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Exhibit 2.4
AMENDMENT TO AGREEMENT TO SUBLEASE
This Amendment to the Agreement to Sublease (this "Amendment") is
entered into as of March 8, 2001 among SpectraSite Holdings, Inc.
("SpectraSite"), California Tower, Inc. ("TowerCo"), Verizon Wireless (VAW) LLC
(formerly known as Vodafone AirTouch Licenses LLC, as successor to AirTouch
Communications, Inc.) ("AirTouch"), Los Angeles SMSA Limited Partnership
("LASMSA"), Oxnard-Ventura-Simi Limited Partnership ("OVS") (collectively,
AirTouch, LASMSA and OVS referred to herein as the "Sublessors"),
WITNESSETH:
WHEREAS, the parties hereto entered into an Agreement to Sublease dated
February 16, 2000 (the "Agreement to Sublease"), pursuant to which Sublessors
agreed to lease or sublease certain cellular towers to TowerCo;
WHEREAS, pursuant to the Agreement to Sublease, the Final Closing was
to occur no later than February 15, 2001;
WHEREAS, pursuant to a letter agreement dated as of February 15, 2001,
the parties agreed to negotiate in good faith for a three week period to explore
whether the parties desired to extend the date upon which the Final Closing must
occur;
WHEREAS, the parties now mutually desire to extend the date upon which
the Final Closing must occur to June 29, 2001 under the terms and conditions set
forth in this Amendment; and
WHEREAS, in order to effectuate these purposes, the parties hereto have
entered into this Amendment.
NOW, THEREFORE, for and in consideration of valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and further in
consideration of the mutual covenants and agreements contained herein, the
parties agree as follows:
1. Section 1.19 of the Agreement to Sublease shall be deleted in its
entirety and replaced with the following:
Included Towers. Means:
a. all Towers included within a Closing which occurred on
or before February 15, 2001;
b. the Tower at the Site designated on Annex I as PV-386;
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c. those Towers included on Annex I hereto (i) which are
not included in subsection 1(a) above and (ii) which
TowerCo, in its sole discretion, consents to in writing
to be included within a Closing; including
modifications of terms as the parties may agree.
2. The third sentence of Section 2.2(b) of the Agreement to Sublease shall
be deleted in its entirety and replaced with the following:
If such consent is obtained prior to the Final Closing Date
with respect to any Restricted Item, such item and the related
Tower and other associated Assets shall be subjected to the
Sublease at the next practicable Subsequent Closing; provided,
however, that Towers and other associated Assets not included
within a Closing which occurred on or before February 15, 2001
(except the Tower at the Site designated on Annex I as PV-386)
must also be consented to in writing prior to the next
Subsequent Closing by TowerCo in order to be subjected to the
Sublease as provided in Section 1.19(c) herein.
3. The first sentence of the first paragraph of Schedule 2.2(b) of the
Agreement to Sublease shall be deleted in its entirety and replaced with the
following:
For Towers included within a Closing which occurred on or before
February 15, 2001:
From the Initial Closing Date through February 15,
2001, TowerCo shall use its best efforts on behalf of
Sublessors to obtain the consent referenced in
Section 2.2 of the Agreement to subject any given
Restricted Item to the Sublease.
