Execution Copy
DES MOINES TOWER PROCEEDS AGREEMENT
THIS DES MOINES TOWER PROCEEDS AGREEMENT, dated as of March 29, 2000, by
and among AIRTOUCH COMMUNICATIONS, INC. ("AirTouch Communications"), PANORA
TELECOMMUNICATIONS, INC. ("Panora"), WALNUT CREEK COMMUNICATIONS, INC. ("Walnut
Creek"), MINBURN TELEPHONE COMPANY ("Minburn"), INTERSTATE ENTERPRISES, LTD.
("Interstate") and PRAIRIE TELEPHONE COMPANY, INC. ("Prairie"). Panora, Walnut
Creek, Minburn, Interstate and Prairie are collectively referred to herein as
the "Stockholders."
W I T N E S S E T H:
WHEREAS, in accordance with the terms of the Purchase Agreement (as defined
below), AirTouch Iowa, LLC ("Buyer") intends to purchase all of the Company's
outstanding capital stock from the Stockholders; and
WHEREAS, AirTouch Communications, American Tower Corporation ("American"),
and American Tower L.P. ("American Tower") are parties to that certain Agreement
to Sublease dated as of August 6, 1999 (the "Sublease Agreement") pursuant to
which, among other things, American Tower is obligated, subject to the
satisfaction of certain conditions, to pay the Des Moines MSA General
Partnership (the "Partnership") for subleases on certain wireless communications
towers; and
WHEREAS, as additional consideration for the purchase by Buyer of the
Company Shares (as defined in the Purchase Agreement) as contemplated under the
Purchase Agreement, AirTouch Communications has agreed to pay each Stockholder a
portion of the consideration received from American Tower for the sublease of
the Des Moines Towers (as defined below):
NOW, THEREFORE, in order to effectuate the foregoing purposes and in
consideration of the mutual agreements set forth herein, the parties hereto
agree as follows:
SECTION 1. DEFINITIONS
Reference is hereby made to that certain Stock Purchase Agreement (as
defined below) of even date herewith (the "Purchase Agreement") by and among
Buyer, Central Iowa Cellular, Inc., an Iowa corporation (the "Company"), and the
additional parties named therein (the "Stockholders"). Capitalized terms used
but not defined in this Agreement shall have the meanings ascribed to them in
the Purchase Agreement.
SECTION 2. DES MOINES TOWERS
2.1 Tower Net Proceeds. (a) AirTouch Communications hereby agrees to pay to
each Stockholder its proportionate share as specified in Exhibit A attached
hereto, of the Tower Net Proceeds (as hereinafter defined) received by AirTouch
Communications (or an Affiliate thereof) from American Tower (or an Affiliate
thereof) pursuant to the Sublease Agreement, for any or all of the twenty-four
(24) towers described on Exhibit B attached hereto (the "Des Moines Towers").
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(b) Payments of the Tower Net Proceeds shall be made by AirTouch
Communications within five (5) business days after AirTouch Communications'
receipt of such Tower Net Proceeds.
(c) For the purposes of this Agreement, "Tower Net Proceeds" shall mean
twenty-four percent (24%) of the gross cash proceeds received by AirTouch
Communications (or an Affiliate thereof) under the Sublease Agreement for any
(or all) of the Des Moines Towers, minus twenty-four percent (24%) of any fees
owed to ▇▇▇▇▇▇ Brothers, Inc. in connection with the sublease of those Des
Moines Towers; provided, however, that Tower Net Proceeds shall not include any
such proceeds previously distributed by the Partnership to the Company.
