1
Exhibit 2.9
AGREEMENT TO SUBLEASE
Dated as of February 16, 2000
by and between
AIRTOUCH COMMUNICATIONS, INC.
and
THE OTHER PARTIES NAMED HEREIN AS SUBLESSORS,
as Sublessors
and
CALIFORNIA TOWER, INC.
and
SPECTRASITE HOLDINGS, INC.
2
TABLE OF CONTENTS
Page
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ARTICLE 1 Definitions..........................................................1
1.1 Additional Tower.............................................1
1.2 Affiliate....................................................2
1.3 Agreement....................................................2
1.4 AirTouch Material Adverse Effect.............................2
1.5 Assets 2
1.6 Business Day.................................................3
1.7 Charter Documents............................................3
1.8 Code ......................................................3
1.9 Contracts....................................................3
1.10 Default......................................................3
1.11 Encumbrance..................................................3
1.12 Environmental Condition......................................3
1.13 Event 3
1.14 Excluded Assets..............................................3
1.15 FCC ......................................................4
1.16 GAAP 4
1.17 Governmental Authority.......................................4
1.18 Governmental Permits.........................................4
1.19 Included Towers..............................................5
1.20 Intellectual Property........................................5
1.21 Knowledge....................................................5
1.22 Laws ......................................................5
1.23 Liability....................................................5
1.24 Maximum Amount...............................................5
1.25 Other Entities...............................................5
1.26 Permitted Encumbrances.......................................6
1.27 Person 6
1.28 Prime Rate...................................................6
1.29 Real Property................................................6
1.30 Required Consents............................................6
1.31 Significant Transaction......................................6
1.32 Tax and Taxes................................................6
1.33 Threshold Amount.............................................7
1.34 Tower Related Assets.........................................7
1.35 Tower Sites..................................................7
1.36 Towers 7
1.37 TowerCo Material Adverse Effect..............................7
1.38 Transaction Documents........................................8
1.39 Other Definitions............................................8
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ARTICLE 2 Leasing of Assets....................................................9
2.1 Leasing or Subleasing of Assets..............................9
2.2 Restricted Items.............................................9
2.3 Exclusive Commitment Fee and Payment........................10
2.4 Completion of Transaction...................................11
2.5 References Applicable to Individual Closings................12
ARTICLE 3 Representations and Warranties of AirTouch..........................12
3.1 Organization and Qualification..............................12
3.2 Authority...................................................13
3.3 Enforceability..............................................13
3.4 Consents and Approvals......................................13
3.5 Title and Encumbrances......................................13
3.6 Governmental Permits........................................14
3.7 Contracts...................................................14
3.8 Environmental Laws..........................................15
3.9 Litigation..................................................16
3.10 Commissions.................................................16
3.11 Real Property...............................................17
3.12 Absence of Certain Changes or Events........................17
3.13 Availability of Documents...................................18
3.14 Compliance with Applicable Law..............................18
3.15 No Other Warranties.........................................18
ARTICLE 4 Representations and Warranties of Other Entities....................18
ARTICLE 5 Representations and Warranties of TowerCo and Parent................19
5.1 Organization and Qualification..............................19
5.2 Authority...................................................19
5.3 Enforceability..............................................19
5.4 Approvals...................................................19
5.5 Commissions.................................................19
5.6 SEC Reports.................................................20
5.7 Absence of Certain Changes..................................20
5.8 Threatened or Pending Litigation............................20
5.9 Funds Available for Exclusive Commitment Fee................20
5.10 Capitalization..............................................20
5.11 Interim Operations of TowerCo...............................21
5.12 No Undisclosed Liabilities..................................21
5.13 Pending Transactions........................................21
ARTICLE 6 Certain Covenants...................................................21
6.1 Agreements of Sublessors Pending the Closing................21
6.2 Agreements of TowerCo.......................................24
6.3 Additional Agreements of Sublessors and TowerCo Parties.....25
6.4 Confidentiality.............................................26
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ARTICLE 7 Optional TowerCo Activities.........................................26
7.1 Preliminary Title Reports...................................26
7.2 Environmental Site Assessments..............................26
7.3 Structural Reports..........................................27
ARTICLE 8 Conditions Precedent to Obligations of TowerCo......................27
8.1 Conditions Precedent........................................27
8.2 Waiver 28
ARTICLE 9 Conditions Precedent to Obligations of Sublessors...................28
9.1 Conditions Precedent........................................28
9.2 Waiver 30
ARTICLE 10 Closing............................................................30
10.1 Closing.....................................................30
10.2 Closing Deliveries..........................................30
ARTICLE 11 Indemnification....................................................31
11.1 Indemnification by Sublessors...............................31
11.2 Indemnification by TowerCo..................................32
11.3 Notice and Right To Defend Third-Party Claims...............33
11.4 Notice and Right to Remediate...............................34
11.5 Mitigation..................................................34
11.6 Exclusive Remedy............................................34
11.7 Effect of Investigation or Knowledge........................35
11.8 Limitation of Liability.....................................35
ARTICLE 12 Termination........................................................35
12.1 Termination Events..........................................35
12.2 Manner of Exercise..........................................36
12.3 Effect of Termination.......................................36
ARTICLE 13 General............................................................37
13.1 Covenant Not To ▇▇▇ and Nonrecourse to Partners.............37
13.2 Assignment..................................................37
13.3 Parties in Interest.........................................38
13.4 Time of Essence.............................................38
13.5 Severability................................................38
13.6 Amendment...................................................38
13.7 Force Majeure...............................................38
13.8 Terms 39
13.9 Headings....................................................39
13.10 Entire Understanding; Schedules.............................39
13.11 Counterparts................................................39
13.12 Governing Law...............................................39
13.13 Notices.....................................................39
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13.14 Expenses....................................................40
13.15 Attorneys'Fees..............................................40
13.16 Dispute Resolution..........................................41
13.17 Power of Attorney...........................................42
13.18 Specific Performance; Other Rights and Remedies.............43
13.19 TowerCo Guaranty............................................43
EXHIBITS
Exhibit A Sublease
Exhibit B Escrow Agreement
Exhibit C Master Lease
Exhibit D Build-to-Suit Agreement
Exhibit E Form of Certificate of Sublessors
Exhibit F Form of Certificate of TowerCo and Parent
THE FOLLOWING EXHIBITS HAVE BEEN
OMITTED AND WILL BE FILED WITH
THE COMMISSION UPON REQUEST.
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AGREEMENT TO SUBLEASE
THIS AGREEMENT TO SUBLEASE is made as of February 16, 2000, by and
between AIRTOUCH COMMUNICATIONS, INC., a Delaware corporation ("AirTouch"), LOS
ANGELES SMSA LIMITED PARTNERSHIP, a California limited partnership,
OXNARD-VENTURA-SIMI LIMITED PARTNERSHIP, a California limited partnership (each
of the foregoing entities being each referred to herein individually as a
"Sublessor," and collectively as "Sublessors"), SPECTRASITE HOLDINGS, INC., a
Delaware corporation ("Parent"), and CALIFORNIA TOWER, INC., a Delaware
corporation ("TowerCo" and, collectively with Parent, the "TowerCo Parties").
RECITALS
A. Sublessors are the owners of certain communications tower
structures, interests in real property related thereto, and related assets,
property rights, liabilities and obligations. Parent is engaged in the business
of owning, managing and operating assets similar to the foregoing assets; and
B. Sublessors desire, pursuant to a Sublease in the form attached
hereto as Exhibit A (the "Sublease"), to lease or sublease to TowerCo or confer
upon TowerCo the right to manage and operate, and TowerCo desires to lease or
sublease from Sublessors or obtain the right to manage and operate, subject to
the terms and conditions contained in this Agreement and the Sublease, certain
of Sublessors' communications tower structures, interests in real property
related thereto and related property rights (such assets and rights to be
leased, subleased or otherwise subjected to the Sublease, together with the
liabilities and obligations relating thereto, being referred to as the
"Business"); and
C. Contemporaneously with the execution of this Agreement, the
Sublessors and TowerCo are executing a Site Marketing Agreement pursuant to
which TowerCo will provide the Sublessors with certain tower leasing and
marketing services pending the closing of the transactions contemplated hereby
(the "Site Marketing Agreement"); and
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, Sublessors and the
TowerCo Parties agree as follows:
ARTICLE 1
Definitions
Capitalized terms used but not defined herein have the meanings
ascribed to them in the Sublease. As used in this Agreement, the following terms
shall have the following meanings:
1.1 Additional Tower. Means any communications equipment and antenna support
tower structure owned or leased by any Sublessor as to which the construction is
completed after the date of this Agreement and which is included in Annex I
hereto as a Permitted Schedule
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Update (as defined herein); provided, however, that such term does not include
(i) any equipment, property or other assets placed upon such towers or the
related tower sites by third parties pursuant to Tower Collocation Leases or
other Contracts or (ii) any Excluded Assets (as defined herein).
1.2 Affiliate. With respect to any Person, any other Person controlling such
Person, or controlled by or under common control with such Person, where
"control" (and its corollaries) means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise; and the term "voting securities" means securities or interests
entitling the holder thereof to vote for or designate members of the Board of
Directors or individuals performing a similar function. Without limiting the
generality of the foregoing, the partnership contemplated by that certain
Alliance Agreement dated September 21, 1999 between AirTouch and ▇▇▇▇ Atlantic
Corporation (including any subsidiaries or controlled Affiliates of such
partnership) shall be deemed an "Affiliate" of each Sublessor for purposes of
this Agreement.
1.3 Agreement. This Agreement to Sublease dated as of February 16, 2000 among
Sublessors, Parent and TowerCo, as the same may be amended from time to time.
1.4 AirTouch Material Adverse Effect. Means (i) an Event which has had or is
reasonably likely to have a material adverse effect on the financial condition
of the Business taken as a whole, except any such effect resulting from or
arising in connection with (a) this Agreement or the transactions contemplated
hereby, (b) changes or conditions (including without limitation changes in
technology, law, or regulatory or market environment) affecting the industry in
which the owners or users of communications tower structures operate, or (c)
changes in economic, regulatory or political conditions generally, or (ii) an
Event which has had or is reasonably likely to have a material adverse effect on
(x) the validity or enforceability against Sublessors of this Agreement or any
of the other Transaction Documents, or (y) the ability of Sublessors to perform
their obligations under this Agreement or any of the other Transaction
Documents; provided, however, that with respect to any individual Closing,
clause (i) of this definition shall be interpreted to refer only to the portion
of the Business which is the subject of the Closing at issue and all prior
Closings hereunder, taken as a whole, and not to the portions of the Business
which are to be the subject of Closings subsequent to the Closing at issue.
1.5 Assets. Means the following: (a) all Towers of the applicable Sublessor; (b)
all of the applicable Sublessor's rights to all Tower Sites; (c) all Tower
Related Assets of the applicable Sublessor; (d) all rights under any
Governmental Permits (excluding FCC licenses) held exclusively with respect to
the ownership or use of the Towers or Tower Sites of the applicable Sublessor
and not used or useful by the applicable Sublessor in any other part of its or
an Affiliate's business and operations, to the extent that such Governmental
Permits are necessary to confer upon TowerCo the benefits to be provided under
the Sublease (the "Applicable Governmental Permits"); and (e) plans and
specifications of the Towers and data (in electronic or machine-readable form)
relating to the Towers and third party tenants and lessors with respect to the
Towers, subject, however, to the exclusions set forth in Section 4(d) of the
Sublease, and to the exclusion of all Excluded Assets.
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1.6 Business Day. Any day other than Saturday, Sunday or a day on which banking
institutions in either San Francisco, California or New York, New York are
required or authorized to be closed.
1.7 Charter Documents. An entity's certificate or articles of incorporation,
bylaws, certificate defining the rights and preferences of securities, articles
of organization, general or limited partnership agreement, certificate of
limited partnership, limited liability company agreement, joint venture
agreement or similar document governing the entity.
1.8 Code. The Internal Revenue Code of 1986, as amended.
1.9 Contracts. Any and all contracts, authorizations, approvals, agreements,
licenses, permits, leases of real and personal property, deeds, private
easements, rights-of-way and rights of access, other than Governmental Permits.
1.10 Default. Means (a) a breach, default or violation, (b) the occurrence of an
event that with or without the passage of time or the giving of notice, or both,
would constitute a breach, default or violation or (c) with respect to any
Contract, the occurrence of an event that with or without the passage of time or
the giving of notice, or both, would give rise to a right of termination,
renegotiation or acceleration or a right to receive damages or a payment of
penalties.
1.11 Encumbrance. Any lien, mortgage, security interest, pledge, restriction on
transferability, defect of title, option, easement, right of way, levy or other
claim, charge or encumbrance of any nature whatsoever on any property or
property interest, other than those relating to Governmental Permits.
1.12 Environmental Condition. Any condition or circumstance, including the
presence of Hazardous Substances, created by a Sublessor at any Tower Site that
did or does (a) require abatement or correction under an Environmental Law or
(b) give rise to any civil or criminal Liability on the part of any Sublessor
under any Environmental Law relating to the ownership, use or occupancy of the
Tower Sites.
1.13 Event. The existence or occurrence of any act, action, activity,
circumstance, condition, event, fact, failure to act, omission, incident or
practice, or any set or combination of any of the foregoing.
1.14 Excluded Assets. The following are collectively referred to as the
"Excluded Assets" and are not included in the Assets:
---------------
(a) all Communications Facilities (as defined in the Sublease), including but
not limited to AirTouch's Improvements and Communications Equipment (each as
defined in the Sublease);
(b) the Reserved Space as described in the Sublease, including without
limitation all space at a Tower Site occupied by AirTouch's Improvements and
Communications Equipment (each as defined in the Sublease) and non-exclusive use
of all real estate interests (including fee and leasehold interests, licenses,
rights-of-way and easements) on which switch equipment and
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associated loading docks, patios, offices and parking lots of Sublessors or
their Affiliates is located or necessary to such equipment's operation;
(c) any equipment or transmission systems used by AirTouch, any other Sublessor
or any of Sublessors' Affiliates for the remote monitoring of the Towers;
(d) all Intellectual Property of Sublessors or any Affiliate of Sublessors,
other than plans and specifications of the Towers and data (in electronic or
machine-readable form) relating to third party tenants and lessors with respect
to the Towers;
(e) any assets, properties or rights, including Contracts, that are not
exclusively Assets;
(f) all rights that accrue or will accrue to, and all rights retained by and/or
granted to, Sublessors under this Agreement, the Sublease or any of the other
Transaction Documents, including the consideration paid or to be paid to
Sublessors hereunder;
(g) any claims or rights against third parties except to the extent such claims
or rights relate to the Assets;
(h) assets of any Employee Plan or employee benefit arrangement;
(i) the assets specified in Schedule 1.14; and
(j) any Tower Sites (and all Towers, Tower Related Assets and other assets and
rights associated with such Tower Sites) excluded from the Assets or excluded
from becoming subject to the Sublease pursuant to Section 2.2 (Restricted Items)
hereof, or which are to remain the property of, or are to be for the benefit of,
any Sublessor pursuant to the Sublease.
1.15 FCC. The Federal Communications Commission or any successor agency.
1.16 GAAP. Generally accepted accounting principles set forth in the opinions
and pronouncements of the Accounting Principles Board and the American Institute
of Certified Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board or in such other statements by such other
entity as may be approved by a significant segment of the accounting profession,
which are applicable to the circumstances as of the date of determination.
1.17 Governmental Authority. Any nation or government, any state, province or
other political subdivision thereof or any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
1.18 Governmental Permits. All franchises, approvals, authorizations, permits,
licenses, easements, leases, permits, concessions, franchises, registrations,
certificates of occupancy, qualifications and similar rights and approvals
obtained from any Governmental Authority.
