EXHIBIT 10.8
------------
TERMINATION AND AMENDMENT
TO AGREEMENT TO BUILD TO SUIT
THIS TERMINATION AND AMENDMENT TO AGREEMENT TO BUILD TO SUIT (this
"Agreement"), made and entered into as of the 15th day of May, 2002 by and
between SBC WIRELESS, LLC, a Delaware limited liability company ("SBCW"), for
itself and as Agent for the SBCW Parties who were parties to the BTS Agreement
and their successors and assigns (for purposes of this Agreement, the "SBCW
Parties"), SPECTRASITE HOLDINGS, INC., a Delaware corporation ("TowerCo
Parent"), and SPECTRASITE COMMUNICATIONS, INC., a wholly-owned subsidiary of
TowerCo Parent and a Delaware corporation ("Vendor").
W I T N E S S E T H:
WHEREAS, the parties have entered into that certain Agreement to Build
to Suit, dated as of December 14, 2000, by and among SBCW, for itself and as
Agent for the SBCW parties who were parties to the BTS Agreement and their
successors and assigns, TowerCo Parent and Vendor, as amended by that certain
Amendment No. 1 to the Agreement to Build to Suit, dated as of January 31, 2001,
by and among SBCW, TowerCo Parent and Vendor, and amended by that certain
Amendment No. 2 to the Agreement to Build to Suit, dated as of August 31, 2001,
by and among SBCW, TowerCo Parent and Vendor, and as further amended by various
side letters affecting the foregoing (as amended, the "BTS Agreement"). Unless
otherwise defined herein in Article VIII or otherwise, the capitalized terms
used herein shall have such meanings as ascribed to them in the BTS Agreement.
WHEREAS, the parties desire to enter into this Agreement (A) to
terminate the BTS Agreement, as of the date hereof, with respect to any future
rights or obligations regarding BTS Sites except as expressly provided herein
with respect to In Process BTS Sites; (B) to provide for the transition from
Vendor to SBCW (or its designee) of the In Process BTS Sites and Completed CA/NV
Sites; and (C) for other purposes as more particularly set forth herein.
NOW, THEREFORE, for and in consideration of the premises, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
ARTICLE I
TERMINATION OF RIGHTS AND SERVICES RELATED TO BTS SITES
Effective as of the date hereof, the parties acknowledge and agree that
the BTS Agreement is terminated in all respects, including but not limited to,
any and all exclusive rights, and any and all commitments, of Vendor or any
Vendor Affiliate or SBCW or any SBCW Parties or Cingular Affiliates thereunder
except for the following: (i) the indemnities and warranties contained in
Sections 6.06, 6.10 and 11.02 of the BTS Agreement which shall, with respect to
acts or events occurring prior to the date hereof,
survive the termination of the BTS Agreement subject to the following
limitations -- (A) as to the Completed BTS Sites, such indemnities and
warranties shall survive as if the BTS Agreement were not being terminated and
(B) as to the Milestone Sites, the Construction Sites and the Completed CA/NV
Sites, such indemnities and warranties shall survive for a period of one (1)
year from and after the Applicable Site Transfer Date (and shall, in the case of
the warranties contained in Section 6.10 of the BTS Agreement and the indemnity
contained in Section 11.02 (a)(B) of the BTS Agreement, apply only with respect
to Work performed by Vendor and not a third party), except with respect to
Claims asserted during such one (1) year period or Claims brought by a third
party against an indemnified party (as to which asserted and third-party Claims
such indemnities and warranties shall survive until there is a final
unappealable resolution of such Claims or, in the case of the warranties set
forth in Section 6.10, until Vendor has remedied the defect or other condition
in question); (ii) the right to inspect Vendor's books and records contained in
Section 3.09 of the BTS Agreement with respect to the Completed BTS Sites, and,
with respect to the other BTS Sites, to the extent such books and records are
not delivered to SBCW or its designee; and (iii) all other rights and
obligations of the parties with respect to the In Process BTS Sites or Completed
Sites to the extent contained herein.
ARTICLE II
COMPLETED SITES
(a) SUBLEASE OF COMPLETED BTS SITES. The parties acknowledge and agree
that on or before June 14, 2002, Vendor will deliver to SBCW the BTS Closing
Package for each Completed BTS Site and reimburse to SBCW the SBCW Site
Reimbursement Amount and any payments made by SBCW under the Ground Leases for
such Completed BTS Sites which are also SBCW Sites. In connection therewith, the
parties will execute and deliver to each other, a Site Designation Supplement
for each Completed BTS Site (if not theretofore executed and delivered) and SBCW
or the applicable Cingular Group Member will pay SBCW's Retroactive Rental
Obligation and shall assign to Vendor or its designated Vendor's Affiliate such
Cingular Group Member's right, title and interest in and to the Ground Lease and
any other rights and materials of SBCW relating to such Completed BTS Sites on
terms generally consistent with the provisions hereof applicable to the
assignment of Ground Leases to SBCW or Cingular Group Members and as
contemplated by (and on the terms and conditions of) the SBCW Transition
Agreement Upon execution and delivery of the applicable Site Designation
Supplement, the BTS Sublease, the applicable Site Designation Supplement and
related documents shall govern the respective rights and obligations of the
parties with respect to each Completed BTS Site (PROVIDED THAT the provisions of
Section II and III of the MLA Term Sheet shall be deemed incorporated into the
BTS Sublease for this purpose).
(b) TRANSFER OF COMPLETED CA/NV SITES. The parties acknowledge and
agree that the BTS Agreement shall be hereby modified and amended with respect
to the Completed Sites to provide as follows:
2
(1) On or prior to June 17, 2002, Vendor shall deliver to
SBCW, for its review, the Construction Package for each Completed CA/NV Site and
SBCW Corporate shall have 20 days to review the Construction Package and the
CA/NV Site Purchase Price set forth in each Construction Package; PROVIDED THAT
if the Construction Package contains any Site Related Materials that violate any
representations and warranties contained in Article V, Section (b), in any
material respect (disregarding any knowledge qualifier) or, in the case of the
representation contained in Section V(b)(8), the environmental assessments
referred to therein disclose an Environmental Condition with respect to such
Completed CA/NV Site, SBCW shall have the right to reject such Completed CA/NV
Site (unless prior to the CA/NV Closing Date, Vendor remedies the condition on
the basis of which SBCW has rejected such Completed CA/NV Site) and in addition,
if the CA/NV Site Purchase Price for any Completed CA/NV Site is not approved by
SBCW on the basis that it is not consistent with the provisions of this
Agreement, then SBCW shall issue a Dispute Notice and the parties shall proceed
with respect to such Completed CA/NV Site in accordance with the Dispute
Procedure.
On the earlier of July 15, 2002 or the Transaction Closing Date (the
"CA/NV Closing Date"), subject to the right to reject any Completed CA/NV Site
as hereinabove provided, in consideration of the Total CA/NV Site Purchase
Price, to be paid to Vendor by SBCW and/or the applicable Cingular Group Member,
Vendor and/or the applicable Vendor Affiliate shall transfer to SBCW, or the
applicable Cingular Group Member, all of Vendor's and/or such Vendor Affiliate's
right, title and interest, with warranty of title (consistent with that set
forth in Article V Section (b)(2)) as to the leasehold estate created by the
applicable Ground Lease, in and to the Completed CA/NV Sites, free and clear of
all Liens, other than the Permitted Liens in accordance with the terms hereof,
and SBCW or the applicable Cingular Group Member shall assume all of the
obligations contemplated to be assumed by it under the Assignment Agreement (but
SBCW or NewCo shall not be obligated to assume any Site Contract, Ground Lease,
Third Party Collocation or other obligation not disclosed to SBCW). In
connection with such transfer, the Completed CA/NV Sites shall not be added to
or governed by the BTS Sublease, the BTS Agreement or any related documents,
except as expressly provided in this Agreement. The determination of Total CA/NV
Site Purchase Price shall be subject to the provisions of Article IV. Except for
any amounts in Dispute, which shall be paid within five business days after
resolution of such Dispute, the Total CA/NV Site Purchase Price shall be paid on
CA/NV Closing Date.