2.2 Warrant Payment. AirTouch Communications further agrees to pay, upon
Closing of the transactions contemplated by the Purchase Agreement, to each
Stockholder its proportionate share (i.e., twenty percent per stockholder) of
cash in the amount of the Monetization Value (as defined below) multiplied by
343 for each of the Des Moines Towers monetized prior to the Closing pursuant to
the Sublease Agreement. AirTouch Communications further agrees to pay, within
five (5) business days after the monetization of any Des Moines Tower(s) on or
after the Closing to each Stockholder its proportionate share (i.e., twenty
percent per stockholder) of cash in the amount of the Monetization Value (as
defined below) multiplied by 343. Monetization Value shall be equal to the
average closing price of American Tower stock, as quoted on the principal stock
exchange or National Market System upon which such stock is traded, for the five
(5) trading days immediately preceding the date of Closing, minus $22.00. The
payments provided for in this Section 2.2 shall be in lieu of any right or claim
that any Stockholder may have to a pro rata share of or any other interest in
the warrant for American Tower stock received from American Tower for the Des
Moines Towers under the Sublease Agreement.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
As a material inducement to AirTouch Communications to enter into this
Agreement and consummate the transactions contemplated hereby, the Stockholders
hereby make to AirTouch Communications all of the representations and warranties
contained in Section 2 of the Purchase Agreement, mutatis mutandis, as though
such representations and warranties were set forth herein.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF AIRTOUCH COMMUNICATIONS
As a material inducement to the Stockholders to enter into this Agreement
and consummate the transactions contemplated hereby, AirTouch Communications
hereby makes the representations and warranties to the Stockholders contained in
this Section 4.
4.1 Organization of AirTouch Communications. AirTouch Communications is a
corporation duly organized, validly existing and in good standing under the laws
of Delaware with full corporate power to conduct its business in the manner and
in the places where such business is conducted by it.
4.2 Authority of AirTouch Communications. AirTouch Communications has full
right, authority and power to enter into this Agreement and to carry out the
transactions contemplated hereby. The execution, delivery and performance by
AirTouch Communications
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of this Agreement have been duly authorized by all necessary corporate action of
AirTouch Communications and no other action on the part of AirTouch
Communications is required in connection therewith.
This Agreement constitutes a valid and binding obligation of AirTouch
Communications enforceable in accordance with its terms. The execution, delivery
and performance by AirTouch Communications of this Agreement and each such
agreement, document and instrument:
(a) does not and will not violate any laws of the United States, or any
state or other jurisdiction applicable to AirTouch Communications or require
AirTouch Communications to obtain any approval, consent or waiver of, or make
any filing with, any person or entity (governmental or otherwise) that has not
been obtained or made; and
(b) does not and will not result in a breach of, constitute a default
under, accelerate any obligation under, or give rise to a right of termination
of any indenture or loan or credit agreement or any other agreement, contract,
instrument, mortgage, lien, lease, permit, authorization, order, writ, judgment,
injunction, decree, determination or arbitration award to which AirTouch
Communications is a party or by which the property of AirTouch Communications is
bound or affected, or result in the creation or imposition of any liens,
security interests, restrictions, pledges, encumbrances, charges or claims of
any kind on any of AirTouch Communications' assets.
4.3 Disclosure. The representations, warranties and statements of AirTouch
Communications contained in this Agreement do not contain any untrue statement
of a material fact, and, when taken together, do not omit to state a material
fact required to be stated therein or necessary in order to make such
representations, warranties or statements not misleading in light of the
circumstances under which they were made.
SECTION 5. COVENANTS OF THE STOCKHOLDERS
5.1 Making of Covenants and Agreements. Each of the Stockholders hereby
makes the covenants and agreements set forth in this Section 5 and the
Stockholders agree to cause the Company to comply with such agreements and
covenants. No Stockholder shall have any right of indemnity or contribution from
the Company with respect to the breach of any covenant or agreement hereunder.
5.2 Notice of Default. Promptly upon the occurrence of, or promptly upon a
Stockholder becoming aware of the impending or threatened occurrence of, any
event which would cause or constitute a breach or default, or would have caused
or constituted a breach or default had such event occurred or been known to such
Stockholder prior to the date hereof, of any of the representations, warranties
or covenants of the Stockholders contained in or referred to in this Agreement
the Stockholders shall give detailed written notice thereof to AirTouch
Communications and the Stockholders shall use their best efforts to prevent or
promptly remedy the same.