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1.19 Included Towers. Means (i) all Towers listed on Annex I hereto (as such
Annex existed on the date of this Agreement) the construction of which is
completed on or prior to the applicable Closing Date and are made subject to the
Sublease at such Closing and (ii) all Additional Towers made subject to the
Sublease at such Closing.
1.20 Intellectual Property. Any patents, patent applications, reissue patents,
patents of addition, divisions, renewals, continuations, continuations-in-part,
substitutions, additions and extensions of any of the foregoing, fictitious
business names, trade names, logos, registered and unregistered copyrights,
copyright applications, registered and unregistered trademarks, trademark
applications, registered and unregistered service marks, service ▇▇▇▇
applications, technology rights and licenses, trade secrets, franchises,
know-how, inventions and other intellectual property.
1.21 Knowledge. "AirTouch's knowledge," "knowledge of AirTouch," or references
to the "knowledge" of any Sublessor, or words of similar import, means the
actual knowledge after inquiry reasonable under the circumstances of any of the
following persons who are employees of AirTouch holding the position (as of the
date hereof) indicated after their name (and any person succeeding to any such
position prior to the Closing but only to the extent he or she acquired actual
knowledge after inquiry reasonable under the circumstances): ▇▇▇▇ ▇▇▇▇▇,
President and Chief Operating Officer; ▇▇▇▇▇ ▇▇▇▇▇, Executive Vice President
(AirTouch Cellular) and General Manager, Sierra Pacific Region; and ▇▇▇▇▇ ▇▇▇▇,
Executive Vice President (AirTouch Cellular) and General Manager, Western
Region. "TowerCo's knowledge" or "knowledge of TowerCo" or words of similar
import means the actual knowledge after inquiry reasonable under the
circumstances of any of the following persons who are employees of TowerCo
holding the position (as of the date hereof) indicated after their name (and any
person succeeding to any such position prior to the Closing but only to the
extent he or she acquired actual knowledge after inquiry reasonable under the
circumstances): ▇▇▇▇▇▇▇ ▇▇▇▇▇, Chief Executive Officer; ▇▇▇▇▇ ▇▇▇▇▇▇, Chief
Financial Officer; ▇▇▇▇▇▇▇ ▇▇▇▇▇, Executive Vice President-Business Development;
▇▇▇▇▇▇▇ ▇▇▇▇▇, Chief Operating Officer; ▇▇▇▇▇ ▇▇▇▇▇▇, Senior Vice
President-Operations; and ▇▇▇▇▇▇ ▇▇▇▇, Vice President-Finance and
Administration.
1.22 Laws. All federal, state, county, municipal and other governmental
constitutions, statutes, ordinances, codes, regulations, resolutions, rules,
requirements and directives of any Governmental Authority or arbitrator and all
decisions, judgments, writs, injunctions, orders, decrees or demands of courts,
arbitrators, administrative bodies and other authorities construing any of the
foregoing.
1.23 Liability. Any direct or indirect liability, indebtedness, obligation,
cost, expense, claim, loss, damage, deficiency or guaranty of or by any Person.
1.24 Maximum Amount. For any Sublessor or TowerCo, the Maximum Amount means ten
percent (10%) of the Exclusive Commitment Fee actually paid by TowerCo to such
Sublessor under this Agreement.
1.25 Other Entities. Los Angeles SMSA Limited Partnership, a California
limited partnership, and Oxnard-Ventura-Simi Limited Partnership, a California
limited partnership. Each of the Other Entities is referred to individually
herein as an "Other Entity."
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1.26 Permitted Encumbrances. Means (i) Encumbrances for Taxes not yet due and
payable, (ii) Encumbrances or other rights of third parties disclosed in
Schedule 3.5, (iii) worker's, carrier's, warehouseman's, materialman's and other
similar liens, (iv) with respect to Leased Sites (as defined below in the
definition of Tower Sites), any Encumbrances placed upon such real property
other than in connection with obligations or liabilities of any Sublessor,
including any lien encumbering the fee interest in such property, (v) easements,
rights of way or similar grants of rights to a third party for access to or
across any real property, including, without limitation, rights of way or
similar rights granted to any utility or similar entity in connection with the
provision of electric, water, sewage, telephone, gas or similar services, (vi)
the Tower Collocation Leases and the terms and conditions of Ground Leases,
Tower Equipment Leases, Tower Service Contracts and other Tower Related Assets
affecting any Asset, and (vii) encumbrances that are immaterial in character,
amount, and extent, and that do not detract from the value or interfere in any
material respect with the present use of the properties they affect.
1.27 Person. Means any natural person or corporation, firm, association,
unincorporated organization, partnership, trust, estate, limited liability
company or other entity, or any Governmental Authority.
1.28 Prime Rate. The "Prime Rate" of interest, as published in the "Money Rates"
table of The Wall Street Journal, Eastern Edition, from time to time.
1.29 Real Property. All assets consisting of realty (including appurtenances,
improvements and fixtures located on such realty) and any other interests in
real property (including fee interests and leasehold interests and easements,
licenses, rights-of-way or other real property rights) used or held for use in
the operation of the Assets as of the date hereof, but excluding any and all
Excluded Assets.
1.30 Required Consents. Approvals and consents required pursuant to the terms of
any Tower Collocation Agreement or Ground Lease in order to subject them to the
terms of the Sublease.
1.31 Significant Transaction. Means any transaction or series of transactions in
which (i) Parent, TowerCo or any Affiliate of Parent or TowerCo issues or
guarantees debt (other than debt existing on the date hereof), whether through a
public or private placement or pursuant to any other facility, in an amount
equal to or in excess of $500,000,000; or (ii) (A) any Person purchases or
otherwise acquires, directly or indirectly, all or substantially all of the
assets used in the operation of the business of Parent and its subsidiaries
taken as a whole, or (B) any Change of Control (as defined in the Sublease)
occurs with respect to TowerCo or Parent.
1.32 Tax and Taxes. Any and all governmental or quasi-governmental fees
(including, without limitation, license, filing and registration fees), taxes
(including, without limitation, income, gross receipts, franchise, sales, use,
property, real or personal, tangible or intangible taxes), interest equalization
and stamp taxes, documentary and real property transfer taxes, assessments,
levies, imposts, duties, charges, required contributions or withholdings of any
kind or nature whatsoever, together with any and all penalties, fines, additions
to tax, or interest thereon. For purposes of determining any Tax cost or Tax
benefit to any person, such amount
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will be the actual cost or benefit recognized by such person at the time of
actual payment of the additional Tax or actual recognition of the Tax benefit.
In the event that any payment or other amount is required to be determined on an
after-Tax basis, such payment or other amount will initially be determined
without regard to any Tax cost or Tax benefit not actually recognized currently,
and appropriate adjustments will be made when and to the extent that such Tax
cost or Tax benefit is actually recognized.
1.33 Threshold Amount. Means, for any Sublessor or TowerCo, the greater of (i)
one percent (1%) of the Exclusive Commitment Fee payable to such Sublessor or
(ii) $100,000.
1.34 Tower Related Assets. Means (a) the leases of rights to use spaces on the
Towers that are identified in ANNEX III hereto and located on Tower Sites
(hereinafter defined) (the "Tower Collocation Leases") and security deposits (if
any) from tenants under the Tower Collocation Leases, (b) all Contracts with
respect to the management, operation, maintenance, servicing and construction
of, and the provision of utility services to, the Towers ("Tower Service
Contracts"), (c) any existing leases (or licenses or other Contracts) of
Sublessors for equipment or other personal property which are included within
the definition of Towers ("Tower Equipment Leases"), and (d) copies of, or
extracts from, all current files and records of Sublessors to the extent that
such files or records contain information related to the design, construction,
management, operation, maintenance, ownership, occupancy or leasing of the
Assets; provided, however, that such term does not include any Excluded Assets.
1.35 Tower Sites. The sites of the Towers that are owned or leased by Sublessors
and are identified in ANNEX I hereto, including all fee, ground leasehold
interests and easements pertaining to such tower sites owned by Sublessors and
including (i) a fee ownership in the real property associated with the Towers
designated as "Owned Sites" in ANNEX I hereto, and (ii) the leasehold interest,
leasehold estate or other possessory interest or use right in and to the real
property associated with the Towers designated as "Leased Sites" in ANNEX I
hereto pursuant to the ground leases or other documents related thereto
identified in ANNEX II (the "Ground Leases"); provided, however, that such term
does not include any Excluded Assets.
1.36 Towers. The communications equipment and antenna support tower structures
situated at the locations that are identified on ANNEX I and are owned or leased
by Sublessors; provided, however, that such term does not include (i) any
equipment, property or other assets placed upon the Towers or Tower Sites by
third parties pursuant to Tower Collocation Leases or other Contracts or (ii)
any Excluded Assets.
1.37 TowerCo Material Adverse Effect. An Event which has had or is reasonably
likely to have a material adverse effect on (i) the assets, liabilities,
business, prospects, condition (financial or otherwise) or results of operations
of Parent and its subsidiaries taken as a whole, except any such effect
resulting from or arising in connection with (a) this Agreement or the
transactions contemplated hereby, (b) changes or conditions (including without
limitation changes in technology, law, or regulatory or market environment)
affecting the industry in which the owners or users of communications tower
structures operate, or (c) changes in economic, regulatory or political
conditions generally, (ii) the validity or enforceability against TowerCo or
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Parent of this Agreement or any of the Transaction Documents, or (iii) the
ability of TowerCo or Parent to perform its respective obligations under this
Agreement or any of the Transaction Documents.
1.38 Transaction Documents. Collectively, this Agreement, the Sublease, the
Master Lease, the Build-to-Suit Agreement, the Site Marketing Agreement and the
escrow agreement referred to in Section 2.3(b) hereof.
1.39 Other Definitions. In addition, the following terms have the meanings
given them in the following sections:
-----------------
Term Section
AirTouch ......... Preamble
Applicable Governmental Permit...... 1.5
Business ......... Recitals
Claim ......... 11.3(a)
Closing ......... 2.4
Closing Date ......... 2.4
Commercially reasonable efforts of Sublessor 2.2(b)
Deposit ......... 2.3(b)
Environmental Law ......... 3.8(b)
Exclusive Commitment Fee ......... 2.3(a)
Final Closing Date ......... 2.4
Ground Leases ......... 1.35
Hazardous Substance ......... 3.8(c)
Indemnifiable Damages ......... 11.1
Indemnified Sublessor Parties....... 11.2(a)
Indemnified TowerCo Parties......... 11.1(a)
Indemnitee ......... 11.3(a)
Indemnitor ......... 11.3(a)
Initial Closing Date ......... 2.4
Initial Closing Expiration Date..... 2.4
Joinder ......... 1.25
Master Lease ......... 10.2(a)
Nonrecourse ......... 13.1(b)
Parent ......... Preamble
Parent SEC Reports ......... 5.6
Pending Transactions ......... 5.13
Permitted Schedule Updates ......... 6.1(b)
Permitted Subleasehold Mortgagee.... 13.2
Restricted Items ......... 2.2(a)
Site Marketing Agreement ......... Recitals
Solicit ......... 6.2
Sublease ......... Recitals
Sublessors ......... Preamble
Tower Collocation Leases ......... 1.34
Tower Equipment Leases ......... 1.34
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Tower Service Contracts ......... 1.34
TowerCo ......... Preamble
TowerCo Parties ......... Preamble
Transfer Taxes ......... 6.3(c)
ARTICLE 2
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Leasing of Assets
2.1 Leasing or Subleasing of Assets. Subject to the terms and conditions
hereinafter set forth: (i) at the Initial Closing (as hereinafter defined),
TowerCo hereby agrees to execute and deliver to Sublessors, and each of the
Sublessors hereby severally agrees to execute and deliver to TowerCo, the
Sublease and the Site Designation Supplements (as defined in the Sublease)
relating to the Assets that are the subject of the Initial Closing, and (ii) at
each Subsequent Closing (as hereinafter defined), TowerCo hereby agrees to
execute and deliver, and each of the applicable Sublessors hereby severally
agrees to execute and deliver, the Site Designation Supplements relating to the
Assets that are the subject of such Subsequent Closing, all as provided herein
and in the Sublease.
2.2 Restricted Items.
(a) Nothing in this Agreement shall be construed as an attempt by any Sublessor
to lease or sublease to TowerCo pursuant to the Sublease, or otherwise make
subject to the Sublease, any Contract, Governmental Permit, franchise, claim or
asset included in the Assets which, in AirTouch's judgment, is unable by its
terms or by Law to be so leased, subleased or made subject without the consent
of any other Person (including any Governmental Authority), unless such consent
shall have been given (a "Restricted Item").
(b) The applicable Sublessor shall use commercially reasonable efforts (as
defined herein) until the Initial Closing Date to obtain the relevant consent to
subject a Restricted Item to the Sublease. If, despite such efforts, the
applicable Sublessor is unable to obtain such consent on or prior to the Initial
Closing Date, then TowerCo shall take the actions specified in Schedule 2.2(b)
until the earlier of the Final Closing Date or the date such consent is
obtained. If such consent is obtained prior to the Final Closing Date with
respect to any Restricted Item, such item and the related Tower and other
associated Assets shall be subjected to the Sublease at the next practicable
Subsequent Closing. Pending the subjection of any Restricted Item to the
Sublease pursuant to the applicable consent, such Restricted Item and the
related tower, tower site and other associated assets and liabilities shall not
be deemed part of the Assets or the subject of any representation or warranty
hereunder. Any Restricted Item(s) for which the consent required to subject such
item to the Sublease has not been obtained by the Final Closing Date, and the
tower(s), tower site(s), Contracts and other assets to which such Restricted
Item(s) relate, shall be deemed excluded from the Assets and deleted from the
Annexes hereto, and shall not be deemed to be the subject of any representation,
warranty or covenant of Sublessors herein. As used in this Agreement,
"commercially reasonable efforts" of a given Sublessor shall not include any
obligation of any Sublessor or its Affiliates to pay money or other
consideration, agree or commit to any obligation, Liability or condition, or
forego, surrender or waive any asset, right or privilege, unless Parent and
TowerCo agree to reimburse or indemnify such Sublessor for
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obligations and Liabilities and otherwise make Sublessor "whole," in each case
on an after-Tax basis and as determined by Sublessor in its reasonable
judgment, and, with respect to any given Restricted Item, shall not include
any requirement of action other than as set forth in Schedule 2.2(a).
2.3 Exclusive Commitment Fee and Payment.
(a) The aggregate consideration to be paid by TowerCo in return for Sublessors'
willingness to execute this Agreement and Sublessors' agreement herein to
execute the Sublease, Master Lease and Build-to-Suit Agreement on the terms and
conditions provided herein, shall be $155 million dollars ($155,000,000) in cash
for the Included Towers (as identified in Annex I hereto), subject to adjustment
as hereinafter provided the ("Exclusive Commitment Fee"). At any given Closing,
TowerCo shall pay to the Sublessors whose Included Towers are the subject of
such Closing the product of (i) the number of such Included Towers multiplied by
(ii) three hundred sixty thousand dollars ($360,000). If the total number of
Included Towers at all Closings exceeds 430, then for all purposes hereunder the
Exclusive Commitment Fee shall be deemed to be increased by the product of (x)
three hundred sixty thousand dollars ($360,000) and (y) the amount by which such
total number of Included Towers exceeds 430. If the total number of Included
Towers at all Closings is less than 430, then for all purposes hereunder the
Exclusive Commitment Fee shall be deemed to be reduced by the product of (x)
three hundred sixty thousand dollars ($360,000) and (y) the amount by which 430
exceeds such total number of Included Towers.