(2) As to the Completed CA/NV Sites, the "Total CA/NV Site
Purchase Price" shall be an amount equal to the lesser of (1) the aggregate sum
of the CA/NV Budgeted Amounts as evidenced by the CA/NV Site Budget less any
SBCW Reimbursement Amount for any Completed CA/NV Site which is also an SBCW
Site (other than a Completed CA/NV Site which is rejected by SBCW in accordance
with the terms of this Agreement) or (2) the sum of the CA/NV Site Purchase
Price(s) for all Completed CA/NV Sites not rejected by SBCW in accordance with
the terms of this Agreement. The CA/NV Budgeted Amount for each Completed CA/NV
Site includes an
3
estimated Allocated Developmental Overhead Reimbursement Amount as to each such
Completed CA/NV Site.
ARTICLE III
IN PROCESS BTS SITES
(a) SITE TRANSITION. The parties acknowledge and agree that the BTS
Agreement shall be hereby further modified and amended to provide that in
consideration of the Total Reimbursement Amount to be paid by SBCW to Vendor,
Vendor and/or the applicable Vendor Affiliate shall transfer to SBCW or the
applicable Cingular Group Member, all of Vendor's or such Vendor Affiliate's
right, title and interest in and to the In Process BTS Sites, free and clear of
all Liens, except Permitted Liens, as follows:
(1) MILESTONE SITES. With respect to the Milestone Sites, from
and after the Milestone Cut Off Date, Vendor shall not commence Work or Services
on any Milestone which has not already commenced as to such Milestone Site prior
to the Milestone Cut Off Date, PROVIDED THAT with respect to any Work or
Services related to any Milestone which has commenced, Vendor shall continue
Work and Services as to such Milestone in the ordinary course and shall, to the
extent reasonably possible, complete such Milestone on or before the Milestone
Completion Date. Subject to Article IV, Section (b), in no event shall Vendor be
required to perform any such Work or Services after the Milestone Completion
Date. As Milestone Packages are prepared and ready for delivery to SBCW, Vendor
shall first notify SBCW at the notice address set forth herein of the volume of,
and anticipated time that, Milestone Packages will be delivered and. Vendor
shall thereafter upon receiving direction from SBCW deliver to SBCW in
accordance with the Milestone Package Delivery Schedule, a Milestone Package for
each Milestone Site, at a location as directed by SBCW, including, without
limitation, all of the applicable Site Related Materials for the applicable
Completed Milestones. SBCW shall have 30 days after receipt of a Milestone
Package to review the Milestone Package and the Milestone Site Reimbursement
Amount set forth in each such Milestone Package; PROVIDED THAT if the Milestone
Package contains any Site Related Materials that violate, in any material
respect, any representations and warranties contained in Article V, Section (b)
and applicable to the Milestone Sites, disregarding any knowledge qualifier, or,
in the case of the representation contained in Section V(b)(8), the
environmental assessments referred to therein disclose an Environmental
Condition with respect to such Milestone Site, SBCW shall have the right, during
such 30 day period to reject such Milestone Site (unless prior to the Milestone
Transition Date Vendor remedies the condition on the basis of which SBCW has
rejected such Milestone Site). In addition, if the Milestone Site Reimbursement
Amount for any Milestone Site is not approved by SBCW on the basis that it is
not consistent with the provisions of the Agreement, then SBCW shall issue a
Dispute Notice and the parties shall proceed with respect to such Milestone Site
in accordance with the Dispute Procedure.
On the Milestone Transition Date, subject to the right to reject any
Milestone Site as hereinabove provided, in consideration of the Total Milestone
Reimbursement Amount, to be paid to Vendor by SBCW or the applicable Cingular
Group Member of the Total Milestone Reimbursement Amount, Vendor or the
applicable Vendor Affiliate shall
4
transfer to SBCW or the applicable Cingular Group Member, all of Vendor's and/or
such Vendor Affiliate's right, title and interest in and to the Milestone Sites,
including as to any Milestone Site for which an executed Ground Lease is a
Completed Milestone, with a warranty of title as to such leasehold estate
created by the applicable Ground Lease (consistent with that set forth in
Section V(b)(2)), pursuant to the applicable Assignment Agreement and in
accordance with the other terms hereof and SBCW or the applicable Cingular Group
Member shall assume all of the obligations contemplated to be assumed by it
under the Assignment Agreement (but SBCW shall not be obligated to assume any
Site Contract, Ground Lease, Third Party Collocation or other obligation not
disclosed to it). If and to the extent any portion of any Milestone Site
Reimbursement Amount is attributable to a Completed Milestone (or Deemed
Completed Milestone), Vendor shall be responsible for payment of all costs and
expenses (whether or not then currently due and payable) applicable to
completing any such Completed Milestone or Deemed Completed Milestone to the
extent payable (a) pursuant to contracts, purchase orders or other arrangements
theretofore entered into by Vendor or (b) to the extent Vendor has not entered
into such an arrangement, pursuant to arrangements entered into by SBCW or the
applicable Cingular Group Member and approved by Vendor, such approval not to be
unreasonably withheld or delayed. Vendor hereby agrees to provide SBCW with
evidence of Vendor's payment of all costs and expenses applicable to completing
any such Completed Milestone or Deemed Completed Milestone and Vendor shall and
hereby does indemnify and hold harmless SBCW and the applicable Cingular Group
Member from and against any loss, cost, expense or damages arising out of or
incurred as a result of Vendor's failure to pay such amounts. The determination
of the Total Milestone Reimbursement Amount shall be subject to the provisions
of Article IV.
(2) CONSTRUCTION SITES. With respect to the Construction
Sites, Vendor shall continue all Work and Services necessary to Complete each
Construction Site as necessary to deliver the Construction Site Package and
satisfy the requirements of the BTS Agreement and this Agreement. Such Services
and Work in connection with Completing each Construction Site shall be performed
by Vendor in accordance with the applicable undertakings and standards set forth
in Articles IV, V, VI and VIII of the BTS Agreement. Moreover, on or before the
Construction Site Package Date (as the same may be extended for any Construction
Site by the period of any event or condition constituting Force Majeure), Vendor
shall deliver to SBCW, the Construction Site Package for each Construction Site
including, without limitation, all of the applicable Site Related Materials for
the applicable Construction Sites. Thereafter, SBCW Corporate shall have thirty
(30) days to review the Construction Package and the Construction Site
Reimbursement Amount set forth in each Construction Package; PROVIDED THAT if
the Construction Package contains any Site Related Materials that violate, in
any material respect, any representations and warranties contained in Article V,
Section (b), disregarding any knowledge qualifier, or, in the case of the
representation contained in Section V(b)(8), the environmental assessments
referred to therein disclose an Environmental Condition with respect to such
Construction Site, SBCW shall have the right during such 30 day period to reject
such Construction Site (unless prior to the Construction Site Closing Date
Vendor remedies the condition on the basis of which SBCW has rejected such
Construction Site). In addition, if the Construction Site Reimbursement Amount
set forth in each Construction Site Package is not approved by
5
SBCW on the basis that it is not consistent with the provisions of the
Agreement, then SBCW shall issue a Dispute Notice and the parties shall proceed
with respect to such Construction Site in accordance with the Dispute Procedure.
