EXHIBIT 10.6
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SPECTRASITE NEWCO PURCHASE AGREEMENT
THIS SPECTRASITE NEWCO PURCHASE AGREEMENT (this "Agreement") is dated
as of May 15, 2002, by and among Cingular Wireless LLC, a Delaware limited
liability company ("Buyer"), SpectraSite Holdings, Inc., a Delaware corporation
("Seller Parent"), Southern Towers, Inc., a Delaware corporation ("Seller"),
SpectraSite Communications, Inc., a Delaware corporation ("SCI"), and CA/NV
Tower Holdings, LLC, a Delaware limited liability company (the "Company").
PREAMBLE
WHEREAS, Seller is the lessee or sublessee of the cell site locations
set forth on Exhibit A (the "Sites") pursuant to that certain Lease and
Sublease, dated as of December 14, 2000, by and among SBC Tower Holdings LLC,
SBC Wireless LLC, Seller and Seller Parent as heretofore amended or affected by
various side letters (the "Master Lease"); and
WHEREAS, Seller has formed the Company, and immediately prior to the
Closing will contribute thereto, pursuant to the Southern Towers Assignment and
Assumption Agreement attached hereto as Exhibit B (the "Assignment and
Assumption Agreement"), all of the Contributed Assets; and
WHEREAS, pursuant to the terms and conditions set forth herein, Buyer
will purchase from Seller, and Seller will sell to Buyer, 100% of the membership
interest in the Company (the "Membership Interest").
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants, and agreements set forth herein, the
parties agree as follows:
ARTICLE 1
SALE OF MEMBERSHIP INTEREST
1.1 SALE OF INTEREST.
At the closing of the transactions contemplated by this Agreement (the
"Closing"), Seller shall sell, assign, transfer, convey and deliver to Buyer,
free and clear of any and all Liens, and Buyer shall purchase, the Membership
Interest.
1.2 PURCHASE PRICE.
Except as set forth in the next sentence, the aggregate purchase price
for the Membership Interest shall be Ninety Eight Million Dollars ($98,000,000).
In the event that Sections 1(a)(i) and 2 of the Unwind Side Letter do not become
effective simultaneously with the Closing in accordance with Section 7 of the
Unwind Side Letter, the aggregate purchase price for the Membership Interest
shall be One Hundred Eight Million Dollars ($108,000,000).
1.3 PAYMENT OF PURCHASE PRICE.
At the Closing, Buyer shall pay or deliver to Seller the consideration
set forth in Section 1.2 (the "Purchase Price") by wire transfer in immediately
available funds to an account designated in writing by Seller.
1.4 TRANSFER TAXES; ASSET TRANSFERS.
Seller and Seller Parent shall jointly and severally be responsible for
the payment of all state and local sales, documentary and other transfer Taxes,
if any, due as a result of the transactions contemplated or required by this
Agreement including the Assignment and Assumption Agreement. Seller and Seller
Parent agree to jointly file all necessary tax returns and other documents
required to be filed with respect to all such Taxes. The parties will cooperate
to the extent reasonably necessary to make such filings or returns as may be
required.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
OF SELLER AND THE COMPANY
Seller and Seller Parent hereby jointly and severally represent and
warrant, and the Company, solely with respect to itself, hereby represents and
warrants, to Buyer as follows:
2.1 ORGANIZATION, STANDING AND POWER.
(a) Each of Seller and Seller Parent is a Delaware corporation duly
incorporated, validly existing and in good standing under the Laws of the State
of Delaware.
(b) The Company is a limited liability company duly organized, validly
existing, and in good standing under the Laws of the State of Delaware, and has
the power and authority to carry on its business and to own, lease and operate
the Contributed Assets. On the Closing Date, the Company will be duly qualified
or licensed to transact business as a foreign limited liability company in good
standing in the states of the United States and foreign jurisdictions where the
character of the Contributed Assets or the nature or conduct of its business
requires it to be so qualified or licensed, except for such jurisdictions in
which the failure to be so qualified or licensed is not reasonably likely to
have, individually or in the aggregate, a material adverse effect on the
Company. At all times since its formation, the Company's operating agreement has
been in the form of the Company Operating Agreement.
2.2 AUTHORITY; NO BREACH BY AGREEMENT.
(a) Each of Seller and Seller Parent has the corporate power and
authority necessary to execute, deliver and perform this Agreement and to
consummate the transactions contemplated hereby. The execution, delivery, and
performance of this Agreement and the consummation of the transactions
contemplated herein have been
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duly and validly authorized by all necessary corporate action in respect thereof
on the part of each of Seller and Seller Parent. This Agreement represent the
legal, valid, and binding obligation of Seller and Seller Parent, enforceable
against Seller and Seller Parent in accordance with its terms, except as the
same may be limited by bankruptcy, insolvency, reorganization or similar Laws
affecting the rights of creditors generally, subject to general equitable
principles.
(b) The Company has the power and authority necessary to execute,
deliver, and perform this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated herein have been duly and
validly authorized by all necessary limited liability company action in respect
thereof on the part of the Company. This Agreement represents a legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or similar Laws affecting the rights of creditors generally,
subject to general equitable principles. The Company is not in Default under any
of the provisions of its certificate of formation or operating agreement (or
other governing instruments).
(c) Except as set forth in Section 2.2 of the Seller Disclosure
Memorandum, neither the execution and delivery of this Agreement by Seller,
Seller Parent or the Company, nor the consummation by Seller, Seller Parent or
the Company of the transactions contemplated hereby, nor compliance by Seller,
Seller Parent or the Company with any of the provisions hereof, will (i)
conflict with or result in a breach of any provision of any Seller Entity's
certificate of incorporation, bylaws, operating agreement or other
organizational documents, (ii) constitute or result in a Default under, or
require any Consent pursuant to, or result in the creation of any Lien on any
Contributed Asset under, any Contract, Law or Permit of any Seller Entity,
except where such Default or Lien, or any failure to obtain such Consent, would
not have a material adverse effect on Seller, Seller Parent or the Company or
the ability of Seller, Seller Parent or the Company to consummate the
transactions contemplated hereby or (iii) constitute or result in a Default
under, or require any Consent pursuant to, any Order applicable to any Seller
Entity or any of their respective assets. The consummation by Seller Parent or
Intermediate Holdings, LLC, its wholly owned Subsidiary, of the recapitalization
transactions contemplated by Section 6.2(j) shall not conflict with, or result
in a Default under, this Agreement or any of the other transactions contemplated
hereby. Notwithstanding anything to the contrary herein, no representation or
warranty is being made by the Seller Entities as to whether the Consent of any
landlord under any Ground Lease is required to consummate the transactions
contemplated hereby, except that no Seller Entity has received any written
notice from any Person that any such Consent is required nor has any Seller
Entity taken, or caused to be taken, any action since the Applicable SBC Closing
Date that would result in any such Consent being required.
(d) No notice to, filing with, or Consent of, any Regulatory Authority
is necessary for the consummation by Seller, Seller Parent or the Company of the
transactions
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contemplated hereby, except any filing as may be required under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (the "HSR Act"), or any notifications that may be required
by the Federal Aviation Administration and the Federal Communications
Commission.
2.3 OWNERSHIP OF MEMBERSHIP INTEREST.
Seller is the lawful owner and holder of the Membership Interest and
has full power to transfer to Buyer good title to the Membership Interest, free
and clear of any and all Liens (subject only to SCI's senior lenders' security
interest in the Membership Interest, which security interest will be released at
or prior to the Closing), and on the Closing, upon the delivery of and payment
for the Membership Interest hereunder, Buyer will acquire good and valid title
to the Membership Interest, free and clear of any and all Liens.
2.4 CAPITALIZATION OF THE COMPANY.
The Company has an authorized capitalization consisting solely of the
Membership Interest. Seller is the owner of the Membership Interest, free and
clear of any and all Liens (subject only to SCI's senior lenders' security
interest in the Membership Interest, which security interest will be released at
or prior to the Closing). The Membership Interest has been duly authorized,
validly issued and fully paid. The Membership Interest has not been issued in
violation of any preemptive right. Except for the Membership Interest, there are
no other ownership interests in the Company outstanding and no Equity Rights
relating to the ownership of the Company. Except as specifically contemplated by
this Agreement, no Person has any Contract or any right or privilege (whether
preemptive or contractual) capable of becoming a Contract or Equity Right for
the purchase, subscription or issuance of any securities of the Company. There
are no voting trusts, proxies or other agreements or understandings with respect
to the Membership Interest.
2.5 SUBSIDIARIES.
The Company has no Subsidiaries.
2.6 ASSETS AND LIABILITIES.
(a) On the Closing Date, the sole activity of the Company will have
been to own and operate the Contributed Assets. On the Closing Date, the Company
will have no Liabilities other than the Assumed Liabilities and, except for the
Contributed Assets, will have no assets. No Lien (other than Permitted
Encumbrances and security interests in such Contributed Assets in favor of SCI's
senior lenders, which security interests will be released at or prior to
Closing) exists, directly or indirectly, on any Contributed Asset. The Company
has not assigned, transferred or permitted a Lien to exist on the leasehold or
sublease interest in any Site (other than Permitted Encumbrances and security
interests in favor of SCI's senior lenders, which security interest will be
released at or prior to the Closing).
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(b) The Company has not filed any Tax Returns nor been liable for the
payment of any Taxes since its formation. No Seller Entity has taken, or caused
to be taken, any action that would result in the Company not being treated as a
"disregarded entity" under any Tax Law.
2.7 EMPLOYEE MATTERS.
The Company has no employees. The Company has no (i) labor agreement to
which it is a party, or by which it is bound, including "employee pension
benefit plans" as defined in Section 3(2) of ERISA; (ii) employment, profit
sharing, deferred compensation, bonus, pension, retainer, consulting,
retirement, welfare or incentive plan, fund, program or Contract to which it is
a party, or by which it is bound; (iii) written or other formal personnel
policies; or (iv) plan or agreement under which "fringe benefits" (including,
but not limited to, vacation plans or programs, sick leave plans or programs,
and related benefits) are afforded to any Person.
2.8 TAX MATTERS.
The Seller Entities have duly and timely filed all material Tax Returns
required to be filed by the Seller Entities (taking into account extensions)
with respect to Taxes owing in respect of, or in any way affecting, the Sites
and the Contributed Assets for the period beginning on the Applicable SBC
Closing Date through the Closing Date. All Taxes imposed on the Seller Entities
in respect of, or in any way affecting, the Sites or the Contributed Assets by
any Regulatory Authority which have become due and payable by the Seller
Entities from the Applicable SBC Closing Date have been paid in full or will be
paid in full prior to the Closing Date. No Seller Entity has received any
written assessments for additional Taxes in respect of, or in any way affecting
the Contributed Assets. There is no dispute or Litigation concerning any Tax
Liability of any Seller Entity in respect of, or in any way affecting, the Sites
or the Contributed Assets raised by a Regulatory Authority in writing.
2.9 SITES.
As to each Site, except as set forth in Section 2.9 of the Seller
Disclosure Memorandum:
(a) No Seller Entity has, since acquiring the leasehold or sublease
interest in such Site on the Applicable SBC Closing Date, assigned, transferred
or permitted a Lien to exist on such interest or any portion of such interest
(other than Permitted Encumbrances and security interests in favor of SCI's
senior lenders, which security interest will be released at or prior to
Closing).
(b) With respect to such Site, each of the Contracts that forms a part
of the Contributed Assets (including, without limitation, the Master Lease and
the Collocation Agreements) is in full force and effect and there exists no
material breach or violation of or Default under any of such Contracts by any
Seller Entity or, to the Knowledge of Seller, Seller Parent and the Company, any
other party to such Contracts, or any event
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which, with notice or the lapse of time, or both, will create a material breach
or violation thereof or Default thereunder by any Seller Entity or, to the
Knowledge of Seller, Seller Parent and the Company, any other party (except
Buyer or its Affiliates) to such Contracts.
(c) No Seller Entity has received any written notice from any Person
that a party to any such Contract is in Default thereunder, has repudiated or
waived any material provision of any such Contract or seeks to terminate any
such Contract.
(d) To the Knowledge of Seller, Seller Parent and the Company, the
lease or use of the land respecting such Site is in compliance with all
applicable zoning and other land use requirements where the failure to so comply
would materially limit the ability of any Person to use such land for the
permitted use of such land.
(e) All necessary utility services that were available for such Site's
use on the Applicable SBC Closing Date are currently available, except for such
lack of availability that will not have a material adverse effect on the right
of any Seller Entity to use or occupy such Site. The obligations, if any, of the
Seller Entities with respect to the provision of utility services to any Person
(other than Buyer and its Affiliates) have been complied with in all material
respects.