(b) As partial security for TowerCo's and Parent's obligations under this
Agreement (and to the extent provided in Section 12.3, as liquidated damages in
the event of termination of this Agreement under the circumstances specified in
such Section), by 5:00 p.m., California time, on the second Business Day
following the date of this Agreement, TowerCo shall deposit (as reduced in
accordance with the provisions of this Section, the "Deposit") the amount of
$23,000,000 into an escrow account, under an escrow agreement in substantially
the form attached hereto as Exhibit B, with only such changes thereto as are
required by the escrow agent thereunder (the "Escrow Agreement"). If TowerCo
fails to make such $23,000,000 Deposit by such time, then AirTouch may elect, in
its sole discretion, to terminate this Agreement in full. AirTouch and TowerCo
agree to negotiate in good faith to enable TowerCo, at its discretion, to
replace such escrow arrangement with an irrevocable letter of credit in favor of
AirTouch (it being understood that a pro rata portion, based on the respective
numbers of Included Towers attributable to each respective Sublessor, shall be
for the benefit of the other Sublessors) in the amount of $23,000,000 issued in
a form mutually agreeable to AirTouch and TowerCo and by a financial institution
reasonably acceptable to AirTouch, as promptly as reasonably practicable. Upon
any Closing, the Deposit shall be reduced (either by a distribution of a portion
of the escrowed funds or by a reduction in the letter of credit commitment
amount) to that amount as equals $23,000,000 times a fraction, (i) the numerator
of which is the excess of (x) 430 over (y) the number of Included Towers as to
which Closings have theretofore occurred, and (ii) the denominator of which is
430.
(c) The parties acknowledge and agree that the portion of the Exclusive
Commitment Fee paid at a Closing is intended as a one-time payment in
consideration of events occurring at
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or prior to such Closing, will have been fully earned as of such Closing, is not
dependent on events occurring subsequent thereto and is not for any reason
subject to apportionment or rebate.
(d) The portion of the Exclusive Commitment Fee applicable to a Closing shall be
allocated among the Assets for tax purposes in a manner consistent with the fair
market value set forth in an Allocation Schedule to be agreed to by AirTouch and
TowerCo as early as practicable prior to such Closing. The parties shall file
all Tax returns (including amended returns and claims for refund) and
information reports in a manner consistent with such values. The obligations in
this paragraph shall survive the Closing.
2.4 Completion of Transaction. The execution and delivery of the Sublease and of
Site Designation Supplements under the Sublease shall be completed in accordance
with Article 10 (each such closing being referred to as a "Closing"). The
initial Closing is referred to herein as the "Initial Closing" and each Closing
occurring after the Initial Closing is referred to as a "Subsequent Closing."
The Initial Closing shall involve no fewer than 105 Included Towers and shall
occur on such date, no later than August 15, 2000 (or such later date, not later
than three months after August 15, 2000, as AirTouch may elect upon written
notice to TowerCo provided that AirTouch is not in breach in any material
respect of its covenants hereunder (with August 15, 2000 or such later date, as
applicable, being referred to as the "Initial Closing Expiration Date")) upon at
least five (5) Business Days' prior written notice to TowerCo from AirTouch; the
date of such Initial Closing is referred to herein as the "Initial Closing
Date." Each Subsequent Closing shall involve no fewer than 45 Included Towers
(or, with respect to the last such Closing, such smaller number as represents
the remaining Towers) and shall occur on one or more month-ends after the end of
the month in which the Initial Closing Date falls (each, a "Subsequent Closing
Date") upon at least ten (10) Business Days' prior written notice to TowerCo
from AirTouch. References herein to the "Closing" and the "Closing Date" shall
mean the Initial Closing and the Initial Closing Date, one or more Subsequent
Closings and Subsequent Closing Dates or all of the foregoing closings and
closing dates collectively, as the context requires. The last of the Subsequent
Closings (the "Final Closing") is scheduled to occur on a date (the "Final
Closing Date") which shall not be later than six (6) months after the Initial
Closing Date. Each Closing shall take place in the offices of Pillsbury Madison
& Sutro LLP, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other
place as the parties may agree.
2.5 Additional Due Diligence For each Tower Site designated as a "Due
Diligence Site" on Schedule 3.8 hereof, TowerCo shall promptly commence
additional due diligence, at its sole cost and expense, as to the presence
of Hazardous Substances or an Environmental Condition on or under such site,
and within sixty (60) calendar days after the date hereof, TowerCo shall, for
each such site: (i) provide the applicable Sublessor with written notice
that TowerCo has satisfactorily completed such due diligence investigation
and is prepared to subject such Tower and Tower Site to the terms and
conditions of this Agreement (including without limitation TowerCo's
obligation to pay the Exclusive Commitment Fee upon the Closing for such
Tower), in which case such Tower and Tower Site shall be deemed to be subject
to the terms and conditions hereof upon the applicable Sublessor's receipt
of such notice; or (ii) provide the applicable Sublessor with written
notice (A) that states that TowerCo has determined that, in TowerCo's
good-faith judgment, the presence of Hazardous Substances or other
Environmental Condition on or under such site is reasonably likely to
materially impair TowerCo's operations at such site or to cause TowerCo to
become subject to a material Liability
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(including remediation costs) under any Environmental Law and (B) that
describes in reasonable detail the facts underlying the foregoing
determination, in which case such Tower and Tower Site and all Contracts and
Tower Related Assets relating to such Tower and Tower Site shall be deemed
Excluded Assets for all purposes hereunder, shall be deleted from the
Annexes hereto and shall not be deemed to be the subject of any representation,
warranty or covenant of Sublessors herein; provided, however, that AirTouch
(on behalf of the applicable Sublessor) shall have the right, within ten (10)
calendar days of receipt of TowerCo's written notice, to dispute in good faith
whether TowerCo's stated judgment is unreasonable by invoking the dispute
resolution procedures set forth in this Agreement. If TowerCo fails within
the foregoing 60-day period to provide the applicable Sublessor with the
notice contemplated by clause (i) or (ii) above, then TowerCo shall be deemed to
hvae satisfactorily completed such due diligence investigation and such Tower
and Tower Site shall, upon such 60th day, be subject to all of the terms and
conditions of this Agreement (including without limitation TowerCo's obligation
to pay the Exclusive Commitment Fee upon the Closing for such Tower).
2.6 References Applicable to Individual Closings. As used in this Agreement, the
defined term "Assets" and all related defined terms including "Included Towers,"
"Tower Sites," "Ground Leases," "Tower Service Contracts," "Tower Collocation
Leases," "Tower Equipment Leases" and "Applicable Governmental Permits," and all
references to Liabilities in respect of any of the foregoing, are understood to
refer to (i) the Assets (together with certain Liabilities as provided in the
Sublease) that are the subject of the Initial Closing only, with respect to
representations, warranties, covenants and conditions applicable to the Initial
Closing, and (ii) the Assets (together with certain Liabilities as provided in
the Sublease) that are the subject of a given Subsequent Closing only, with
respect to representations, warranties, covenants and conditions applicable to
such Subsequent Closing.
All representations, warranties and indemnification obligations of any
Sublessor and of TowerCo and Parent under this Agreement shall be deemed with
respect to a particular Closing to refer to those Assets (together with certain
Liabilities as provided in the Sublease) leased or subleased to TowerCo under
the Sublease or otherwise made subject to the Sublease at such Closing.
ARTICLE 3
Representations and Warranties of AirTouch
As a material inducement to TowerCo to enter this Agreement, except as
disclosed to TowerCo in the Schedules to this Agreement and the other
Transaction Documents to which they are a party (with each disclosure made in
the Schedules in response to any Section of these representations and warranties
being deemed to be disclosed in response to, and to qualify, each other Section
of these representations and warranties), AirTouch represents and warrants to
TowerCo as follows:
3.1 Organization and Qualification. AirTouch is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation or
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formation and has all requisite corporate power and authority to own, lease and
use its Assets as they are currently owned, leased and used.
3.2 Authority. AirTouch has the corporate right, power, legal capacity and
authority to execute, deliver and perform its obligations under this Agreement
and the other Transaction Documents to be executed and delivered by AirTouch
pursuant to this Agreement. The execution and delivery of, and performance of
the obligations contained in, this Agreement by AirTouch and the transactions
contemplated hereby have been, and all other Transaction Documents delivered by
AirTouch and all other documents, instruments and certificates delivered or to
be delivered by AirTouch pursuant to this Agreement have been, or as of the
Closing will be, duly authorized by all necessary corporate action on the part
of AirTouch.
3.3 Enforceability. The terms and provisions of this Agreement and all
Transaction Documents made or delivered from time to time by AirTouch hereunder
constitute valid and legally binding obligations of AirTouch, enforceable
against AirTouch in accordance with the terms hereof and thereof.
3.4 Consents and Approvals. Except for (x) filings, consents and approvals
required under Tower Collocation Leases and Ground Leases, and (y) the filings,
consents and approvals specified in Schedule 3.4, neither the execution and
delivery by AirTouch of this Agreement or the other Transaction Documents to
which it is a party, nor the performance of the transactions performed or to be
performed by AirTouch thereunder, will (i) require any filing, consent or
approval or constitute a Default under (A) any Law to which AirTouch or any of
the Assets owned by it is subject, (B) the Charter Documents of AirTouch or (C)
any Contract or Governmental Permit to which AirTouch is a party or by which any
of the Assets owned by it is bound, except with respect to clauses (A) and (C),
such failures to make or obtain such filing, consent or approval and such
Defaults that, individually or in the aggregate, would not have an AirTouch
Material Adverse Effect, or (ii) result in the creation or imposition of any
Encumbrance upon any of the Assets owned by AirTouch, other than Permitted
Encumbrances.
3.5 Title and Encumbrances. To AirTouch's knowledge, except as disclosed in
Schedule 3.5, AirTouch will at the applicable Closing have good and marketable
title to, or, with respect to Assets subject to a Ground Lease, a valid
leasehold or other possessory interest in or use right with respect to, all of
the Assets of AirTouch, free from any Encumbrances except Permitted
Encumbrances. To AirTouch's knowledge, the use of such Assets of AirTouch is not
subject to any Encumbrances, other than Permitted Encumbrances and the
Encumbrances described in Schedule 3.5, and such use does not materially
encroach on the property or rights of any other Person except as disclosed in
such Schedule. To AirTouch's knowledge, except as disclosed in Schedule 3.5, all
of the Towers of AirTouch are in good operating condition and repair, subject to
normal wear and maintenance, have been maintained in a manner consistent with
generally accepted standards of sound engineering practice, and are useable to
support the antennae of AirTouch and the other tenants on the existing Towers of
AirTouch as of the date hereof, except for such defects as are disclosed on
Schedule 3.5 or as would not cost more than $50,000 to correct with respect to
each such Tower or more than $2,500,000 for all such Towers. To AirTouch's
knowledge, except as disclosed in Schedule 3.5 or where the failure would not,
individually or in the aggregate, have an AirTouch Material Adverse Effect, all
of the transmitting towers, ground radials, guy anchors, transmitting buildings
and related
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improvements, if any, constituting Assets and located on real
property owned or leased by AirTouch are located entirely on real property
constituting a part of the Assets.
3.6 Governmental Permits. To AirTouch's knowledge, except as set forth on
Schedule 3.6, AirTouch has all Governmental Permits that are necessary to
operate its Towers as operated on the date hereof, except where the failure to
obtain such Governmental Permit would not, individually or in the aggregate,
have an AirTouch Material Adverse Effect. To AirTouch's knowledge, except as set
forth in Schedule 3.6, AirTouch is in compliance with such Governmental Permits,
except for such failures to comply as would not, individually or in the
aggregate, have an AirTouch Material Adverse Effect. Except as set forth in
Schedule 3.6, or where the failure would not, individually or in the aggregate,
have an AirTouch Material Adverse Effect, (i) none of the Governmental Permits
owned by AirTouch is, to AirTouch's knowledge, subject to any restriction or
condition that limits the ownership or operations of the Assets as currently
owned and operated, except for restrictions and conditions generally applicable
to Governmental Permits of such type, (ii) to AirTouch's knowledge, the
Governmental Permits owned by AirTouch are valid and in good standing, are in
full force and effect and are not impaired by any act or omission of AirTouch or
its officers, directors, partners, employees or agents, and the ownership and
operation of the Assets to AirTouch's knowledge are in accordance with the
Governmental Permits owned by AirTouch, (iii) no such Governmental Permit is the
subject of any pending or, to AirTouch's knowledge, threatened challenge or
proceeding to revoke or terminate any such Governmental Permit, and (iv)
AirTouch has no reason to believe that any such Governmental Permit will not be
renewed in its name by the granting Governmental Authority in the ordinary
course.
3.7 Contracts. Schedule 3.7 identifies all Contracts of the following types to
which AirTouch is a party, or by which it is bound, with respect to the Assets
(other than any Contract which is neither a Tower Collocation Lease nor a Ground
Lease and (i) is terminable by a party on not more than sixty (60) calendar
days' notice without any Liability, or (ii) under which the obligation of a
party (fulfilled and to be fulfilled under the current term thereof without
taking optional extensions into account) involves an amount of less than
$100,000 (a "Minor Contract"), or (iii) is specified in clauses (c) through (e)
below which is entered into after the date hereof in compliance with Section
6.1):
(a) Contracts which are Ground Leases for Tower Sites for which Tower
construction has been completed, disclosing for each the location of the related
Tower Site, the identity of the lessor, the expiration date of the current term
under the lease, and the aggregate amount of the rental (including revenue
sharing) paid to the lessor by AirTouch thereunder for the month ended December
31, 1999;
(b) Contracts in effect as of December 31, 1999 which are Tower Collocation
Leases, disclosing for each the location of the related Tower Site, the identity
of the lessee, the expiration date of the current term under the lease, and the
amount of the rental paid by the lessee to AirTouch thereunder (i) for the month
ended July 31, 1999, with respect to Tower Collocation Leases that were in
effect as of July 31, 1999, and (ii) for the month ended December 31, 1999, with
respect to Tower Collocation Leases that were entered into after July 31, 1999;
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(c) Contracts in effect as of December 31, 1999 which are Tower Equipment
Leases, disclosing for each the location of the related Tower Site, the type of
equipment leased, the identity of the lessor, the expiration date of the current
term under the lease and the amount of the rental paid to the lessor by AirTouch
thereunder for the month ended December 31, 1999;
(d) Contracts in effect as of December 31, 1999 which are Tower Service
Contracts, disclosing for each the location of the related Tower Site, the
identity of the service provider, the type of service provided, the expiration
date of the current term under the Contract and the amount of the fees paid by
AirTouch to the service provider thereunder for the month ended December 31,
1999;
(e) Contracts under which any Encumbrances, other than Permitted Encumbrances,
exist with respect to the Assets of AirTouch; and
(f) Contracts (other than those described in any of (a) through (e) above) (i)
which relate to the Towers or Tower Sites of AirTouch which were entered into
after December 31, 1999 and which were not made in the ordinary course of the
business of AirTouch or (ii) which were made in the ordinary course of business
and involve remaining payments under any such Contract of more than $100,000.
The Contracts listed in Schedule 3.7 are referred to herein as the
"AirTouch Contracts." To AirTouch's knowledge, and except as identified in
Schedule 3.7, AirTouch is not in Default under any AirTouch Contract, except for
Defaults that would not, individually or in the aggregate, have an AirTouch
Material Adverse Effect. To AirTouch's knowledge and except as disclosed in
Schedule 3.7, (i) AirTouch has not received any written communication from, or
given any written communication to, any other party indicating that AirTouch or
such other party, as the case may be, is in Default under any AirTouch Contract,
except for Defaults that would not, individually or in the aggregate, have an
AirTouch Material Adverse Effect, (ii) none of the other parties to any such
AirTouch Contract is in Default thereunder in any material respect, and (iii)
each such AirTouch Contract is in full force and effect and is enforceable
against the other parties thereto in accordance with its terms, except to the
extent that such enforcement may be limited by applicable bankruptcy,
reorganization, insolvency and other Laws of general application affecting
enforcement of creditors' rights generally or by general principles of equity,
and except to the extent that the failure to be in full force and effect and
enforceable would not, individually or in the aggregate, have an AirTouch
Material Adverse Effect.