On the Construction Site Closing Date, subject to the right to reject
any Construction Site as hereinabove provided, in consideration of the Total
Construction Site Reimbursement Amount, to be paid to Vendor by SBCW or the
applicable Cingular Group Member, Vendor or the applicable Vendor Affiliate
shall transfer to SBCW or the applicable Cingular Group Member (as identified by
SBCW), all of Vendor's or such Vendor Affiliate's right, title and interest in
and to the Construction Sites, as Completed, including a warranty of title
(consistent with that set forth in Section V(b)(2)) as to such leasehold estate
created by the applicable Ground Lease, pursuant to the applicable Assignment
Agreement and in accordance with the other terms hereof and SBCW or the
applicable Cingular Group Member shall assume all of the obligations
contemplated to be assumed by it under the Assignment Agreement (but SBCW shall
not be obligated to assume any Site Contract, Ground Lease Third Party
Collocation or other obligation not disclosed to it). Vendor shall and hereby
does agree to provide SBCW with evidence of Vendor's payment of all costs and
expenses applicable to completing any such Construction Site and Vendor shall
indemnify and hold harmless SBCW and the applicable Cingular Group Member from
and against any loss, cost, expense or damages arising out of or incurred as a
result of Vendor's failure to pay any such costs or expenses. Notwithstanding
anything to the contrary contained herein, the Construction Site Closing Date
shall, as to any Construction Site the Completion of which was delayed by reason
of Force Majeure, be adjourned by the period of such delay plus five (5)
Business Days, and the Construction Site Reimbursement Amount for such
Construction Site shall be paid to Vendor on such adjourned Construction Site
Closing Date; PROVIDED THAT, in the event that the Construction Site Closing
Date is delayed beyond October 15, 2002, for any reason other than Force
Majeure, SBCW shall be entitled to a credit against the Construction Site
Reimbursement Amount in an amount equal to $7500 for each month the Construction
Site Closing Date is delayed beyond October 15, 2002-, (which amount shall be
appropriately prorated in the case of a partial month). The determination of the
Total Milestone Reimbursement Amount shall be subject to the provisions of
Article IV.
(b) VENDOR COMPENSATION. The parties further acknowledge and agree that
the Total Reimbursement Amount shall be the sole compensation due and payable to
Vendor for Work and other Services performed pursuant to the BTS Agreement and
this Agreement in connection with the In Process BTS Sites and for transferring
each In Process BTS Site as required hereby. The Total Reimbursement Amount
shall be determined, as follows:
(1) As to each Milestone Site, the "Milestone Site
Reimbursement Amount" shall be the amount payable for each Milestone Site and
shall be calculated as of the Milestone Cut off Date, based on the fixed price
amounts (the "Fixed Price Amounts") set forth on the Milestone Reimbursement
Schedule for the Completed Milestones or Deemed Completed Milestones for each
Milestone Site. Except for any amounts in Dispute, which shall be paid within
ten (10) Business Days
6
after resolution of such Dispute, the Milestone Site Reimbursement Amount shall
be paid on the Milestone Transition Date.
(2) Notwithstanding the provisions of Section III(b)(2):
(a) If one of the Deemed Complete Milestones is the ordering
of a Tower and such Tower has been ordered but not delivered, on the
Milestone Transaction Date, SBCW shall reimburse Vendor for all actual
costs incurred and paid by Vendor or any Vendor Affiliates related to
the purchase of such Tower (as evidenced by supporting documentation
reasonably acceptable to SBCW), and Vendor shall assign to SBCW all of
Vendor's rights and interest in, and SBCW shall assume all of Vendor's
obligations (other than to extent of the reimbursement) under, the
purchase order for such Tower including, without limitation, the
obligation to make all remaining payments for such Tower. At the
request of SBCW, Vendor shall store such Tower at Vendor's expense
until the Milestone Transition Date or such earlier date as requested
by SBCW.
(b) If Vendor has ordered a Tower for a different site but
such Tower has been re-classified and designated for a Milestone Site,
SBCW may, at its option, either: (i) reject such Tower, in which event
Vendor shall retain such Tower and its associated rights and
obligations; or (ii) accept such Tower, in which event the provisions
of clause (a) above shall apply.
(3) As to the Construction Sites, the "Total Construction Site
Reimbursement Amount" shall be an amount equal to the lesser of (1) the
aggregate sum of the Budgeted Amounts for all accepted Construction Sites as
evidenced by the Construction Site Budget less any SBCW Reimbursement Amount for
each such Construction Site which is also a SBCW Site (other than any
Construction Site which is rejected by SBCW in accordance with the terms of this
Agreement) or (2) the sum of the Construction Site Reimbursement Amounts for all
Construction Sites not rejected by SBCW in accordance with the terms of this
Agreement. With regard to the foregoing, attached hereto is the Construction
Site Budget which provides a Budgeted Amount for each Construction Site and the
aggregate Budgeted Amount(s) for all Construction Sites (as of the date hereof).
The parties acknowledge that the Budgeted Amounts as set forth on the
Construction Site Budget are Vendor's good faith estimates, as to each
Construction Site, of the direct third party costs to Complete each of the
Construction Sites PLUS the Allocated Developmental Overhead Reimbursement
Amount. The Budgeted Amount for each Construction Site includes an estimated
Allocated Developmental Overhead Reimbursement Amount as to each Construction
Site. Except for any amounts in Dispute, which shall be paid within five (5)
Business Days after resolution of such Dispute, and any credit to SBCW for a
delay as set forth, in Article II, Section (a)(2) above, the Construction Site
Reimbursement Amount shall be paid on the Construction Site Closing Date.
7
(c) CINGULAR WORK. The parties acknowledge that portions of the Work
and Services relating to the Completed Sites or In Process BTS Sites may have
been performed by SBCW or its Affiliates or by a third party on behalf of SBCW
or its Affiliates ("Cingular Work"). Accordingly (and without duplicating the
deduction for the SBCW Site Reimbursement Amount set forth in Section III(b)(3)
or Section II(b)(2)), the cost and expense of any Cingular Work shall not be
included in calculating the Total CA/NV Site Purchase Price or any portion of
the Total Reimbursement Amount. In addition, SBCW shall be entitled to the
applicable SBCW Reimbursement Amount with respect to any Completed BTS Site
which is also an SBCW Site.
(d) IN PROCESS BTS SITES. The parties acknowledge and agree that the In
Process BTS Sites will be Completed and/or Vendor's or the Vendor Affiliate's
interest therein transferred to SBCW or the designated Cingular Group Member as
provided in this Agreement and shall not be added to or governed by the BTS
Sublease, the BTS Agreement or related documents, except as provided this
Agreement.
