Exhibit 99.1
DEPOSIT AGREEMENT
THIS DEPOSIT AGREEMENT is made and entered into as of November 19,
1999, by and between Crown Castle International Corp., a Delaware corporation,
(the "Company") and United States Trust Company of New York (the "Depositary"),
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for the benefit of the holders from time to time of the Company's Series A 8
1/4% Cumulative Convertible Redeemable Preferred Stock (the "Convertible
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Preferred Stock") (each, a "Holder" and, collectively, the "Holders").
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WITNESSETH:
WHEREAS, the Company and the Holders have entered into that certain
Purchase Agreement, dated November 19, 1999 (the "Purchase Agreement"), pursuant
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to which the Holders will purchase from the Company an aggregate of 200,000
shares of Convertible Preferred Stock.
WHEREAS, the Certificate of Designations, Preferences and Relative,
Participating, Optional and Other Special Rights of Preferred Stock and
Qualifications, Limitations and Restrictions Thereof governing the Preferred
Stock (the "Certificate of Designations") allows the Company to pay dividends on
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the Convertible Preferred Stock in cash or by delivering shares of Common Stock,
par value $.01 per share, of the Company (the "Common Stock") to the Depositary
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for its sale thereof and distribution of the Cash Proceeds (as defined below) to
the Holders.
WHEREAS, this Deposit Agreement is entered into to allow the Company
to pay dividends in Common Stock to the Holders in accordance with the
Certificate of Designations (capitalized terms used herein and not otherwise
defined shall have the meanings assigned to them in the Purchase Agreement and
in the Certificate of Designations).
WHEREAS, the Company shall from time to time deliver to the Depositary
(i) duly authorized, validly issued and fully paid shares of Common Stock, that,
except for the initial dividend payment on December 15, 1999, which the Company
shall repurchase, are free of preemptive or similar rights, duly registered and
freely tradable (by use of a prospectus under an effective shelf registration
statement or otherwise, subject to Permitted Interruptions (as defined in the
Certificate of Designations)) (the "Qualified Common Stock") under the
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Securities Act of 1933, as amended (the "Securities Act") pursuant to, and
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subject to the exceptions contained in the Registration Rights Agreement, dated
as of November 19, 1999, among the Company, the Depositary and the Holders, in
the amount specified in the Certificate of Designations; and (ii) an opinion of
counsel addressed to the Depositary (the "Opinion of Counsel"), to the effect
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that the shares of Qualified Common Stock delivered to the Depositary have been
duly authorized, fully paid and validly issued and delivered, and are free of
preemptive rights, duly registered and freely tradable (by use of a prospectus
under an effective shelf registration statement or otherwise, subject to
Permitted Interruptions) under the Securities Act; and (iii) a set of written
instructions signed by an officer of the Company, instructing the Depositary as
to the disposition of the Qualified Common Stock (the "Instructions").
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WHEREAS, the Depositary shall follow the Instructions and shall
distribute the cash proceeds from any sale of the Qualified Common Stock (the
"Cash Proceeds") to the Holders.
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NOW, THEREFORE, in consideration of the premises and of the mutual
promises and agreements herein contained, and the agreements and covenants
contained in the Purchase Agreement, the parties hereby agree as follows:
Section 1. Payment of Dividends on the Convertible Preferred Stock.
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(a) General. The Holders of shares of the Convertible Preferred
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Stock shall be entitled to receive dividends on the dates and in the manner
specified in the Certificate of Designations.
(b) Accrual of Dividends; Accrual in Respect of Late Payments.
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Dividends on the Convertible Preferred Stock shall accrue in the manner
specified in the Certificate of Designations.
(c) Convertible Preferred Stock. For so long as the Convertible
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Preferred Stock is outstanding, the Company shall from time to time (should
it elect to make a dividend payment on the Convertible Preferred Stock in
Common Stock), deliver to the Depositary on or before the applicable
Dividend Payment Date (i) Qualified Common Stock, in the amount required by
the Certificate of Designations; (ii) an Opinion of Counsel as to such
Qualified Common Stock; and (iii) the Instructions.
