lease unless the tower whereupon the equipment is
located is subsequently upgraded or replaced by Lessor.
(c) During installation of any later approved equipment,
Lessee shall not cause interference of any kind to the activities of Lessor or
lessees on the site. If such interference is caused by Lessee and cannot be
reduced to levels reasonably acceptable to Lessor, Lessee shall immediately halt
all installation work, and Lessor may elect to terminate this Lease by giving
Lessee ten (10) days written notice.
(d) Lessee represents that: (I) Lessee's current and future
equipment and the operation and use thereof materially complies and will comply
with all applicable law, and (II) all equipment has received all approvals of
governmental authorities required in connection with ownership thereof and have
been operated and maintained in accordance with applicable law.
5. Uses of Leased Premises.
(a) Lessee shall use the leased premises and conduct its
communications operations in compliance with the terms of its FCC license and
applicable regulations imposed by any other governmental agency. Lessee shall,
if requested, provide Lessor with copies of such permits.
(b) Lessee shall have a non-exclusive right to access the
leased premises twenty-four (24) hours a day, 365 days a year for its employees,
agents, or representatives as designated. In accordance with procedures in
Exhibit A, Lessee will be issued a key, key card, and/ or access code to unlock
the gate and transmitter room for maintenance purposes. This key may not be
duplicated, loaned, or transferred to any other entity. If this key or keycard
is lost or the integrity of security is breached by Lessee, Lessee will bear the
expense for Lessor to re-tool the locks, reprogram the security system, and
provide new keys and/or keycards for all authorized persons. Lessee shall
provide Lessor the name of Lessee's custodian of the key or keycard; should the
custodian change, Lessee shall notify Lessor, in writing, of the new custodian's
identity within twenty-four (24) hours.
(c) Before performing any installation or maintenance work at
a site (other than emergency and routine maintenance work), Lessee shall notify
Lessor and obtain Lessor's approval of the work to be performed and the persons
to perform the work with such approval not to be unreasonably withheld or
delayed. All contractors and subcontractors of Lessee who perform any services
on the leased premises must be approved by Lessor in advance with said approval
not to be unreasonably withheld or delayed and must hold all licenses necessary
for the work being performed. Lessee shall maintain a log of the entry and exit
of its employees and agents and shall make the log available to Lessor upon
request.
(d) Lessee shall not bring onto the site any Hazardous
Materials in violation of any environmental law.
(e) Lessee shall not cause interference of any kind to the
operations of the Lessor or other lessees of space at the towers on the leased
premises in excess of levels permitted by the FCC. However, to the extent that
the Lessee does not cause interference with current lessees, Lessee shall not be
required to make modifications with respect to those lessees. If Lessee is
notified that its operations are causing objectionable interference, Lessee
shall promptly undertake all necessary steps to determine the cause of and
eliminate such interference. If the interference continues for a period in
excess of forty-eight (48) hours following notification, Lessor shall have the
right to cause Lessee to cease operating the offending equipment or to reduce
the power sufficiently to remove the interference until the condition can be
remedied. Lessee shall continue to be obligated to pay rent, and Lessor shall
not be held liable for any damages or loss of revenues. If Lessee is required to
discontinue its operation under this section for a period of sixty (60) days,
and provided Lessee has diligently pursued all reasonable cures and is unable to
eliminate the interference, then Lessee shall have the right to terminate this
Lease. Provided Lessee's equipment is operating properly, if the operations of
any equipment installed after Lessee's equipment cause objectionable
interference to Lessee's operation, then Lessor shall require the interfering
lessee to remedy the interference and bear the costs thereof.
(f) Lessee understands that it is the intention of Lessor to
accommodate as many users as possible at its sites. Lessee shall cooperate, at
no cost to Lessee, with Lessor in rescheduling its transmitting activities,
reducing power, or interrupting its activities for limited periods of time in
order to permit the safe installation of new equipment or new facilities at the
site or to permit repairs to facilities of any user of the site or to the site
or related facilities.
(g) Lessor makes no guaranty or warranty, including any
implied warranty of merchantability or fitness for a particular use. Lessee has
examined the leased premises and determined that they are suitable for its
purposes.