ARTICLE IV
DISPUTE RESOLUTION; FURTHER ASSURANCES; PRORATIONS
(a) DISPUTED COSTS. Without limiting the foregoing, SBCW shall have the
right to dispute and review any charge as to any Completed CA/NV Site or any In
Process BTS Site to be included in the calculation of the Total CA/NV Site
Purchase Price or any portion of the Total Reimbursement Amount (herein, a
"Disputed Cost"). In connection with any Disputed Cost, SBCW shall be entitled
to request and receive further supporting documentation evidencing such Disputed
Cost, including copies of paid invoices and lien waivers (if applicable) to
which such Disputed Cost relates. Any dispute regarding a Disputed Cost (a
"Dispute"), shall be resolved in accordance with these Dispute Procedures. The
parties agree to appoint representatives to facilitate resolution of any such
Dispute as set forth below:
(1) SBCW shall within the applicable period set forth in
Article III herein, give written notice (the "Dispute Notice") to Vendor of any
Dispute. The Dispute Notice shall include a short description of the Dispute and
shall be sent to Vendor via confirmed (A) facsimile or (B) email. The designated
representatives shall meet (in person or by conference call) as often as the
parties reasonably deem necessary to discuss the Dispute in an effort to resolve
the Dispute without the necessity of any formal proceeding. The parties'
designated representatives shall have their first meeting, pursuant to this
subsection, within five (5) business days from receipt of the Dispute Notice by
Vendor.
(2) In the event that such representatives are unable to
resolve the Dispute within fifteen (15) business days after the receipt of the
Dispute Notice, or if after at least two (2) meetings and ten (10) business days
following the receipt of the Dispute Notice, either party determines in good
faith that such representatives are unlikely to be able to resolve such Dispute,
then within three (3) business days of written notice by either party of an
impasse, the Dispute shall be referred by written notice to an
8
executive officer of each of such parties for consideration or, if either party
so elects, the parties shall submit the Dispute as to all Disputed Costs to
arbitration in accordance with the Arbitration Procedures attached hereto as
SCHEDULE IX.
(b) FURTHER ASSURANCES/COOPERATION. Without limiting the foregoing but
without expanding or enlarging Vendor's obligations hereunder, Vendor agrees to
furnish all such information, take all such other action, and cooperate with
SBCW as SBCW may require in order to effectuate an orderly and systematic
termination or Completion of the Services, Work and other Vendor duties,
obligations and activities with respect to the In Process BTS Sites and
Completed CA/NV Sites, as applicable. Vendor for itself and applicable Vendor
Affiliates and SBCW for itself and applicable Cingular Group Members agree to
execute whatever instruments, in addition to the Assignment Agreement, either
party may reasonably request to effectuate or evidence the orderly transition
and transfer of the In Process BTS Sites and Completed CA/NV Sites, as
applicable. Vendor will, from time to time at SBCW's request, use Vendor's
reasonable efforts to assist SBCW and the applicable Cingular Group Members in
securing the consent of any ground lessors or other third parties, that may be
required to effect or perfect the transition of any In Process BTS Site or
Completed CA/NV Site, as applicable, in accordance with the provisions of this
Agreement (it being agreed that if the parties are unable to obtain any such
consent of a ground lessor, Vendor's interest in the applicable In Process Site,
notwithstanding anything to the contrary contained in this Agreement, shall not
be assigned to SBCW or a Cingular Group Member). To the extent it is legally
able to do so, Vendor for itself and applicable Vendor Affiliates will, from
time to time at SBCW's request, execute and deliver such bills of sale,
assignments and other instruments, conveyances and transfers (all without
representation or warranty, except for the warranty of title set forth in
Section V(b)(2) hereof and other representations and warranties only as set
forth herein, in the Assignment Agreement and the related individual assignment
agreements) as are reasonably necessary in order to more fully and effectively
confirm the transition and transfer of Vendor's or the applicable Vendor
Affiliate's right, title and interest in and to the In Process BTS Sites and
Completed CA/NV Sites, as applicable including, without limitation, as to each
Completed CA/NV Site, Construction Site, and Milestone Site that has reached the
Ground Lease Milestone, executing and delivering, on the Applicable Site
Transfer Date, duly executed assignments (substantially in the form of the
Assignment Agreement attached), and/or memoranda of Ground Leases, in each case,
in proper recordable form for the State in which such BTS Site is located, to
more fully perfect and vest leasehold title to those BTS Sites in SBCW or the
applicable Cingular Group Member. With respect to the Completed CA/NV Sites and
the Construction Sites, as applicable, SBCW and Vendor (and applicable Vendor's
Affiliates) shall cooperate with each other toward effecting a smooth and
orderly transition in the property management, lease administration and site
operation of those BTS Sites (to the extent theretofore commenced) from Vendor
to SBCW or the applicable Cingular Group Member.
SBCW and Vendor shall use good faith efforts to structure the transfer
of Vendor's or the applicable Vendor Affiliate's right, title and interest in
and to the In Process BTS Sites (or any of them) and/or Completed CA/NV Sites by
Vendor to SBCW
9
(or SBCW's designee) in a manner that will minimize the transaction costs
associated with such transfer, including without limitation, any sales tax or
real property transfer taxes. Without limiting the foregoing, the transfers of
the In Process BTS Sites and/or Completed CA/NV Sites, as applicable, shall be
accomplished either by (i) the transfer of such BTS Sites directly to SBCW or
the applicable Cingular Group Member each pursuant to the Assignment Agreement,
as applicable to such BTS Sites; or at the option of Vendor or SBCW, (ii) Vendor
or the applicable Vendor Affiliate shall transfer, pursuant to the Assignment
Agreement and other related documents, the Completed CA/NV Sites and/or the In
Process BTS Sites to one (or more than one, if required in order to accommodate
multiple closing dates), newly formed limited liability companies (collectively,
"NewCo", which term may include as to the Completed CANV Sites, the Company (as
defined in the NewCo Purchase Agreement)) to be formed by Vendor immediately
prior to the transfer of such BTS Sites to NewCo and SBCW (or the applicable
Cingular Group Member) shall thereafter acquire 100% of the membership interests
in NewCo in a manner and for a price consistent with the terms of this Agreement
(as if the transfers were being made directly SBCW or the applicable Cingular
Group) and otherwise reasonably acceptable to the parties. The parties will each
be responsible for 50% of the applicable transfer tax and sales tax associated
with the transfers referred to herein. PROVIDED THAT as part of the Assignment
Agreement, Vendor and Vendor Affiliates shall, among other things, cause NewCo
to, jointly and severally represent and warrant to SBCW and the applicable
Cingular Group Members with respect to NewCo substantially the same
representations and warranties with respect to the Company (as defined in the SS
NewCo Purchase Agreement) set forth in Sections 2.1(b), 2.2(b), 2.2(c) (except
to the extent covered in Section V(a) (3) hereof), 2.3, 2.4, 2.5, 2.6 (not
including the representations and warranties contained in the second and third
sentence of section 2.6(a) of the SS NewCo Purchase Agreement) which are
otherwise covered herein and 2.7 (collectively, the "Entity Representations") of
the SS NewCo Purchase Agreement. Further, (a) Vendor and Vendor Affiliates
shall, jointly and severally, indemnify SBCW and Cingular Group Members for,
among other things, breaches of any of the Entity Representations (which shall,
for indemnification purposes, be deemed not to include references to "material"
or "material adverse effect"), (b) such Entity Representations shall survive
indefinitely and (c) indemnification claims made with respect to breaches of
such Entity Representations shall not be subject to any limitations (including
thresholds, deductibles or maximums), except that in no event shall one party be
liable to the other party for any special, incidental, consequential or other
such damages.