(i) The Company will be deemed to have paid the Dividend Amount
on the applicable Dividend Payment Date at any time it delivers to the
Depositary shares of Qualified Common Stock in accordance with Section
4(b)(i) of the Certificate of Designations. In the event that the
Holders of the Convertible Preferred Stock do not receive a full
Dividend Amount in cash on or prior to the date that is 15 days after
such Dividend Payment Date (the "Distribution Date"), the unpaid
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portion of the Dividend Amount shall be deemed to be unpaid from such
Dividend Payment Date and shall accrue Extra Dividends from such
Dividend Payment Date.
(ii) The Depositary shall (i) sell the Qualified Common Stock in
accordance with the Instructions, as promptly as practicable; and (ii)
distribute the amount of Cash Proceeds from such resale specified in
the Instructions to the Holders of Convertible Preferred Stock in
accordance with the Instructions as promptly as practicable, but in
any event no later than the Distribution Date.
(iii) If the amount of Cash Proceeds from the sale of Qualified
Common Stock shall be less than the Dividend Amount (such difference,
the "Shortfall Amount"), the Depositary shall: (i) distribute all Cash
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Proceeds to the Holders of Convertible Preferred Stock; and (ii)
promptly give notice to the Company of the Shortfall Amount. Upon
receipt of the notice of a Shortfall
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Amount, the Company shall as promptly as practicable deliver to the
Depositary (A) cash, and/or (B) the Instructions and additional shares
of Qualified Common Stock, to be sold and distributed in accordance
with the Instructions delivered therewith and this Agreement in the
amounts required by Section 4(b)(iv) of the Certificate of
Designations. The Depositary shall as promptly as practicable (x) sell
the additional shares of Qualified Common Stock (if any) delivered by
the Company pursuant to this subsection (c) in accordance with the
Instructions and this Agreement; and (y) distribute the cash delivered
by the Company pursuant to this subsection (c) and/or the Cash
Proceeds (the sum of such cash and such Cash Proceeds so delivered
shall be equal to the Shortfall Amount) to the Holders of the
Convertible Preferred Stock.
(iv) If the Cash Proceeds from any such sale of the Qualified
Common Stock shall exceed the amount of the Cash Proceeds to be
delivered to the Holders of Convertible Preferred Stock pursuant to
the Instructions (such difference, the "Excess Proceeds"), the
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Depositary shall (i) give notice to the Company of the amount of the
Excess Proceeds; (ii) retain the Excess Proceeds and apply such Excess
Proceeds to the next succeeding distribution by the Depositary of the
Dividend Amount, in accordance with the Instructions.
(d) The Depositary may from time to time invest and reinvest
the Excess Proceeds at the instruction of the Company in (i) direct
obligations of, or repurchase agreements collateralized by direct
obligations of, the United States Government (or agencies or
instrumentalities thereof) or any state of the United States (or agencies
or instrumentalities of any thereof), (ii) certificates of deposit, time
deposits, money market accounts or other interest-bearing deposits of
commercial banks having total capital and surplus of at least
$2,000,000,000 or (iii) in a SSGA U.S. Government Money Market Fund (the
"SSGA Fund") so long as the SSGA Fund is rated as a AAA money market fund,
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as the Company may from time to time direct in writing. Any interest earned
on the Excess Proceeds shall immediately be considered "Excess Proceeds"
for the purposes of this Agreement. The Depositary shall have no
responsibility for determining such obligations and shall have no liability
whatsoever for any investment losses resulting from the investment or
reinvestment of the Excess Proceeds.
Section 2. Instructions; Market Agent.