3.8 Environmental Laws.
(a) Except as disclosed on Schedule 3.8, to AirTouch's knowledge: (i) none of
AirTouch's operations on the Real Property of AirTouch is currently subject to
any judicial or administrative proceeding alleging the violation of an
Environmental Law; (ii) none of the Real Property of AirTouch is the subject of
any investigation by any Governmental Authority concerning any release of any
Hazardous Substance on the Real Property of AirTouch; (iii) AirTouch has not
filed any written notice under any Environmental Law indicating past or present
treatment, storage or disposal of a hazardous waste on the Real Property or
reporting a spill or release of a Hazardous Substance into the environment from
its operations on the Real
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Property of AirTouch; (iv) no lien in favor of any Governmental Authority for
(A) any liability under Environmental Laws, or (B)damages arising from or
costs incurred in response to a release of any Hazardous Substance into the
environment has been filed or attached to any of the Real Property of AirTouch
(other than Permitted Encumbrances); (v) AirTouch has not been notified that
it is potentially liable (including as a "potentially responsible party"),
or has received any request for information or other correspondence
concerning its potential liability with respect to the Real Property, under
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, the Resource Conservation Recovery Act, as amended, or any
similar state Law; (vi) AirTouch has not entered into or received any
consent decree, compliance order or administrative order issued pursuant to
any Environmental Law with respect to the Real Property, or is a party in
interest in any judgment, order, writ, injunction or decree issued
pursuant to any Environmental Law with respect to the Real Property; (vii)
AirTouch is in compliance with all Environmental Laws with respect to the Real
Property, except where the failure to be so in compliance, individually or in
the aggregate, would not have an AirTouch Material Adverse Effect; and (viii)
except for batteries, generators and associated above-ground fuel tanks and
other substances commonly used in the industry necessary for the operation and
maintenance of the Assets, AirTouch has not installed or used any underground
storage tanks or Hazardous Substances, and there are no underground storage
tanks or Hazardous Substances, on any Real Property constituting a part of the
Assets.
(b) "Environmental Law" means a law, regulation, statute or ordinance pertaining
to land use, air, soil, surface water or groundwater (including the protection,
cleanup, removal, remediation or damage thereof) including, without limitation,
the following laws: (i) Clean Air Act (42 U.S.C. ss. 7401 et seq.); (ii) Clean
Water Act (33 U.S.C. ss. 1251 et seq.); (iii) Resource Conservation and Recovery
Act (42 U.S.C. ss. 6901 et seq.); (iv) Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C. ss. 9601 et seq.); (v) Safe Drinking
Water Act (42 U.S.C. ss. 300f et seq.); and (vi) Toxic Substances Control Act
(15 U.S.C. ss. 2601 et seq.).
(c) "Hazardous Substance" means any matter that is designated or regulated as a
pollutant, contaminant or hazardous or toxic substance, constituent or waste
under any Environmental Law.
3.9 Litigation. Except as set forth on Schedule 3.9, (a) there is no material
claim, grievance, lawsuit, action, arbitration, administrative or other
proceeding or formal governmental investigation pending or, to AirTouch's
knowledge, threatened against AirTouch or any of the Assets, that would,
individually or in the aggregate, have an AirTouch Material Adverse Effect; and
(b) there is no material outstanding or unsatisfied judgment, order or decree to
which AirTouch is a party and which relates to the Assets, except such as would
not, individually or in the aggregate, have an AirTouch Material Adverse Effect.
3.10 Commissions. AirTouch has not entered into an agreement, commitment or
obligation with regard to any brokerage commission or finder's fee which would
be payable by or result in any Liability to TowerCo arising out of the
execution, delivery or performance of this Agreement or the other Transaction
Documents or the transactions contemplated hereby and thereby.
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3.11 Real Property.
(a) Zoning. To AirTouch's knowledge, except as set forth on Schedule 3.11, the
ownership, lease or use of the real property included in the Assets of AirTouch
or subject to AirTouch's Ground Leases is in compliance with all applicable
zoning, wetlands and other land use requirements where the failure to so comply
would materially limit AirTouch's ability to use such real property
substantially as heretofore used, including the addition of tenants to the
Towers.
(b) Utility Services. Except as set forth on Schedule 3.11, (i) the water,
electric, gas and sewer utility services and the septic tank and storm drainage
facilities currently available to the Tower Sites of AirTouch are adequate for
the present use of such Tower Sites by AirTouch and are not being
misappropriated by AirTouch but rather are being supplied to AirTouch by utility
companies or municipalities pursuant to contracts or tariffs which, to
AirTouch's knowledge, are valid and in full force and effect, and (ii) to
AirTouch's knowledge, there is no condition which will result in the termination
of the present access from such Tower Sites to such utility services and other
facilities.
(c) Access. To AirTouch's knowledge, and except as disclosed in Schedule 3.11,
AirTouch has obtained all Governmental Permits (where required), easements and
rights-of-way which are reasonably necessary to provide vehicular and pedestrian
ingress and egress to and from its Tower Sites for the purposes used by AirTouch
in the ordinary course. To AirTouch's knowledge, no action is pending or
threatened which would have the effect of terminating or materially limiting
such access.
(d) Eminent Domain. Except as set forth on Schedule 3.11, AirTouch has received
no written notice that any Governmental Authority having the power of eminent
domain over any of the real property included in the Assets of AirTouch has
commenced or intends to exercise the power of eminent domain or a similar power
with respect to all or any material part of such real property.
(e) Public Improvements. To AirTouch's knowledge, no work for municipal
improvements has been commenced on or in connection with the "Owned Sites"
included in the Assets that are owned by AirTouch. AirTouch has received no
written notice that any material assessment for public improvements has been
made against any such real property which remains unpaid.
3.12 Absence of Certain Changes or Events. Since December 31, 1999, AirTouch has
made reasonable efforts consistent with past practice to preserve relationships
with customers, suppliers, employees, lessors, licensors, tenants, licensees,
distributors and others with whom AirTouch has a material business or financial
relationship with respect to its Assets. Except as set forth on Schedule 3.12,
since December 31, 1999, AirTouch has conducted its operations regarding its
Assets in the ordinary course of business consistent with past practice
(including with respect to the collection of receivables, payment of payables
and other liabilities and capital expenditures).
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3.13 Availability of Documents. AirTouch has made available to TowerCo copies of
all Contracts specifically identified in the Schedules to this Article 3. To
AirTouch's knowledge, such copies are true and complete in all material respects
and include all material amendments, supplements and modifications thereto or
waivers currently in effect thereunder.
3.14 Compliance with Applicable Law. To AirTouch's knowledge, except as set
forth on Schedule 3.14, AirTouch has conducted its business relating to the
Assets and owned and operated the Assets in accordance with all applicable Laws
(excluding Environmental Laws), except for such failures as, individually or in
the aggregate, would not have an AirTouch Material Adverse Effect. Except as set
forth on Schedule 3.14, AirTouch is not charged by any Governmental Authority
with, and, to AirTouch's knowledge is not threatened or under investigation by
any Governmental Authority with respect to, any Default under any applicable Law
relating to the ownership and operation of the Assets or the conduct of the
Business that, individually or in the aggregate, would have an AirTouch Material
Adverse Effect.
3.15 No Other Warranties. Except for the representations and warranties
expressly set forth in this Article 3 and in Article 4, the Assets are being
leased or otherwise made subject to the terms of the Sublease by AirTouch and
the other Sublessors as is, where is, and with all faults, and there are no
other warranties being made by AirTouch or any other Sublessor (INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF HABITABILITY, MERCHANTABILITY, CONDITION,
DESIGN, WORKMANSHIP, OPERATION, STRUCTURAL INTEGRITY OR FITNESS OR SUITABILITY
FOR A PARTICULAR PURPOSE, OR ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT
DISCOVERABLE), express or implied, in connection with the leasing or subleasing
of the Assets, the subjection of the Assets to the terms of the Sublease, or the
other transactions contemplated by this Agreement, the Sublease and the other
Transaction Documents.
ARTICLE 4
Representations and Warranties of Other Entities
By and as of the time of its execution of this Agreement, and as a
material inducement to TowerCo to enter into this Agreement and the other
Transaction Documents to which it is a party, each Other Entity (severally and
not jointly and each solely with respect to itself) makes the representations
and warranties to TowerCo set forth in Article 3, subject to the disclosures in
the Schedules to this Agreement (with each disclosure made in the Schedules in
response to any Section of such representations and warranties being deemed to
be disclosed in response to, and to qualify, each other Section of such
representations and warranties); provided, however, that for purposes of such
representations and warranties, (i) all references in Article 3 to AirTouch or
its respective business, operations, assets, properties and liabilities shall be
deemed replaced with references to such Other Entity and its business,
operations, assets, properties and liabilities, and (ii) all references to
AirTouch's status as a corporation in Section 3.1, and to AirTouch's corporate
right, power, legal capacity and authority and corporate action in Section 3.2,
shall be deemed replaced with references to such Other Entity's status as a
partnership and its partnership right, power and legal capacity and authority
and partnership action, as applicable.
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ARTICLE 5
Representations and Warranties of TowerCo and Parent
As a material inducement to Sublessors to enter into this Agreement and the
other Transaction Documents to which they are parties, TowerCo and Parent
jointly and severally represent and warrant to Sublessors the following for the
benefit of Sublessors:
5.1 Organization and Qualification. Each of Parent and TowerCo is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and, prior to Closing, will be duly authorized to transact
business in all states in which the Towers which are the subject of such Closing
are located. Each of Parent and TowerCo has all necessary corporate power and
authority to own, lease and utilize its respective properties and assets and to
engage in the business or businesses in which it has been and is presently
engaged and in the places where its property and assets are now owned, leased or
utilized or as such business is now conducted. Each of Parent and TowerCo has
provided to AirTouch true, correct and complete copies of its respective Charter
Documents.
5.2 Authority. Each of Parent and TowerCo has the corporate right, power, legal
capacity and authority to execute, deliver and perform its obligations under
this Agreement, the other Transaction Documents, and the documents, instruments
and certificates to be executed and delivered by it pursuant to this Agreement.
The execution, delivery and performance of this Agreement by Parent and TowerCo
and the transactions contemplated hereby have been, and all documents,
instruments and certificates have been or as of the Closing will be, duly
authorized by all necessary corporate action on the part of Parent and TowerCo,
respectively.
5.3 Enforceability. The terms and provisions of this Agreement, and all other
Transaction Documents made or delivered from time to time by Parent or TowerCo
hereunder, constitute valid and legally binding obligations of Parent and
TowerCo, respectively, enforceable against Parent and TowerCo (as the case may
be) in accordance with the terms hereof and thereof.
5.4 Approvals. Neither the execution and delivery by Parent or TowerCo of the
Transaction Documents to which it is a party, nor the performance of the
transactions performed or to be performed by Parent or TowerCo thereunder, will
(i) require any filing, consent or approval or constitute a Default under (A)
any Law to which Parent, TowerCo, their subsidiaries or their respective
properties and assets are subject, (B) the Charter Documents of Parent or
TowerCo, or (C) any credit agreement or other Contract or Governmental Permit to
which Parent, TowerCo or any of their Affiliates is a party or by which any of
the properties and assets of Parent, TowerCo or any of their Affiliates is
bound, except with respect to clauses (A) and (C), such failures to make or
obtain such filing, consent or approval and such Defaults that, individually or
in the aggregate, would not have a TowerCo Material Adverse Effect, or (ii)
result in the creation or imposition of any Encumbrance upon any of the
properties or assets of Parent or TowerCo, other than Permitted Encumbrances.
5.5 Commissions. Neither Parent nor TowerCo has entered into any agreement,
commitment or obligation with regard to any brokerage commission or finder's fee
or similar
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payment which would be payable by or will result in any Liability to any
Sublessor, arising out of the execution, delivery or performance of this
Agreement or the other Transaction Documents or the transactions contemplated
hereby and thereby.
5.6 SEC Reports. Parent has filed all required forms, reports and documents with
the SEC since September 30, 1998 (collectively, the "Parent SEC Reports"). The
Parent SEC Reports complied, as of their respective dates, in all material
respects with all applicable requirements of the Securities Act of 1933, as
amended, and the Securities Exchange Act of 1934, as amended. As of their
respective dates, none of the Parent SEC Reports, including, without limitation,
any financial statements or schedules included or incorporated by reference
therein, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated or incorporated by reference therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. There have been filed as exhibits
to, or incorporated by reference in, the Parent SEC Reports and Parent's
Registration Statement on Form S-1 as filed with the SEC and last amended on
January 31, 2000, all Contracts which, as of the date hereof, are material as
described in Item 601(b)(10) of Regulation S-K. Parent has heretofore delivered
to AirTouch, in the form filed with the SEC, all of the Parent SEC Reports. The
audited consolidated financial statements and the unaudited interim financial
statements of Parent, including in each case the notes thereto, included in the
Parent SEC Reports have been prepared in accordance with GAAP, and such balance
sheets, including the related notes, fairly present the consolidated financial
position, assets and liabilities (whether accrued, absolute, contingent or
otherwise) of Parent and its subsidiaries at the dates indicated and such
consolidated statements of income, changes in stockholders' equity and
statements of cash flow fairly present the consolidated results of operations,
changes in stockholders' equity and cash flow of Parent for the periods
indicated, subject, in the case of the unaudited interim financial statements,
to normal, recurring audit adjustments. The unaudited financial statements
included in the Parent SEC Reports contain all adjustments, which are solely of
a normal recurring nature, necessary to present fairly the results of operations
and changes in stockholders' equity and financial position for the periods then
ended.
5.7 Absence of Certain Changes. Since December 31, 1999, except as described in
Schedule 5.7 or the Parent SEC Reports filed after such date, each of Parent and
TowerCo has conducted its business solely in the ordinary course consistent with
past practice and neither Parent nor TowerCo has been subject to any Event that
would have a TowerCo Material Adverse Effect.
5.8 Threatened or Pending Litigation. There is no dispute, claim, grievance,
lawsuit, action, arbitration, administrative or other proceeding or formal
governmental investigation pending or, to Parent's or TowerCo's knowledge,
threatened against Parent, TowerCo, any Affiliate of TowerCo or any of their
respective properties, assets or operations that would have a TowerCo Material
Adverse Effect.
5.9 Funds Available for Exclusive Commitment Fee. TowerCo has sufficient cash or
cash equivalents to pay the Exclusive Commitment Fee when due hereunder.
5.10 Capitalization. Each of Parent and TowerCo has authorized capital stock,
and shares of capital stock outstanding and reserved for issuance pursuant to
options, warrants and
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convertible and exchangeable securities outstanding as of December 31, 1999, in
each case as identified in Schedule 5.10. All of such outstanding capital
stock has been duly authorized and validly issued, fully paid and
nonassessable and is not subject to any preemptive or similar rights. There are
no existing subscriptions, options, warrants, convertible securities, calls,
commitments, agreements, conversion rights or other rights of any
character (contingent or otherwise) that are binding on Parent or TowerCo
calling for or requiring the issuance, transfer, sale or other disposition of
any shares of the capital stock of Parent or TowerCo, or calling for or
requiring the issuance of any securities or rights convertible into or
exchangeable for shares of capital stock of Parent, in any case except as set
forth with respect to Parent in the Parent SEC Reports (as defined herein) or in
Schedule 5.10 hereto.
5.11 Interim Operations of TowerCo. TowerCo was formed solely for the purpose of
engaging in the transactions contemplated hereby and has not (i) engaged in any
business activities, (ii) conducted any operations other than in connection with
the transactions contemplated hereby or (iii) incurred any liabilities other
than in connection with the transactions contemplated hereby. TowerCo is a
wholly owned subsidiary of SpectraSite Communications, Inc., which is a wholly
owned subsidiary of Parent.