6. Utilities. In addition to all rental amounts required
hereunder, Lessee shall pay to Landlord the sum of $2,936.00 per month for
utility costs incurred by Lessor, and shall not be responsible for utility costs
incurred by Lessor in excess of $2,936.00 per month. Lessee shall also pay all
installation costs for electrical power feeds, phone lines, and other utility
installation for Lessee's equipment.
7. Insurance. Requirements are set forth in Exhibit B.
2
<PAGE>
8. Maintenance of Site.
(a) Lessor shall maintain the site(s) in good repair, ordinary
wear and tear excepted, and in compliance with applicable sections of Part 17 of
the FCC's rules pertaining to lighting, marking, inspection, and maintenance. In
cases where such FCC regulations require the painting of Lessee's feedlines,
Lessee hereby consents to such painting at Lessor's expense.
(b) Lessee shall maintain its equipment in accordance with
standards of good engineering practice to assure that it conforms with the site
standards in Exhibit A and shall at the conclusion of a Schedule surrender
possession of the leased premises to Lessor in the same condition they were at
the commencement of the Schedule, ordinary wear and tear excepted.
9. Alteration by Lessee.
(a) Lessee may not make improvements or alterations to the
tower(s), building(s), or any portion of the leased premises without the
expressed written permission of Lessor. Any such improvements that are approved
by Lessor and made by Lessee shall become the property of Lessor upon
termination or expiration of this Lease.
(b) Notwithstanding Section 9(a) above, Lessee may make
changes and alterations in its equipment provided that (i) such changes or
alterations conform with standards of good engineering practice and the
provisions of Section 5, (ii) plans and specifications are first submitted to
and approved in writing by Lessor (such approval not to be unreasonably withheld
or delayed using customary commercial standards), and (iii) any proposed changes
or alterations do not materially increase the "wind loading" of the tower. Upon
Lessor's reasonable request, Lessee will provide an independent professional
analysis of Awind loading@ and stress to determine any changes that equipment
replacements or alterations would cause.
10. Site Damage; Damage to Lessee's Equipment; Service
Interruption.
(a) If a site is fully or partially destroyed or damaged,
Lessor, at its option, may elect to terminate a Schedule upon ten (10) days
written notice to the Lessee. In this event, Lessee shall owe rent only up to
the date on which Lessee was unable to conduct its normal operations solely due
to the damage or destruction of the site.
(b) Lessor, at its option, may elect to repair or rebuild the
site, in which case, the Schedules shall remain in force. Lessor will provide
Lessee at least thirty (30) days notice thereof, and any such project shall be
completed within one hundred eighty (180) days after the date of damage or
destruction. If reconstruction or repair cannot reasonably be undertaken without
dismantling Lessee's antenna, then Lessor may remove Lessee's antenna and
interrupt Lessee's operations, thereafter replacing the antenna as soon as
reasonably possible. Lessee shall be entitled to a pro rata abatement of rent
for the time it is unable to conduct its normal operations as a result of such
total or partial destruction or damage or need of repair. Lessee shall also be
entitled to a pro rata abatement of rent, if Lessor does not repair or rebuild
the site in accordance with the terms hereof, in an amount for the damaged
location calculated in accordance with the allocation set forth on the attached
Exhibit C.
(c) Under no circumstances whatsoever shall Lessor be
responsible for damage to or loss of Lessee's equipment, or for financial loss
due to business interruption, unless by Lessor's negligence or willful
misconduct.
(d) Lessor shall incur no liability to Lessee for failure to
furnish space and/or electrical power if prevented by war, fires, accidents,
acts of God, or other causes beyond its reasonable control. During such period,
Lessee shall be entitled only to a pro rata abatement of rent for the time it is
unable to conduct substantially normal operations as a result of such
circumstances, except that Lessee shall not be entitled to any abatement for
outages of less than twenty-four (24) hours consecutive duration.
11. Eminent Domain. If the land or leased premises (or any
material part thereof) upon which a tower, foundation, or building is located
are acquired or condemned under the power of eminent domain, whether by public
authority, public utility, or otherwise, then the applicable Schedule shall
terminate as of the date of the acquisition. Lessor shall be entitled to the
entire amount of any condemnation award, and Lessee shall be entitled to make
claim for and retain a condemnation award based on and attributable to the
expense and damage of removing its fixtures.