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(a) For so long as Convertible Preferred Stock is outstanding,
the Instructions delivered by the Company to the Depositary pursuant to
Section 1(c) hereof in connection with a dividend payment on the
Convertible Preferred Stock shall specify: (i) the method by which the
Depositary shall resell the Qualified Common Stock (which may be effected
by the Company repurchasing any such Qualified Common Stock); (ii) the
Dividend Amount; (iii) the amount of Excess Proceeds, if any, to be
delivered to the Holders; and (iv) the method of delivery the Cash Proceeds
and/or the Excess Proceeds to the Holders, including wire instructions
and/or addresses if necessary).
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(b) The Company may appoint any nationally recognized,
registered broker dealer to act as a market agent (a "Market Agent") for
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the purposes of selling any shares of Qualified Common Stock pursuant to
the terms of the Certificate of Designations and this Agreement. If the
Company so elects to appoint a Market Agent, it shall instruct the
Depositary to, and the Depositary shall, deliver such Qualified Common
Stock to such Market Agent in order to enable the Market Agent to effect
such a sale. Upon completion of such a sale, the Market Agent will then
deliver the net proceeds of such sale to the Depositary, which will then
distribute such proceeds to the Holders in accordance with the terms of the
Certificate of Designation and this Agreement.
Section 3. Voting.
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If, during any period of time when the Depositary is holding any
shares of Common Stock for the account of the Holders, the holders of Common
Stock vote on any matter, then: (i) the Company shall give notice to the
Depositary of such vote; (ii) the Holders of the Convertible Preferred Stock
shall instruct the Depositary as to how the shares of Common Stock held by the
Depositary shall be voted; and (iii) the Depositary shall vote in accordance
with such instructions of the Holders of the Convertible Preferred Stock.
Section 4. Term.
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The Deposit Agreement shall terminate on the first day on which
no shares of Convertible Preferred Stock are outstanding, and the
Depositary shall distribute any remaining Excess Proceeds to the Company;
provided, that, the Company has paid all dividends and no obligations are
outstanding under any of the Operative Documents.
Section 5. Depositary.
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(a) Duties. The Depositary's obligations and duties in
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connection herewith are those specifically enumerated in this Agreement.
The Depositary also will deliver copies of reports, invoices, and other
documents related to the Qualified Common Stock and the Cash Proceeds that
it has received, as well as an accounting of the Qualified Common Stock and
the Cash Proceeds, to each of the parties on written request. The
Depositary's duties will be determined only with reference to this
Depositary Agreement and applicable laws, and the Depositary is not charged
with any duties or responsibilities in connection with any other document
or agreement. The parties acknowledge that the Depositary shall not be
responsible for any diminution in the value of the Qualified Common Stock
held by the Depositary or in the value of the Excess Proceeds due to losses
resulting from authorized investments. The Depositary may use its own bond
department in executing purchases and sales of authorized investments.
(b) Liabilities. The Depositary will not be in any manner
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liable or responsible for the sufficiency, correctness, genuineness, or
validity of any instruments deposited with it or with reference to the form
of execution thereof, or the identity, authority, or rights of any person
executing or depositing same, and the Depositary will
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not be liable for any loss that may occur by reason of forgery, false
representation, or the exercise of its discretion in any particular manner
or for any other reason, except for its own gross negligence or willful
misconduct. Except in instances of the Depositary's own gross negligence or
willful misconduct, the Company will indemnify, defend, and hold the
Depositary harmless from any demands, suits, or causes of action arising
out of this Agreement (including reasonable attorneys' fees). The
Depositary shall be fully protected in acting in accordance with any
written instructions given to it hereunder and believed by it to have been
executed by the proper party or parties. The Depositary may consult with
counsel regarding any of its duties or obligations hereunder, and shall be
fully protected in any action taken in good faith in accordance with such
advice. The costs and expenses of enforcing this right of indemnification
also shall be paid by the Company. The right of indemnification shall
survive the termination of this Deposit Agreement and or the resignation or
removal of the Depositary. Neither the Depositary nor any of its officers,
directors, employees or agents shall be liable to any person or party for
any action taken or omitted to be taken by it or any of its officers,
directors, employees or agents under this Agreement, except in the case of
Depositary's gross negligence, bad faith or willful misconduct.