(c) NEGATIVE COVENANTS. From the date of this Agreement until the
Applicable Site Transfer Date as to the In Process BTS Sites and Completed CA/NV
Sites, as applicable, except as otherwise expressly contemplated herein, Vendor
covenants and agrees that it will not do or agree or commit to do, any of the
following: (i) impose, or suffer the imposition or existence, on Vendor's or any
Vendor Affiliate's interest, if any, in any In Process BTS Sites or Completed
CA/NV Sites of any Lien (other than a Permitted Lien and security interests in
favor of Vendor's senior lenders, which security interests will be released at
or prior to the Applicable Site Transfer Date) or permit any such Lien to exist,
except for such Liens that the Vendor will cure by
10
bonding or otherwise discharging on or prior to the Applicable Site Transfer
Date; (ii) sell, lease, mortgage or otherwise dispose of Vendor's or any Vendor
Affiliate's interest, if any, in any In Process BTS Sites and Completed CA/NV
Sites (other than the granting of security interests in favor of Vendor's senior
lenders, which security interests will be released at or prior to the Applicable
Site Transfer Date); or (iii) except as expressly required under Article III
hereunder, enter into, modify or amend in any material respect or terminate any
Ground Lease, Site Contract or Third Party Collocation Agreement or waive,
release or compromise in any material respect or assign any material rights or
claims relating thereto.
(d) PRORATIONS. As soon as practicable after the Applicable Site
Transfer Date, real estate and personal property taxes ("Taxes") attributable to
those BTS Sites being transferred shall be apportioned as of the Applicable Site
Transfer Date for each. 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 Applicable Site Transfer Date are for the account of Assignor; and
all such Taxes attributable to the period on and after the Applicable Site
Transfer Date are for the account of SBCW or applicable Cingular Group Member.
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, 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 refunds
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 Applicable Site Transfer Date
any pending appeals of ad valorem tax assessments with regard to any of the BTS
Sites being transferred, 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.
The parties agree that the following items shall be also apportioned
between Vendor and SBCW, as of the Applicable Site Transfer Date, as to the
Completed CA/NV Sites and Construction Sites: (a) rents and revenues under all
Third Party Collocation Agreements; (b) base rent, license fees, revenue sharing
payments or other charges due to landlords, lessors or licensors under the
Ground Lease and (c) utility charges relating to Tower lighting. Such
apportionments shall be made pro rata on a per diem basis as of the Applicable
Site Transfer Date so that all such rents, revenues, charges and payments
attributable to the period prior to the Applicable Site Transfer Date are for
the account of Vendor; and all such rents, revenues, charges and payments
attributable to the period from and after the Applicable Site Transfer Date are
for the account of SBCW with such adjustments (and adjustments pursuant to the
first paragraph of this Section 4(d)) to be made as of the Applicable Site
Transfer Date by the party that on a net basis owes money
11
to the other party under this paragraph (d) by wire transfer of immediately
available funds to such accounts as such other party shall direct in writing.
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.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
(a) VENDOR AND TOWERCO PARENT ORGANIZATION, STANDING, POWER, AUTHORITY,
NO BREACH BY AGREEMENT. Vendor and TowerCo Parent hereby jointly and severally
represent and warrant to SBCW and the Cingular Group Members as follows:
(1) Each of Vendor and TowerCo Parent is a Delaware
corporation duly incorporated, validly existing and in good standing under the
Laws of the State of Delaware, is (in the case of Vendor) duly qualified to
transact business as a foreign corporation and is in good standing under the
Laws of each state where the BTS Sites are located (to the extent required under
applicable Law), and has the requisite corporate power and authority to own,
lease and operate its properties and to carry on its business as now being
conducted or proposed to be conducted.
(2) Each of Vendor and TowerCo Parent has the corporate power
and authority necessary to execute, deliver and perform this Agreement and the
Assignment Agreement and to consummate the transactions contemplated hereby and
thereby. The execution, delivery, and performance of this Agreement, and the
Assignment Agreement and the consummation of the transactions contemplated
herein have been duly and validly authorized by all necessary corporate action
in respect thereof on the part of each of Vendor and TowerCo Parent.
(3) Neither the execution and delivery of this Agreement by
Vendor or TowerCo Parent, nor the consummation by Vendor or TowerCo Parent of
the transactions contemplated hereby, nor compliance by Vendor or TowerCo Parent
with any of the provisions hereof, will (i) conflict with or result in a breach
of any provision of either Vendor's or TowerCo Parent'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 BTS Site, under any contract
(other than a Ground Lease), permit or Site Related Asset of Vendor, Vendor
Affiliate or TowerCo Parent, or to the best knowledge of Vendor or TowerCo
Parent, constitute or result in a default under any Ground Lease, or (iii)
constitute or result in a default under, or require any consent pursuant to, any
Law or Order applicable to Vendor or TowerCo Parent or any of the BTS Sites.
(4) This Agreement is, and the Assignment Agreement and all
other transfer documents when delivered hereunder or in connection herewith
shall be, the legal, valid and binding obligations of Vendor and/or TowerCo, as
applicable, enforceable against Vendor and/or TowerCo, as applicable, in
accordance with their respective terms, subject however, to the (1) application
by a court of general principles
12
of equity and (2) effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally.
(5) There has not been filed any petition or application with
respect to, or any proceeding commenced by or against, any of the assets of
Vendor or any Vendor Affiliate under any Bankruptcy Law, and Vendor has not made
any assignment for the benefit of creditors. Vendor is not "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 Vendor or any Vendor Affiliate 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. Vendor acknowledges that, upon receipt of the Total
CA/NV Site Purchase Price for the Completed CA/NV Sites, Vendor will have
received fair market value for the Completed CA/NV Sites and upon receipt of the
Milestone Site Reimbursement Amount as to any Milestone Site and the Total
Construction Site Reimbursement Amount as to the Construction Sites, Vendor will
have received fair market value for each such In Process BTS Sites.
(b) IN PROCESS BTS SITES AND COMPLETED SITES. With respect to the In
Process BTS Sites and the Completed Sites, as applicable, Vendor and Vendor
Affiliates hereby represent and warrant as follows:
(1) As of the date hereof, Vendor is in compliance in all
material respects with all terms and conditions of the BTS Agreement required to
be complied with through the date hereof, and has performed in all material
respects all the obligations and covenants required to be performed by Vendor
thereunder through the date hereof.
(2) As to each Completed Site or Construction Site or a
Milestone Site for which an executed Ground Lease is a Completed Milestone, and
for which the Ground Lease with respect to each was entered into by Vendor or a
Vendor Affiliate:
(A) Vendor or Vendor Affiliate has a valid leasehold title in
and to each such Completed Site, Construction Site or Milestone Site,
and each Ground Lease with respect thereto is in full force and effect
(B) Each such Ground Lease (i)conforms in all material
respects to the form of Ground Lease heretofore made available to SBCW,
except in regards to Vendor's rights to assign its interest in the
Ground Lease as to any Milestone Site as hereinafter provided, (ii) The
term of each such Ground Lease, including extension terms, is no less
than twenty (20) years and the rents are on market terms, with no
revenue sharing; and.
(C) Vendor's (or Vendor's Affiliate's) interest in such Ground
Leases for each Completed CA/NV Site and each Construction Site is
assignable to SBCW or applicable Cingular Group Member without the
landlord's prior consent and to the best knowledge of Vendor, Vendor's
interest in such Ground Leases for each of the Milestone Sites with an
executed Ground Lease is assignable to
13
SBCW or applicable Cingular Group Member without the landlord's prior
consent.
(3) Neither the Vendor (to the extent it is a party under a
Ground Lease) nor to the best knowledge of Vendor, the ground lessor or
counter-party under any Ground Lease is in breach of such Ground Lease in any
material respect and neither Vendor nor any Vendor Affiliate has received any
notice that any Ground Lease is in default. Promptly after the date hereof,
Vendor shall deliver to SBCW a schedule of the Ground Leases, together with
true, correct and complete copies of the Ground Leases.
(4) Vendor does not hold fee simple title to any of the
BTS Sites.