12. Indemnification by Lessee. Lessee shall indemnify, hold
harmless, and defend Lessor for and against any and all liabilities, claims,
demands, suits, damages, actions, recoveries, judgments, and expenses (including
court costs, reasonable attorneys' fees, and costs of investigation) resulting
from: (a) a breach by Lessee of any provision contained herein or any agreement
executed pursuant hereto; and (b) injuries to or death of any person or any
damage to property or loss of revenues due to discontinuance of operations at
the leased premises resulting from, or that is claimed to result from or arise
out of any act or omission of Lessee or its contractors, subcontractors, agents,
or representatives in or around the leased premises or any breach of this Lease
by Lessee, except to the extent such liabilities are directly caused by the
willful misconduct or gross negligence of Lessor.
13. Indemnification by Lessor. Lessor shall indemnify, hold
harmless, and defend Lessee for and against any and all liabilities, claims,
demands, suits, damages, actions, recoveries, judgments, and expenses (including
court costs, reasonable attorneys' fees, and costs of investigation) resulting
from: (a) a breach by Lessor of any provision contained herein or any agreement
executed pursuant hereto; and (b) injuries to or death of any person or any
damage to property or loss of revenues due to discontinuance of operations at
the leased premises resulting from, or that is claimed to result from or arise
out of any act or omission of Lessor or its contractors,
3
<PAGE>
subcontractors, agents, or representatives in or around the leased premises or
any breach of this Lease by Lessor, except to the extent such liabilities are
directly caused by the willful misconduct or gross negligence of Lessee.
14. Assignment. Lessee shall not assign, mortgage, or encumber
this Lease and shall not sublet or permit the leased premises or any part
thereof to be used by others without the express written approval of Lessor,
which consent shall not be unreasonably withheld or delayed. Notwithstanding the
foregoing, Lessor's consent shall not be required in the event Lessee assigns
this Lease to a purchaser of all or substantially all assets of Lessee. No
sublease or authorized use by others shall relieve Lessee of its obligations
under this Lease. Lessor may assign, mortgage, or encumber its rights under this
Lease at any time.
15. Default by Lessee. If Lessee fails to make payments within ten
(10) days of date due and such failure continues for five (5) days after written
notice from Lessor, Lessee is adjudged bankrupt or insolvent, makes a transfer
in fraud of creditors, makes an arrangement for the benefit of creditors;
institutes voluntary bankruptcy or insolvency proceedings or consents to the
filing of a bankruptcy or insolvency proceeding or files a petition or answer or
consent seeking reorganization or liquidation under any bankruptcy or similar
laws; a receiver or trustee is appointed for substantially all of the assets of
Lessee or for Lessee's leasehold interest in this Lease, or; any representation,
warranty, or covenant of Lessee herein is untrue, false, or misleading at any
time; or Lessee fails to comply with any other term of this Lease after receipt
of written notice from Lessor, and does not cure such other failure within
thirty (30) days of such written notice, or does not commence to cure within
thirty (30) days and complete such cure within ninety (90) days of such written
notice (each an "Event of Default"); then Lessor shall have the option to
terminate this Lease or any or all Schedules, in which event Lessee shall
surrender possession of the leased premises within ten (10) days, or to pursue
any other remedy available to Lessor under this Lease or otherwise provided by
law or equity. Lessor may also apply any or all of the deposit or prepaid rent
to cure a default. Upon an Event of Default, Lessee shall pay Lessor the sum of:
(a) the unpaid rent and other amounts payable hereunder through the date of such
Event of Default; (b) the cost of repairing, altering, or otherwise putting the
leased premises into condition acceptable to a new lessee or lessees; (c) all
expenses incurred by Lessor in enforcing its remedies, including reasonable
attorneys' fees and court costs; (d) any other damages or relief Lessor may be
entitled to at law or in equity. Lessee shall be liable for all expenses
incurred by Lessor for recovery, and repossession by Lessor, which actions shall
not affect the obligations of Lessee for the unexpired term of this Lease unless
Lessor terminates this Lease.
