EXHIBIT 10.2
EXECUTION COPY
AMENDED AND RESTATED CONSENT AND MODIFICATION
This Amended and Restated Consent and Modification to Master
Lease (this "Consent") is made as of November 14, 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 Southern Towers Assignment and Assumption Agreement (the
"Assignment and Assumption Agreement") which is to be executed at the Closing
(as defined in the SpectraSite NewCo Purchase Agreement) unless otherwise
defined herein. The term "SpectraSite NewCo Purchase Agreement," as used
herein, shall mean that certain SpectraSite NewCo Purchase Agreement, dated as
of May 15, 2002, by and among Cingular Wireless LLC, SpectraSite Guarantor,
Assignor, SpectraSite Communications, Inc. and Assignee, as modified by the
November Agreement of even date herewith (the "November Agreement").
WHEREAS, in connection with the November Agreement, the
parties hereto desire to amend and restate the Consent and Modification
Agreement, dated as of May 15, 2002, by and among the parties hereto (the
"Original Consent").
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 to
amend and restate the Original Consent in its entirety 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 or waiver of other
conditions as required by the SpectraSite NewCo Purchase Agreement
(collectively, the "Consent Conditions"), 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. Subject to and effective upon
satisfaction or waiver of the Consent Conditions, 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 Assignor 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 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 Assignee and such
amendments will not effect the 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 Consent are for reference
purposes only and are not part of this Consent. Unless otherwise indicated, all
references to particular Articles or Sections shall mean and refer to the
referenced Articles and Sections of this Consent.
-2-
4.2 GOVERNING LAW.
The parties agree that this Consent 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 Consent.
4.3 COUNTERPARTS.
This Consent 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 Consent 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 Consent shall be null and void.
4.5 ENTIRE AGREEMENT.
Except as otherwise expressly provided herein, this Consent
constitutes the entire agreement between the parties and supersedes the
Original Consent and all other prior agreements, understandings,
representations and warranties both written and oral, between the parties
hereto with respect to the subject matter hereof.
[EXECUTION ON FOLLOWING PAGE]
-3-
IN WITNESS WHEREOF, each of the parties has caused this
Consent 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
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Executive Officer By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Date: November 14, 2002 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- President and
Chief Executive Officer
Date: November 14, 2002
-------------------------------
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 limited liability company
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------- -------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- -----------------------------
Title: President and Title: Executive Vice President -
Chief Executive Officer Corporate Development
------------------------------ ----------------------------
-4-