(c) Receipt. Upon receipt from the Company of the Qualified
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Common Stock and of the Cash Proceeds upon resale of the Qualified Common
Stock, the Depositary will deliver a written notice to such effect to the
Company and the Holders.
(d) Fees. The Depositary's fees hereunder will be as set
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forth in Schedule 1 and will, together with all its reasonable costs and
expenses, including its legal fees, be paid by the Company. The fees are
intended as full compensation for the Depositary's services as contemplated
by this Deposit Agreement (not including its reasonable costs and
expenses).
(e) Successor Depositary. The Depositary will have the right
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to resign as Depositary hereunder by delivering 60 days prior notice in
writing to the Company and the Holders. The Company and the Holders will
have the right to remove the Depositary at any time by joint written notice
delivered to the Depositary. If the Depositary resigns or is removed, a
successor Depositary will be appointed by mutual agreement of the Company
and the Holders and such resignation or removal will take effect upon such
appointment. Any successor Depositary at any time serving hereunder will be
entitled to all rights, powers, and indemnities granted to the Depositary
hereunder as if originally named herein. If a successor Depositary is not
named within 30 days after the notice of resignation, the Depositary may
apply to a court of competent jurisdiction for the appointment of a
successor Depositary.
(f) Disputes. In the event that any dispute arises with
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respect to this Agreement or in the event that any claim is made with
respect to the deposits hereunder, then the Depositary, upon receipt of
written notice of such dispute, is authorized and directed to retain in its
possession without liability to any person or party, all of the
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deposits hereunder until such dispute shall have been settled either by the
mutual agreement of the parties involved or by a final, unappealable order,
decree or judgment of a court of competent jurisdiction.
(g) Federal Income Tax. All interest earned on the Excess
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Proceeds shall be considered the currently reportable income, for federal
income tax purposes, of the party receiving the Excess Proceeds from the
Depositary. The Depositary shall file annually information returns with
the United States Internal Revenue Service and payee statements with the
Company, documenting such interest payments. The Company shall provide the
Depositary with all forms and information necessary to complete such
information returns and payee statements. The Company agrees to provide
the Depositary with a certified tax identification number by signing and
returning a W-9 (or Form W-8, in the case of non-U.S. persons) to the
Depositary within 30 days from the date hereof. The Depositary understands
that, in the event such tax identification numbers are not certified to the
Depositary, the Internal Revenue Code, as amended from time to time, may
require withholding of a portion of any interest or other income earned on
the investment of the Excess Proceeds. Should the Depositary become liable
for the payment of taxes, including withholding taxes, relating to income
derived from any funds held by the Excess Proceeds or any payment made
hereunder the Depositary may pay such taxes from the Excess Proceeds.
(h) Merger, Consolidation, etc. Any corporation or association
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in which the Depositary may be converted or merged, or with which it may be
consolidated, or to which it may sell or transfer its corporate trust
business and assets as a whole or substantially as a whole, or any
corporation or association resulting from any such conversion, sale,
merger, consolidation or transfer to which it is a party, shall be and
become successor depositary hereunder and vested with all of the title to
the assets and all the trusts, powers discretions, immunities, privileges
and all other matters as was its predecessor, without the execution or
filing of any instrument or any further act, deed or conveyance on the part
of any of the parties hereto, anything herein to the contrary
notwithstanding.
(i) Consent to Jurisdiction. Each party hereto hereby
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irrevocably submits to the non-exclusive jurisdiction of the courts of the
United States District Court for the Southern District of New York (or, if
subject matter jurisdiction in that court is not available, in any state
court located within the city of New York) over any dispute arising out of
or relating to this Agreement or any agreement or instrument contemplated
hereby or entered into in connection herewith or any of the transactions
contemplated hereby or thereby. Each party hereto irrevocably consents to
the service of any and all process in any action or proceeding arising out
of or relating to this Agreement by the mailing of copies of such process
to the Holder at their address specified in Section 6(d).