16. Default by Lessor. Upon the occurrence of any act or omission
by Lessor that would give Lessee the right to damages or the right to terminate
a Schedule or this Lease, Lessee shall not sue for damages or exercise any right
to terminate this Lease or a Schedule until it gives Lessor and any mortgagee
(the existence of which Lessor notifies Lessee in writing) of this Lease notice
in writing of the act or omission and a reasonable time (which shall not be less
than thirty [30] days) to remedy such act or omission.
17. Removal of Lessee's Equipment. At the termination of a
Schedule, provided Lessee is not in default, Lessee shall have one hundred
eighty (180) days to remove its equipment in accordance with Lessor's
designation of the order of removal, but such removal shall be within thirty
(30) days if Lessee defaults in any rent payment. Lessee shall pay all costs in
connection with the removal.
18. Subordination. This Lease is and shall be subject and
subordinate to all mortgages that may now or hereafter affect the leased
premises and to all renewals, modifications, consolidations, replacements, and
extensions thereof; provided, however, as a condition precedent to any such
subordination, the party secured by such instrument shall covenant for itself
and any purchaser at foreclosure not to disturb Lessee's quiet enjoyment so long
as Lessee is not in default hereunder. This subordination shall be self-
operative and no further instrument of subordination shall be required by any
mortgagee. However, upon written request from Lessor, Lessee shall execute a
certificate confirming such subordination.
19. Liens. Lessee shall not suffer or permit any liens to stand
against the leased premises or any part thereof by reason of any work, labor,
service, or materials done for, or supplied for, or supplied to or claimed to
have been done for, or supplied to, Lessee or anyone holding Lessee's property
or any part thereof through or under Lessee ("Mechanics' Liens"). If any
Mechanics' Lien shall at any time be filed against the leased premises, Lessee
shall cause it to be discharged of record within thirty (30) days after the date
of filing by either payment, deposit, or bond. If Lessee fails to discharge any
such Mechanics' Lien within such period, then, in addition to any other right or
remedy of Lessor, Lessor may, but shall not be obligated to, procure the
discharge of the Mechanics' Lien. All amounts incurred by Lessor, including
reasonable attorneys' fees, in procuring the discharge of such Mechanics' Lien,
together with interest thereon at 12% per annum from the date of incurrence,
shall become due and payable immediately by Lessee to Lessor.
20. Estoppel Certificates. At any time, but not with less than ten
(10) days prior written notice, Lessee shall execute, acknowledge, and deliver
to Lessor a statement in writing certifying, if true, that this Lease and
applicable Schedule(s) are unmodified and in full force and effect (or, if there
have been any modifications, that the Lease is in full force and effect as
modified and stating the modifications), and the dates to which rent and other
charges, if any, have been paid in advance.
4
<PAGE>
21. Site Relocation. If Lessor reasonably determines that it is not
---------------
able to continue to lease any site to Lessee due to any title defect or
condition that existed or arose before the date hereof, then if Lessor locates
another site within a 5 mile radius of the subject site, Lessee shall be
obligated to relocate to such replacement site, at its cost and expense.
Notwithstanding the foregoing sentence, Lessee shall be obligated to pay all
rent allocable to the Mexia Site and Temple Site (as hereinafter defined)
whether or not Lessor locates a replacement site for the Lessee upon the
occurrence of the following: (1) Lessor reasonably determines that it is not
able to lease to the Lessee the Mexia Site identified as Site No. 4170 in the
Purchase Agreement (the "Mexia Site") due to tax suits and or judgments which
are currently outstanding against the Mexia Site, or (2) Lessor reasonably
determines it is not able to lease to the Lessee the Temple Site identified as
Site No. 4120 in the Purchase Agreement (the "Temple Site") due to the fact that
there is no building permit or variance for the Temple Site for the improvements
as they currently exist. For the preceding sentence, Lessor agrees to use
reasonable efforts to locate a replacement site within a five (5) mile radius of
the subject site, but Lessor shall determine in its sole discretion if it is
economically feasible for Lessor to obtain a replacement site.