4. The following is hereby inserted after the last paragraph of Schedule
2.2(b) of the Agreement to Sublease:
For Towers not included within a Closing which occurred on or before
February 15, 2001 the two paragraphs above shall not apply and instead
the following three paragraphs shall apply in lieu thereof:
After March 8, 2001 until the Final Closing Date,
TowerCo shall use reasonable efforts on behalf of
Sublessors to obtain the consents referenced in
Section 2.2 of the Agreement to Sublease; provided
that TowerCo shall have (i) the option of requesting
from the ground lessor consent to sublease Available
Space (as defined in the Sublease) to Space
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Subtenants (as defined in the Sublease) at the same
time that it requests consent on behalf of Sublessors
to sublease a Restricted Item to TowerCo and (ii)
discretion as to the amount of a one-time payment, if
any, to offer to the applicable ground lessor in
order to obtain the consent to sublease a Restricted
Item to TowerCo and to sublease Available Space (as
defined in the Sublease) to Space Subtenants (as
defined in the Sublease). If a one-time payment is
accepted by the applicable ground lessor and the
applicable Tower is an Included Tower pursuant to
Section 1.19(c) herein, the applicable Sublessor
shall pay the applicable ground lessor an amount up
to $20,000 (per Tower) of any such one-time payments
within 5 business days after the applicable Closing
on such Tower and TowerCo shall pay such ground
lessor any additional amount required in connection
with such consent.
TowerCo shall inform Jason Wilcox (or such other
person that AirTouch may designate by written notice)
at least weekly of the status of TowerCo's efforts
and of requested consents and inducements offered.
TowerCo shall deliver written reports, memoranda or
material correspondence relating to the activities
described in this schedule and of responses or
counteroffers received from ground lessors and others
from whom consents are requested. TowerCo shall be
responsible for compliance with applicable Laws in
connection with its activities under Section 2.2 of
the Agreement.
AirTouch will cooperate in good faith through Jason
Wilcox (or such other person that AirTouch may
designate by written notice) who shall reasonably
respond to TowerCo's questions concerning the parties
from whom consents are to be requested. In the event
that TowerCo provides AirTouch with a written report,
memoranda or material correspondence in connection
with a Site for which TowerCo has obtained consent
conditioned upon AirTouch's approval or consent,
written or otherwise ("AirTouch Approval"), AirTouch
shall provide a written response to TowerCo (which
shall set forth a good faith basis for denial if the
approval or consent is denied) within ten (10) days
after the receipt of a written request by TowerCo for
AirTouch Approval (an "AirTouch Approval Request"),
or such Site shall be an Included Tower for the next
applicable Closing subject to Section 1.19(c) and
AirTouch shall take all necessary action to ensure
that such Site may be closed on; provided, however,
nothing contained herein shall be deemed to require
AirTouch to expend any amount greater than $20,000
per Tower in connection with any AirTouch Approval
Request, AirTouch Approval or deemed AirTouch
Approval.
5. The following is hereby inserted before Section 2.3(a):
For Towers included within a Closing which occurred on or before
February 15, 2001:
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6. The following is hereby inserted after Section 2.3(a) of the Agreement
to Sublease:
TowerCo shall pay the Sublessors $360,000 for the Tower at the
Site designated on Annex I as PV-386 and the Closing of such
Tower shall occur on the first Subsequent Closing following
February 15, 2001.
For Towers (i) not included within a Closing which occurred on
or before February 15, 2001 and (ii) which are not Towers at
Sites designated on Annex I as PV-501, PV-537, PV-282 or
PV-386:
At any given Closing, TowerCo shall pay the Sublessors
consideration for each Included Tower that is the subject of
such Closing, in the following amounts:
(a) $325,000 for each of the first ten (10) Towers for which
a Closing occurs after February 15, 2001;
(b) $300,000 for each of the second ten (10) Towers for
which a Closing occurs after February 15, 2001; and
(c) $275,000 for each Tower after the first twenty (20) for
which a Closing occurs after February 15, 2001.
7. The following is hereby inserted before Section 2.3(b) of the Agreement
to Sublease:
For Towers included within a Closing which occurred on or before February
15, 2001:
8. The following is hereby inserted after Section 2.3(b) of the Agreement
to Sublease:
Section 2.3(b) shall not apply to Towers closed after February 15, 2001.
9. The fourth sentence of Section 2.4 of the Agreement to Sublease shall be
deleted in its entirety and replaced with the following:
Each Subsequent Closing (i) which occurred on or before
February 15, 2001 shall involve no fewer than 45 Included
Towers and (ii) which occurs after February 15, 2001 shall
involve no fewer than 10 Included Towers, except the Final
Closing which may involve fewer than 10 Included Towers.