5.3 Confidentiality. Each Stockholder agrees that, unless and until the
Closing has been consummated, the Stockholders and their officers, directors,
agents and representatives will not disclose the existence of this Agreement or
its terms without the prior written consent of the other parties, other than any
disclosure required by law, including without limitation, disclosures required
to be made in: (a) any filing required by any governmental authority, including,
without
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limitation, any filing required to be made with the Federal Communications
Commission or the Securities and Exchange Commission, (b) at any annual meeting
of stockholders, or in any communication to stockholders, held by any of the
Stockholders or member or at any annual meeting of Stockholders or members of a
parent Company, (c) as required by court order or law or (d) in connection with
an action to enforce this Agreement.
SECTION 6. COVENANTS OF AIRTOUCH COMMUNICATIONS
6.1 Making of Covenants and Agreement. AirTouch Communications hereby makes
the covenants and agreements set forth in this Section 6.
6.2 Cooperation. AirTouch Communications shall cooperate with all
reasonable requests of the Stockholders and the Stockholders' counsel in
connection with the consummation of the transactions contemplated hereby.
6.3 Confidentiality. AirTouch Communications agrees that, unless and until
the Closing has been consummated, AirTouch Communications and its officers,
directors, agents and representatives will not disclose the existence of this
Agreement or its terms without the prior written consent of the other parties,
other than any disclosure required by law, including without limitation,
disclosures required to be made in: (a) any filing required by any governmental
authority, including, without limitation, any filing required to be made with
the Federal Communications Commission or the Securities and Exchange Commission,
(b) at any annual meeting of stockholders, or in any communication to
stockholders, held by any of the Stockholders, (c) as required by court order or
law or (d) in connection with an action to enforce this Agreement.
SECTION 7. CONDITIONS
7.1 Conditions to the Obligations of AirTouch Communications. The
obligation of AirTouch Communications to consummate this Agreement and the
transactions contemplated hereby are subject to the fulfillment, prior to or at
the Closing, of the following conditions precedent:
(a) Representations; Warranties; Covenants. Each of the representations and
warranties of the Stockholders as referred to in Section 3 shall be true and
correct as of the Closing Date as though made on and as of the Closing; and each
of the Stockholders shall, on or before the Closing, have performed all of their
obligations hereunder, which by the terms hereof are to be performed on or
before the Closing.
(b) The Closing of the transactions contemplated by the Purchase Agreement
shall have occurred.
7.2 Conditions to Obligations of the Stockholders. The obligations of the
Stockholders to consummate this Agreement and the transactions contemplated
hereby is subject to the fulfillment, prior to or at the Closing, of the
following conditions precedent:
7.3 Representations; Warranties; Covenants. Each of the representations and
warranties of AirTouch Communications contained in Section 4 shall be true and
correct as though made on and as of the Closing; AirTouch Communications shall,
on or before the Closing, have
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performed all of its obligations hereunder which by the terms hereof are to be
performed on or before the Closing.
SECTION 8. TERMINATION OF AGREEMENT; RIGHTS TO PROCEED
8.1 Termination. At any time prior to the Closing, this Agreement may be
terminated as follows:
(a) by mutual written consent of all of the parties to this Agreement;
(b) by AirTouch Communications, pursuant to written notice by AirTouch
Communications to the Stockholders, if any of the conditions set forth in
Section 7.1 of this Agreement have not been satisfied at or prior to the
Closing, or if it has become reasonably and objectively certain that any of such
conditions, other than a condition within the control of any Stockholder, will
not be materially satisfied at or prior to the Closing, such written notice to
set forth such conditions which have not been or will not be so satisfied; and
(c) by the Stockholders, pursuant to written notice by the Stockholders to
AirTouch Communications, if any of the conditions set forth in Section 7.2 of
this Agreement have not been satisfied at or prior to the Closing, or if it has
become reasonably and objectively certain that any of such conditions, other
than a condition within the control of AirTouch Communications, will not be
satisfied at or prior to the Closing, such written notice to set forth such
conditions which have not been or will not be so satisfied.