(f) All easements and rights-of-way that are reasonably necessary to
provide vehicular and pedestrian ingress and egress to and from such Site for
the purposes used by the Seller Entities in the ordinary course of business that
were in effect on the Applicable SBC Closing Date are currently in effect,
except where the failure to be in effect would not have a material adverse
effect on the right of any Seller Entity to use or occupy such Site. No Seller
Entity has taken or failed to take, or permitted any Person (other than Buyer
and its Affiliates) to take or fail to take, any action since the Applicable SBC
Closing Date that would result in any revocation, suspension or other material
modification of any such easements or rights-of-way. No Litigation is pending
or, to the Knowledge of Seller, Seller Parent and the Company, threatened which
would have the effect of terminating or limiting such access.
2.10 EMINENT DOMAIN.
No Seller Entity has received any written notice that any Regulatory
Authority having the power of eminent domain over any of the land respecting any
of the Sites has commenced or intends to exercise the power of eminent domain or
a similar power with respect to all or any part of such land.
2.11 ENVIRONMENTAL MATTERS.
Except as set forth in Section 2.11 of the Seller Disclosure
Memorandum, no Environmental Condition exists, and no pending or, to the
Knowledge of Seller, Seller Parent and the Company, threatened Litigation in
respect of any Environmental Condition exists, at any of the Sites which would
have a material adverse effect on the ability of any Seller Entity to use or
occupy such Site consistent with past practices.
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2.12 SELLER CONTRACTS.
Except as set forth in Section 2.12 of the Seller Disclosure Schedule,
other than the Collocation Agreements, Site Contracts and the Master Lease
(collectively, the "Seller Contracts"), there are no leases or other agreements
for use, occupancy or possession to which a Seller Entity is a party presently
in force with respect to all or any portion of the Sites. Seller has made
available to Buyer copies of each Seller Contract that forms a part of the
Contributed Assets (which are true and complete in all material respects and
include all amendments, supplements and modifications thereto or written waivers
currently in effect thereunder); PROVIDED, HOWEVER, that with respect to Seller
Contracts existing prior to the Applicable SBC Closing Date, Seller has made
available to Buyer copies of the Seller Contracts provided to it by Buyer's
Affiliates in connection with the transactions contemplated by the Master Lease.
2.13 PERMITS.
As of the Closing, except as disclosed in Section 2.13 of the Seller
Disclosure Memorandum, the Company will have in effect all Permits (except for
such Permits which (i) relate to the use and operation of Buyer's and its
Affiliate's equipment on the Sites, (ii) Landlord is responsible to obtain or
maintain under the Master Lease or (iii) Tenants are responsible to obtain or
maintain pursuant to any Collocation Agreement) necessary for it to own, lease,
or operate the Contributed Assets and to carry on its business, except where the
failure to obtain any such Permit would not have a material adverse effect on
the right to use or operate any Site, and there will have occurred no Default
under any such Permit, except such Defaults that would not have a material
adverse effect on the right of any Person to use or occupy a Site. The Company
is not in Default under any Laws, Orders, or Permits applicable to its business,
except such Defaults that would not have a material adverse effect on the right
of the Company to use or occupy a Site or the ability of the Company to
consummate the transactions contemplated hereby.
2.14 NO UNDISCLOSED LIABILITIES.
Except for the Assumed Liabilities, no Liabilities have been incurred
by any Seller Entity with respect to the Sites which have had, or are reasonably
expected to have, a material adverse effect on Seller, Seller Parent or the
Company or any of the Sites.
2.15 NO LITIGATION.
(a) Since the Applicable SBC Closing Date, there has been no Litigation
instituted or pending, or, to the Knowledge of Seller, Seller Parent and the
Company, threatened involving Seller, Seller Parent or the Company or any of the
Sites or the Contributed Assets which would have a material adverse effect on
Seller, Seller Parent or the Company or any of the Sites or the Contributed
Assets or which is reasonably likely to prevent the consummation of the
transactions contemplated hereby.
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(b) There is no Litigation instituted or pending, or, to the Knowledge
of Seller, Seller Parent and the Company, threatened involving the Company.
2.16 NO FINDER FEES.
No broker or finder has acted on behalf of any Seller Entity in
connection with the transactions contemplated hereby.
2.17 BANKRUPTCY; SOLVENCY.
There has not been filed any petition or application with respect to,
or any proceeding commenced by or against, any of the assets of any Seller
Entity under any Bankruptcy Law, and no Seller Entity has made any assignment
for the benefit of creditors. No Seller Entity is "insolvent" within the meaning
of any Bankruptcy Law. Neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby shall render any Seller
Entity insolvent, leave such party with an unreasonably small amount of assets
to conduct its business or unable to pay its debts as they become due. Each of
Seller and Seller Parent acknowledge that, upon receipt of the Purchase Price,
Seller will have received fair market value for the Membership Interest.
2.18 FAIRNESS OPINION.
Seller Parent has received the opinion of Deutsche Bank Securities,
Inc., dated as of May 15, 2002, to the effect that the consideration to be
received by Seller Parent and its "restricted subsidiaries" (as defined in the
several indentures relating to Seller Parent's senior notes and senior discount
notes) in the transactions contemplated hereby is fair, from a financial point
of view, to Seller Parent and such restricted subsidiaries.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller, Seller Parent and the
Company as follows:
3.1 ORGANIZATION, STANDING AND POWER.
Buyer is a Delaware limited liability company duly organized, validly
existing and in good standing under the Laws of the State of Delaware.
3.2 AUTHORITY; NO BREACH OF AGREEMENT.
(a) Buyer has the power and authority necessary to execute, deliver,
and perform this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein have been duly and validly
authorized by all necessary limited liability company action in respect thereof
on the part of Buyer. This Agreement
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represents a legal, valid and binding obligation of Buyer, enforceable against
Buyer in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization or similar Laws affecting the rights of
creditors generally, subject to general equitable principles.
(b) Neither the execution and delivery of this Agreement by Buyer, nor
the consummation by Buyer of the transactions contemplated hereby, nor
compliance by Buyer with any of the provisions hereof, will (i) conflict with or
result in a breach of any provision of Buyer's operating agreement or other
organizational documents, or (ii) constitute or result in a Default under, or
require any Consent pursuant to, any Contract, Law or Permit of Buyer, except
where such Default, or any failure to obtain such Consent, would not have a
material adverse effect on the ability of Buyer to consummate the transactions
contemplated hereby or (iii) constitute or result in a Default under, or require
any Consent pursuant to, any Order applicable to Buyer or any of its assets.
(c) No notice to, filing with, or Consent of, any Regulatory Authority
is necessary for the consummation by Buyer of the transactions contemplated
hereby, except any filing as may be required under the HSR Act, or any
notification that may be required by the Federal Aviation Administration or the
Federal Communications Commission.
3.3 NO FINDER FEES.
No broker or finder has acted on behalf of Buyer in connection with the
transactions contemplated hereby.
3.4 NO LITIGATION.
There is no Litigation instituted or pending, or, to the Knowledge of
Buyer, threatened (or unasserted but which may possibly be asserted) involving
Buyer or any of its Subsidiaries which is reasonably likely to prevent the
consummation of the transactions contemplated hereby.
3.5 PRIVATE SALE.
Buyer acknowledges that the purchase and sale of the Membership
Interest hereunder is not being registered under the securities laws of any
state or the Securities Act of 1933, as amended (the "Securities Act"), in
reliance on exemptions from registration requirements of such state securities
laws and the Securities Act.
3.6 SUFFICIENT FUNDS.
On the Closing Date, Buyer will have sufficient funds available to pay
the Purchase Price.
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ARTICLE 4
ADDITIONAL AGREEMENTS
4.1 FURTHER ASSURANCES.
(a) From the date hereof until the Closing, the parties shall use their
commercially reasonable efforts to consummate the transactions contemplated
herein and to fulfill their obligations hereunder, including without limitation,
causing to be fulfilled at the earliest practical date the conditions precedent
of the obligations of the parties to consummate the transactions contemplated
hereby as set forth in Article 6. In addition, Seller Parent, SCI and Seller
shall use their best efforts (including paying all fees of the agent, collateral
agent or lenders and all other associated costs and expenses) to cause the
satisfaction of the condition set forth in Sections 6.2(h) and 6.3(f).
(b) Seller and Seller Parent, from time to time after the Closing, at
Buyer's request, will execute, acknowledge, and deliver to Buyer such other
instruments of conveyance and transfer and will take such other actions and
execute and deliver such other documents, certifications, and further assurances
as Buyer may reasonably require to effectuate the intent of the transactions
contemplated hereby. 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 commercially 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.
4.2 CONFIDENTIALITY.
The Confidentiality Agreement is hereby reaffirmed, adopted and
incorporated by reference herein, except that upon the public announcement of
the transactions contemplated by this Agreement in accordance with Section 4.3,
the term "Information" as defined in the Confidentiality Agreement shall no
longer include (i) the fact that the parties have entered into this Agreement
and the related agreements and (ii) the material terms and conditions of the
transactions contemplated by this Agreement. Buyer agrees and acknowledges that
Seller Parent shall be permitted to disclose the material terms and conditions
of the transactions contemplated hereby in its public filings with the
Securities and Exchange Commission and to file this Agreement and the ancillary
agreements as exhibits thereto.
4.3 PRESS RELEASES.
Seller Parent and Buyer shall agree with each other as to the form,
substance and timing of a press release announcing the execution and
consummation of this Agreement and the transactions contemplated hereby.
4.4 AFFIRMATIVE COVENANTS OF SELLER.
From the date of this Agreement until the earlier of the Closing Date
or the termination of this Agreement, unless the prior written consent of Buyer
shall have been
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obtained, and except as otherwise expressly contemplated herein, the Seller
Entities shall (A) operate the Contributed Assets only in the usual, regular and
ordinary course and in accordance with the Master Lease and (B) use commercially
reasonable efforts to preserve intact the Contributed Assets.
4.5 NEGATIVE COVENANTS OF SELLER.
From the date of this Agreement until the earlier of the Closing Date
or the termination of this Agreement, except as set forth on Section 4.5 of the
Seller Disclosure Memorandum, or unless the prior written consent of Buyer shall
have been obtained, and except as otherwise expressly contemplated herein,
Seller covenants and agrees that it will not do or agree or commit to do, any of
the following:
(a) impose, or suffer the imposition, on any Contributed Asset of any
Lien (other than a Permitted Encumbrance and security interests in favor of
SCI's senior lenders, which security interests will be released at or prior to
Closing) or permit any such Lien to exist, except for such Liens that the Seller
Entities will cure by bonding or otherwise discharging on or prior to Closing;
or
(b) sell, lease or otherwise dispose of any Contributed Asset; or
(c) enter into, modify or amend in any material respect or terminate
the Assigned Leases and the Collocation Agreements or waive, release, compromise
in any material respect or assign any material rights or claims relating to the
Assigned Leases and the Collocation Agreements (other than security interests in
favor of SCI's senior lenders, which security interests will be released at or
prior to Closing).
4.6 HSR FILING.
As soon as reasonably practicable following the date of this Agreement,
but in no event later than five (5) business days, the parties will take such
action, if any, as may be required to be taken by them under the HSR Act in
connection with the transactions contemplated hereby. Each party will cooperate
in the preparation of, and will file complete and accurate notification and
report forms with respect to the transactions contemplated hereby, pursuant to
the HSR Act and the rules and regulations promulgated thereunder, and will file
on a timely basis such additional information and documentary materials as may
be requested by any Regulatory Authority pursuant to the HSR Act. Each party
making an HSR Act filing pursuant to this Section 4.6 will request early
termination of the waiting period under the HSR Act. Each party shall promptly
inform the other of any inquiries or communications from any such Regulatory
Authority. Each party shall respond with reasonable diligence and dispatch to
any request for additional information made in response to such filings. Each
party shall pay its respective costs of compliance with the HSR Act, and Buyer
and Seller shall each be responsible for the payment of one-half of the Federal
Trade Commission filing fees for all required filings under the HSR Act.