22. Miscellaneous.
-------------
(a) The remedies provided herein shall be cumulative and shall not
preclude the assertion by any party hereto of any other rights or the seeking of
any other remedies against the other parties hereto.
(b) Should Lessor permit a continuing default by Lessee under this
Lease, the obligations of Lessee hereunder shall continue, and such permissive
default shall not be construed as a renewal of the term hereof nor as a waiver
of any of the rights of Lessor or obligations of Lessee hereunder.
(c) In addition to the other remedies in this Lease, and anything
contained herein to the contrary notwithstanding, Lessor shall be entitled to
specific performance or injunctive relief of any violation or attempted or
threatened violation of this Lease by Lessee without the necessity to post a
bond.
(d) This Lease may be executed in counterparts, and any number of
counterparts signed in the aggregate by the parties will constitute a single,
original instrument.
(e) This Lease, including the exhibits, schedules, lists and other
documents referred to herein, contain the entire understanding of the parties
with respect to its subject matter. There are no restrictions, agreements,
promises, warranties, covenants, or understandings other than expressly set
forth herein or therein. This Lease supersedes all prior agreements and
understandings between the parties with respect to its subject matter. No
modification of this Lease shall be effective unless contained in a writing
signed, dated and fully witnessed by the authorized representative of both
parties.
(f) All notices, requests, claims, demands, and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if delivered personally by FAX, by courier or mailed (certified mail,
postage prepaid, return receipt requested) to Lessor at the address shown herein
and to Lessee at the address shown on a Schedule or to such other address as any
party may have furnished to the other in writing in accordance with this
provision.
(g) This Lease shall be governed by, construed and enforced in
accordance with the laws of the State of Texas without regard to its conflict of
laws rules.
(h) Each party hereby waives any right of recovery against the
other for injury or loss due to hazards covered by insurance or required to be
covered, to the extent of the injury or loss covered thereby. Any policy of
insurance to be provided by Lessee or Lessor pursuant to this Lease shall
contain a clause denying the applicable insurer any right of subrogation against
the other party.
IN WITNESS THEREOF, this Lease has been duly executed and delivered
by Lessor and Lessee on the date indicated below.
LESSOR:
PINNACLE TOWERS INC.,
a Delaware corporation
WITNESS: By:
------------------------------ -------------------------------
Name:
--------------------------
Title:
-------------------------
WITNESS: DATE: January 26, 1998
------------------------------
5
<PAGE>
LESSEE:
TELETOUCH COMMUNICATIONS, INC.,
a Delaware corporation
WITNESS: By:
------------------------------ -------------------------------
Name: Robert M. McMurrey
Title: Chairman and Chief
Executive Officer
WITNESS: DATE: January 26, 1998
------------------------------
6
<PAGE>
EXHIBIT A
to
PINNACLE TOWERS INC. MASTER ANTENNA SITE LEASE #
ANTENNA SITE STANDARDS APPLICABLE TO ANTENNA ADDED OR RELOCATED AFTER THE
-------------------------------------------------------------------------
INITIAL LEASE DATE
------------------
1. Purpose: In order to minimize interference to every Lessee's operations
-------
and equipment, and to maintain good engineering practice, the following
installation and maintenance standards are being established and may be amended
by Lessor when deemed necessary.
2. Pre-Installation Standards: Prior to any installation, Lessee must
--------------------------
provide Lessor with complete plans for approval, including list of proposed
equipment and subcontractors, and no work may be performed until approval has
been given and all criteria has been met, which approval shall not be
unreasonably withheld or delayed. All equipment must be placed in approved
locations only, and any changes must be approved by Lessor before the
installation begins. The Lessor or its representative shall be on-site during
major work on the tower. Lessee must notify the Lessor at least five (5) days in
advance of any installation work. Following initial installation, routine
maintenance work to Lessee's equipment may be performed without prior notice.
3. Installation:
------------
(a) The following minimum protective devices must be properly
installed:
(1) Lightning arrestor in feedline at wall feedthru plate
for all non-broadcast antennas.
(2) Surge protectors in any AC & phone line circuit.
(3) Transmitter RF shielding kit if applicable.
(4) Isolator and harmonic filter.
(5) Duplexer or cavity bandpass filter.