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Section 6. Miscellaneous.
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(a) Binding Effect. Neither this Agreement nor any of the
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rights or obligations hereunder may be assigned by any party without the
prior written consent of all other parties to this Agreement. Without
limiting the generality of the foregoing, the Company agrees to the
assignment by a Holder of its rights pursuant to this Agreement to any
Affiliate or subsidiary thereof, any partnership controlled thereby, any
successor in interest thereto or any lender as collateral security, and
agree to execute any appropriate agreement or instrument that the Holder
may reasonably request in order to effect or evidence such assignment or
consent. Subject to the foregoing, this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns, and no other person shall have any right, benefit or
obligation hereunder.
(b) Governing Law. This Agreement shall be construed,
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interpreted and the rights of the parties determined in accordance with the
internal laws of the State of New York (without reference to its choice of
law provisions).
(c) Titles. The titles, captions or headings of the Sections
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herein are inserted for the convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
(d) Notices. All notices, requests, demands and other
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communications which are required or may be given under this Agreement
shall be in writing and shall be deemed to have been duly given or made
when received if personally delivered; when transmitted if transmitted by
telecopy upon receipt of telephonic or electronic confirmation; the day
after it is sent, if sent for next day delivery to a domestic address by
recognized overnight delivery service (e.g., Federal Express); and five
business days after being deposited in the mail, first class or registered,
postage prepaid. In each case notice shall be sent to:
If to Holders of the Convertible Preferred Stock:
c/o GE Capital Services Structured Finance Group, Inc.
SFG-P Inc.
120 Long Ridge Road, 3/rd/ Floor
Stamford, Connecticut 06927
Attn.: Portfolio Operations
Fax No.: (203) 961-2017
Copy to:
Kirk A. Davenport
Latham & Watkins
885 Third Avenue
New York, N.Y. 10022
Fax No.: (212) 751-4864
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If to the Company:
Crown Castle International Corp.
510 Bering Drive, Suite 500
Houston, Texas 77057
Attn: Secretary and General Counsel
Fax No.: (713) 570-3150
Copy to:
Stephen L. Burns
Cravath, Swaine & Moore
Worldwide Plaza
825 8/th/ Avenue
New York, N.Y. 10019
Fax No.: (212) 474-3700
If to the Depositary:
United States Trust Company of New York
114 West 47/th/ Street
New York, New York 10036-1532
Attention: Corporate Trust Administration
Fax No.: (212) 852-1627
or to such other place and with such other copies as either party may
designate as to itself by notice given as written notice to the others.
(e) Multiple Counterparts. This Agreement may be executed in
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two or more counterparts, each of which shall be deemed an original but all
of which together shall constitute one and the same instrument.
(f) Entire Agreement: Modification. This Agreement, together
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with all exhibits and schedules hereto (including the Schedule I)
Certificate of Designations, constitutes the entire agreement among the
parties pertaining to the subject matter hereof and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties. No amendment, supplement, modification or waiver
of this Agreement shall be binding unless executed in writing by the party
to be bound thereby. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provision hereof
(whether or not similar), nor shall such waiver constitute a continuing
waiver unless otherwise expressly provided.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed on their respective behalf, by their respective officers
thereunto duly authorized, as of the day and year first written above.
CROWN CASTLE INTERNATIONAL CORP.
By:____________________________________
Name:
Title:
UNITED STATES TRUST COMPANY OF NEW YORK
By:____________________________________
Name:
Title:
SCHEDULE I TO DEPOSIT AGREEMENT
In connection with the services provided hereunder by the Depositary,
including, without limitation, serving as Depositary, the Depositary shall be
limited to receive an annual payment of fees (not including its expenses) in an
amount equal to $5,000 for so long as it continues to serve as Depositary
hereunder.