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ARTICLE 5
INDEMNIFICATION
5.1 AGREEMENT OF SELLER AND SELLER PARENT TO INDEMNIFY BUYER.
Subject to Sections 5.4, 5.5 and 5.6, Seller and Seller Parent
(collectively, the "Seller Indemnifying Parties") shall jointly and severally
defend, indemnify, and hold Buyer and its Affiliates and their respective
managers, members, directors, officers, agents and employees (collectively, the
"Buyer Indemnified Parties") harmless from and against, and to reimburse the
Buyer Indemnified Parties with respect to, any and all Losses (including Third
Party Claims, whether in contract or tort) incurred by such Buyer Indemnified
Party by reason of or arising out of or in connection with (i) any breach by
Seller, Seller Parent or the Company of any representation or warranty contained
in this Agreement, (ii) the failure, partial or total, of Seller, Seller Parent,
SCI or the Company to perform any agreement or covenant required by this
Agreement to be performed by it, (iii) the failure to deliver to Buyer good and
valid title to the Membership Interest, free and clear of any Liens, or (iv) any
Excluded Liability. For purposes of this Section 5.1, those representations and
warranties that are qualified by reference to "material" or "material adverse
effect" shall be deemed not to include such qualifications. Notwithstanding
anything to the contrary herein, the Seller Indemnifying Parties shall have no
obligation to indemnify the Buyer Indemnified Parties under this Section 5.1 for
Losses incurred by reason of or arising out of or in connection with any breach
by Seller, Seller Parent or the Company of any representation or warranty set
forth in Sections 2.9, 2.11, 2.13, 2.14 or 2.15 if, and only to the extent that,
(a) such breach is due to any acts, omissions, events, facts or circumstances
existing or occurring prior to the Applicable SBC Closing Date (unless such
specific act, omission, event, fact or circumstance was Known as of the Closing
by Seller, Seller Parent or the Company), (b) such breach is due to any acts or
omissions of the Buyer Indemnified Parties (whether such acts or omissions
occurred prior or subsequent to the Applicable SBC Closing Date) or (c) Seller
or Seller Parent can demonstrate that Buyer or an Affiliate thereof had
Knowledge as of the date of this Agreement of the specific act, omission, event,
fact or circumstance upon which such claim is based. The Buyer Indemnified
Parties shall take all reasonable steps to mitigate any Losses for which the
Seller Indemnifying Parties are required to indemnify under this Section 5.1
upon becoming aware of any event which would reasonably be expected to, or does
give rise to such Loss, including incurring costs only to the minimum extent
necessary to remedy such Loss.
5.2 AGREEMENT OF BUYER TO INDEMNIFY SELLER AND SELLER PARENT.
Subject to Sections 5.4, 5.5 and 5.6, Buyer shall defend, indemnify,
and hold Seller Parent, Seller and their Affiliates and their respective
managers, members, directors, officers, agents and employees (collectively, the
"Seller Indemnified Parties") harmless from and against, and to reimburse the
Seller Indemnified Parties with respect to, any and all Losses (including Third
Party Claims, whether in contract or tort) incurred by such Seller Indemnified
Party by reason of or arising out of or in connection with (i) any breach by
Buyer of any representation or warranty contained in this Agreement,
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(ii) the failure, partial or total, of Buyer to perform any agreement or
covenant required by this Agreement to be performed by it or (iii) the Assumed
Liabilities. For purposes of this Section 5.2, those representations and
warranties that are qualified by reference to "material" or "material adverse
effect" shall be deemed not to include such qualifications. The Seller
Indemnified Parties shall take all reasonable steps to mitigate any Losses for
which the Buyer Indemnifying Parties are required to indemnify under this
Section 5.2 upon becoming aware of any event which would reasonably be expected
to, or does give rise to such Loss, including incurring costs only to the
minimum extent necessary to remedy such Loss.
5.3 THIRD-PARTY CLAIMS.
(a) In the event a claim, suit or proceeding by a third party is made
or filed against any Indemnified Party (a "Third-Party Claim"), such Indemnified
Party shall promptly after the receipt of written notice of such claim, suit or
proceeding notify the Indemnitor in writing of such claim, suit or proceeding
and thereafter the Indemnified Party shall promptly deliver to the Indemnitor
copies of all notices and documents (including court papers) received by the
Indemnified Party relating to the Third-Party Claim; PROVIDED, that the failure
of the Indemnified Party to give timely notice of any such claim, suit or
proceeding or to make timely delivery of any such notices or documents shall not
relieve the Indemnitor of its indemnification obligations with respect to such
claim, suit or proceeding except to the extent that such Indemnitor has been
prejudiced thereby.
(b) The Indemnitor shall have thirty (30) days (or such lesser time as
may be necessary to comply with statutory response requirements for litigation
claims) from receipt of the indemnification claim (the "Notice Period") to
notify the Indemnified Party, (i) whether or not the Indemnitor disputes its
Liability to the Indemnified Party with respect to such claim and (ii)
notwithstanding any such dispute, whether or not the Indemnitor desires, at its
sole cost and expense, to defend the Indemnified Party against such claim.
(i) In the event that the Indemnitor notifies the Indemnified Party
within the Notice Period that it desires to defend the Indemnified
Party against such claim then, the Indemnitor shall have the sole and
absolute right after the receipt of notice, at its option and at its
own expense, to be represented by counsel of its choice and to control,
defend against, negotiate, settle or otherwise deal with such
proceeding, claim or demand; PROVIDED, HOWEVER, that the Indemnified
Party may, at its election, participate in, but not control, the
defense of any such proceeding, claim or demand through counsel of its
own choice, but the fees and expenses of such counsel shall be at the
expense of the Indemnified Party, unless the Indemnified Party shall
have been advised by such counsel that there may be one or more legal
defenses available to it that are different from or in addition to
those available to the Indemnitor (in which case, if the Indemnified
Party notifies the Indemnitor in writing that it elects to retain
separate counsel, the Indemnitor
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shall not have the right to assume the defense of such action on behalf
of the Indemnified Party with respect to such defense).
(ii) Except where the Indemnitor (A) timely elects to defend the
Indemnified Party against such claim or demand (in which case Section
5.3(b)(i) shall govern), or (B) disputes its Liability in a timely
manner under this Section 5.3, the Indemnitor shall be conclusively
liable for the amount of any Loss resulting from such claim or defense
which is unsuccessful.
(c) The Indemnified Party and the Indemnitor shall cooperate with each
other in all reasonable respects in connection with the defense of any
Third-Party Claim, including making available records relating to such claim and
furnishing, without expense to the Indemnitor, management employees of the
Indemnified Party as may be reasonably necessary for the preparation of the
defense of any such claim or for testimony as witness in any proceeding relating
to such claim.
(d) Neither the Indemnitor nor the Indemnified Party may settle any
such proceeding, claim or demand if such settlement obligates the other party to
pay money, to perform obligations or to admit liability without the consent of
the other party, such consent not to be unreasonably withheld or delayed.
Consent shall be presumed where the party given written notice of the proposed
settlement has not responded within twenty (20) business days of such written
notice.
(e) Within thirty (30) days after (i) any final judgment or award shall
have been rendered by a court or governmental body of competent jurisdiction and
the time in which to appeal therefrom has expired, (ii) a settlement shall have
been consummated or (iii) the Indemnified Party and the Indemnitor shall arrive
at a mutually binding agreement with respect to each separate matter alleged by
the Indemnified Party to be indemnified, the Indemnified Party shall forward to
the Indemnitor notice of any sums due and owing by the Indemnitor with respect
to such matter, the Indemnitor shall promptly pay all undisputed sums so owing
to the Indemnified Party and the Indemnified Party shall execute and deliver a
release with respect to such matter.
5.4 DURATION OF CERTAIN INDEMNIFICATION OBLIGATIONS.
(a) Seller and Seller Parent will have joint and several liability with
respect to any breach of a representation or warranty set forth in Sections 2.1,
2.2, 2.15 or 2.16 only if on or before a date that is twelve (12) months
following the Closing, the Buyer Indemnified Party notifies Seller and Seller
Parent of a claim specifying the factual basis of the claim in reasonable
detail. Seller and Seller Parent will have joint and several liability with
respect to any breach of a representation and warranty set forth in Sections 2.9
through 2.14 only if on or before a date that is six (6) months following the
Closing, the Buyer Indemnified Party notifies Seller and Seller Parent of a
claim specifying the factual basis of the claim in reasonable detail. The
ability of a Buyer Indemnified Party to make indemnification claims (i) under
Sections 5.1(ii), (iii) or (iv), or with respect to any breach of a
representation or warranty set forth in Sections 2.3, 2.4, 2.5, 2.6, 2.7, or
2.17, shall survive indefinitely after the Closing, and (ii) with respect to
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any breach of a representation or warranty set forth in Section 2.8, shall
survive until the expiration of the applicable statute of limitations (as such
may be properly extended from time to time).
(b) Buyer will have liability with respect to any breach of a
representation or warranty set forth in Sections 3.1, 3.2, 3.3, 3.4 and 3.5 only
if on or before a date that is twelve (12) months following the Closing, the
Seller Indemnified Party notifies Buyer of a claim specifying the factual basis
of the claim in reasonable detail. The representation set forth in Section 3.6
shall not survive the Closing. The ability of a Seller Indemnified Party to make
indemnification claims under Sections 5.2(ii) or (iii) shall survive
indefinitely after the Closing.
5.5 LIMITATIONS.
(a) Notwithstanding anything to the contrary contained herein, subject
to Section 5.5(c), the Indemnitor shall not have any obligation to indemnify the
Indemnified Party unless, until and only to the extent that the aggregate of all
Losses suffered by such Indemnified Party under this Article 5 exceeds, on a
cumulative basis, $300,000 (the "Threshold Amount"), and then only to the extent
of such excess amount.
(b) Notwithstanding anything to the contrary herein, subject to Section
5.5(c), in no event shall the aggregate Liability of the Indemnitor under this
Article 5 exceed $35,000,000 (the "Maximum Amount").
(c) Notwithstanding the paragraphs above, neither the Threshold Amount
nor the Maximum Amount limitations shall apply to any party's liability for (i)
willful or intentional misconduct or (ii) claims under Sections 2.3, 2.4, 2.5,
2.6, 2.7, 2.8, 2.17, 4.2, 5.1(iii), 5.1(iv) or 5.2(iii) hereof. In addition, in
no event shall any party hereto be liable to the other party for any special,
incidental, consequential or other such damages suffered by or incurred by such
other parties to this Agreement.
5.6 EXCLUSIVE REMEDY.
Except as set forth in Section 8.12, the exclusive remedy available to
an Indemnified Party solely with respect to the matters covered by Section 5.1
or Section 5.2 hereof shall be to proceed in the manner and subject to the
limitations set forth in this Article 5. Notwithstanding anything herein to the
contrary, nothing in this Section 5.6 shall be construed to limit any party's
rights and obligations under any other agreement between the parties.
ARTICLE 6
CLOSING CONDITIONS
6.1 CLOSING ARRANGEMENTS.
Subject to the terms and conditions listed in Sections 6.2 and 6.3
hereof (the "Conditions Precedent"), the transactions contemplated hereby shall
take place on the
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third (3rd) business day following the satisfaction or waiver of all of the
conditions set forth in Sections 6.2 and 6.3 or at such other time as the
parties may mutually agree (the "Closing Date"). The Closing shall take place at
such place or places as may be mutually agreed upon by Seller and Buyer.
6.2 BUYER CONDITIONS PRECEDENT TO CLOSING.
Subject to Section 6.1 hereof, the obligation of Buyer to consummate
the transactions contemplated by this Agreement is conditional upon the
following conditions having first been satisfied on or prior to the Closing
Date, any of which may be waived in writing by Buyer pursuant to Section 8.14:
(a) BRING-DOWN CERTIFICATE. A certificate shall be delivered to Buyer,
signed by an executive officer of Seller and Seller Parent, certifying that: (i)
all representations and warranties in Sections 2.3, 2.4, 2.5, 2.7 and 2.17 shall
be true and correct; (ii) all representations and warranties in Section 2.6
shall be true and correct in all material respects; (iii) all other
representations and warranties in Article 2 of this Agreement (a) that are
qualified as to materiality shall be true and correct, and (b) that are not so
qualified shall be true and correct in all material respects, in each case when
made and as of the Closing Date as though made on the Closing Date (except to
the extent such representations and warranties expressly relate to an earlier
date in which case such representations and warranties that are qualified as to
materiality shall be true and correct, and those not so qualified shall be true
and correct in all material respects on and as of such earlier date), and in
each case, except for breaches as to matters that, individually or in the
aggregate, would not have a material adverse effect on Seller, Seller Parent or
the Company or the Sites taken as a whole; and (iv) Seller and Seller Parent
shall have performed and complied in all material respects with all covenants
and agreements required by Article 4 of this Agreement to be performed or
complied with by it on or prior to the Closing Date. Solely with respect to this
Section 6.2(a), no Seller Entity is making any representation or warranty under
Sections 2.9, 2.11, 2.13, 2.14 or 2.15 with respect to (a) any acts, omissions,
events, facts or circumstances existing or occurring prior to the Applicable SBC
Closing Date (unless such specific act, omission, event, fact or circumstance is
Known as of the Closing by Seller, Seller Parent or the Company), (b) any acts
or omissions of the Buyer Indemnified Parties (whether such acts or omissions
occurred prior or subsequent to the Applicable SBC Closing Date) or (c) specific
acts, omissions, events, facts or circumstances that Seller or Seller Parent can
demonstrate that Buyer or an Affiliate thereof had Knowledge of as of the date
of this Agreement.