5.12 No Undisclosed Liabilities. Except as identified in Schedule 5.12 hereto,
TowerCo has no liabilities, outstanding debt, or obligations of any nature
(whether known or unknown and whether absolute, accrued, contingent or
otherwise) except for liabilities, outstanding debt or obligations reflected or
reserved against in the financial statements of TowerCo as set forth in the
Parent SEC Reports and current liabilities incurred in the ordinary course of
business since the respective dates thereof.
5.13 Pending Transactions. "Pending Transactions" means Contracts, agreements,
proposals, bids, and other transactions in effect as of the date hereof (but
excluding this Agreement) to which Parent or any of its direct or indirect
subsidiaries have entered into or agreed, as of the date hereof, to enter into
relating to the acquisition or disposition (by purchase, sale, merger, lease or
otherwise) of assets similar to the Assets. The consummation of the Pending
Transactions, either individually or in the aggregate, will not have a TowerCo
Material Adverse Effect.
ARTICLE 6
Certain Covenants
6.1 Agreements of Sublessors Pending the Closing. AirTouch and each other
Sublessor severally covenants and agrees that, pending the Final Closing (and
thereafter, in the case of paragraphs (f) and (g) of this Section), except as
otherwise agreed to in writing by TowerCo, and except in connection with the
performance of the transactions contemplated hereby:
(a) Business in the Ordinary Course. Except as to actions specifically permitted
or contemplated by this Agreement or required by any Law, such Sublessor shall
operate, maintain and service its Assets in the ordinary course consistent with
past practice (including extensions,
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renewals, terminations and amendments of Contracts) and in compliance in all
material respects with all applicable Laws and, to the extent consistent
therewith, use reasonable efforts to preserve the goodwill and relationships
with customers, suppliers and others having business dealings with it that are
material to the Assets.
(b) Update Schedules. AirTouch and the other Sublessors shall promptly disclose
to TowerCo any information contained in their respective representations and
warranties or any of the Schedules or Annexes hereto which, because of an event
occurring after the date hereof, is incomplete or is no longer correct as of all
times after the date hereof until the Final Closing Date; provided, however,
that none of such disclosures shall be deemed to modify, amend or supplement the
representations and warranties of the Sublessors or the Schedules or Annexes
hereto for the purposes of Article 8 hereof, unless TowerCo shall have consented
thereto in writing, except (i) to the extent that an update relates to the
addition to any Schedule or Annex of Towers or Tower Sites acquired or
constructed after the date of this Agreement in the ordinary course consistent
with past practice (and Ground Leases relating to the foregoing) and which meet
the criteria set forth in Schedule 6.1(b)(1), and matters related thereto, (ii)
to the extent that an update relates to the expiration or termination pursuant
to its terms of a Ground Lease or Tower Related Asset and matters related
thereto, in which event the applicable Tower, Tower Site and Ground Lease (in
the case of an expiring or terminating Ground Lease) or the applicable Tower
Related Asset (in the case of an expiring or terminating Tower Related Asset)
shall be deemed to be Excluded Assets for all purposes hereunder and shall not
be deemed to be the subject of any representation, warranty or covenant of
Sublessors hereunder, and all references thereto in the Annexes to this
Agreement shall be deemed deleted, (iii) to the extent that an update relates to
the renewal (pursuant to preexisting renewal options) of a Ground Lease or Tower
Related Asset, and matters related thereto, (iv) to the extent that an update
relates to the renewal (other than a renewal pursuant to preexisting renewal
options) or amendment of a Ground Lease or Tower Related Asset, and matters
related thereto, so long as the criteria set forth in Schedule 6.1(b)(2) are met
(collectively, the updates referred to in the foregoing clauses (i), (ii), (iii)
and (iv), together with any other disclosures consented to in writing by
TowerCo, the "Permitted Schedule Updates"). The Schedules and Annexes hereto
shall be deemed modified to include the information in the Permitted Schedule
Updates. Notwithstanding anything to the contrary herein, if any proposed
Permitted Schedule Update pursuant to subsection (i) of the foregoing proviso (a
"Subsection (i) Update") contains exceptions to the representations and
warranties contained in Articles 3 or 4 hereof such that the condition to
TowerCo's obligations to close under Section 8.1(b) would not be satisfied (it
being understood that, to the extent that a Subsection (i) Update revises the
lists of Towers, Tower Sites and certain Contracts called for by Section 3.7 and
the Annexes hereto, such revision shall not constitute an exception for this
purpose), TowerCo may, within seven days after the receipt thereof, refuse to
accept such proposed Subsection (i) Update insofar as the exceptions reflected
therein are unacceptable to TowerCo, notify AirTouch of TowerCo's objections,
and refuse to accept and pay for any such additional Towers or Tower Sites as
are subject to such unacceptable exceptions. Each such Tower and Tower Site
(including the Tower Related Assets relating thereto) shall not be subject to
this Agreement or any of the Transaction Documents for any purpose and shall
constitute Excluded Assets, and Sublessors may hold, further develop or dispose
of such Towers, Tower Sites and assets free and clear of any obligation or
Liability arising or imposed under or pursuant to this Agreement or the other
Transaction Documents.
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(c) Conduct of Business. Such Sublessor shall cooperate with TowerCo and use its
reasonable efforts to cause all of the conditions to the obligations of TowerCo
under this Agreement to be satisfied on or prior to the Closing Date.
(d) Sale of Assets; Negotiations. Except as permitted by Section 6.1(a) or in
connection with an assignment of this Agreement permitted by Section 13.2, such
Sublessor shall not sell or encumber all or any part of its Assets, other than
Permitted Encumbrances or in the ordinary course of its business consistent with
past practice or in connection with the sale or other divestiture of any
cellular system owned by any Sublessor, or initiate or participate in any
discussions or negotiations or enter into any agreement to do any of the
foregoing. Assets sold or otherwise disposed of in accordance with this Section
shall be deemed to be Excluded Assets for all purposes hereunder and shall not
be deemed to be the subject of any representation, warranty or covenant of
Sublessors hereunder, and all references thereto in the Annexes to this
Agreement shall be deemed deleted.
(e) Access. Each Sublessor shall give to TowerCo's officers, employees, counsel,
accountants and other representatives free and full access to and the right to
inspect, during normal business hours and with reasonable prior notice, all of
the premises, properties, assets, records, contracts and other documents
relating to the Assets and shall permit them to consult with the officers,
employees, accountants and agents of Sublessors for the purpose of making such
investigation of the Assets as TowerCo shall desire to make, provided that such
access, inspection and investigation shall not unreasonably interfere with the
business operations of Sublessors. Notwithstanding the foregoing provisions of
this Section , Sublessors shall not be required to provide any such information
to TowerCo if, in the reasonable determination of counsel for AirTouch or the
other applicable Sublessor, access to such information by TowerCo is prohibited
by the provisions of any confidentiality agreements binding upon AirTouch or any
of the other Sublessors or by applicable Law.
(f) Publicity. Except as required by applicable Law or in connection with
communications with the other partners of the Other Entities or the process of
obtaining consents contemplated by Section 2.2 hereof, no Sublessor shall give
any notice to third parties or otherwise make any public statement or
announcement (including statements to any member of the media) concerning this
Agreement or the transactions contemplated hereby, or otherwise make known to
any third party any information relating to this Agreement or the other
Transaction Documents, except for such written information as shall have been
approved in writing as to form and content by TowerCo, which approval shall not
be unreasonably withheld or delayed.
(g) Cooperation in Accounting Matters. If Parent is required by applicable Law
(including the staff of the Securities and Exchange Commission) to receive from
its independent public accountants an unqualified report (as to the scope of the
audit, access to the books and records and the cooperation of management) on the
Assets (consisting of a balance sheet as of the Final Closing Date and a
statement of revenue from third parties and expenses for the twelve months then
ended, prepared in conformity with GAAP and Regulation S-X under the Securities
Act of 1933, as amended, and which shall be at Parent's sole cost and expense),
then Sublessors shall cooperate reasonably and shall use reasonable efforts to
cause their independent public accountants to cooperate (provided that such
accountants' cooperation shall be at Parent's sole
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cost and expense) in responding to inquiries from Parent's independent
public accountants in connection with their production of such report for
Parent.
6.2 Agreements of TowerCo. Each of Parent and TowerCo covenants and agrees that,
pending the Final Closing (and thereafter, in the case of paragraphs (d) and (e)
of this Section 6.2) and except as otherwise agreed to in writing by AirTouch:
(a) Update Schedules. Parent and TowerCo shall promptly disclose to AirTouch (on
behalf of the Sublessors) any information contained in the representations and
warranties of Parent or TowerCo or any of the Schedules hereto which, because of
an event occurring after the date hereof, is incomplete or is no longer correct
as of all times after the date hereof until the Final Closing Date; provided,
however, that none of such disclosures shall be deemed to modify, amend or
supplement the representations and warranties of Parent or TowerCo or the
schedules hereto for the purposes of Article 9 hereof, unless AirTouch shall
have consented thereto in writing.
(b) Conduct of Business. Each of Parent and TowerCo shall cooperate with
Sublessors and use its reasonable efforts to cause all of the conditions to the
obligations of Sublessors and the TowerCo Parties under this Agreement (other
than the conditions in Section 9.1(f)(i) and 9.1(f)(v) hereof) to be satisfied
on or prior to each Closing Date.
(c) Access. Pending the Final Closing, each of Parent and TowerCo shall give to
Sublessors' officers, employees, counsel, accountants and other representatives
free and full access to and the right to inspect, during normal business hours,
all of the premises, properties, assets, records, contracts and other documents
relating to its business and shall permit them to consult with the officers,
employees, accountants, counsel and agents of Parent and TowerCo for the purpose
of making such investigation of their business and the properties and assets
used in connection therewith, as Sublessors shall desire to make, provided that
such investigation shall not unreasonably interfere with the business operations
of Parent and TowerCo. Notwithstanding the foregoing provisions of this Section
6.2(c), Parent and TowerCo shall not be required to provide any such information
to Sublessors if, in the reasonable determination of the general counsel of
Parent, access to such information by Sublessors is prohibited by the provisions
of any confidentiality agreement binding upon Parent and TowerCo or by
applicable Law.
(d) Publicity. Except as required by applicable Law, neither Parent nor TowerCo
shall give notice to third parties or otherwise make any public statement or
announcement (including statements to any member of the media) concerning this
Agreement or the transactions contemplated hereby or otherwise make known to any
third party any information relating to this Agreement or the other Transaction
Documents, except for such written information as shall have been approved in
writing as to form and content by AirTouch, which approval shall not be
unreasonably withheld or delayed.
(e) Other Covenants. From the date of this Agreement until the first anniversary
of the Final Closing, neither Parent nor TowerCo nor any of their respective
Affiliates will Solicit any employee of any Sublessor or any of its Affiliates
to leave his or her employment with such Sublessor or its Affiliates. For
purposes of this Agreement, "Solicit" means any recruitment specifically
directed at one or more individuals identified by name, title or Sublessor
affiliation
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(i.e., beyond generally advertising job openings), but the term "Solicit"
shall not include any activities that constitute follow-up to
individuals who respond to general job opening advertisements or who voluntarily
initiate employment inquiries.
6.3 Additional Agreements of Sublessors and TowerCo Parties.
(a) Regulatory Matters.
(i) Each party hereto agrees to use commercially reasonable efforts to
comply with all Laws which may be imposed on such party with respect to
the transactions contemplated by this Agreement and the other
Transaction Documents.
(ii) Notwithstanding anything else to the contrary contained in this
Agreement, none of AirTouch nor any other Sublessor shall have any
obligation to oppose, challenge or appeal any suit, action or
proceeding by any Governmental Authority before any court or other
Governmental Authority, domestic or foreign, or any order or ruling by
any such body (A) seeking to restrain or prohibit or restraining or
prohibiting the consummation of the transactions contemplated by the
Transaction Documents, (B) seeking to prohibit or limit or prohibiting
or limiting the leasing, subleasing, occupancy, operation or control by
any TowerCo Party of the Subleased Property or Managed Components (as
defined in the Sublease) or (C) seeking to compel or compelling any
TowerCo Party or any Sublessor or any of their respective Affiliates to
dispose of, grant rights in respect of, or hold separate any portion of
the business or assets of any TowerCo Party or any Sublessor or any of
their respective Affiliates.
(b) Cooperation in Tax Matters. Sublessors, on the one hand, and the TowerCo
Parties, on the other hand, shall cooperate fully as and to the extent
reasonably requested by the other party in connection with any audit, litigation
or other proceeding with respect to Taxes. Such cooperation shall include the
retention and (upon the other party's request) the provision of records and
information which are reasonably relevant to any such audit, litigation or other
proceeding and making employees available on a mutually convenient basis to
provide additional information and explanation of any material provided
hereunder. Sublessors and the TowerCo Parties agree (i) to retain all books and
records with respect to Tax matters pertinent to the Assets relating to all
taxable periods until the statute of limitations (including any extensions) as
to any taxable year that may be affected thereby shall have run, (ii) to abide
by all record retention agreements entered into with any Governmental Authority,
and (iii) to give the other party reasonable written notice prior to destroying
or discarding any such books and records and, if one party so requests, shall
allow the requesting party to take possession of such books and records proposed
for destruction or discard (at the requesting party's sole expense).
(c) Transfer Taxes. Each Sublessor shall pay and promptly discharge when due the
entire amount of any and all state and local sales and use, documentary, real
property transfer and other transfer taxes, similar taxes and related amounts
(including any penalties, interest and additions to Tax) (the "Transfer Taxes")
imposed or levied by reason of the execution and performance of this Agreement
and the Sublease, if any. TowerCo shall promptly reimburse each Sublessor for
50% of all such Transfer Taxes upon receipt of suitable evidence that such
Transfer Taxes have been paid by such Sublessor. The parties will cooperate
before and after
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each Closing to minimize Transfer Taxes. Such cooperation will include the
provision of resale certificates, other exemption certifications where
appropriate, or other documentation reasonably requested by AirTouch or
another Sublessor.
(d) Further Assurances. Each of the parties hereto will cooperate with the other
and execute and deliver to the other parties hereto such other instruments and
documents and take such other actions as may be reasonably requested from time
to time by any other party hereto as necessary to carry out, evidence and
confirm the intended purposes of this Agreement.
(e) Tax Filings. TowerCo will be responsible for filing before and after each
Closing any forms, notices or other filings as required by each Governmental
Authority necessary to identify the change in ownership, use, control or
possession of the Assets.
(f) Specified Sites. The parties confirm the agreements stated in the last
two sentences of Item 1 of Schedule 3.9.
---------------
6.4 Confidentiality. All information obtained by any party in connection with
this Agreement shall be kept confidential in accordance with that certain letter
agreement dated December 1, 1999 between SpectraSite Communications, Inc. and
▇▇▇▇▇▇ Brothers Inc. on behalf of AirTouch. TowerCo and Parent agree to observe
and abide by the covenants of SpectraSite Communications, Inc. in such letter
agreement. The obligations in this Section shall survive any termination or
expiration of this Agreement.
ARTICLE 7
Optional TowerCo Activities
7.1 Preliminary Title Reports. TowerCo may, but shall not be obligated to, at
its own cost or expense, obtain as promptly as practicable after the execution
of this Agreement either (i) a standard preliminary title report dated on or
after the date of this Agreement with respect to each parcel of real property
constituting a part of the Assets, or (ii) copies of title policies or marked up
commitments to issue title policies, with policies to be provided when issued.
7.2 Environmental Site Assessments. TowerCo may as promptly as practicable after
the execution of this Agreement, at its own cost and expense, obtain and deliver
to the applicable Sublessor full and complete copies of a Phase I Environmental
Report on each parcel of real property constituting a part of the Assets for
which a Phase I Environmental Report has not heretofore been delivered to
TowerCo (or as to which TowerCo has heretofore indicated that the existing Phase
I Environmental Report raises questions of potential liability that has had or
could be reasonably expected to materially impair the value or use of the
affected real property). Site assessments shall be conducted by such consultants
and professionals as TowerCo shall select and as shall be reasonably acceptable
to AirTouch and shall be arranged at times mutually convenient to the parties.