(b) All transmitters, duplexers, isolators, multicouplers, etc.
must be housed in a metal cabinet or rack-mounted.
(c) All transmission lines entering the building must be 2@
Heliax/Wellflex or better via a wall feedthru plate,
terminating in a properly installed lightning arrestor with an
ID tag on both ends of the line.
(d) Solid outer shield cable such as Superflex or Heliax/Wellflex
must be used for all intercabling outside the cabinet. The use
of braided RF cable (eg; RG8) will NOT be permitted outside
the cabinet to minimize RF leakage which could cause
interference.
(e) All antenna, power and phone cables shall be routed to the
base station in a neat manner using routes provided for that
purpose. All phone lines shall use shielded cable properly
grounded.
(f) All stations are to obtain power from the power panel and/or
AC receptacle provided for their specific use.
(g) All RF equipment cabinets must be grounded to the site ground
system using copper strap or ribbon cable with cadweld or
silver solder connections.
(h) All antenna lines shall be electrically bonded to the tower at
the antenna and at the bottom of the tower using grounding
kits installed per manufacturer's specifications, and all
antenna brackets must be pre-approved.
(i) All equipment cabinets shall be identified with a typed label
under plastic on which the Lessee's name, address and 24-hour
phone number must be listed, in addition to a copy of Lessee's
FCC license.
(j) Monitor speakers shall be disabled except when maintenance is
being performed.
(k) All antenna lines will be tagged within twelve (12) inches of
the antenna, at the entrance to the building, at the repeater
or base station cabinet, and/or at the multicoupler/combiner
ports.
(l) No drilling, welding or alteration of the tower is permitted
for any reason.
(m) All ferrous metals located outside of the building or on the
tower shall be either stainless steel or hot-dipped
galvanized, not plated.
(n) Painted towers will require the painting of feedline by the
Lessee prior to or before completion of the install.
4. General: Lessee must comply with any applicable instructions regarding
-------
any site security system.
(a) Gates shall remain closed at all times unless entering or
exiting the premises. When leaving the building, ensure that
all doors are locked and the security system is armed.
(b) Any tower elevator may be used only after receiving proper
instruction on its use, signing a waiver and receiving
authorization from the Lessor.
(c) This lease does not guarantee parking space. If space is
available, park only in the designated areas. Do not park so
as to block any ingress or egress except as may be necessary
to load or unload equipment. Parking is for temporary use
while working at the site.
(d) Do not adjust or tamper with the thermostats or HVAC systems.
Access to the building roof is restricted to authorized
maintenance personnel.
7
<PAGE>
EXHIBIT B
to
PINNACLE TOWERS INC. MASTER ANTENNA SITE LEASE #
INSURANCE FOR LESSEE AND LESSEE'S CONTRACTORS AND SUBCONTRACTORS
----------------------------------------------------------------
Lessee, its contractors and subcontractors, will provide certificates of
insurance with Lessor named as "additionally insured" on policies except workers
compensation showing the insurance in force with a thirty (30) days day notice
of cancellation, non-renewal or material change. Certificate must be site
specific. In addition, it is the Lessee's responsibility to communicate to
Lessor, forty eight (48) hours in advance, when any work (other than routine and
emergency work) will be taking place at tower site. Coverage for contractors and
subcontractors are as follows:
Lessee will require contractors working on the leased site in the capacity of
General Site Maintenance limited to:
(a) Grounds and vegetation maintenance and installation not
requiring heavy equipment.
(b) Minor repairs and installations to existing facilities (locks,
plumbing, fencing, air conditioning, etc.) will carry an
umbrella / excess liability in excess of the business
automobile, commercial general liability and workers
compensation of a minimum of:
Each occurrence limit $1,000,000.00
General aggregate limit $1,000,000.00
Lessee will for itself, and will require contractors working at the tower site
only but not on the tower itself, excluding the above functions to, carry an
umbrella / excess liability in excess of the business automobile, commercial
general liability and workers compensation with minimum limits of:
Each occurrence limit $3,000,000.00
General aggregate limit $3,000,000.00
Lessee will for itself, and will require contractors working at the tower site
in any capacity which requires climbing the tower itself to, carry an
umbrella/excess liability in excess of the business automobile, commercial
general liability and workers compensation of a minimum of:
Each occurrence limit $5,000,000.00
General aggregate limit $5,000,000.00
The Lessee and Lessee's representatives, contractors and independent
contractors, are not related to the Lessor other than by this lease of space at
the site.