(b) HSR ACT. All filings under the HSR Act shall have been made and any
required waiting period under such laws (including any extensions thereof
obtained by request or other action of any governmental authority) applicable to
the transactions contemplated hereby shall have expired or been earlier
terminated.
(c) NO INJUNCTIONS. No court or Regulatory Authority shall have
enacted, issued, promulgated, enforced or entered any Law or Order (whether
temporary, preliminary or
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permanent) which is in effect on the Closing Date and prohibits, restricts or
makes illegal the consummation of the transactions contemplated hereby.
(d) RELEASE OF SECURITY INTEREST. The Membership Interest shall be free
and clear of all Liens. All security interests in favor of SCI's senior lenders
relating to the Membership Interest and the Contributed Assets shall have been
released at or prior to the Closing, pursuant to a form of release reasonably
satisfactory to Buyer.
(e) ASSIGNMENT AND ASSUMPTION AGREEMENT. The Assignment and Assumption
Agreement shall be in full force and effect.
(f) CONSENT AND MODIFICATION AGREEMENT. The Consent and Modification
Agreement shall be in full force and effect.
(g) UNWIND SIDE LETTER. The Unwind Side Letter shall be in full force
and effect, except to the extent described in Section 7 thereof, if applicable.
(h) CREDIT AGREEMENT. The lenders under the Amended and Restated Credit
Agreement dated February 22, 2001 among Seller, Seller Parent, CIBC, as Agent,
and the other Credit Parties thereunder as amended, modified and supplemented
from time to time (the "Credit Agreement") shall have consented to the
transactions contemplated hereby.
(i) JOINT SIDE LETTER. The Joint Side Letter shall be in full force and
effect.
(j) RECAPITALIZATION TRANSACTION. Seller Parent or Intermediate
Holdings, LLC shall have sold convertible debt or equity securities and the net
proceeds therefrom shall have been used to repurchase Seller Parent's
outstanding publicly-traded debt securities such that following the completion
of such repurchase, the debt of Seller Parent shall have been reduced on a net
basis by no less than $200 million (computed based on the face amount of the
cash pay notes or the accreted value as of the Closing Date of the discount
notes and treating any such newly issued convertible debt securities at their
face amount).
(k) Seller Parent or Intermediate Holdings, LLC shall have received a
customary solvency opinion with respect to Intermediate Holdings, LLC and its
consolidated subsidiaries in connection with, and after giving effect to, the
recapitalization transactions described in Section 6.2(j) above.
6.3 SELLER CONDITIONS PRECEDENT TO CLOSING.
Subject to Section 6.1 hereof, the obligation of Seller and Seller
Parent to consummate the transactions contemplated hereby is conditional upon
the following conditions having first been satisfied, on or prior to the Closing
Date, any of which may be waived in writing by Seller and Seller Parent pursuant
to Section 8.14:
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(a) BRING-DOWN CERTIFICATE. A certificate shall be delivered to Seller,
signed by an executive officer of Buyer, certifying that (i) all representations
and warranties of the Buyer made in Article 3 of this Agreement (a) that are
qualified as to materiality shall be true and correct, and (b) that are not so
qualified shall be true and correct in all material respects, in each case when
made and as of the Closing Date as though made on the Closing Date (except to
the extent such representations and warranties expressly relate to an earlier
date in which case such representations and warranties that are qualified as to
materiality shall be true and correct, and those not so qualified shall be true
and correct in all material respects on and as of such earlier date), and in
each case, except for breaches as to matters that individually or in the
aggregate, would not have a material adverse effect on Buyer; and (ii) Buyer
shall have performed and complied in all material respects with all covenants
and agreements required by Article 4 of this Agreement to be performed or
complied with by it on or prior to the Closing Date.
(b) HSR ACT. All filings under the HSR Act shall have been made and any
required waiting period under such laws (including any extensions thereof
obtained by request or other action of any governmental authority) applicable to
the transactions contemplated hereby shall have expired or been earlier
terminated.
(c) NO INJUNCTIONS. No court or Regulatory Authority shall have
enacted, issued, promulgated, enforced or entered any Law or Order (whether
temporary, preliminary or permanent) which is in effect on the Closing Date and
prohibits, restricts or makes illegal the consummation of the transactions
contemplated hereby.
(d) CONSENT AND MODIFICATION AGREEMENT. The Consent and Modification
Agreement shall be in full force and effect.
(e) UNWIND SIDE LETTER. The Unwind Side Letter shall be in full force
and effect, except to the extent described in Section 7 thereof, if applicable.
(f) CREDIT AGREEMENT. The lenders under the Credit Agreement shall have
consented to the transactions contemplated hereby.
(g) JOINT SIDE LETTER. The Joint Side Letter shall be in full force and
effect.
ARTICLE 7
TERMINATION
7.1 TERMINATION.
This Agreement may be terminated prior to the Closing Date as follows:
(a) By mutual written agreement of Buyer and Seller; or
(b) By either Buyer or Seller (provided that the terminating party is
not then in material breach of any representation, warranty, covenant, or other
agreement contained in this Agreement) in the event of a material breach by the
other party or its Affiliates of any representation, warranty, covenant or
agreement contained in this Agreement which
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cannot be or has not been cured within 30 days after the giving of written
notice to the breaching party of such breach; or
(c) By either Buyer or Seller (provided that the terminating party is
not then in material breach of any representation, warranty, covenant, or other
agreement contained in this Agreement) in the event (i) that the requisite
approval under the HSR Act (whether by expiration of the required waiting period
under such law or otherwise) shall have been denied by final nonappealable
action of the relevant governmental authority or if any action taken by such
authority is not appealed within the time limit for appeal, if applicable, or
(ii) any Law or Order permanently restraining, enjoining or otherwise
prohibiting the consummation of the transactions contemplated by this Agreement
shall have become final and nonappealable; or
(d) By either Buyer or Seller in the event that the transactions
contemplated by this Agreement shall not have been consummated by a date which
is three (3) months from the date of this Agreement if the failure to consummate
the transactions contemplated hereby on or before such date is not caused by any
breach of this Agreement by the party electing to terminate pursuant to this
Section 7.1(d).
7.2 SURVIVAL AFTER TERMINATION.
In the event of the termination of this Agreement pursuant to Section
7.1, this Agreement shall become void and have no effect, except that (i) the
provisions of this Section 7.2, Section 4.2 and Article 8 shall survive any such
termination and abandonment, and (ii) no such termination shall relieve the
breaching party from Liability resulting from any breach by that party of this
Agreement.
ARTICLE 8
MISCELLANEOUS
8.1 DEFINITIONS.
(a) Except as otherwise provided herein, the capitalized terms set
forth below shall have the following meanings:
"AFFILIATE" of a Person means (i) any other Person directly, or
indirectly through one or more intermediaries, controlling, controlled by
or under common control with such Person (including, with respect to
Buyer, each of its members); or (ii) any other Person in which such Person
beneficially owns a majority of the outstanding capital stock or equity
interests.
"APPLICABLE SBC CLOSING DATE" means, as applicable to each Site,
the date such Site became subject to the terms of the Master Lease.
"ASSUMED LIABILITIES" has the meaning set forth in the Assignment
and Assumption Agreement.
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"BANKRUPTCY LAW" means the United States Bankruptcy Code or any
other law, within the United States or in any other country, relating to
bankruptcy, reorganization, compromise, arrangement, insolvency,
readjustment of debt or creditors' rights.
"BTS TERMINATION AMENDMENT" means that certain agreement attached
hereto as Exhibit C.
"COLLOCATION AGREEMENT" has the meaning set forth in the Assignment
and Assumption Agreement.
"COMPANY OPERATING AGREEMENT" means the Limited Liability Company
Operating Agreement attached hereto as Exhibit D.
"CONFIDENTIALITY AGREEMENT" means that certain Confidentiality
Agreement, dated April 11, 2002, between Buyer and SpectraSite
Communications, Inc., a wholly owned subsidiary of Seller Parent.
"CONSENT" means any consent, approval, authorization, clearance,
exemption, waiver, or similar affirmation by any Person pursuant to any
Contract, Law, Order or Permit.
"CONTRACT" means any written or oral agreement, arrangement,
authorization, commitment, contract, indenture, instrument, lease,
license, obligation, plan, practice, restriction, understanding, or
undertaking of any kind or character, or other document to which any
Person is a party or that is binding on any Person or its capital stock,
assets or business.
"CONTRIBUTED ASSETS" has the meaning set forth in the Assignment
and Assumption Agreement.
"DEFAULT" means (i) any breach or violation of, default under,
contravention of, or conflict with, any Contract, Law, Order or Permit,
(ii) any occurrence of any event that with the passage of time or the
giving of notice or both would constitute a breach or violation of,
default under, contravention of, or conflict with, any Contract, Law,
Order or Permit, or (iii) any occurrence of any event that with or without
the passage of time or the giving of notice would give rise to a right of
any Person to exercise any remedy or obtain any relief under, terminate or
revoke, suspend, cancel, or modify or change the current terms of, or
renegotiate, or to accelerate the maturity or performance of, or to
increase or impose any Liability under, any Contract, Law, Order or
Permit.
"EMPLOYEE BENEFIT PLAN" means each pension, retirement,
profit-sharing, deferred compensation, stock option, employee stock
ownership, share purchase, severance pay, vacation, bonus, retention,
change in control or other incentive plan, medical, vision, dental or
other health plan, any life insurance plan, flexible spending account,
cafeteria plan, vacation, holiday, disability or any other
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employee benefit plan or fringe benefit plan, including any "employee
benefit plan," as that term is defined in Section 3(3) of ERISA and any
other plan, fund, policy, program, practice, custom understanding or
arrangement providing compensation or other benefits, whether or not such
Employee Benefit Plan is or is intended to be (i) covered or qualified
under the Code, ERISA or any other applicable Law, (ii) written or oral,
(iii) funded or unfunded, (iv) actual or contingent or (v) arrived at
through collective bargaining or otherwise.
"ENVIRONMENTAL CONDITION" means, as to each Site, any conditions or
circumstances, including without limitation, the presence of Hazardous
Materials, that (i) require abatement or correction under the
Environmental Laws, (ii) give rise to any civil or criminal Liability
under any Environmental Laws relating to the use or occupancy of any Site
or (iii) constitute a public or private nuisance to a third party.
"ENVIRONMENTAL LAWS" means all Laws relating to pollution or
protection of human health or the environment (including ambient air,
surface water, ground water, land surface, or subsurface strata) including
the Comprehensive Environmental Response Compensation and Liability Act,
as amended, 42 U.S.C. 9601 ET SEQ. ("CERCLA"), the Resource Conservation
and Recovery Act, as amended, 42 U.S.C. 6901 ET SEQ. ("RCRA"), and other
Laws relating to emissions, discharges, releases, or threatened releases
of any Hazardous Material, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport, or
handling of any Hazardous Material.
"EQUITY RIGHTS" means all arrangements, calls, commitments,
Contracts, options, rights to subscribe to, understandings, warrants, or
other binding obligations of any character whatsoever relating to, or
securities or rights convertible into or exchangeable for, ownership
interests in a Person or by which a Person is or may be bound to issue
additional ownership interests or other Equity Rights.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"EXCLUDED LIABILITY" means any Liability of any Seller Entity other
than an Assumed Liability.
"GROUND LEASE" has the meaning set forth in the Assignment and
Assumption Agreement.
"HAZARDOUS MATERIAL" means (i) any hazardous substance, hazardous
material, hazardous waste, regulated substance, or toxic substance (as
those terms are defined by any applicable Environmental Laws) and (ii) any
chemicals, pollutants, contaminants, petroleum, petroleum products, or
oil, asbestos-containing materials and any polychlorinated biphenyls.
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"INDEMNITOR" means the party against whom indemnification hereunder
is sought.
"JOINT SIDE LETTER" means the Joint Side Letter attached hereto as
Exhibit F.
"KNOWLEDGE" as used with respect to a Person (including references
to such Person being aware of a particular matter) means the actual
knowledge of the chairman, president, chief financial officer, chief
accounting officer, chief operating officer, general counsel, any
assistant or deputy general counsel, any senior, executive or other vice
president or similar executive officer of such Person.
"LANDLORD" has the meaning set forth in the Assignment and
Assumption Agreement.
"LAW" means any code, law (including common law), ordinance,
regulation, reporting or licensing requirement, rule, or statute
applicable to a Person or its assets, Liabilities, or business, including
those promulgated, interpreted or enforced by any Regulatory Authority.
"LIABILITY" means any direct or indirect, primary or secondary,
liability, indebtedness, obligation, penalty, cost or expense (including
costs of investigation, collection and defense), claim, deficiency,
guaranty of any type, whether accrued, absolute or contingent, liquidated
or unliquidated, matured or unmatured, or otherwise.