Each of the applicable Sublessor and TowerCo shall be entitled to have
representatives present at the time such site assessments are conducted and to
have copies of all correspondence with the entity preparing such Phase I
Environmental Reports.
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7.3 Structural Reports. TowerCo may, but shall not be obligated to, at its own
cost and expense, obtain as promptly as practicable after the execution of this
Agreement, a report with respect to each of the components of the Towers of such
structural engineers as are reasonably satisfactory to TowerCo with respect to
(i) the structural soundness and operating condition of the Towers, (ii)
compliance of the Towers with all applicable Laws, Governmental Permits and
Contracts, and (iii) any required structural or other material repairs.
ARTICLE 8
Conditions Precedent to Obligations of TowerCo
8.1 Conditions Precedent. The obligations of TowerCo to consummate the
transactions contemplated on each Closing Date are subject to the satisfaction,
on or before such Closing Date, of all the following conditions:
(a) Sublessors shall have performed and complied in all material respects with
all covenants and obligations required by this Agreement and the other
Transaction Documents to be performed or complied with by Sublessors on or
before such Closing Date.
(b) All representations and warranties of Sublessors in this Agreement shall be
true, correct and complete, in each case on and as though made on such Closing
Date (except for representations and warranties with respect to matters as of a
specified date or for a specified period, which shall be true, correct and
complete as of such date or with respect to such period), in each case without
regard to any schedule updates (other than Permitted Schedule Updates) furnished
by Sublessors after the date hereof, except to the extent that the failure of
such representations and warranties to be true and correct, individually or in
the aggregate, do not have an AirTouch Material Adverse Effect; provided,
however, that solely for the purpose of the foregoing, representations and
warranties that are qualified as to materiality (including by reference to an
AirTouch Material Adverse Effect) shall not be deemed to be so qualified;
provided, however, that for purposes of this Section 8.1 each representation or
warranty (other than those in Sections 3.1, 3.2, 3.3 or 3.10) of any Sublessor
that refers to or is made with respect to any or all of the Assets or
liabilities (including without limitation Contracts, Governmental Permits,
Encumbrances, Towers, Tower Sites and Real Property) of or affecting any or all
Sublessors or their properties shall be deemed to refer only to such Assets and
liabilities which are the subject of the Closing at issue, and not to any other
Assets or liabilities of or affecting any Sublessor or its properties.
(c) As of such Closing Date, no lawsuit, action or proceeding shall be
completed, pending or threatened against TowerCo or any Sublessor that has or is
likely to result in a judgment, decree or order that would prevent or make
unlawful the consummation of the transactions contemplated by this Agreement and
there shall be in effect no injunction or order restraining or prohibiting the
consummation of the transactions contemplated by this Agreement to occur at such
Closing nor any proceedings pending with respect thereto.
(d) Sublessors shall have duly tendered to TowerCo all documents which
Sublessors are required by Section 10.2(b) to deliver to TowerCo for such
Closing.
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(e) Sublessors shall have been able to deliver to TowerCo at least the minimum
number of Included Towers applicable to such Closing, as provided in Section
2.4.
(f) All authorizations, consents, waivers, orders or approvals required to be
obtained from all Governmental Authorities, and all filings, submissions,
registrations, notices or declarations required to be made by any of the parties
with any Governmental Authority, in connection with and prior to the
consummation of the transactions contemplated hereby to occur at such Closing,
shall have been obtained from, and made with, all such Governmental Authorities,
except for such authorizations, consents, waivers, orders, approvals, filings,
registrations, notices or declarations the failure of which to obtain or make
would not have an AirTouch Material Adverse Effect.
(g) All agreements, certificates and other documents required to be delivered
pursuant to the provisions of this Agreement (other than the other Transaction
Documents to the extent substantially in the form attached hereto) shall be
reasonably satisfactory in form, scope and substance to TowerCo and its counsel,
and TowerCo and its counsel shall have received copies of all documents,
including records of corporate proceedings, which they may reasonably request in
connection therewith, such documents where appropriate to be certified by proper
Governmental Authorities or corporate officers.
(h) With respect to any Subsequent Closing, the Sublease shall not have been
terminated in accordance with its terms.
8.2 Waiver. TowerCo may waive any or all of the conditions set forth in Section
8.1 hereof in whole or in part; however, no such waiver of a condition shall
constitute a waiver by TowerCo of any of its other rights or remedies under this
Agreement or otherwise at law or in equity if Sublessors should be in default of
any of the covenants, agreements, representations or warranties of Sublessors
under this Agreement.
ARTICLE 9
Conditions Precedent to Obligations of Sublessors
9.1 Conditions Precedent. The obligations of Sublessors to consummate the
transactions contemplated on each Closing Date are subject to the satisfaction,
on or before such Closing Date, of all the following conditions:
(a) Each of the TowerCo Parties shall have performed and complied in all
material respects with all covenants and obligations required by this Agreement
and the other Transaction Documents to be performed or complied with by such
TowerCo Party on or before such Closing Date.
(b) All representations and warranties made by Parent and TowerCo in this
Agreement shall be true, correct and complete, in each case on and as though
made on such Closing Date (except for representations and warranties with
respect to matters as of a specified date or for a specified period, which shall
be true, correct and complete as of such date or with respect to such period),
in each case without regard to any schedule updates furnished by Parent
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or TowerCo after the date hereof, except to the extent that the failure of such
representations and warranties to be true and correct, individually or in the
aggregate, do not have a TowerCo Material Adverse Effect; provided, however,
that solely for the purpose of the foregoing, representations and warranties
that are qualified as to materiality (including by reference to a TowerCo
Material Adverse Effect) shall not be deemed to be so qualified.
(c) As of such Closing Date, no lawsuit, action or proceeding shall be
completed, pending or threatened against any Sublessor or any of the TowerCo
Parties that has or is likely to result in a judgment, decree or order that
would prevent or make unlawful the consummation of the transactions contemplated
by this Agreement and there shall be in effect no injunction or order
restraining or prohibiting the consummation of the transactions contemplated by
this Agreement to occur at such Closing nor any proceedings pending with respect
thereto.
(d) TowerCo shall have duly tendered to each Sublessor the applicable Exclusive
Commitment Fee for such Closing and all documents which TowerCo and Parent are
required by Section 10.2 to deliver to one or more Sublessors at such Closing.
(e) With respect to any Subsequent Closing, the Sublease shall not have been
terminated in accordance with its terms.
(f) Neither TowerCo nor Parent shall have (i) been a party to any merger,
consolidation or other business combination in which it was not the surviving
corporation or in which Parent's common stockholders (as in existence
immediately prior to such transaction) do not possess at least 50.1% of the
voting power of the Person controlling the surviving corporation, (ii) been
liquidated, wound up or dissolved, or made an assignment for the benefit of
creditors, or filed a bankruptcy petition, or petitioned or applied to any
Governmental Authority or other tribunal seeking a receiver, trustee or
custodian, or instituted or commenced any voluntary proceeding or become subject
to (or indicated its consent to, approval of or acquiescence in) any involuntary
proceeding contemplating or seeking any of the foregoing or any proceeding under
any bankruptcy, reorganization, readjustment of debt, dissolution or liquidation
Law of any jurisdiction, (iii) become insolvent as defined in the Uniform
Commercial Code under the Laws applicable to this Agreement, (iv) sold,
assigned, leased or otherwise disposed of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereinafter acquired) unless it meets the voting power test described
in clause (i) with respect to the Person to which such assets were sold,
assigned, leased or otherwise disposed of, (v) effected or agreed to effect a
Significant Transaction, or (vi) entered into any Contract or arrangement to do
or permit any of the foregoing.
(g) All authorizations, consents, waivers, orders or approvals required to be
obtained from all Governmental Authorities, and all filings, submissions,
registrations, notices or declarations required to be made by any of the parties
with any Governmental Authority, prior to the consummation of the transactions
contemplated hereby to occur at such Closing, shall have been obtained from, and
made with, all such Governmental Authorities, except for such authorizations,
consents, waivers, orders, approvals, filings, registrations, notices or
declarations the failure of which to obtain or make would not have an AirTouch
Material Adverse Effect.
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(h) All agreements, certificates, opinions and other documents required to be
delivered pursuant to the provisions of this Agreement (other than the other
Transaction Documents to the extent substantially in the form attached hereto)
shall be reasonably satisfactory in form, scope and substance to Sublessors and
their counsel, and Sublessors and their counsel shall have received copies of
all documents, including records of corporate proceedings, which they may
reasonably request in connection therewith, such documents where appropriate to
be certified by proper Governmental Authorities or corporate officers.
(i) All authorizations, consents, waivers, orders or approvals required by the
provisions of this Agreement to be obtained from all Persons (other than
Governmental Authorities) prior to the consummation of the transactions
contemplated on such Closing Date shall have been obtained, without the
imposition, individually or in the aggregate, of any condition or requirement
that has had or would have an AirTouch Material Adverse Effect.
9.2 Waiver. Sublessors may waive any or all of such conditions set forth in
Section 9.1 hereof in whole or in part; however, no such waiver of a condition
shall constitute a waiver by Sublessors of any of their other rights or remedies
under this Agreement or otherwise at law or in equity if TowerCo or Parent
should be in default of any of the covenants, agreements, representations or
warranties made by TowerCo or Parent under this Agreement.
ARTICLE 10
Closing
10.1 Closing. Each Closing shall take place on the Closing Date and at the place
provided for in Section 2.4. At the applicable Closing, and subject to the terms
and conditions herein contained, each of the parties shall take all actions and
deliver all documents, instruments, certificates, agreements and other items as
required under this Agreement in order to perform, fulfill and observe all
covenants, conditions and agreements on its part to be performed, fulfilled and
observed at or prior to such Closing Date (and not theretofore accomplished).
10.2 Closing Deliveries.
(a) At the Initial Closing, and subject to the terms and conditions herein
contained:
(i) AirTouch (for itself and the other Sublessors), TowerCo and Parent
shall execute and deliver the Sublease;
(ii) AirTouch (for itself and the other Sublessors) shall execute and
deliver, and TowerCo and Parent shall execute and deliver, (A) the
Master Tower Site Lease Agreement in the form attached hereto as
Exhibit C (the "Master Lease") pursuant to which TowerCo shall lease to
Sublessors space on certain communications towers to be constructed
pursuant to the Build-to-Suit Agreement (as defined below); and (B) the
Site Development and Build-to-Suit Agreement in the form attached
hereto as Exhibit D (the "Build-to-Suit Agreement") pursuant to which
Sublessors shall offer to TowerCo from time to time the right to build
certain towers and related structures on the terms and conditions
described therein.
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(b) At each Closing (including the Initial Closing), and subject to the terms
and conditions herein contained, Sublessors shall deliver to TowerCo all of the
following:
(i) the Site Designation Supplements (as defined in the Sublease)
applicable to the Tower Sites which are the subject of such Closing, to
the extent and as provided in this Agreement;
(ii) a certificate of each Sublessor, substantially in the form of Exhibit E
(iii) a Certificate of Good Standing for each Sublessor certified to by the
Secretary of State of the jurisdiction of such Sublessor's
incorporation or formation; and
(iv) such other documents and certificates as TowerCo may reasonably request.
(c) At each Closing (including the Initial Closing), TowerCo and Parent shall
deliver to Sublessors the following:
(i) a wire transfer to each Sublessor of the portion of the Exclusive
Commitment Fee attributable (on a pro rata basis) to the Included
Towers of such Sublessor which are the subject of such Closing,
pursuant to instructions received from AirTouch;
(ii) a Certificate of Good Standing of TowerCo and Parent certified to by
the Secretary of State of each State in which any of the Towers and
Tower Sites that are the subject of such Closing are located;
(iii) an executed counterpart of each Site Designation Supplement delivered
by Sublessors pursuant to Section 10.2(b) hereof;
(iv) a certificate of each of Parent and TowerCo, each substantially in the form
of Exhibit F; and
(v) such other documents and certificates as Sublessors may reasonably request.
ARTICLE 11
Indemnification
11.1 Indemnification by Sublessors.
(a) Each Sublessor agrees severally, and for its own account only, to indemnify
TowerCo, its Affiliates, and the directors, partners, officers, agents and
employees of TowerCo and each of its Affiliates (collectively, the "Indemnified
TowerCo Parties") and hold it harmless on an after-Tax basis from any and all
losses, liabilities, claims, suits, proceedings, demands, judgments, damages,
expenses and costs, including, without limitation, counsel fees and
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disbursements, expert fees and costs and expenses incurred in the investigation,
defense or settlement of any claims covered by this indemnity ("Indemnifiable
Damages") which any Indemnified TowerCo Party may suffer or incur by reason of
(i) the inaccuracy of any representation or warranty of such Sublessor contained
in this Agreement (but excluding any other Transaction Documents), or (ii) the
breach by such Sublessor of any covenant made by it in this Agreement (but
excluding any other Transaction Documents). The foregoing obligation of
Sublessors shall be subject to and limited by each of the qualifications set
forth in this Article 11.
(b) Except with respect to bona fide and valid claims for which notice has been
given within the Indemnity Period, each representation, warranty and covenant
made by Sublessors in this Agreement or pursuant hereto and the indemnity
obligations set forth in this Section 11.1 shall survive only until the
expiration of the Indemnity Period, and thereafter all such representations,
warranties and covenants and indemnity obligations and any liability thereunder
shall be extinguished and of no further force or effect. The term "Indemnity
Period" means a period of twelve (12) months after the applicable Closing Date
with respect to representations and warranties and the applicable statute of
limitations with respect to the covenants and agreements of the parties.
(c) The indemnity obligations of each Sublessor hereunder shall not apply (i) to
the extent that TowerCo is compensated for the same loss under TowerCo's
insurance policies in the absence of any indemnity hereunder if the insurers
under such policy waive their rights of subrogation with respect thereto; or
(ii) if the damages to TowerCo do not exceed the Threshold Amount applicable to
such Sublessor. If such damages exceed the Threshold Amount applicable to such
Sublessor, the indemnity obligations of such Sublessor hereunder shall only
apply to that portion of the Indemnifiable Damages that exceeds the Threshold
Amount for such Sublessor and thereafter Indemnifiable Damages shall be paid up
to the Maximum Amount calculated on a cumulative basis with respect to all
Sublessors taken in the aggregate. For purposes of determining whether the
Threshold Amount or Maximum Amount (as the case may be) for any Wholly Owned
Entity has been reached, all Sublessors that are Wholly Owned Entities shall be
treated as a single "Sublessor," and the Threshold Amount and Maximum Amount
shall be calculated on a cumulative basis with respect to all Wholly Owned
Entities.
11.2 Indemnification by TowerCo.
(a) TowerCo agrees to indemnify each Sublessor, its Affiliates, and the
directors, partners, agents and employees of each Sublessor and its Affiliates
(collectively, the "Indemnified Sublessor Parties") against and hold each of
them harmless on an after-Tax basis from any and all Indemnifiable Damages which
any such Indemnified Sublessor Party may suffer or incur by reason of or in
connection with (i) the inaccuracy of any representation or warranty of Parent
or TowerCo contained in this Agreement (but excluding any other Transaction
Document), or (ii) the breach by Parent or TowerCo of any covenant made by it in
this Agreement (but excluding any other Transaction Document). The foregoing
obligation of TowerCo shall be subject to and limited by each of the
qualifications set forth in this Article 11.
(b) Except with respect to bona fide and valid claims for which notice has been
given within six (6) months of the Closing Date, each representation, warranty
and covenant made by Parent or TowerCo in this Agreement or pursuant hereto
(other than those which by their terms
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survive for a longer period) and the indemnity obligations set forth in this
Section 11.2 shall survive only until the date which is six (6) months
following the Closing Date, and thereafter all such representations, warranties,
covenants and indemnity obligations and any liability thereunder shall be
extinguished and of no further force or effect.