(5) With respect to all Completed Sites and any In Process BTS
Site for which Vendor, in each case, has entered into a Ground Lease or as to
any Milestone Site for which an executed Ground Lease by Vendor is a Completed
Milestone, Vendor has obtained all easements and rights-of-way that are
reasonably necessary to provide vehicular and pedestrian ingress and egress to
and from each of the Completed Sites and In Process BTS Sites and all such
easements and rights-of-way run with title to Vendor, as the holder of the
ground tenant or ground lessee interest to such Completed Site and In Process
BTS Site. No action is pending or to the best of Vendor's knowledge, threatened
which would have the effect of terminating or limiting such access.
(6) The lease or use of the land respecting each Completed
Site and Construction Site, as applicable, in each case for the construction and
operation of a Tower (where Vendor (rather than SBCW or its affiliate) was
responsible for completing the zoning or land use compliance Milestone), 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 such use (PROVIDED THAT in each case there may exist conditions or
limitations on such use, none of which shall materially interfere with the use
of such BTS Site by SBCW or the applicable Cingular Group Member as contemplated
by the BTS Agreement and this Agreement).
(7) Vendor has not received any written notice that any
Governmental Authority having the power of eminent domain over any BTS Site has
commenced or intends to exercise the power of eminent domain or a similar power
with respect to all or any part of such BTS Site.
(8) Except as set forth on the environmental assessments to be
delivered by Vendor or Vendor Affiliate hereunder, to Vendor's and TowerCo
Parent's knowledge, (i) no Environmental Condition exists at any BTS Site, and
(ii) no pending or threatened litigation in respect of any such Environmental
Condition exists. Neither Vendor nor Vendor Affiliate or any of its agents,
representative, employees or consultants has caused any Environmental Condition
at any BTS Site.
(9) Vendor has not entered into any third party collocation
agreements, subleases, master site leases or licenses for any BTS Site ("Third
Party Collocation Agreements").
14
(10) Except for Ground Leases, Vendor has not entered into any
contracts ("Site Contracts", which term shall not include the Ground Leases) for
the Completed CA/NV Sites or Construction Sites under which contracts
obligations will survive the transfer of those BTS Sites and which contracts
will be assumed by SBCW or a Cingular Group Member under this Agreement. With
respect to the Milestone Sites, no obligations under any Site Contract which
will be assumed by SBCW or a Cingular Group Member under this Agreement will
survive the transfer of those Milestone Sites except as to contracts related to
Deemed Completed Milestones as necessary to complete the Milestone. Vendor will
include in each Milestone Package a true and complete copy of any Site Contract
necessary to complete a Completed Deemed Milestone Site. Notwithstanding the
foregoing, warranties of counterparties as set forth therein and any right of
Vendor under such Site Contracts will survive as set forth therein and shall be
assigned to SBCW or the applicable Cingular Group Member.
(11) On and as of the CA/NV Closing Date, there will be no
mechanics', materialmen's or laborers' liens filed against Vendor's interest in
any of the Completed CA/NV Sites; and there will be no claims for labor,
services, profit or material furnished for constructing, repairing or improving
the Completed CA/NV Sites which will remain due and unpaid. On and as of the
Applicable Site Transition Date, there will be no mechanics', materialmen's or
laborers' liens filed against Vendor's interest in the Construction Sites with
respect to any costs or expenses which are then currently due and payable and
there will be no outstanding claims for labor, services, profit or material
furnished for constructing, repairing or improving those Construction Sites
which will remain due and unpaid, except for those which Vendor is contesting in
good faith and as to which Vendor indemnifies SBCW in a manner reasonably
acceptable to SBCW; PROVIDED THAT in connection with any contest, neither the In
Process BTS Site nor any part thereof is in danger of sale, foreclosure or
forfeiture by reason of the nonpayment thereof.
(c) SBCW's Representations and Warranties. SBCW represents and warrants
to Vendor and TowerCo Parent as follows:
(1) SBCW is a Delaware limited liability company duly
incorporated, validly existing and in good standing under the Laws of the State
of Delaware.
(2) SBCW has the limited liability company power and authority
necessary to execute, deliver and perform this Agreement and the Assignment
Agreement and to consummate the transactions contemplated hereby and thereby.
The execution, delivery, and performance of this Agreement and the Assignment
Agreement and the consummation of the transactions contemplated herein have been
duly and validly authorized by all necessary corporate action in respect thereof
on the part of SBCW.
(3) Neither the execution and delivery of this Agreement by
SBCW, nor the consummation by SBCW of the transactions contemplated hereby, nor
compliance by SBCW with any of the provisions hereof, will (i) conflict with or
result in a breach of any provision of SBCW's operating agreement or other
organizational
15
documents, (ii) constitute or result in a default under any contract or permit
of SBCW, or (iii) constitute or result in a default under, or require any
consent pursuant to, any Law or Order applicable to SBCW.
(4) This Agreement is, and the Assignment Agreement and all
other transfer documents when delivered hereunder or in connection herewith
shall be, the legal, valid and binding obligations of SBCW, as applicable,
enforceable against SBCW, in accordance with their respective terms, subject
however, to the (1) application by a court of general principles of equity and
(2) effect of any applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally.
(5) SBCW has the authority to execute and deliver
this Agreement on behalf of the SBCW Parties.
All of the foregoing representations and warranties in this section c shall
apply with equal force to the SBCW Parties, except that for such purpose such
representations and warranties shall be deemed modified to reflect the form and
jurisdiction of organization of each SBCW Party.
(d) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Vendor's
representations and warranties provided in this Article V shall survive this
Agreement indefinitely except that the representations and warranties set forth
in Article V Section (b) (1) through (9) above shall only survive for a period
of one (1) year from and after the Applicable Site Closing Date, except with
respect to Claims asserted during such one (1) year period and Claims brought by
a third party against SBCW or the applicable Cingular Group Member, which shall
survive until there is a final unappealable resolution as to such Claims.
(e) BRING-DOWN CERTIFICATE. On the Applicable Site Transfer Date as to
each of the Completed CA/NV Sites and In Process BTS Sites, as applicable, it
shall be a condition precedent to the transfer of the BTS Site in question that
a certificate shall be delivered to SBCW, signed by an executive officer of
Vendor, Vendor Parent and applicable Vendor Affiliates, certifying that all
representations and warranties in this Article V with respect to Vendor or a
Vendor Affiliate and with respect to such BTS Site are true, complete and
correct as of the Applicable Site Transfer Date.
ARTICLE VI
INDEMNITY
Without limiting the indemnities set forth in Section 11.02 of the BTS
Agreement, which shall survive the termination of the BTS Agreement to the
extent set forth in Article I hereof, Vendor shall, and Vendor does hereby agree
to, indemnify and hold harmless each SBCW Indemnitee from and against any Claims
in connection with the BTS Sites, by reason of or arising out of: (i) personal
injury, death, and damage to tangible property resulting from (A) the
intentional or negligent acts or omissions of Vendor's directors, officers,
employees, agents, consultants, contractors or
16
subcontractors in connection with any In Process BTS Site or performance of this
Agreement, or (B) any design or manufacturing defect in any Tower, the
Improvements or any part thereof, whether manufactured by Vendor hereunder or
otherwise or any defects in construction or installation of any Tower,
Improvements or Constructed Improvements; (ii) Vendor's breach of its
obligations under this Agreement including without limitation in respect of any
Work or Services; (iii) the termination or removal of any employee or
subcontractor of Vendor pursuant to Section 3.06(d) of the BTS Agreement; (iv)
Vendor's breach of any representation or warranty in this Agreement, or (v)
failure of Vendor to comply with any obligation under this Agreement as to
Governmental Requirements. In no event shall the foregoing indemnification
provisions diminish, affect, impede or impair, in any manner whatsoever, the
benefits to which any SBCW Indemnitee may be entitled under any insurance policy
required by the BTS Agreement or otherwise with respect to any In Process BTS
Site or under the terms of any waiver of any subrogation contained therein. The
indemnities provided in this Article VII shall survive for one (1) year from and
after the Applicable Site Transfer Date, except with respect to Claims asserted
during such one (1) year period, Claims under clause (i) and Claims brought by a
third party against SBCW or the applicable Cingular Group Member, which shall
survive until there is a final unappealable resolution of such Claim.