"LIEN" means any interest in an asset securing an obligation owed
to, or a claim by, any Person other than the owner of the asset, whether
such interest shall be based on any Law or Contract, whether such interest
shall be recorded or perfected, and whether such interest shall be
contingent upon the occurrence of some future event or events or the
existence of some future circumstance or circumstances, including the lien
or security interest arising from a mortgage, deed of trust, encumbrance,
pledge, hypothecation, assignment, deposit arrangement, security
agreement, conditional sale or trust receipt, or from a lease, consignment
or bailment for security purposes and also including reservations,
exceptions, encroachments, easements, rights-of-way, covenants,
conditions, restrictions, leases and other title exceptions and
encumbrances affecting any real property.
"LITIGATION" means any action, arbitration, cause of action,
lawsuit, claim, complaint, criminal prosecution, governmental or other
examination or investigation, audit (other than regular audits of
financial statements by outside auditors), hearing, administrative or
other proceeding relating to or affecting a party, its business, its
records, its policies, its practices, its compliance with Law, its
actions, its assets (including Contracts related to it), or the
transactions contemplated by this Agreement.
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"LOSSES" means any and all demands, claims, actions or causes of
action, assessments, losses, diminution in value, damages (including
special and consequential damages), liabilities, costs, and expenses,
including interest, penalties, cost of investigation and defense, and
reasonable attorneys' and other professional fees and expenses.
"MATERIAL" or "MATERIAL" for purposes of this Agreement shall be
determined in light of the facts and circumstances of the matter in
question; provided that any specific monetary amount stated in this
Agreement shall determine materiality in that instance.
"ORDER" means any administrative decision or award, decree,
injunction, judgment, order, quasi-judicial decision or award, ruling, or
writ of any federal, state, local or foreign or other court, arbitrator,
mediator, tribunal, administrative agency, or Regulatory Authority.
"PERMIT" means any federal, state, local, and foreign governmental
approval, authorization, certificate, easement, filing, franchise,
license, notice, permit, or right to which any Person is a party or that
is or may be binding upon or inure to the benefit of any Person or its
securities, assets, or business.
"PERMITTED ENCUMBRANCES" has the meaning set forth in the
Assignment and Assumption Agreement.
"PERSON" means a natural person or any legal, commercial or
governmental entity, such as, but not limited to, a corporation, general
partnership, joint venture, limited partnership, limited liability
company, limited liability partnership, trust, business association, group
acting in concert, or any person acting in a representative capacity.
"REGULATORY AUTHORITIES" means, collectively, all federal, state,
county, local or other governmental or regulatory agencies, authorities
(including taxing and self-regulatory authorities), courts,
instrumentalities, commissions, boards or bodies having jurisdiction over
the parties and their respective Subsidiaries.
"SELLER DISCLOSURE MEMORANDUM" means the written information
entitled "Seller Disclosure Memorandum" delivered prior to the date of
this Agreement to Buyer describing in reasonable detail the matters
contained therein and, with respect to each disclosure made therein,
specifically referencing each Section of this Agreement under which such
disclosure is being made. Information disclosed with respect to one
Section shall be deemed to have been disclosed for all purposes of this
Agreement in respect of which such disclosure is reasonably apparent.
"SELLER ENTITY" means Seller, Seller Parent, the Company and their
respective Subsidiaries.
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"SITE CONTRACTS" has the meaning set forth in the Assignment and
Assumption Agreement.
"SUBSIDIARIES" means all those corporations, associations, or other
business entities of which the entity in question either (i) owns or
controls 50% or more of the outstanding equity securities either directly
or through an unbroken chain of entities as to each of which 50% or more
of the outstanding equity securities is owned directly or indirectly by
its parent (provided, there shall not be included any such entity the
equity securities of which are owned or controlled in a fiduciary
capacity), (ii) in the case of partnerships, serves as a general partner,
(iii) in the case of a limited liability company, serves as a managing
member, or (iv) otherwise has the ability to elect a majority of the
directors, trustees or managing members thereof.
"TAX" or "TAXES" means any federal, state, county, local, or
foreign taxes, charges, fees, levies, imposts, duties, or other
assessments, including income, gross receipts, excise, employment, sales,
use, transfer, recording, license, payroll, franchise, severance,
documentary, stamp, occupation, windfall profits, environmental, federal
highway use, commercial rent, customs duties, capital stock, paid-up
capital, profits, withholding, Social Security, single business and
unemployment, disability, real property, personal property, registration,
ad valorem, value added, alternative or add-on minimum, estimated, or
other tax or governmental fee of any kind whatsoever, imposed or required
to be withheld by the United States or any state, county, local or foreign
government or subdivision or agency thereof, including any interest,
penalties, and additions imposed thereon or with respect thereto.
"TAX RETURN" means any report, return, information return, or other
information required to be supplied to a Regulatory Authority in
connection with Taxes, including any return of an affiliated or combined
or unitary group that includes a party or its Subsidiaries.
"UNWIND SIDE LETTER" means the Unwind Side Letter attached hereto
as Exhibit E.
(b) Any singular term in this Agreement shall be deemed to include the
plural, and any plural term the singular. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed
followed by the words "without limitation."
8.2 EXPENSES.
(a) Except as otherwise set forth herein, each of the parties shall
bear and pay all direct costs and expenses incurred by it or on its behalf in
connection with the transactions contemplated hereunder, including fees and
expenses of its own financial or other consultants, accountants and counsel. If
a party terminates this Agreement pursuant to Section 7.1(b) as a result of a
breach by the other party, and if such other party is found
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to be in breach of this Agreement pursuant to a final judicial determination of
a court of competent jurisdiction, then the breaching party shall promptly
reimburse the non-breaching party for all of its third-party out-of-pocket costs
and expenses relating to the execution and performance of this Agreement.
(b) Notwithstanding Section 8.2(a) above, in the event this Agreement
is terminated pursuant to Section 7.1(d) and, at the time of such termination,
Seller shall not have satisfied the conditions set forth in Sections 6.2(h) and
6.3(f), then Seller and Seller Parent shall promptly (i) reimburse Buyer for all
of Buyer's third-party out-of-pocket costs and expenses relating to the
execution and performance of this Agreement and (b) pay to Buyer liquidated
damages in the amount of $5,000,000. Seller Parent, SCI and Seller shall be
jointly and severally liable for the payment of such amounts. Upon the payment
of such amounts by Seller or Seller Parent pursuant to this Section 8.2(b), none
of the Seller Entities shall have any other Liability to Buyer or any of its
Affiliates under this Agreement.
8.3 ENTIRE AGREEMENT.
Except as otherwise expressly provided herein, this Agreement
constitutes the entire agreement between the parties with respect to the
transactions contemplated hereunder. Nothing in this Agreement expressed or
implied, is intended to confer upon any Person, other than the parties or their
respective successors, any rights, remedies, obligations, or liabilities under
or by reason of this Agreement.
8.4 AMENDMENTS.
To the extent permitted by Law, this Agreement may be amended by a
subsequent writing signed by each of the parties upon the approval of each of
the parties.
8.5 ASSIGNMENT.
The rights of any party under this Agreement shall not be assignable by
such party hereto without the written consent of the other party; PROVIDED,
HOWEVER, (i) Buyer may, without the prior consent of any other party, assign its
rights and obligations under this Agreement to (a) any Affiliate of Buyer; or
(b) any successor of all or substantially all of Buyer's business by way of
merger, consolidation, purchase of assets of Buyer or other form of acquisition
or other form of reorganization, but no such assignment shall relieve such party
from any of its obligations to the other parties hereunder, and (ii) Seller and
Seller Parent may, without the prior consent of Buyer, assign their respective
rights and obligations under this Agreement to (a) any successor of all or
substantially all of Seller's or Seller Parent's business by way of merger,
consolidation, purchase of assets or other form of acquisition or reorganization
or (b) as collateral security to its senior lenders, but no such assignment
shall relieve such party from any of its obligations to the other parties
hereunder. Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of and be enforceable by the parties and their
respective successors and assigns.
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8.6 NOTICES.
All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if delivered by hand, by facsimile
transmission, by registered or certified mail, postage pre-paid, or by courier
or overnight carrier, to the persons at the addresses set forth below (or at
such other address as may be provided hereunder), and shall be deemed to have
been delivered as of the date so delivered:
Seller, Seller Parent, Company: SpectraSite Holdings, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
With a copy to: ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Buyer: Cingular Wireless LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇ & Bird LLP
One Atlantic Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
8.7 GOVERNING LAW.
The parties agree that this Agreement shall be governed by and
construed in all respects in accordance with the laws of the State of New York,
without regard to its conflicts of law or choice of law principles.
8.8 WAIVER OF JURY TRIAL.
THE PARTIES KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY ACTION
TO TERMINATE THIS AGREEMENT, AND ANY CLAIM OR DEFENSE ASSERTING
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THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE).
THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS
AGREEMENT.
8.9 COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
8.10 CAPTIONS; ARTICLES AND SECTIONS.
The captions contained in this Agreement are for reference purposes
only and are not part of this Agreement. Unless otherwise indicated, all
references to particular Articles or Sections shall mean and refer to the
referenced Articles and Sections of this Agreement.
8.11 INTERPRETATIONS.
Neither this Agreement nor any uncertainty or ambiguity herein shall be
conclusively construed or resolved against any party, whether under any rule of
construction or otherwise. No party to this Agreement shall be considered the
draftsman. The parties acknowledge and agree that this Agreement has been
reviewed, negotiated, and accepted by all parties and their attorneys and shall
be construed and interpreted according to the ordinary meaning of the words used
so as fairly to accomplish the purposes and intentions of all parties hereto.
The parties agree that this Agreement and the other agreements referred to
herein have been negotiated between the parties on an arms'-length basis. The
parties further agree that each has obtained the advice of legal counsel prior
to the execution of this Agreement, that each has read this Agreement carefully,
that each has obtained or had the opportunity to obtain advice from counsel
regarding this Agreement's meanings and consequences, and that each has signed
this Agreement freely and voluntarily.
8.12 ENFORCEMENT OF AGREEMENT.
The parties hereto agree that irreparable damage would occur in the
event that any of the provisions of this Agreement was not performed in
accordance with its specific terms or was otherwise breached. It is accordingly
agreed that the parties shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof, this being in addition to any other remedy to which they are
entitled at law or in equity.
8.13 SEVERABILITY.
Any term or provision of this Agreement which 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 terms and
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provisions of this Agreement or affecting the validity or enforceability of any
of the terms or provisions of this Agreement in any other jurisdiction. If any
provision of this Agreement is so broad as to be unenforceable, the provision
shall be interpreted to be only so broad as is enforceable.
8.14 WAIVERS.
(a) Prior to or at the Closing, Buyer, acting through its Board of
Directors, chief executive officer or other authorized officer, shall have the
right to waive any Default in the performance of any term of this Agreement by
Seller, Seller Parent or the Company, to waive or extend the time for the
compliance or fulfillment by Seller, Seller Parent or the Company of any and all
of its obligations under this Agreement, and to waive any or all of the
conditions precedent to the obligations of Buyer under this Agreement, except
any condition which, if not satisfied, would result in the violation of any Law.
No such waiver shall be effective unless in writing signed by a duly authorized
officer of Buyer.
(b) Prior to or at the Closing, Seller, acting through its Board of
Directors, chief executive officer or other authorized officer, shall have the
right to waive any Default in the performance of any term of this Agreement by
Buyer, to waive or extend the time for the compliance or fulfillment by Buyer of
any and all of its obligations under this Agreement, and to waive any or all of
the conditions precedent to the obligations of Seller under this Agreement,
except any condition which, if not satisfied, would result in the violation of
any Law. No such waiver shall be effective unless in writing signed by a duly
authorized officer of Seller.
(c) The failure of any party at any time or times to require
performance of any provision hereof shall in no manner affect the right of such
party at a later time to enforce the same or any other provision of this
Agreement. No waiver of any condition or of the breach of any term contained in
this Agreement in one or more instances shall be deemed to be or construed as a
further or continuing waiver of such condition or breach or a waiver of any
other condition or of the breach of any other term of this Agreement.
8.15 GUARANTEES.
Seller Parent hereby absolutely, unconditionally and irrevocably
guarantees the timely performance of all obligations, undertakings, agreements,
covenants, representations and warranties of Seller, the Company and, solely
with respect to Section 4.2, SpectraSite Communications, Inc. under this
Agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed as of the day and year first above written.