(c) The indemnity obligations of TowerCo hereunder shall not apply (i) to the
extent that Sublessors are compensated for the same loss under Sublessors'
insurance policies in the absence of any indemnity hereunder if the insurers
under such policy waive their rights of subrogation with respect thereto; or
(ii) if the damages to Sublessors do not exceed the Threshold Amount applicable
to TowerCo. If such damages exceed the Threshold Amount applicable to TowerCo,
the indemnity obligations of TowerCo hereunder shall only apply to that portion
of the Indemnifiable Damages that exceeds the Threshold Amount for TowerCo and
thereafter Indemnifiable Damages shall be paid up to the Maximum Amount.
11.3 Notice and Right To Defend Third-Party Claims.
(a) Upon receipt of written notice of any claim, demand or assessment from or
the commencement of any suit, arbitration, action or proceeding by a third party
(a "Claim") in respect of which indemnity may be sought on account of an
indemnity agreement contained in this Article, the party seeking indemnification
(the "Indemnitee") shall promptly, but in no event later than fifteen (15)
Business Days prior to the date a response or answer thereto is due (unless a
response or answer is due within fewer than fifteen (15) Business Days from the
date of Indemnitee's receipt of notice thereof), inform the party against whom
indemnification is sought (the "Indemnitor") in writing thereof. The failure,
refusal or neglect of such Indemnitee to notify the Indemnitor within the time
period specified above of any such Claim shall relieve such Indemnitor from any
liability which it may have to such Indemnitee in connection therewith, if the
effect of such failure, refusal or neglect is to prejudice materially the rights
of the Indemnitor in defending against the Claim.
(b) In case any Claim shall be asserted or commenced against an Indemnitee, and
such Indemnitee shall have timely and properly notified the Indemnitor of the
commencement thereof, the Indemnitor shall assume the defense, conduct or
settlement thereof, with counsel selected by the Indemnitor. After assumption of
the defense, conduct or settlement thereof, the Indemnitor will not be liable to
the Indemnitee for expenses incurred by Indemnitee in connection with the
defense, conduct or settlement thereof, except for such expenses as may be
reasonably required to enable the Indemnitor to take over such defense, conduct
or settlement.
(c) The Indemnitee will at its own expense cooperate with the Indemnitor in
connection with any such Claim, make personnel, witnesses, books and records
relevant to the Claim available to the Indemnitor at no cost, and grant such
authorizations or powers of attorney to the agents, representatives and counsel
of the Indemnitor as the Indemnitor may reasonably request in connection with
the defense or settlement of any such Claim.
(d) Notwithstanding the foregoing in this Section 11.3, the Indemnitee shall
have the right to employ separate counsel in any such Claim and to participate
in the defense thereof, but the fees and expenses of such counsel shall be its
fees and expenses unless (i) the Indemnitor has agreed to pay such fees and
expenses, (ii) the Indemnitor has failed to assume the defense of
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such Claim or (iii) the named parties to any such Claim (including any
impleaded parties) include both the Indemnitor and the Indemnitee and the
Indemnitee has been advised by counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the Indemnitor (in which case, if the Indemnitee informs the
Indemnitor in writing that it elects to employ separate counsel at the expense
of the Indemnitor, the Indemnitor shall not have the right to assume the
defense of such Claim or proceeding on behalf of the Indemnitee, it being
understood, however, that the Indemnitor shall not, in connection with any one
such Claim or separate but substantially similar or related Claims in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys at any time for the Indemnitee, which firm
shall be designated in writing by the Indemnitee).
11.4 Notice and Right to Remediate. Notwithstanding anything in this Agreement
to the contrary, Sublessors shall have no obligation to indemnify any
Indemnified TowerCo Party with respect to Indemnifiable Damages arising under
Environmental Laws or out of any Environmental Condition, including damages or
other Liabilities due to any necessary investigation, remediation or cleanup of
Hazardous Substances at the Real Property, unless TowerCo first gives Sublessors
an option to conduct any necessary response or perform any required work and
Sublessors refuse to do so. Such an option should be given to Sublessors with
the written notice required by Section 11.3(a), but in any case, shall be given
in writing prior to any expenditure or commitment by TowerCo or any of its
Affiliates or agents of or for what TowerCo considers to be Indemnifiable
Damages. Sublessors shall respond to the option in writing within thirty (30)
calendar days of receipt of TowerCo's notice of the option or such shorter
period as is required to enable TowerCo to comply with all Environmental Laws or
Governmental Permits or to meet the requirements of the appropriate Governmental
Authority. If Sublessors exercise their option, Sublessors shall perform all
work in a workmanlike manner in material compliance with all applicable
Environmental and other Laws and Governmental Permits to the satisfaction of the
appropriate Governmental Authority. In addition, Sublessors will afford TowerCo
a reasonable opportunity to comment (at TowerCo's sole expense) in advance of
Sublessors' proposed responses or submissions to Governmental Authorities or
third parties relating to activities on the Real Property, including reports and
workplans, provided that such comment period does not materially delay or
interfere with Sublessors' obligations to any third party. Sublessors shall
consider TowerCo's comments in good faith, but are under no obligation to accept
or incorporate TowerCo's comments. Except to the extent required by applicable
Law, TowerCo and its representatives and agents will not initiate any
communication or make comments or submissions to any Governmental Authority or
third parties with respect to environmental conditions as to which Sublessors
have exercised their option. Any conflicts between Section 11.3 and this Section
11.4 shall be resolved in favor of this Section 11.4.
11.5 Mitigation. Nothing herein contained shall affect a party's legal duty to
mitigate damages.
11.6 Exclusive Remedy. Notwithstanding anything to the contrary herein, except
as provided in Sections 12.3 and 13.18, this Article 11 shall be the sole and
exclusive basis of any remedy that each party may have against the other party
for an inaccuracy or breach of a representation, warranty or covenant in this
Agreement and each party hereby waives any claim (other than under this Article
11) that it may have against the other party with respect to the
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inaccuracy or breach of any such representation, warranty or covenant.
Notwithstanding anything to the contrary in the other Transaction Documents,
this Article 11 shall be the sole and exclusive basis of any remedy that Parent,
TowerCo and the Indemnified TowerCo Parties may have against Sublessors with
respect to any Excluded Claim (as defined in the Sublease).
11.7 Effect of Investigation or Knowledge. Except as otherwise provided herein,
all covenants, agreements, representations and warranties made herein or in any
agreement, instrument or certificate delivered pursuant to this Agreement shall
not be deemed to be waived or otherwise affected by any investigation at any
time made by or on behalf of any party hereto. No claim for a breach of
representation or warranty shall be made by any Indemnified TowerCo Party under
Section 11.1(a) or any Indemnified Sublessor Party under Section 11.2(a), if (i)
such claim is based on an Event occurring prior to the Closing (whether or not
also occurring prior to the date of this Agreement), (ii) either (a) such Event
was disclosed by Sublessors or TowerCo, as the case may be, prior to the Closing
in a writing which describes such Event in reasonable detail or (b) a TowerCo
Party or AirTouch, as the case may be, had actual knowledge of such Event or
such misrepresentation or breach of warranty prior to the Closing, and (iii) the
Closing occurs.
11.8 Limitation of Liability. Notwithstanding anything to the contrary herein,
in no event shall any Indemnified Sublessor Party on the one hand, or TowerCo on
the other hand, be liable to the other party hereto for any special, incidental,
punitive or consequential damages incurred by such party and caused by or
arising out of any breach of any representation, warranty, covenant or agreement
contained in this Agreement (including claims of lost profits, lost revenue or
loss of use of facilities or assets), regardless of whether such party has been
informed of the possibility of such damages.
ARTICLE 12
Termination
12.1 Termination Events. This Agreement may be terminated and the transactions
contemplated hereby may be abandoned:
(a) at any time, by the mutual agreement of TowerCo and AirTouch; or
(b) by either TowerCo or AirTouch, upon written notice to the other, if all of
the conditions to TowerCo's or Sublessors' obligations (as the case may be) to
consummate the Initial Closing set forth in Sections 8.1 and 9.1, respectively,
shall not have been satisfied or waived on or before the Initial Closing
Expiration Date for any reason other than a breach or default by such
terminating party of its respective representations, warranties, covenants,
agreements or other obligations hereunder such that the conditions to the
non-terminating party's obligations to consummate the Initial Closing set forth
in Section 9.1(a) or 9.1(b), or in Section 8.1(a) or 8.1(b), as the case may be,
would not be satisfied; or
(c) by AirTouch at any time prior to any Closing if (i) it has not breached or
defaulted under any of its representations, warranties, covenants or other
obligations hereunder such that
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the conditions as to such Closing set forth either in Section 8.1(a) or
Section 8.1(b) would not be satisfied, and (ii) Parent or TowerCo shall have
breached or defaulted under any of its respective representations, warranties,
covenants or other obligations under this Agreement, such that the
conditions as to such Closing set forth either in Section 9.1(a) or Section
9.1(b) would not be satisfied, and such breach or default is either incapable
of cure or, if capable of cure, shall not have been cured within thirty (30)
calendar days (or such longer period not exceeding 60 calendar days so long as
the applicable TowerCo Party is proceeding diligently and in good faith to
cure) after written notice thereof; or
(d) by TowerCo at any time prior to any Closing if (i) it has not breached or
defaulted under any of its representations, warranties, covenants or other
obligations hereunder such that the conditions as to such Closing set forth
either in Section 9.1(a) or Section 9.1(b) would not be satisfied, and (ii)
Sublessors shall have breached or defaulted under any of their representations,
warranties, covenants or other obligations under this Agreement, such that the
conditions as to such Closing set forth in either Section 8.1(a) or Section
8.1(b) would not be satisfied, and such breach or default is either incapable of
cure or, if capable of cure, shall not have been cured within thirty (30)
calendar days (or such longer period not exceeding 60 calendar days so long as
Sublessors are proceeding diligently and in good faith to cure) after written
notice thereof; or
(e) by either TowerCo or AirTouch, in the event that all Closings have not
occurred on or before the date six months following the Initial Closing for any
reason other than a breach or default by such terminating party of its
respective representations, warranties, covenants, agreements or other
obligations hereunder, such that the conditions to the non-terminating party's
Closing obligations set forth in Section 9.1(a) or 9.1(b), or in Section 8.1(a)
or 8.1(b), as the case may be, would not be satisfied.
12.2 Manner of Exercise. In the event of the termination of this Agreement by
either TowerCo or AirTouch pursuant to this Article 12, notice thereof shall
forthwith be given to the other party and this Agreement shall terminate and the
transactions contemplated hereunder shall be abandoned without further action by
any TowerCo Party or any Sublessor.
12.3 Effect of Termination. In the event of the termination of this Agreement
pursuant to this Article 12 and prior to the Closing, all obligations of the
parties hereunder shall terminate, except for the respective obligations of the
parties under Section 6.1(f) (Publicity), Section 6.2(d) (Publicity), Section
6.4 (Confidentiality), Section 13.1 (Covenant Not to ▇▇▇), Section 13.14
(Expenses), Section 13.16 (Dispute Resolution) and Section 13.17 (Power of
Attorney); provided, however, that, except as otherwise expressly provided in
this Section 12.3, no termination of this Agreement shall (a) relieve a
defaulting or breaching party from any liability to the other party or parties
hereto for or in respect of such default or (b) result in the rescission of any
Closing theretofore consummated hereunder or affect or terminate the rights,
remedies and obligations of the parties with respect to such previously
consummated Closing. If this Agreement is terminated by AirTouch in accordance
with Section 12.1(c) (or Section 12.1(b) or (subject to the proviso set forth
below) Section 12.1(e), if any of the conditions set forth in Section 9.1(a) or
9.1(b) has not been fulfilled but all other conditions to closing shall be
fulfilled or capable of being fulfilled) or by TowerCo other than in accordance
with Section 12.1, Sublessors shall be entitled to retain the Deposit (as, and
it shall be and is intended to constitute, liquidated damages for other than
willful breaches of this Agreement).
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ARTICLE 13
General
13.1 Covenant Not To ▇▇▇ and Nonrecourse to Partners.
(a) Each of Parent and TowerCo agrees that notwithstanding any other provision
in this Agreement, any agreement, instrument, certificate or document entered
into pursuant to or in connection with this Agreement or the transactions
contemplated herein or therein and any rule of law or equity to the contrary, to
the fullest extent permitted by law, Sublessors' obligations and liabilities
under this Agreement and all other Transaction Documents and in connection with
the transactions contemplated herein and therein shall be nonrecourse to all
direct and indirect general and limited partners of any Sublessor that is a
partnership.
(b) "Nonrecourse" means that the obligations and liabilities are limited in
recourse solely to the assets of Sublessors (for those purposes, any capital
contribution obligations of the general and limited partners of Sublessors or
any negative capital account balances of such partners shall not be deemed to be
assets of Sublessors) and are not guaranteed directly or indirectly by, or the
primary obligations of, any general or limited partner of any Sublessor, and
neither any Sublessor nor any general or limited partner or any officer,
director, partner, employee or agent of any Sublessor or any general or limited
partner of any successor partnership, either directly or indirectly, shall be
personally liable in any respect (except to the extent of their respective
interests in the assets of any Sublessor) for any obligation or liability of any
Sublessor under any Transaction Document or any transaction contemplated
therein.
(c) "Direct" partners include all general and limited partners of any Sublessor
that is a partnership, and "indirect" partners include all general and limited
partners of each direct partner and all general and limited partners of each
such indirect partner and all such further indirect partners and members thereof
and each such indirect partner.
(d) Each of Parent and TowerCo hereby covenants for itself, its successors and
assigns that it, its successors and assigns will not make, bring, claim,
commence, prosecute, maintain, cause or permit any action to be brought,
commenced, prosecuted, maintained, either at law or equity, in any court of the
United States or any state thereof or in any arbitration forum against any
direct or indirect member or general or limited partner of Sublessors or any
officer, director, partner, employee or agent of Sublessors or any direct or
indirect member or general or limited partner of Sublessors for (i) the payment
of any amount or the performance of any obligation under any Transaction
Document or (ii) the satisfaction of any liability arising in connection with
any such payment or obligation or otherwise, including without limitation,
liability arising in law for tort (including, without limitation, for active and
passive negligence, negligent misrepresentation and fraud), equity (including,
without limitation, for indemnification and contribution) and contract
(including, without limitation, monetary damages for the breach of
representation or warranty or performance of any of the covenants or obligations
contained in any Transaction Document or with the transactions contemplated
herein or therein).
13.2 Assignment. Neither Parent nor TowerCo nor any Sublessor may assign its
rights and obligations under, or grant a security interest in, this Agreement to
any Person without the
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consent of the other parties hereto; provided, however, that (a) TowerCo may,
upon prior written notice to AirTouch, collaterally assign, mortgage, pledge,
hypothecate or otherwise collaterally transfer TowerCo's interest in this
Agreement to any Permitted Subleasehold Mortgagee (as defined in the Sublease),
and any such Permitted Subleasehold Mortgagee shall have the right to
exercise remedies under any such mortgage, pledge, hypothecation or other
collateral transfer in a manner consistent with the provisions of this and
every other agreement between TowerCo and AirTouch made in connection with
this transaction; and (b) any Sublessor may assign its rights and obligations
hereunder, in whole or in part, to any Affiliate of such Sublessor to
which all or a part (as the case may be) of the Towers and Tower Sites of such
Sublessor are transferred without the consent of TowerCo. Upon the assignment by
any Sublessor of all of its rights and obligations hereunder in accordance
with clause (b) of the preceding proviso, the assigning Sublessor will
automatically be released from its obligations hereunder without any
requirement of notice or further action. A transfer by merger or consolidation
by AirTouch or any other Sublessor (whether or not AirTouch or any other
Sublessor is the surviving entity) or any direct or indirect parent corporation
of AirTouch or any other Sublessor shall not be deemed to be an assignment for
purposes of this Section. All references herein to any party shall be deemed to
include any successor (including a corporate successor) to such party.