ARTICLE VIII
MISCELLANEOUS
(a) DEFINITIONS. The following terms when used herein with initial
capital letters shall have the following meanings:
"AGREED SITE RENT" means "BTS Rent" as defined in the BTS Agreement,
and shall be calculated as set forth in Section 9 of the BTS Sublease.
"ALLOCATED DEVELOPMENTAL OVERHEAD REIMBURSEMENT AMOUNT" means as to any
Construction Site or any Completed CA/NV Site, (i) that portion of the personnel
and overhead expenses of Vendor's Development Group which is equitably allocated
to such Construction Site or Completed CA/NV Site plus (ii) the direct cost of
labor provided by Vendor with respect to the construction of such Construction
Site or Completed CA/NV Site plus fifteen percent (15%) of the actual
construction cost (including the cost of the aforesaid labor) with respect to
such Construction Site or Completed CA/NV Site.
"APPLICABLE SITE TRANSFER DATE" means the Transaction Closing Date, as
to the Completed CA/NV Sites, the Construction Site Closing Date, as to the
Construction Sites and the Milestone Transition Date, as to the Milestone Sites.
"ASSIGNMENT AGREEMENT" means the form attached hereto as SCHEDULE VII
to be used to globally assign Vendor's right, title and interest in and to all
In Process BTS Sites and all Completed CA/NV Sites in accordance with the terms
hereof to SBCW (or its designees) or, as applicable, to NewCo as contemplated
hereby in Article IV Section (b) hereof.
17
"BTS CLOSING PACKAGE" means the same package of information and
Completion Certification to be delivered by Vendor which would have been
required to be delivered in connection with a Completed Site under the terms of
the BTS Agreement prior to the date hereof.
"BTS SITES" means collectively the Completed Sites and the In Process
BTS Sites.
"BUDGETED AMOUNT" means, with respect to a Construction Site, the total
amount of the estimated development and construction budget for such
Construction Site, as set forth on the Construction Site Budget.
"CA/NV BUDGETED AMOUNT" means as to each Completed CA/NV Site, the
estimated reimbursement cost therefore as set forth on the CA/NV Site Budget.
"CA/NV SITE BUDGET" means, with respect to all Completed CA/NV Sites,
the CA/NV Budgeted Amounts for the Completed CA/NV Sites, as set forth on the
attached SCHEDULE II, as it may be adjusted to deduct and delete any CA/NV
Budgeted Amount attributable to any Completed CA/NV Site which is rejected by
SBCW in accordance with the terms hereof.
"CA/NV SITE PURCHASE PRICE" means the purchase price for each Completed
CA/NV Sites equal to the (i) direct third party expenses actually incurred by
Vendor in connection with development, construction and Completion of such
Completed CA/NV Site, as evidenced by invoices or other reasonable supporting
documentation, including without limitation, the Construction Site Package for
each Completed CA/NV Sites PLUS the (ii) Allocated Developmental Overhead
Reimbursement Amount for such Completed CA/NV Site.
"CINGULAR GROUP MEMBER" means (i) Cingular Wireless LLC; (ii) any other
Person directly, or indirectly through one or more intermediaries, controlling,
controlled by or under common control with Cingular Wireless LLC (including,
without limitation, each of the members of Cingular Wireless LLC); or (iii) any
other Person in which a Person referred to in (i) or (ii) above beneficially
owns a majority of the outstanding capital stock or equity interests.
"CINGULAR WORK" shall have the meaning ascribed thereto in Article III,
Section (c) hereof.
"COMPLETED BTS SITES" means the Completed Sites other than the
Completed CA/NV Sites only as listed on attached SCHEDULE I.
"COMPLETED CA/NV SITES" means the Completed Sites other than the
Completed BTS Sites, which are substantially complete as of the date hereof and
which will be Completed on or before the CA/NV Closing Date, all only as listed
on attached SCHEDULE
18
II, together with the Site Related Assets, and Site Related Materials applicable
to such Completed CA/NV Sites.
"COMPLETED MILESTONE" means a Milestone which was commenced in
connection with a Milestone Site prior to the Milestone Cut off Date and which
is completed by the Milestone Completion Date.
"COMPLETED SITES" means the BTS Sites the construction of which has
been substantially completed prior to March 31, 2002 including, collectively,
the Completed CA/NV Sites and the Completed BTS Sites.
"CONSTRUCTION SITE(S)" means those In Process BTS Sites for which a
SARF has been issued pursuant to Section 5.01(a) of the BTS Agreement prior to
the date hereof, and which is not a Completed Site (other than SBCW Sites which
can not be transferred to Vendor as Completed BTS Sites because of failure to
obtain a necessary ground lessor consent to assignment) but which has reached
the Permit Milestone, all only as listed on the attached SCHEDULE IV, together
with the Site Related Assets, and Site Related Materials applicable to such
Construction Sites.
"CONSTRUCTION SITE BUDGET" means, with respect to all Construction
Sites, the Budgeted Amounts for the Construction Sites, as set forth on the
attached SCHEDULE IV, as it may adjusted to deduct and delete the Budgeted
Amount attributable to any Construction Site which is rejected by SBCW in
accordance with the terms hereof.
"CONSTRUCTION SITE CLOSING DATE" means thirty (30) days after the
delivery of the last Construction Site Package, but in no event (subject to
Force Majuere) later than October 3, 2002; being the date that the Construction
Sites are to be Completed and transferred to SBCW or the applicable Cingular
Group Member in accordance with the terms of Article III hereof.
"CONSTRUCTION SITE PACKAGE" means the package of information and
executed Completion Certification to be delivered by Vendor to SBCW, together
with a Document Checklist, which package would have been required to be
delivered in connection with a Completed BTS Site under the terms of the BTS
Agreement as it existed prior to the date hereof.
"CONSTRUCTION SITE PACKAGE DATE" means September 3, 2002 (which is
subject to Force Majeure), the outside date for the Construction Site Packages
to be delivered to SBCW for review prior to the Construction Site Closing Date;
PROVIDED THAT if the Construction Packages are ready prior to that date they
shall be delivered promptly after they are ready.
"CONSTRUCTION SITE REIMBURSEMENT AMOUNT" means, as to a Construction
Site, an amount equal to the direct third party expenses actually incurred by
Vendor in connection with development, construction and Completion of such
Construction Site as evidenced by invoices or other reasonable supporting
19
documentation, PLUS the Allocated Developmental Overhead Reimbursement Amount
for such Construction Site.
"DEEMED COMPLETED MILESTONE" means a Milestone which was commenced in
connection with a Milestone Site prior to the Milestone Cut off Date but which
was not completed by the Milestone Completion Date, but for which Vendor is
being compensated in accordance with the terms hereof.
"DISPUTE" shall have the meaning ascribed thereto in Article IV,
Section (a) hereof.