CINGULAR WIRELESS LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President -
Corporate Development
SPECTRASITE HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and CEO
SOUTHERN TOWERS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and CEO
CA/NV TOWER HOLDINGS, LLC
By: Southern Towers, Inc., its sole Member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and CEO
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AGREED TO AND ACCEPTED BY, SOLELY WITH
RESPECT TO SECTION 4.2 SPECTRASITE
COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and CEO
-▇▇-
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS SOUTHERN TOWERS ASSIGNMENT AND ASSUMPTION AGREEMENT (the
"Agreement") is dated as of this ____ day of ________, 2002 [on the closing
date, immediately prior to the closing of the SpectraSite Newco Purchase
Agreement] (the "Effective Date") by and between SOUTHERN TOWERS, INC., a
Delaware corporation ("Assignor"), and CA/NV TOWER HOLDINGS, LLC, a Delaware
limited liability company ("Assignee").
PREAMBLE
WHEREAS, in connection with the SpectraSite Newco Purchase Agreement
(the "SpectraSite Newco Purchase Agreement"), dated as of May __, 2002, Assignor
desires to assign and contribute, and Assignee desires to assume and accept, the
Contributed Assets to Assignee immediately prior to the consummation of the
transactions contemplated by the SpectraSite Newco Purchase Agreement; and
WHEREAS, as part of such assignment and contribution, and on the terms
and conditions contained herein, Assignee is also willing to accept and assume
from Assignor the Assumed Liabilities (as herein defined); and
WHEREAS, each of Landlord, SpectraSite Guarantor and SBC Guarantor
consents to the assignment by Assignor and the acceptance by Assignee of the
Contributed Assets by Assignee and the assumption of the Assumed Liabilities by
Assignee pursuant to the terms and conditions of the Consent and Modification by
and among Assignor, Assignee, Landlord and SpectraSite Guarantor and SBC
Guarantor (the "Consent and Modification"), which Consent and Modification is
attached hereto to be executed concurrently herewith.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which each party hereby acknowledges, the parties agree as
follows:
ARTICLE 1
CONTRIBUTION AND ASSIGNMENT
1.1 CONTRIBUTION AND ASSIGNMENT.
Subject to the Consent and Modification attached hereto, Assignor
hereby contributes, transfers, sets over and assigns unto Assignee as of the
Effective Date all of Assignor's rights, privileges, duties and obligations with
respect to the Contributed Assets (the "Assignment") from and after (but not
before) the Effective Date. Assignor represents and warrants that it has not
heretofore assigned the Contributed Assets to any
other Person. In addition, Assignee acknowledges and agrees that all Excluded
Assets are and shall remain assets of Assignor (and all duties and obligations
and liabilities related thereto shall remain the duties, obligations and
liabilities of Assignor).
ARTICLE 2
ASSUMPTION
2.1 ASSUMPTION OF LIABILITIES.
Subject to the Consent and Modification attached hereto, Assignee
hereby accepts the Assignment by Assignor, subject only to the Permitted
Encumbrances, and assumes the due and full performance of all of the Assumed
Liabilities for the period from and after (but not before) the Effective Date.
In addition, Assignor acknowledges and agrees that all Retained Liabilities are
and shall remain the responsibility and obligation of Assignor.
ARTICLE 3
ADDITIONAL AGREEMENTS
3.1 FURTHER COOPERATION; REASONABLE EFFORTS.
Assignor and Assignee acknowledge that certain of the Contributed
Assets may not be assignable without the consent of a third party and that as to
such Contributed Assets which require consent, the Assignment is subject to
receipt of such consent. Assignor and Assignee agree to execute whatever
additional instruments either party may reasonably request to effectuate or
evidence the Assignment. Assignor will, from time to time at Assignee's request,
use its commercially reasonable efforts to assist Assignee in securing the
consent of any third parties that may be required to effect or perfect the
Assignment. To the extent it is legally able to do so, Assignor will, from time
to time at Assignee's request, execute and deliver such bills of sale,
assignments and other instruments, conveyances and transfers as are reasonably
necessary in order to more fully and effectively confirm and perfect the
Assignment and confirm and perfect Assignee's rights in and to the Contributed
Assets. Without limiting the foregoing, as to each Contributed Asset, on the
Effective Date, Assignor will also deliver to Assignee, all of the original
Memorandums of Subleases in favor of Assignor (to the extent entered into) and a
separate memorandum of assignment of Assignor's Subleased Interest as to each
Site which has a recorded Memorandum of Sublease in favor of Assignor, which is
duly executed by Assignor and is in proper recordable form and at the request of
Assignee, from to time, will deliver the same as to the other Contributed Assets
to the extent practicable (but only as to Sites as to which the information and
documentation necessary to create and complete such memorandum was provided to
Assignor by Landlord in connection with the closings under the Agreement to
Sublease, dated August 25, 2000 (as amended and modified from time to time, the
"Agreement to Sublease") or is hereafter provided by Cingular Wireless LLC or an
affiliate to Assignor). Assignor will, from time to time at Assignee's request,
use its commercially reasonable efforts to assist Assignee in securing the
consent of any ground lessor or ground landlord to any such Ground
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Lease or any third parties which may be required to effect the assignment or to
perfect the assignment to Assignee of Assignor's rights in or under any Ground
Lease or other Contributed Assets. In the event that Assignor or Assignee is
unable to obtain the consent of any third party necessary to assign any of the
Contributed Assets, Assignor will use its commercially reasonable efforts to
obtain such consent, and in the event such efforts are unsuccessful, it will, to
the extent possible without causing a breach or default in, or forfeit of, the
Contributed Asset, by subcontract or other arrangement, endeavor to transfer the
benefits and obligations of such Contributed Asset to Assignee. Notwithstanding
anything to the contrary herein, the parties shall share equally any amounts
paid to a landlord in connection with securing any landlord consent.
Assignor and Assignee shall cooperate with each other toward effecting
a smooth and orderly transition in the property management, lease administration
and site operation of the Sites from Assignor to Assignee including without
limitation, if requested by Assignor, arranging meetings with any vendors or
counter-parties under the Site Contracts to transition services and providing
adequate records for such transition. The parties intend that such transition
shall be completed as promptly as reasonably practicable after Closing (as
defined in the SpectraSite Newco Purchase Agreement).
3.2 PRORATIONS.
(a) As soon as practicable after the Effective Date, Taxes attributable
to the Contributed Assets allocated to Assignor pursuant to Section 15(c) of the
Master Lease shall be apportioned to the Effective Date. Such apportionments
shall be made pro rata on a per diem basis as of the Effective Date so that all
such Taxes attributable to the period prior to the Effective Date are for the
account of Assignor; and all such Taxes attributable to the period on and after
the Effective Date are for the account of Assignee. Taxes shall initially be
determined based on the previous year's taxes and shall later be adjusted to
reflect the current year's Taxes when the tax bills are finally rendered. The
parties shall fully cooperate to avoid, to the extent legally possible, the
payment of duplicate Taxes, and each Party shall furnish, at the request of the
other, proof of payment of any Taxes or other documentation which is a
prerequisite to avoiding payment of a duplicate tax. In the event that either
Party (the "Payor") pays a Tax for which the other Party (the "Payee") is
obligated in whole or in part under this Section 3.2, the Payor shall present to
the Payee evidence of payment and a statement setting forth the Payee's
proportionate share of such Tax, and the Payee shall promptly pay such share to
the Payor. In the event either Party (the "Recipient") receives payments of a
Tax to which the other Party (the "Beneficiary") is entitled in whole or in part
under this Agreement, the Recipient shall promptly pay such share to the
Beneficiary. In the event there exists as of the Effective Date any pending
appeals of ad valorem tax assessments with regard to any Contributed Assets, the
continued prosecution and/or settlement of such appeals shall be subject to the
direction and control of Assignee with respect to assessments for the year
within which the Assignment occurs.
(b) Notwithstanding any provision to the contrary in this Assignment,
the following items shall be also apportioned between Assignor and Assignee as
of the
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Effective Date: (a) rents and revenues under all Collocation Agreements
(including the SBC Leaseback); (b) Prepaid Charges; (c) base rent, license fees,
revenue sharing payments or other charges due to landlords, lessors or licensors
under the Ground Leases to the extent paid or payable by Assignor under the
Master Lease; (d) all amounts required to be reimbursed to Landlord under
Section 11(c) of the Master Lease for the maintenance and repair of lighting
systems; and (d) charges and payments under all Site Contracts. Such
apportionments shall be made pro rata on a per diem basis as of the Effective
Date so that all such rents, revenues, charges and payments attributable to the
period prior to the Effective Date are for the account of Assignor; and all such
rents, revenues, charges and payments attributable to the period from and after
the Effective Date are for the account of Assignee with such adjustments to be
made as of the Effective Date by the party that on a net basis owes money to the
other party under this Section by wire transfer of immediately available funds
to such accounts as such other party shall direct in writing. In addition, the
amount of all Tenant Security Deposits shall be credited to the account of
Assignee or assigned to Assignee as part of the apportionment. The parties shall
fully cooperate to avoid, to the extent legally possible, making duplicate
payments to ground lessors or other counter-parties under the Ground Leases and
to other third parties.
(c) In addition, in connection with any binding Collocation Agreement
which has an original term of at least five (5) years and has a remaining term
of at least four (4) years from the Closing, pursuant to which Assignor has
made, is in the process of making or is otherwise obligated under the terms of
the binding Collocation Agreement to make any Alterations (as defined by the
Assigned Leases) which Alterations are not removable by the tenant thereunder
(collectively, the "Assignor Alterations"), Assignee agrees as follows:
(i) as to Assignor Alterations which have been completed by Assignor
prior to Closing, as evidenced by the Completed Alteration Package and provided
that the full cost thereof has not otherwise been reimbursed to Assignor by the
tenant thereunder or otherwise and only if scheduled on attached SCHEDULE V(A)
(the "Completed Assignor Alterations"), on the later of Closing or the date
which is thirty (30) days after the receipt of the Completed Alteration Package,
Assignee agrees to reimburse Assignor for the cost incurred by Assignor in
connection with installing such Completed Assignor Alterations in the amount of
the Completed Alteration Reimbursement Amount for each Completed Assignor
Alteration. For each Completed Assignor Alteration, the "Completed Alteration
Reimbursement Amount" shall be an amount equal to the lesser of (1) the direct
third party expenses and capital costs actually incurred by Assignor in
connection with the making of such Completed Assignor Alteration, as evidenced
by the Completed Alteration Package, PLUS the Allocated Overhead Reimbursement
Amount for such Completed Assignor Alteration LESS any such expenses or costs to
the extent reimbursed in respect of such Assignor Alteration by tenants or third
parties. or (2) the Budgeted Amount for such Completed Assignor Alteration less
any amounts reimbursed in respect of such Assignor Alteration by tenants or
third parties. With regard to the foregoing, attached hereto as SCHEDULE V(A)
are the Budgeted Amounts for each Completed Assignor Alterations which provides
an estimated Completed Alteration Reimbursement Amount for each Completed
Assignor Alteration (as of the date hereof). The parties acknowledge that the
Budgeted Amounts as set forth on the Construction Site Budget is Assignor's good
faith estimates, as to each Completed Assignor Alteration, of the direct third
party labor and capital costs incurred to complete each Completed Assignor
Alteration PLUS the Allocated Overhead Reimbursement Amount. Schedule V(a) will
be subject to update to include In Process Assignor Alterations which become
Completed Assignor Alterations between the date hereof and closing; provided
that the Budgeted Amounts with respect thereto shall remain the same.
(ii) As to Assignor Alterations which are, at Closing, in the process
of being made by Assignor, and which are not completed as of Closing and
PROVIDED THAT the full cost has not otherwise been reimbursed to Assignor by the
tenant thereunder or otherwise and Assignee has received the In Process
Alteration Package, Assignee will in connection therewith assume the obligation
to complete such Assignor Alteration but only if it is scheduled on attached
SCHEDULE V (B) (the "In Process Assignor Alterations"). Assignor agrees to
complete, in a good and workmanlike manner in accordance with the applicable
terms of the Collocation Agreement, each In Process Assignor Alteration to the
Transition Point. On the later of Closing or the date which is thirty (30) days
after the receipt of the In Process Alteration Package, Assignee agrees to
reimburse Assignor for the Completed Alteration Reimbursement Amount, PROVIDED
THAT, for purposes of this Section 3.2(c)(ii), the term "Budgeted Amount" as
used in the definition of Completed Alteration Reimbursement Amount, shall
refer, in the case of each In Process Alteration, only to the portion of the
Budgeted Amount for such In Process Assignor Alteration which, in the reasonable
good faith judgment of Assignor and Assignee, is fairly attributable to that
portion of such In Process Assignor Alteration which has then been completed and
evidenced as paid less any amounts reimbursed in respect of such In Process
Assignor Alteration by tenants or third parties. Schedule V(b) will be subject
to update to include Assumed Assignor Alterations which become In Process
Assignor Alterations between the date hereof and closing and to delete In
Process Assignor Alterations which become Completed Assignor Alterations between
the date hereof and closing; PROVIDED THAT the Budgeted Amounts with respect
thereto shall remain the same.