8.2 Effect of Termination. All obligations of the parties hereunder shall
cease upon any termination pursuant to Section 8.1, provided, however, that the
provisions of Section 8 and Section 10.1 hereof shall survive any termination of
this Agreement.
8.3 Right to Proceed. Anything in this Agreement to the contrary
notwithstanding, if any of the conditions specified in Section 7.1 hereof have
not been satisfied, AirTouch Communications shall have the right to proceed with
the transactions contemplated hereby without waiving any of its rights
hereunder, and if any of the conditions specified in Section 7.2 hereof have not
been satisfied, the Stockholders shall have the right to proceed with the
transactions contemplated hereby without waiving any of their rights hereunder.
SECTION 9. RIGHTS AND OBLIGATIONS SUBSEQUENT TO CLOSING
9.1 Survival of Warranties. Each of the representations, warranties,
agreements, covenants and obligations herein or in any schedule, exhibit,
certificate or financial statement delivered by any party to the other party
incident to the transactions contemplated hereby are material, shall be deemed
to have been relied upon by the other party and shall survive the Closing
regardless of any investigation and shall not merge in the performance of any
obligation by either party hereto; provided, however, that such representations
and warranties shall expire [three (3)] years from the date of Closing.
SECTION 10. MISCELLANEOUS
10.1 Expenses. Each of the parties will bear its own expenses in connection
with the negotiation and the consummation of the transactions contemplated by
this Agreement, and no expenses of the Company or the Stockholders relating in
any way thereto or the transactions
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contemplated hereby, including without limitation legal, accounting or other
professional expenses of the Company or the Stockholders, shall be charged to or
paid by the Company or AirTouch Communications.
10.2 Governing Law. This Agreement shall be construed under and governed by
the internal laws of the State of Iowa without regard to its conflict of laws
provisions. Each of the parties hereby irrevocably submits to the jurisdiction
of the federal District Court for the Southern District of Iowa with respect to
any action or proceeding arising out of or relating to this Agreement and each
thereby waives the defense of an inconvenient forum for the maintenance of such
an action.
10.3 Notices. Any notice, request, demand or other communication required
or permitted hereunder shall be in writing and shall be deemed to have been
given if delivered or sent by facsimile transmission, upon receipt, or if sent
by registered or certified mail, upon the sooner of the date on which receipt is
acknowledged or the expiration of three days after deposit in United States post
office facilities properly addressed with postage prepaid. All notices to a
party will be sent to the addresses set forth below or to such other address or
person as such party may designate by notice to each other party hereunder:
TO AIRTOUCH COMMUNICATIONS: AirTouch Communications, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Department
With copies to: Pillsbury Madison & Sutro LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
And Pillsbury Madison & Sutro LLP
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, III, Esq.
TO COMPANY: Central Iowa Cellular, Inc.
c/o Minburn Telephone Company
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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And Central Iowa Cellular, Inc.
c/▇ ▇▇▇▇▇▇▇▇ Associates LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CPA
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇, Brown, Koehn, Shors & ▇▇▇▇▇▇▇ P.C.
2500 Financial Center
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
TO STOCKHOLDERS: To the Addresses Set Forth on Exhibit A
Any notice given hereunder may be given on behalf of any party by his counsel or
other authorized representatives.
10.4 Entire Agreement. This Agreement and the other writings specifically
identified herein or contemplated hereby, is complete, reflects the entire
agreement of the parties with respect to its subject matter, and supersedes all
previous written or oral negotiations, commitments and writings. No promises,
representations, understandings, warranties and agreements have been made by any
of the parties hereto except as referred to herein or in such other writings;
and all inducements to the making of this Agreement relied upon by either party
hereto have been expressed herein or in such other writings.