Each Subsequent Closing which occurred on or before February
15, 2001, shall occur on months-end after the month in which
the Initial Closing falls (each, a "Subsequent Closing Date")
and with at least ten (10) Business Days notice from AirTouch
to TowerCo being required.
Each Subsequent Closing which occurs after February 15, 2001
(except the Final Closing which requires no notice and which
shall occur on the Final Closing Date) shall occur on a date
that TowerCo shall select (that designated date also being a
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"Subsequent Closing Date") and which in no event shall be less
than ten (10) Business Days from the date upon which TowerCo
delivers written notice to Jason Wilcox (or such other person
that AirTouch may designate by written notice).
10. The second to last sentence and last sentence of Section 2.4 of the
Agreement to Sublease shall be deleted in their entirety and replaced with the
following sentences:
The last Subsequent Closing (the "Final Closing") is scheduled
to occur on June 29, 2001 (the "Final Closing Date"). Unless
otherwise agreed to by the parties, each Closing after
February 15, 2001 shall take place at Sublessors' Orange
County, California office located at 15505 Sand Canyon Avenue,
Building D, First Floor, Irvine, California 92618.
11. Section 12.1(e) is hereby deleted in its entirety and replaced with the
following:
by either TowerCo or AirTouch, in the event that all Closings
have not occurred on or before June 29, 2001 for any reason
other than a breach or default by such terminating party of
its respective representations, warranties, covenants,
agreements or other obligations hereunder, such that the
conditions to the non-terminating party's Closing obligations
set forth in Section 9.1(a) or 9.1(b), or in Section 8.1(a) or
8.1(b), as the case may be, would not be satisfied.
12. If Closings occur on 20 or more Towers after February 15, 2001, the
parties agree that the Towers at Sites designated on Annex I as PV-501, PV-537
and PV-282 will not be Included Towers pursuant to the Agreement to Sublease. If
Closings do not occur for 20 or more Towers after February 15, 2001, this
Section 12 shall not have effect and the parties shall not be deemed to have
waived or affected their rights with respect to the Towers at Sites designated
on Annex I as PV-501, PV-537, PV-282 as they existed on March 8, 2001.
13. Except as modified herein, the terms and provisions of the Agreement to
Sublease shall remain in full force and effect without further modification or
amendment whatsoever. All capitalized terms not otherwise defined herein shall
have the meaning given to them in the Agreement to Sublease.
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IN WITNESS WHEREOF, the parties have executed this Agreement to be
effective as of March 8, 2001.
VERIZON WIRELESS (VAW) LLC
dba Verizon Wireless
BY: CELLCO PARTNERSHIP, its sole member
By: /s/Richard J. Lynch
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Richard J. Lynch
Executive Vice-President and
Chief Technical Officer
LOS ANGELES SMSA LIMITED PARTNERSHIP
LOS ANGELES SMSA LIMITED PARTNERSHIP
dba AirTouch Wireless
BY: AIRTOUCH CELLULAR, as General Partner
By: /s/Robert F. Swaine
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Print Name: Robert F. Swaine
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Title: Area Vice President, Area Network (Southwest)
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OXNARD-VENTURA-SIMI LIMITED PARTNERSHIP
dba AirTouch Wireless
BY: AIRTOUCH CELLULAR, as General Partner
By: /s/Robert F. Swaine
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Print Name: Robert F. Swaine
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Title: Area Vice President, Area Network (Southwest)
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SPECTRASITE HOLDINGS, INC.
By: /s/Glen F. Spivak
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Print Name: Glen F. Spivak
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Title: Vice President
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CALIFORNIA TOWER, INC.
By: /s/Ralph W. Deppisch
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Print Name: Ralph W. Deppisch
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Title: Vice President General Manager
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[counterpart signature page - March 8, 2001 Amendment to Agreement to Sublease]