(iii) As to Assignor Alterations which are, at Closing, committed by
Assignor but not commenced by Assignor under a binding Collocation Agreement
with a remaining term of at least five (5) years, Assignor will not commence any
work and provided that the Collocation Agreement is assigned to Assignee,
Assignee will in connection therewith assume the obligation to complete such
Assignor Alteration but only if it is scheduled on attached SCHEDULE V(C) (the
"Assumed Assignor Alterations"). Schedule V(c) will be subject to update to
delete Assumed Assignor Alterations which become In Process Assignor Alterations
or Completed Assignor Alterations between the date hereof and closing; PROVIDED
THAT the Budgeted Amounts with respect thereto shall remain the same.
If Assignor is obligated under a binding Collocation Agreement (with an
outstanding term of at least four (4) years) to reimburse a tenant for, or grant
a tenant allowance with respect to, an Alteration which is being (or has been)
performed by such
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tenant but would otherwise be an Assignor Alteration (any such reimbursement or
allowance, a "Tenant Allowance Amount"), such amount shall be included as a
direct cost of Assignor in calculating the Completed Alteration Reimbursement
Amount and shall also be included in the Budgeted Amount with respect to such
Assignor Alteration and accordingly, Assignee shall, as part of the Completed
Alteration Reimbursement Amount, either reimburse Assignor for such Tenant
Allowance Amount to the extent such amount has been paid by Assignor to such
tenant, or assume the obligation to pay the Tenant Allowance (to the extent not
already paid) in a manner consistent with that described in this Section 3.2
(c).
All disputes regarding amounts reimbursable in respect of Assignor
Alterations (which disputes may be based solely on an assertion by Assignee
either that the work was not properly completed or documented or that such
amounts were calculated in a manner inconsistent with the provisions of this
Agreement) shall be resolved in the same manner as set forth in Article IV of
the Termination and Amendment of Build to Suit by and between SBC Guarantor,
SpectraSite Guarantor and SpectraSite Communications Inc. If any of the other
aforesaid apportionments or adjustments or reimbursements under this Section 3.2
cannot be calculated accurately or supported adequately on the Effective Date,
then the same shall be calculated and adjusted once by Assignor and Assignee
after the Effective Date in accordance with the following procedures. Within
five business days after the last day of the third full calendar month following
the Effective Date, Assignor and Assignee shall exchange their respective
post-Effective Date calculations of such apportionments, adjustments and
reimbursements, together with appropriate supporting documentation. Assignor and
Assignee shall in good faith agree upon the post-Effective Date apportionments
on or before the last day of the fourth full calendar month following the
Effective Date. If at the end of such period, Assignor and Assignee cannot agree
on the post-Effective Date apportionments, Assignor and Assignee shall submit to
an independent accounting firm (the "ACCOUNTING FIRM") for review and resolution
of any and all matters which remain in dispute. The Accounting Firm shall be any
nationally recognized independent public accounting firm as shall be agreed upon
by Assignor and Assignee in writing. The Accounting Firm shall be instructed to,
within thirty (30) days after the submission of any disputed matters, review and
resolve all such disputed matters and to report its resolution thereof to
Assignor and Assignee, and such report shall be final, binding and conclusive on
Assignor and Assignee with respect to all such disputed matters. The fees and
expenses of the Accounting Firm incurred pursuant to this Section shall be borne
fifty percent (50%) by Assignor and fifty percent (50%) by Assignee. No other
post-Effective Date apportionments shall be made by the parties. Either party
owing the other party a sum of money based on the agreed-upon post-Effective
Date apportionments shall pay said sum to the other party on or before the last
day of the fifth full calendar month following the Effective Date. The aforesaid
post-Effective Date adjustment shall be the only post-Effective Date adjustment
of the items to be apportioned, reimbursed or adjusted under this Section. The
provisions of this Section shall not affect the obligations of Assignor and
Assignee under this Agreement with respect to the Retained Liabilities and the
Assumed Liabilities, respectively.
3.3 SALES AND TRANSFER TAXES; ASSET TRANSFERS.
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Assignor shall pay (or if appropriate reimburse Assignee) for all state
and local sales, documentary and other transfer taxes, if any, due as a result
of the Assignment. Assignor shall file all necessary tax returns and other
documents required to be filed with respect to all such taxes. The parties will
cooperate to the extent reasonably necessary to make such filings or returns as
may be required.
ARTICLE 4
MISCELLANEOUS
4.1. DEFINITIONS.
When used in this Agreement, the following capitalized terms shall have
the following meanings:
"ALLOCATED OVERHEAD REIMBURSEMENT AMOUNT" means as to any Completed
Assignor Alteration, (i) that portion of the personnel and overhead expenses of
Assignor's construction group responsible for the alteration work for such
Completed Assignor Alteration, which is equitably allocated to such Completed
Assignor's Alteration plus (ii) the direct cost of labor provided by Assignor
with respect to the construction of such Completed Assignor's Alteration plus
fifteen percent (15%) of the actual construction cost (including the cost of the
aforesaid labor) with respect to such Completed Assignor's Alteration.
"ASSIGNED LEASES" means, collectively, the following: (i) that certain
Lease and Sublease, dated as of December 14, 2000, by and among Landlord,
▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ 2 and Assignor as to the Sites (as heretofore amended or
affected, by various amendments and side letters, the "Master Lease"); and (ii)
individually, as to each Site, the applicable Site Designation Supplement (as
defined in and contemplated by the Master Lease) (herein, collectively, the
"Site Designation Supplements").
"ASSUMED ASSIGNOR ALTERATIONS" shall have the meaning ascribed thereto
in Section 3.2(c)(iii) hereof.
"ASSUMED LIABILITIES" means: (i) the obligations and liabilities of
Assignor, which arise out of or relate to, and accrue in connection with the
Contributed Assets during the period of time from and after the date hereof (but
not before), including, without limitation, the obligation to pay for and
complete any Assumed Assignor Alteration which is required under any binding
Collocation Agreement, but only as scheduled on SCHEDULE V(C) attached hereto;
(ii) the obligations and liabilities of Assignor which arise out of, related to
or are based on that certain letter agreement (commonly known as the "SMS Side
Letter") dated December 14, 2000 by and among Assignor, SBC Tower Holdings LLC
and SBC Communications Inc. regarding the SMS Agreement (as defined therein);
and (iii) the obligation and liability of Assignor to pay $10 million in cash to
SBC Tower Holdings LLC in the manner required by the Unwind
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Side Letter (as defined in the Purchase Agreement(herein, "Side Letter
Obligation")). "Assumed Liabilities" shall, without limitation, specifically
exclude Retained Liabilities.
"BUDGETED AMOUNT" means, with respect to a Completed Assignor
Alteration or In Process Alteration, as applicable the total amount of the
estimated development and construction budget for such Completed Assignor
Alteration or In Process Assignor Alteration, as applicable, as set forth on
attached SCHEDULE V(A) as to Completed Assignor Alterations and Schedule V(b) as
to In Process Assignor Alterations.
"COLLOCATION AGREEMENT(S)" means as regards the sublease or license of
space on any of the Sites by Assignor as landlord, lessor, sublandlord or
sublessor (or as successor landlord, lessor, sublandlord or sublessor), each
sublease, license or other collocation agreement or option or commitment with
respect thereto (other than the SBC Leaseback) and that is listed on the
attached SCHEDULE II, and all rents, revenue and security or other deposits (if
any) from tenants thereunder ("Tenant Security Deposits").
"COMPLETED ALTERATION PACKAGE" means, as to each Completed Assignor
Alteration, the package to be delivered by Assignor to evidence completion of
the Completed Assignor Alteration, which should include, as applicable a
certificate of occupancy (or the equivalent) if required to be issued in
connection with such Completed Assignor Alteration by the applicable
jurisdiction and/or a Notice to Proceed ("NTP") issued, in good faith and in
accordance with the applicable Collocation Agreement, by Assignor under the
applicable Collocation Agreement for such Site indicating that the landlord work
required thereunder is complete and/or including such other documents which
would be the substantive equivalent of the foregoing in the applicable
jurisdiction (if required) and/or under the applicable Collocation Agreement,
together with as to the applicable Completed Assignor Alteration, plans and
specifications, Permits, drawings, warranties and other information and
materials related thereto and to evidence the costs, including all paid invoices
and lien waivers as appropriate to evidence the costs incurred by Assignor for
which reimbursement is requested.
"COMPLETED ALTERATION REIMBURSEMENT AMOUNT" means, as to each Completed
Assignor Alteration, the reimbursement amount to be paid by Assignee in
connection therewith as defined in Section 3.2 (c)(i) hereof.
"COMPLETED ASSIGNOR ALTERATION(S)" shall have the meaning ascribed
thereto in Section 3.2(c)(i) hereof.
"CONTRIBUTED ASSETS" means (1) all right, title and interest of
Assignor, as lessee or sublessee, in and to the Assigned Leases, including,
without limitation, all right, title and interest of Assignor, as lessee or
sublessee, in and to the Subleased Property (including, without limitation, any
Alterations), and the Subleasehold Estate created under and pursuant to, and as
those terms are defined by the Assigned Leases, but solely as to the Sites
("Subleased Interests"), (2) all Tower Related Assets and (3) any Governmental
Permits held by Assignor with respect to the Subleased Interests and Tower
Related Assets.
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"EXCLUDED ASSETS" means all assets and rights of the Assignor other
than the Contributed Assets.
"GOVERNMENTAL PERMITS" mean any and all governmental approvals,
permits, licenses, registrations, certificates of occupancy, approvals and other
governmental authorizations.
"GROUND LEASE(S)" means individually, the ground lease or other lease,
easement or license creating the interest of Landlord in the land on which the
tower structures are located as described on SCHEDULE I.
"IN PROCESS ASSIGNOR ALTERATION(S)" shall have the meaning ascribed
thereto in Section 3.2(c)(ii) hereof.
"IN PROCESS REIMBURSEMENT AMOUNT" shall be the reimbursement amount
payable to Assignor for each In Process Assignor Alteration as determined in
accordance with Section 3.2 (c)(ii) hereof.
"IN PROCESS ALTERATION PACKAGE" means a package of information required
to be delivered by Assignor relating to an In Process Assignor Alteration to
evidence the completion of the applicable work and services for which
reimbursement is requested by Assignor and which has been prepared by Assignor
and submitted to Assignee, together with all of the information, reports and
materials related to In Process Assignor Alteration including the applicable
Collocation Agreement creating the obligation, any designs, plans and
specifications, Permits, drawings, warranties and other information and
materials related thereto and to evidence the costs, including all paid invoices
and lien waivers as appropriate to evidence the costs incurred by Assignor for
which reimbursement is requested, maintained or required to be obtained by
Assignor in connection with the Alteration Milestones (as completed) for each In
Process Assignor Alteration including, as applicable, all related
correspondence, third party reports and invoices (shown as paid) and lien
waivers (if applicable) related thereto, and zoning applications, if any, filed
for such In Process Assignor Alteration, whether or not granted.
"LANDLORD" means SBC Tower Holdings LLC, a Delaware limited liability
company.
"LAW" means any code, law (including common law), ordinance,
regulation, reporting or licensing requirement, rule, or statute applicable to a
Person or its assets, liabilities, or business, including those promulgated,
interpreted or enforced by any regulatory authority.
"PERMITTED ENCUMBRANCES" means as to any Site: (i) liens imposed on
Assignor for current real or personal property Taxes not yet due and payable or
which are being contested in good faith, provided that in connection with any
contest, neither the Site nor any part thereof is in danger of sale, foreclosure
or forfeiture by reason of the
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nonpayment of such Taxes or any interest, late payment fees, penalties and other
charges imposed in connection therewith, (ii) any lien, mortgage, security
interest, deed of trust, hypothecation, assignment, deposit, pledge, restriction
on transferability, easement, option or other claim, charge or encumbrance of
any nature placed upon the interest in a Site of the lessor or landlord under
the applicable Ground Lease, Site Lease or Assigned Leases, (iii) easements,
rights of way or similar grants of rights to a third party for access to or
across a Site granted to any utility or similar entity in connection with the
provision of electric, water, sewage, telephone, gas or similar services, that
do not materially adversely affect the use and operation of the Site, (iv) the
applicable Ground Lease, (v) Site Contracts, (vi) any Collocation Agreement,
(vii) the sublease back to Landlord of the "Reserved Space" as defined by and
pursuant to the Assigned Leases (the "SBC Leaseback"), (viii) the SMS Side
Letter (ix) Laws, including but not limited to, building and zoning laws,
ordinances and regulations, now or hereafter in effect relating to the Sites,
(x) inchoate worker's, carrier's and materialman's liens incurred in the
ordinary course of business related to obligations not yet due and payable or
worker's, carrier's and materialman's liens which are being contested in good
faith, PROVIDED THAT in connection with any contest, neither the Site nor any
part thereof is in danger of sale, foreclosure or forfeiture by reason of the
nonpayment thereof, (x) liens that are, individually or in the aggregate, de
minimis in character, amount or extent, and that do not otherwise detract from
the value and interfere in any respect with the permitted use of a Site and (x)
any oil, gas and mineral leases that do not adversely affect the use and
operation of the Site.