10.5 Assignability; Binding Effect. This Agreement shall only be assignable
by AirTouch Communications to a corporation, partnership or person, controlling,
controlled by or under common control with AirTouch Communications upon
providing written notice of such assignment to the other parties hereto;
provided, however that Buyer shall remain obligated to perform the obligations
hereunder in the event of such assignee's failure to do so. This Agreement may
not be assigned by any of the Stockholders. This Agreement shall be binding upon
and enforceable by, and shall inure to the benefit of, the parties hereto and
their respective successors and permitted assigns.
10.6 Captions and Gender. The captions in this Agreement are for
convenience only and shall not affect the construction or interpretation of any
term or provision hereof. The use in this Agreement of the masculine pronoun in
reference to a party hereto shall be deemed to include the feminine or neuter,
as the context may require.
10.7 Execution in Counterparts. For the convenience of the parties and to
facilitate execution, this Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
10.8 Amendments. This Agreement may not be amended or modified, nor may
compliance with any condition or covenant set forth herein be waived, except by
a writing duly
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and validly executed by each party hereto, or in the case of a waiver, the party
waiving compliance.
* * * * *
[Remainder of Page Intentionally Left Blank]
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Execution Copy
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed as of the date set forth above by their duly authorized
representatives.
AIRTOUCH COMMUNICATIONS, INC.
By /s/ ▇▇▇▇ ▇▇▇▇▇
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Title Chief Executive Officer
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PANORA TELECOMMUNICATIONS, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title Manager
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WALNUT CREEK COMMUNICATIONS, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title Manager
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MINBURN TELEPHONE COMPANY
By /s/ ▇▇▇ ▇▇▇▇
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Title Manager
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INTERSTATE ENTERPRISES, LTD.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Title Manager
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PRAIRIE TELEPHONE COMPANY, INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title Manager
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EXHIBIT A
LIST OF STOCKHOLDERS, STOCKHOLDINGS
AND PROPORTIONATE SHARE OF TOWER NET PROCEEDS
Name and Address of Stockholder Proportionate Share
------------------------------- -------------------
PANORA TELECOMMUNICATIONS, INC 20%
▇.▇. ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
WALNUT CREEK COMMUNICATIONS, INC. 20%
▇.▇. ▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
MINBURN TELEPHONE COMPANY 20%
▇.▇. ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
INTERSTATE ENTERPRISES, LTD. 20%
▇.▇. ▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PRAIRIE TELEPHONE COMPANY, INC. 20%
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
A-1
EXHIBIT B
DES MOINES MSA GENERAL PARTNERSHIP
LIST OF PROJECT VERTICAL TOWERS(1)
Project
Vertical Number Site Name
--------------- ---------
1. 563 DESARMYPOST
2. 564 DESCHIEF
3. 565 DESCUTTY
4. 566 DESEXPRESSO
5. 567 DESFRANKLIN
6. 568 DESGOB
7. 569 DESGRANDVIE
8. 570 DESGRIMES
9. 571 DESHOLIDAY
10. 572 DESINDIANOL
11. 573 DESJOHNSTON
12. 574 DESLEGACY
13. 575 DESLOVING
14. 576 DESMARQUIS
15. 577 DESMILO
16. 578 DESMINBURNS
17. 579 DESOUTREACH
18. 580 DESPRIMADON
19. 581 DESWADEL
20. 582 DESSWANWOOD
21. 583 DESURBANDAL
22. 584 DESVANMETER
23. 585 DESWAVELAND
24. 586 DESWILBURR
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(1) Some or all of the Project Vertical towers on this list may not be
subleased to American Tower Corporation or its Affiliates under the
Agreement to Sublease, depending upon a number of factors including,
without limitation, whether consent of the underlying landlord for a tower
site can be obtained where necessary.
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