Insurance: Before commencement of any lease term under the schedule, Lessee, its
contractors and subcontractors operations shall procure and maintain insurance
coverage covering all of Lessee's, its contractors and subcontractors operations
and activities in, upon or in conjunction with the leased premise. The insurance
shall be provided in companies legally qualified to transact business in the
State where the site is located in companies with an AM Best Rating of A-: VIII
or greater with the following minimum limits.
Property: Lessee is responsible for insuring for all loss or damage to their
property or the property of others for which they are responsible including loss
of use or business interruption. Lessor assumes no responsibility for damage
occurring to Lessee's, Lessee's contractors and / or subcontractors real,
personal property and / or business interruption regardless of location.
Business Automobile Liability: Bodily Injury and Property Damage Liability or
owned, hired and non-owned vehicles:
Combined Single Limit $1,000,000.00
8
<PAGE>
EXHIBIT B (CONT.)
to
PINNACLE TOWERS INC. MASTER ANTENNA SITE LEASE #
INSURANCE FOR LESSEE LESSEE'S CONTRACTORS AND SUBCONTRACTORS
------------------------------------------------------------
Commercial General Liability: Including but not limited to bodily injury
liability, property damage liability, products and completed operations
liability, broad form property damage liability and personal injury liability:
Policy Form Occurrence
General Aggregate Limit $1,000,000.00
Products & Completed Operations Limit $1,000,000.00
Personal Injury & Advertising Injury Limit $1,000,000.00
Each Occurrence Limit $1,000,000.00
Fire Damage Limit $ 50,000.00
Medical Expense Limit $ 5,000.00
Workers Compensation:
Requirements for the State of the site location Statutory
Employers Liability
Limit each accident $ 100,000.00
Limit disease aggregate $ 500,000.00
Limit disease each employee $ 100,000.00
Lessor shall be added as an additional insured on Lessee's policies except
workers compensation. A certificate of insurance naming the Lessor as an
additional insured and showing the insurance in force shall be delivered to
the Lessor with a thirty (30) day notice of cancellation, non-renewal or
material change. Lessee agrees that the insurance coverage's outlined above
may be maintained pursuant to master policies of insurance covering the
specific site locations but requires that limits shall not be reduced at
the Lessor's site by activities at the Lessee's other sites or operations.
Limits of coverage are named site specific.
9
<PAGE>
EXHIBIT C
PER SITE RENT ALLOCATION
<PAGE>
Transmitter Allocation
Teletouch Communications
[This page intentionally left blank.]
<PAGE>
ANTENNA TOWER SITE LEASE SCHEDULE NO. :
MASTER SITE LEASE NO.:
Lease Reference:
Page (1) of (2)
This Antenna Site Lease Schedule is an integral part of the Master Antenna Site
Lease referred to above, the terms of which are hereby incorporated herein. If
there is a conflict between the terms of this Schedule and the Lease, this
Schedule shall prevail.
LESSOR: Name: Pinnacle Towers Inc.
Address: 1549 Ringling Boulevard, Third Floor
City/State/Zip: Sarasota, FL 34236
Phone: 941/364-8886 Fax: 941/364-8761
LESSEE: Name: Teletouch Communications, Inc.
110 North College Street, Suite 200
Tyler, Texas 75702
Phone:
Contact(s):
Fax:
Entity Type: Business Type:
SITE: Name:
Address:
City/State:
Coordinates:
Lessee shall be solely liable for all utility costs relating to the installation
and operation of its equipment.
This Agreement will supersede any and all previous Agreements made between
Lessor and Lessee for this site.