"PERSON" means any general partnership, limited partnership,
corporation, limited liability company, joint venture, trust, business trust,
governmental agency, cooperative, association, individual or other entity, and
the heirs, executors, administrators, legal representatives, successors and
assigns of such Person as the context may require.
"RETAINED LIABILITIES" means any Lien or contract (other than the Side
Letter Obligation) that is not a Permitted Encumbrance and any other liabilities
and obligations (other than a Permitted Encumbrance) that arose and accrued with
respect to any Contributed Asset prior to the date hereof.
"SIDE LETTER OBLIGATION" shall have the meaning set forth in the
definition of Assumed Liabilities.
"SITE(S)" means the cell tower sites identified on SCHEDULE I attached
that are owned, leased, licensed or otherwise held by Landlord pursuant to the
Ground Leases.
"SITE CONTRACT(S)" means each contract, contractual obligation, and
binding commitment with respect to the management, operation, maintenance,
servicing and construction of, and the provision of utility services to, the
Site to which Assignor is a party or is bound, all only as listed on SCHEDULE
III attached hereto.
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"SITE LEASE" means the ground lease, or license or easement for land
appurtenant to any Site on which Assignor is the lessee, licensee or beneficiary
and that is listed on attached SCHEDULE IV.
"SMS SIDE LETTER" shall have the meaning set forth in the definition of
Assumed Liabilities.
"TAX" or "TAXES" means Taxes and Assessments as defined in the Master
Lease.
"TOWER RELATED ASSETS" means with respect to each Site, (a) the
Collocation Agreements, (b) the SBC Leaseback, (c) the Site Contracts, (d) Site
Leases, (e) all prepaid items, unbilled costs and fees, and accounts, notes and
other receivables under the Assigned Leases, the Site Contracts and Collocation
Agreements (collectively, "Prepaid Charges"), (f) all rights to any warranties
held by Assignor with respect to the Subleased Interest or other Tower Related
Assets to the extent such rights are assignable, including those assignable with
consent to the extent such consents are received, or, to the extent not so
received, all amounts received by Assignor with respect to claims made after the
date hereof with respect to such unassigned rights to any warranties, (g) any
other right, title of interest of Assignor in and to the Sites created pursuant
to the Assigned Leases including without limitation any purchase option for the
Sites thereunder, (h) any other right, title of interest of Assignor in and to
the Sites created pursuant to the Agreement to Sublease which survives the
Closing of the Site under the Master Lease and (i) copies of, or extracts from,
all current files and records of Assignor to the extent that such files or
records contain information related to the design, construction, management,
operation, maintenance, ownership, occupancy or leasing of the Contributed
Assets including, without limitation, all documents and instruments relating to
the Contributed Assets, surveys, title reports, environmental documents and
architectural and engineering drawings.
"TRANSITION POINT" means, for each In Process Assignor Alteration, the
date within the 30 day period following the Closing on which it is (in
accordance with good construction practices, in the reasonable good faith
judgment of Assignor and Assignee) most desirable and appropriate for Assignor
to cease work and for Assignee to commence work.
4.2 ENTIRE AGREEMENT.
This Agreement (including the Schedules referred to herein) constitutes
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior agreements, understandings and negotiations,
both written and oral, between the parties with respect to the subject matter of
this Agreement. Neither this Agreement nor any provision hereof is intended to
confer upon any Person other than the parties hereto any rights or remedies
hereunder. Notwithstanding the forgoing, neither the making nor the acceptance
of this Agreement shall modify or restrict the terms of the SpectraSite Newco
Purchase Agreement nor constitute a waiver or release of Assignor of any
representations, warranties, liabilities, obligations, duties or obligations
imposed upon it
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by the terms of the SpectraSite Newco Purchase Agreement and in the event of any
dispute between the terms hereof and the SpectraSite Newco Purchase Agreement,
the terms of the SpectraSite Newco Purchase Agreement shall control.
4.3 AMENDMENTS.
To the extent permitted by Law, this Agreement may be amended by a
subsequent writing signed by each of the parties upon the approval of each of
the parties.
4.4 SUCCESSORS AND ASSIGNS.
This Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns.
4.5 NOTICES.
All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if delivered by hand, by registered
or certified mail, postage pre-paid, or by courier or overnight carrier, to the
persons at the addresses set forth below (or at such other address as may be
provided hereunder), and shall be deemed to have been delivered as of the date
so delivered:
Assignor: c/o SpectraSite Holdings, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
With a copy to: ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Assignee: c/o Cingular Wireless LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
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With a copy to: ▇▇▇▇▇▇ & Bird LLP
One Atlantic Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
4.6 GOVERNING LAW.
The parties agree that this Agreement shall be governed by and
construed in all respects in accordance with the Laws of the State of New York,
without regard to its conflict of law or choice of law principles. The parties
all expressly agree and acknowledge that the State of New York has a reasonable
relationship to the parties and/or this Agreement.
4.7 COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
4.8 CAPTIONS; ARTICLES AND SECTIONS.
The captions contained in this Agreement are for reference purposes
only and are not part of this Agreement. Unless otherwise indicated, all
references to particular Articles or Sections shall mean and refer to the
referenced Articles and Sections of this Agreement.
4.9 INTERPRETATIONS.
Neither this Agreement nor any uncertainty or ambiguity herein shall be
construed or resolved against any party, whether under any rule of construction
or otherwise. No party to this Agreement shall be considered the draftsman. The
parties acknowledge and agree that this Agreement has been reviewed, negotiated,
and accepted by all parties and their attorneys and shall be construed and
interpreted according to the ordinary meaning of the words used so as fairly to
accomplish the purposes and intentions of all parties hereto.
4.10 SEVERABILITY.
Any term or provision of this Agreement which 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 terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdiction. If any provision of this
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Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
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Executed as of the later of the two signature dates below.
ASSIGNOR: ASSIGNEE:
SOUTHERN TOWERS, INC. CA/NV TOWER HOLDINGS, LLC,
a Delaware corporation
a Delaware limited liability company
By: _______________________________
its authorized representative By: _______________________________
its authorized representative
Date: _____________________________ Date: _____________________________
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CONSENT AND MODIFICATION
This Consent and Modification to Master Lease (this "Consent") is executed
concurrently with the execution of the Southern Towers Assignment and Assumption
Agreement (the "Assignment and Assumption Agreement") to which this is attached
and is made as of _______, 2002 by and between SOUTHERN TOWERS, INC., a Delaware
corporation ("Assignor"), and CA/NV TOWER HOLDINGS, LLC, a Delaware limited
liability company ("Assignee") and SBC TOWER HOLDINGS LLC, a Delaware limited
liability company ("Landlord"), and each of SBC WIRELESS LLC, a Delaware limited
liability company ("SBC Guarantor"), and SPECTRASITE HOLDINGS, INC., a Delaware
corporation ("SpectraSite Guarantor"). When used in this Consent, the
capitalized terms have the meanings ascribed thereto in the Assignment and
Assumption Agreement unless otherwise defined herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which each party hereby acknowledges, the parties agree as
follows:
1. CONSENT. Subject to the terms and conditions contained in this
Consent, and further subject to and effective upon the consummation of the
subsequent sale of the Membership Interest (as defined in the SpectraSite Newco
Purchase Agreement) to Buyer (as defined in the SpectraSite Newco Purchase
Agreement) and satisfaction of other conditions as required by the SpectraSite
Newco Purchase Agreement, Landlord hereby consents to the transactions
contemplated by the Assignment and Assumption Agreement, including the
assignment by Assignor of the Contributed Assets and the acceptance of the
Contributed Assets and assumption of the Assumed Liabilities by Assignee. In
addition and without limiting the foregoing, Landlord hereby consents to the
sale of the Membership Interest (as defined in the SpectraSite Newco Purchase
Agreement) to Buyer pursuant to the SpectraSite Newco Purchase Agreement.
2. CONFIRMATION. With respect to the Sites, Landlord, Assignor and
Assignee hereby ratify and confirm their respective obligations under the
Assigned Leases and confirm each to the other that as of the Effective Date,
each of the Assigned Leases are in full force and effect.
3. MODIFICATION. Landlord, Assignor and Assignee hereby modify the
Master Lease as follows:
3.1 Section 3(b) of the Master Lease is hereby modified and amended to
recognize the assignment to, and assumption by, Assignee of Assignor's interest
in the Sites and upon the Effective Date, to sever the Master Lease so that the
Master Lease shall be deemed to constitute, and operate as, two separate (and
identical in all respects other than the Sites and the parties thereto) master
leases as follows: 1) one master lease between Assignee and Landlord (the "Site
Master Lease") as to the Sites covered by the Assignment, which together with
the applicable Site Designation Supplements, shall be deemed to constitute a
single sublease covering the Subleased Property of all of such
Sites and 2) the other master lease between Landlord and Assignor (the
"Remaining Site Master Lease") as to all other Sites subject to the Master Lease
(the "Remaining Sites"), together with all other applicable Site Designation
Supplements, shall be deemed to constitute a separate single sublease of all of
the Remaining Sites. The parties agree that as of the Effective Date, the only
difference between the Remaining Site Master Lease and Site Master Lease will be
the parties thereto and which site locations are covered thereby so that the
definition of "Sites" will be deemed to be the Sites as to the Site Master Lease
and the Remaining Sites as to the Remaining Site Master Lease. The parties
acknowledge the Site Master Lease is not a new lease, merely a partial
assignment of the Master Lease. From and after the Effective Date, the Site
Master Lease and Remaining Site Master Lease shall constitute separate
instruments and the parties to the Site Master Lease can modify or amend the
Site Master Lease independently of, and without participation, execution or
acknowledgement of the Assignee and such amendments will not effect the
Remaining Site Master Lease and the SpectraSite guaranty shall not apply to the
Site Master Lease; PROVIDED THAT nothing herein shall release the SpectraSite
Guarantor from its obligations, responsibilities and liabilities with respect to
the Master Lease to the extent such obligations, responsibilities and
liabilities arose prior to the date hereof. Similarly, from and after and after
the Effective Date, the parties to the Remaining Site Master Lease can modify or
amend the Remaining Site Master Lease independently of, and without,
participation, execution or acknowledgement of the Assignor and such amendments
will not effect the Remaining Site Master Lease.
3.2 Except as expressly amended or modified herein, the provisions of
the Master Lease shall remain in full force and effect.
4. MISCELLANEOUS
4.1 CAPTIONS; ARTICLES AND SECTIONS.
The captions contained in this Agreement are for reference purposes
only and are not part of this Agreement. Unless otherwise indicated, all
references to particular Articles or Sections shall mean and refer to the
referenced Articles and Sections of this Agreement.
4.2 GOVERNING LAW.
The parties agree that this Agreement shall be governed by and
construed in all respects in accordance with the laws of the State of New York,
without regard to its conflict of law or choice of law principles. The parties
all expressly agree and acknowledge that the State of New York has a reasonable
relationship to the parties and/or this Agreement.
-2-
4.3 COUNTERPARTS.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
4.4 EFFECTIVENESS.
This Agreement shall become effective upon the Closing Date (as defined
in the SpectraSite Newco Purchase Agreement) (the "Effective Date"); provided
that if the SpectraSite Newco Purchase Agreement is terminated in accordance
with the terms thereof, this Agreement shall be null and void.
[EXECUTION ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its duly authorized officers executed as of the later
of the two signature dates below.
ASSIGNOR: ASSIGNEE:
SOUTHERN TOWERS, INC. CA/NV TOWER HOLDINGS, LLC,
a Delaware corporation
a Delaware limited liability company
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: Southern Towers, Inc.,
------------------------------- its sole Member
▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President
JOINDER
The undersigned Landlord and Guarantors join in for the sole purpose of
consenting to the Assignment and Modification and severing of the Master Lease
as contemplated hereby.
LANDLORD
SBC TOWER HOLDINGS LLC,
a Delaware limited liability company
By: NEW SOUTHWESTERN ▇▇▇▇
MOBILE SYSTEMS, INC., its
Managing Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
SPECTRASITE GUARANTOR SBC GUARANTOR
SPECTRASITE HOLDINGS, INC., SBC WIRELESS LLC, a Delaware
a Delaware corporation company limited liability
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President Title: Executive Vice President -
Corporate Development