13.3 Parties in Interest. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective successors and permitted assigns of the parties hereto; whether
herein so expressed or not. Except as provided in Sections 11.1, 11.2, 13.1,
and, as to Permitted Subleasehold Mortgagees, 13.2(a) to the extent provided in
such Section, no person other than Parent, TowerCo and Sublessors may rely upon
any provision of this Agreement or any agreement, instrument, certificate or
document executed pursuant to this Agreement.
13.4 Time of Essence. Time is of the essence in each and every provision in
this Agreement.
13.5 Severability. Any provision of this Agreement that is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining provisions of this Agreement or affecting the
validity or enforceability of any provision of this Agreement in any other
jurisdiction.
13.6 Amendment. Except as otherwise provided herein, this Agreement may be
amended, modified or supplemented only by a writing duly executed by all parties
hereto.
13.7 Force Majeure. Should any circumstance beyond the reasonable control of any
party occur which delays or renders impossible the performance of its
obligations (other than monetary obligations) under this Agreement on the date
herein provided for (such circumstance being referred to as an event of "force
majeure"), such obligation shall be postponed for such time as such performance
necessarily has had to be suspended or delayed on account thereof, but in no
event shall the foregoing be deemed to limit a party's right to terminate this
Agreement under Section 12.1(e). In either such event, all parties shall
promptly meet to determine an equitable solution to the effects of such event,
provided that any party that fails because of force majeure to perform its
obligations hereunder will upon the cessation of the force majeure take all
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reasonable steps within its power to resume with the least possible delay
compliance with its obligations. Events of force majeure shall include, without
limitation, war, revolution, invasion, insurrection, riots, mob violence,
sabotage or other civil disorders, acts of God, strikes or other labor disputes
and any other circumstances beyond the reasonable control of the party whose
obligations are affected thereby.
13.8 Terms. Defined terms used herein are equally applicable to the singular and
plural forms as appropriate. Unless otherwise expressly stated herein,
references to Articles and Sections are to articles and sections of this
Agreement and references to parties, Exhibits and Schedules are to the parties,
and the exhibits and schedules attached, to this Agreement. References to the
"transactions contemplated hereby" refer to the consummation of the Closings
hereunder and the execution and delivery of the Transaction Documents as
provided for herein, and shall not be deemed to refer to any contemplated or
potential operation, occupancy, use, leasing, management or servicing of any of
the Assets and related Liabilities (as provided in the Sublease), or the
exercise of control over the Assets, by TowerCo or its Affiliates.
13.9 Headings. The headings preceding the text of Sections of this Agreement are
for convenience only and shall not be deemed a part hereof.
13.10 Entire Understanding; Schedules. The terms set forth in this Agreement
including its Schedules and Exhibits, together with the nondisclosure letter
agreement referenced in Section 6.4 hereof, are intended by the parties as a
final, complete and exclusive expression of the terms of their agreement and may
not be contradicted, explained or supplemented by evidence of any prior
agreement, any contemporaneous oral agreement or any consistent additional
terms. The Schedules and Exhibits attached to this Agreement are made a part of
this Agreement. All documents or information disclosed in the Schedules are
intended to be disclosed for all purposes under this Agreement and will also be
deemed to be incorporated by reference in each Schedule to which they may be
relevant without further disclosure.
13.11 Counterparts. This Agreement may be executed simultaneously in any number
of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13.12 Governing Law. This Agreement and the performance hereof shall be
governed, interpreted, construed and regulated by the laws of the State of
Delaware.
13.13 Notices. Any notice or demand desired or required to be given hereunder
shall be in writing and shall be personally delivered, sent by telecopier, sent
by overnight courier or sent by postage-prepaid certified or registered mail,
return receipt requested, and addressed as set forth below or to such other
address as either party shall have previously designated by such a notice. Any
notice so delivered personally or by telecopy shall be deemed to be received on
the date of delivery or transmission by telecopier; any notice so sent by
overnight courier shall be deemed to be received one (1) Business Day after the
date sent; and any notice so mailed shall be deemed to be received on the date
stamped on the receipt (rejection or other refusal to accept or inability to
deliver because of a change of address of which no notice was given shall be
deemed to be receipt of the notice).
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If to Sublessors:
c/o AirTouch Communications, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to:
Pillsbury Madison & Sutro LLP
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to TowerCo or Parent:
c/o SpectraSite Holdings, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Copy to:
Dow, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
13.14 Expenses. Except as set forth in Sections 6.2 and 6.3, Sublessors, Parent
and TowerCo shall each bear its own costs and expenses incurred in connection
with the negotiation, preparation or execution of this Agreement (including, but
not limited to, fees and expenses of attorneys, accountants, brokers,
consultants, finders and investment bankers), whether or not any Closing occurs.
In the event, however, that one of the parties hereto breaches this Agreement
and fails to consummate the transaction contemplated hereby, then, without
limiting in any way any other liability which such breaching party may have,
such breaching party shall be responsible for all costs and expenses incurred by
the non-breaching party in connection herewith.
13.15 Attorneys' Fees. Except as provided in Section 13.16 with respect to the
arbitration proceedings referenced therein, in any action between any or all
Sublessors and any
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TowerCo Party to enforce any of the provisions of this Agreement or any
right of any party under this Agreement, regardless of whether the action or
proceeding is prosecuted to judgment and in addition to any other remedy, the
unsuccessful party shall pay to the prevailing party all costs and expenses,
including reasonable attorneys' fees and legal costs, incurred in the action by
the prevailing party.
13.16 Dispute Resolution. If a dispute arises between the parties relating to
the interpretation, performance or breach of this Agreement, the parties agree
that upon written demand of either TowerCo or AirTouch, they will hold a meeting
within two weeks of such demand, attended by individuals with decision-making
authority regarding the dispute, to attempt in good faith to negotiate a
resolution of the dispute prior to pursuing other available remedies. If, ten
(10) days after the date set for such a meeting, the parties have not succeeded
in negotiating a resolution of the dispute, either TowerCo (on behalf of TowerCo
and/or Parent) or AirTouch (on behalf of the Sublessors) may request that such
dispute be resolved through non-binding arbitration. Such arbitration (the
"Arbitration") will be conducted in San Francisco, California, in accordance
with commercial arbitration rules of the American Arbitration Association
("AAA") in effect on the date of this Agreement, to the extent they do not
conflict with the terms of this Agreement. Absent any contrary agreement between
the parties, there shall be no review by any court of the final decision by the
arbitrators or of the law applied or the legal reasoning used in the arbitration
process except upon a trial de novo in a court of competent jurisdiction. With
the exception of actions for injunctive relief or which must be filed to
preserve a party's rights, the parties agree to submit any such dispute to
non-binding arbitration before either party may commence any action in any court
of law concerning such dispute. The parties agree to cooperate in dismissing,
without prejudice, any legal action filed before the conclusion of such
arbitration, except an action brought in whole or in part to compel such
arbitration or an action seeking injunctive relief, or which cannot be dismissed
without prejudice to a party's rights. The parties shall cooperate with each
other in causing the Arbitration to be held in as efficient and expeditious a
manner as practicable. The parties have selected arbitration in order to
expedite the resolution of disputes and to reduce the costs and burdens
associated with litigation. The parties agree that the arbitrators should take
these concerns into account when determining the scope of permissible discovery
and other hearing and pre-hearing procedures. Without limiting any other
remedies which may be available under applicable laws, the arbitrators shall
have no authority to award punitive damages. The arbitrators shall render their
decision within ninety (90) calendar days after the latest of the arbitrators'
acceptance of their respective appointments to serve as arbitrators, unless the
parties otherwise agree in writing or the arbitrators decide that a party to the
Arbitration has shown good cause for a longer period prior to the rendering of
the decision.
Notice: By causing an authorized representative to initial in the space
below you are agreeing to have any dispute arising out of the matters included
in the `dispute resolution' provision decided by neutral arbitration and you are
giving up any rights you might possess to have the dispute litigated in a court
of jury trial. By causing an authorized representative to initial in the space
below you are giving up your judicial rights to discovery and appeal unless such
rights are specifically included in the `dispute resolution' provision. If you
refuse to submit to arbitration after agreeing to this provision, you may be
compelled to arbitrate under the authority of applicable Law. Your agreement to
this arbitration provision is voluntary.
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We have read and understand the foregoing and agree to submit disputes
arising out of the matters included in the `dispute resolution' provision to
neutral arbitration.
TowerCo's Initials _______ AirTouch's Initials ______ Parent's Initials _______
(a) Unless TowerCo and AirTouch agree in writing upon the number and identity of
the arbitrators within five (5) business days after the initiation of
Arbitration, the following procedures shall govern the selection of the
arbitrators:
(i) Each of TowerCo and AirTouch shall (by a written notice to the other
party delivered within ten (10) business days after the initiation of
Arbitration) select a single arbitrator, who shall be selected from a
list of potential arbitrators from the National Panel of Commercial
Arbitrators supplied to the parties. If one party fails to deliver such
notice of selection within the foregoing ten-business-day period, then
such party shall have no right to select an arbitrator and the other
party shall select a second arbitrator from such list by written notice
to the first party.
(ii) The two arbitrators selected pursuant to the foregoing clause (i) shall
mutually agree within ten (10) calendar days upon a third arbitrator,
who shall have no substantial relationship to any party. If the two
arbitrators do not so select such third arbitrator within the foregoing
10-day period, the third arbitrator will be selected by the AAA.
(b) All proceedings and decisions of the arbitrators shall be maintained in
confidence, to the extent legally permissible, and shall not be made public by
any party or any arbitrator without the prior written consent of all parties to
the Arbitration, except as may be required by law.
(c) Each party to the Arbitration shall bear its own costs and attorneys' fees
in connection with any Arbitration, and TowerCo and AirTouch (on behalf of the
Sublessors) shall equally bear the fees, costs and expenses of the arbitrators
and the Arbitration proceedings; provided, however, that the arbitrators may
exercise discretion to award costs, but not attorneys' fees, to the prevailing
party.
(d) Each party consents to the jurisdiction over it of the courts of the State
of California in the City and County of San Francisco and of the United States
Courts in the Northern District of California, and agrees that personal service
of all process may be made by registered or certified mail pursuant to the
provisions of Section 13.13.
13.17 Power of Attorney. Each and every Sublessor other than AirTouch hereby
irrevocably constitutes and appoints AirTouch as its and their agent and
attorney-in-fact to modify, amend or otherwise change or waive any and all
terms, conditions and other provisions of this Agreement, to exercise on behalf
of Sublessors any options or elections granted to Sublessors hereunder, to take
all actions and execute all documents necessary or desirable to effect the terms
hereof and to take all actions and execute all documents which may be necessary
or desirable in connection therewith, to give and receive all consents and all
notices hereunder, to negotiate, settle and compromise claims for
indemnification hereunder, and to perform any other act arising out of or
pertaining to this Agreement. AirTouch hereby accepts the foregoing
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appointment. Nothing herein shall be deemed to make AirTouch liable to any
Sublessor because of service in the foregoing capacity as agent and
attorney-in-fact. In performing any of its duties under this Section,
AirTouch shall not incur any Liability whatsoever to any Sublessor or its
Affiliates. It is expressly understood and agreed that this power of attorney
and the agency created hereby is coupled with an interest of the respective
parties hereto and shall be binding and enforceable on and against the
respective successors and assigns of Sublessors, and each of them, and this
power of attorney shall not be revoked or terminated and shall continue to be
binding and enforceable in the manner provided herein.
13.18 Specific Performance; Other Rights and Remedies. Each party recognizes and
agrees that in the event the other party should refuse to perform any of its
obligations under this Agreement, the remedy at Law would be inadequate and
agrees that for breach of such provisions, each party shall, in addition to such
other remedies as may be available to it as provided in Article 11, be entitled
to injunctive relief and to enforce its rights by an action for specific
performance to the extent permitted by applicable Law. Each party hereby waives
any requirement for security or the posting of any bond or other surety in
connection with any temporary or permanent award of injunctive, mandatory or
other equitable relief.
13.19 TowerCo Guaranty. Parent hereby unconditionally guarantees the payment and
performance when due of all obligations of TowerCo now or hereafter existing
under this Agreement, including without limitation Article 11 (the "TowerCo
Obligations") subject to all defenses available to TowerCo except as provided
below. The liability of Parent under this Section 13.19 shall extend to all
TowerCo obligations which would be owed by TowerCo but for the fact that they
are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving TowerCo. The obligations of
Parent under this Section 13.19 are independent of TowerCo's obligations under
this Agreement, and a separate action or actions may be brought and prosecuted
against Parent to enforce its obligations under this Section 13.19, irrespective
of whether any action is brought against TowerCo or whether TowerCo is joined in
such action. This guarantee shall continue to be effective or be reinstated, as
the case may be, if at any time any payment or performance of TowerCo
Obligations is rescinded or must otherwise be returned by a recipient upon the
insolvency, bankruptcy or reorganization of TowerCo or for any other reason, all
as though such payment or performance had not been made. Parent unconditionally
waives (a) all notices which may be required by statute, rule of law or
otherwise, now or hereafter in effect, to preserve intact any rights of AirTouch
and any other Sublessor against Parent, including, without limitation, any
demand, presentment and protest, proof of notice of nonpayment or nonperformance
under agreement, and notice of default or any failure on the part of TowerCo to
perform and comply with any covenant, agreement, term or condition of any
agreement executed or to be executed by it, (b) any right to the enforcement,
assertion or exercise by AirTouch or any other Sublessor of any right, power,
privilege or remedy conferred herein or in any agreement or otherwise, (c) any
requirement of promptness or diligence on the part of AirTouch or any other
Sublessor hereunder, (d) any requirement on the part of AirTouch or any other
Sublessor to mitigate the damages resulting from any Default hereunder or under
any other agreement, (e) any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge, release or defense of a guarantor or
surety, or which might otherwise limit recourse against Parent, or (f) any right
to require AirTouch or any other Sublessor to proceed against any security or to
enforce any right. The obligations of Parent set forth herein constitute the
full recourse
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obligations of Parent enforceable against it to the fullest extent of all of its
assets and properties, notwithstanding any provision in any other agreements
limiting the liability of Parent, TowerCo or any TowerCo Affiliate or any other
Person. Parent will not assert any right to which it may become entitled,
including in any bankruptcy, insolvency or similar proceeding relating to
TowerCo or a TowerCo Affiliate, whether by subrogation, contribution or
otherwise, against TowerCo or such TowerCo Affiliate or any of its properties,
by reason of the performance by Parent of its obligations under this Section,
until such time as all of the obligations of TowerCo or TowerCo Affiliate to
AirTouch or any other applicable Sublessor shall be duly and fully performed.
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IN WITNESS WHEREOF, the parties hereto have entered into and duly
executed this Agreement as of the date and year first above written.
"SUBLESSORS":
AIRTOUCH COMMUNICATIONS, INC.
By:/s/ ▇▇▇▇ ▇▇▇▇▇
------------------------
Print Name: ▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive
Officer
LOS ANGELES SMSA LIMITED
PARTNERSHIP, a California
limited partnership
By AirTouch Cellular, a
California corporation,
as General Partner
By:/s/ ▇▇▇▇ ▇▇▇▇▇
------------------------
Print Name: ▇▇▇▇ ▇▇▇▇▇
Title: President
OXNARD-VENTURA-SIMI LIMITED
PARTNERSHIP, a California
limited partnership
By AirTouch Cellular, a
California corporation,
as General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------
Print Name: ▇▇▇▇ ▇▇▇▇▇
Title: President
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"TOWERCO":
CALIFORNIA TOWER, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
"PARENT":
SPECTRASITE HOLDINGS, INC.
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
S-2