<TABLE>
<CAPTION>
<S> <C> <C>
Lessee's FCC License/Callsign: Expiration Date:
------------------------- ---------------
Lessee owned antenna(s) OR Multiplexer port of Lessor's antenna
- --------- --------------
A) TO BE MOUNTED ON THE TOWER: No. of Antennas: No. of Feedlines:
----------- ------------
Ant #1: Mounting Height: feet Tower leg:
----------------- -------------
Antenna Mfg/Model: Length:
------------------------------- --------
Antenna Mount:
------------------------------------------
Feedline Mfg/Type: Diameter:
----------------------------- -----------
Ant #2: Mounting Height: feet Tower leg:
----------------- -----------------
Antenna Mfg/Model: Length:
----------------------------------------------- --------------
Antenna Mount:
-------------------------------------------
Feedline Mfg/Type: Diameter:
---------------------------------- ----------
B) TO BE INSTALLED IN BUILDING:
Equipment Mfg/Model #: Type(Terminal, Transmitter, Repeater, etc.):
----------------------------------------------------------
Number of Channels: Power: W
- ------------------------------------------ ------------- -----------------
Number of Cabinets: Floorspace required:
----------------- ---------------------
Transmit Frequencies: , , , , , ,
------------- ------------ ------------ ----------- ------------ ------------- -------------
Receive Frequencies: . , , , , ,
---------------- -------------- --------------- -------------- --------------- --------------
Filters/Duplexers:
----------------------------------------------------------
</TABLE>
2
<PAGE>
C) SPACE FOR SATELLITE ANTENNAS & OTHER ANCILLARY SYSTEMS:
<TABLE>
<S> <C>
Description: Size:
------------------------------------------------- ---------------
Pole-Mounted (Preferred): Tower Mounting Hgt (if ground space unavail):
----- ---------
Mfg/Model :
----------------------------------------------------------------------------
NOTES:
------------------------------------------------------------------------------------
------------------------------------------------------------------------------------
</TABLE>
LESSOR:
PINNACLE TOWERS INC.
a Delaware corporation
WITNESS: By:
----------------------- ---------------------------------
Name:
---------------------------
Title:
---------------------------
WITNESS:
------------------------
Date:
-------------------------------
LESSEE:
TELETOUCH COMMUNICATIONS, INC.,
a ____________ corporation
WITNESS: By:
------------------------ -----------------------------------
Name:
------------------------------
Title:
-----------------------------
WITNESS:
------------------------
Date:
-----------------------------
3
<PAGE>
EXHIBIT "E"
-----------
Land Leases
-----------
[The Next 3 Pages Intentionally Left Blank.]
<PAGE>
EXHIBIT "F"
-----------
Rental Allocation
-----------------
PURCHASE PRICE ALLOCATION
[The Next 2 Pages Are Intentionally Left Blank.]
<PAGE>
Exhibit 99.1
------------
TELETOUCH SELLS 20 TOWERS FOR APPROXIMATELY $8.7 MILLION
January 28, 1998 8:30 AM EST
TYLER, Texas--(BUSINESS WIRE)--Jan. 28, 1998--
Proceeds To Reduce Debt and Increase Future Financing Options
Teletouch Communications, Inc. (Nasdaq:TELL) today announced that it has
sold 20 communication towers for approximately $8.7 million. Proceeds from the
tower sale will be used to reduce company debt.
"The sale of 20 of Teletouch's towers will significantly improve our company's
financial position," stated Robert M. McMurrey, chairman and chief executive
officer of Teletouch Communications, Inc. "The reduced debt will improve our
senior bank leverage, which is currently one of the lowest ratios in the
industry.
"As a result of our reduced leverage, we have renewed our senior credit facility
led by Chase Manhattan. The new facility calls for interest only payments
through August of 2000. We believe the new credit facility will improve our
future financings options, particularly for additional acquisitions," concluded
Mr. McMurrey.
Following the tower sale, Teletouch will continue to have access to the towers
through the lease of antenna space.
Teletouch Communications provides paging services in Alabama, Arkansas, Florida,
Louisiana, Mississippi, Missouri, Oklahoma, Texas and Tennessee. The Company
focuses on smaller metropolitan markets where it believes there is less
competition and more opportunity for internal growth than in larger metropolitan
areas. Teletouch's common stock is traded in the Nasdaq Small Cap market under
the stock symbol TELL.
Additional information on Teletouch is available at the Internet web address:
http://www.irinfo.com/tell
- --------------------------
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