"DISPUTED COST" shall have the meaning ascribed thereto in Article IV,
Section (a) hereof.
"DISPUTE NOTICE" shall have the meaning ascribed thereto in Article IV,
Section (a) (1) hereof.
"DISPUTE PROCEDURE" means the procedure set forth herein in Article IV,
Section (a) for resolving a Dispute.
"DOCUMENT CHECKLIST" means the form annexed hereto as SCHEDULE VIII to
be used by Vendor as the cover sheet to submit a Milestone Package or
Construction Package, as applicable.
"ENVIRONMENTAL CONDITION" means, as to each BTS 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 BTS 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.
"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.
20
"IN PROCESS BTS SITES" means collectively the Milestone Sites and the
Construction Sites.
"LAW(S)" 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, with respect to any BTS Site, 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, or
preferential arrangement of any kind, conditional sale or trust receipt, or from
a lease, consignment or bailment for security purposes and also including
reservations, exceptions, reservations, encroachments, easements, rights-of-way,
covenants, conditions, restrictions, leases, licenses, occupancy agreement,
restriction on transferability and other title exceptions and encumbrances
affecting any real property.
"MASTER LEASE" means that certain Lease and Sublease, dated as of
December 14, 2000, by and among SBC Tower Holdings LLC, SBCW, Southern Towers,
Inc and TowerCo Parent as amended or affected by various side letters.
"MILESTONE" means as to any BTS Site, each of the tasks performed, or
to be performed, by Vendor in connection with site acquisition, engineering and
related work, all as listed as "milestones" on the Milestone Reimbursement
Schedule and for which a fixed reimbursement cost is associated therewith and in
addition, as to any Construction Site, the Permit Milestone.
"MILESTONE COMPLETION DATE" means June 17, 2002.
"MILESTONE CUT OFF DATE" means May 15, 2002.
"MILESTONE PACKAGE DELIVERY SCHEDULE" means, as to the Milestone Sites,
that Milestone Packages shall be delivered to SBCW as they are completed, with
the date of the last Milestone Package so delivered, the "Final Milestone
Delivery Date"; provided that the Final Milestone Delivery Date shall be on or
before July 15, 2002.
"MILESTONE PACKAGE" means a package of information required relating to
a Milestone Site evidencing the completion of the applicable Completed
Milestones or
21
commencement of the applicable Deemed Completed Milestone which has been
prepared by Vendor and submitted to SBCW for sign off, together with a Document
Checklist and including all of the information, reports and materials related to
Completed Milestones maintained or required to be obtained by Vendor or any
Vendor Affiliate for each Milestone including as applicable, all related
correspondence, third party reports and invoices related thereto, and
applications filed for such Milestone Site, whether or not granted.
"MILESTONE REIMBURSEMENT SCHEDULE" means the fixed pricing schedule
attached hereto as SCHEDULE V to be used to reimburse Vendor for the cost of the
applicable Completed Milestones or Deemed Completed Milestones for each
Milestone Site to be transferred in accordance with the terms of Article II
hereof.
"MILESTONE SITE(S)" means those In Process BTS Sites for which a SARF
has been issued pursuant to Section 5.01(a) of the BTS Agreement prior to the
Milestone Cut Off Date and for which Services and Work was performed prior to
the date hereof or is still being performed by Vendor at the date hereof, but
which is not a Completed Site or a Construction Site, all only as listed on
SCHEDULE III attached hereto, together with the Site Related Assets and Site
Related Materials applicable for such Milestone Sites.
"MILESTONE SITE REIMBURSEMENT AMOUNT" means the reimbursement amount
for each Milestone Site calculated as set forth in Article III, Section (b)(1)
hereof.
"MILESTONE TRANSITION DATE" means the date which is thirty (30) days
after the Final Milestone Delivery Date, which shall be the date that Vendor or
the applicable Vendor's or Vendor's Affiliate's interest in the Milestone Sites
is transferred by Vendor and/or Vendor Affiliate to SBCW or the applicable
Cingular Group Member in accordance with the terms hereof.
"MLA TERM SHEET" means that certain term sheet regarding MLA and other
pricing terms, which MLA Term Sheet is attached hereto as Schedule VI.
"NEWCO" shall have the meaning ascribed thereto in Article IV, Section
(b) hereof.
"ORDER(S)" means all applicable orders, writs, judgments, decrees,
rulings, consent agreements and awards of or by any forum or entered by consent
of the party to be bound.
"PERMIT MILESTONE" means the Milestone after completion of all of the
Milestones applicable to a Milestone Site for site acquisition and architectual
and engineering work pursuant to which Milestone, Vendor has obtained both a
zoning permit and building permit as required to permit Completion of the
construction of a BTS Site.
22
"PERMITTED LIEN" means, with respect to a BTS Site, (i) liens for
current real or personal property taxes not yet due and payable, (ii) any lien,
mortgage, security interest, pledge, restriction on transferability, easement,
option or other claim, charge or encumbrance of any nature placed upon the
interest in a BTS Site of the lessor, landlord or other counter-party under the
applicable Ground Lease, (iii) easements, rights of way or similar grants of
rights to a third party for access to or across a BTS Site granted to any
utility or similar entity in connection with the provision of electric, water,
sewage, telephone, gas or similar services to the BTS Site, (iv) the applicable
Ground Lease, (v) Site Contracts, (vi) Third Party Collocation Agreements; (vii)
non-monetary encumbrances 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 BTS Site; and (viii)
local, state and federal laws, ordinances or governmental regulations, including
but not limited to, building and zoning laws, ordinances and regulations, now or
hereafter in effect relating to the BTS Site. Notwithstanding the foregoing,
"Permitted Lien" shall not include any Lien which results in or evidences that
the holder of the leasehold interest evidenced by the Ground Lease, as otherwise
subject to the Permitted Lien, is not Vendor or a Cingular Group Member, or that
the lessor or landlord who executed a Ground Lease was not at the time of
execution thereof the record owner of the land described therein.
"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.
"SBCW'S RETROACTIVE RENTAL OBLIGATION" means with respect to the
Completed BTS Sites all rent payable by a Cingular Group Member, as computed
pursuant to the BTS Sublease, accruing during the period commencing upon the
Rental Commencement Date (as defined in the BTS Sublease) and ending on the date
the Site Designation Supplement is delivered with respect to such Completed BTS
Site pursuant to Section II (a).
"SBCW SITE(S)" means those BTS Sites (whether Completed Sites,
Construction Sites or Milestone Sites) subject to that certain letter agreement
dated August 31, 2001, by and among Vendor, TowerCo Parent and SBCW(the "SBCW
Transition Agreement"), which were supposed to be transitioned to Vendor prior
to the date hereof in accordance with the SBCW Transition Agreement..
"SBCW SITE REIMBURSEMENT AMOUNT" means the amount as to any SBCW Site,
which Vendor is required to reimburse SBCW for Cingular Work pursuant to the
SBCW Transition Agreement.
23
"SITE CONTRACTS" shall have the meaning ascribed thereto in Article V,
Section (b)(8) hereof.
"SITE DESIGNATION SUPPLEMENT" means the Site Designation Supplement
providing for a sublease of the Leased Space and a collocation of Communication
Equipment by SBCW or a Cingular Group Member on a Completed BTS Site including
the Agreed Site Rent, in substantially the form attached to the BTS Sublease,
but incorporating the terms in Sections II and III of the MLA Term Sheet.
"SITE RELATED ASSETS" means collectively, as to Milestone Sites,
Construction Sites or Completed Sites, as applicable, those existing Ground
Leases, contracts, Permits, bonds, warranties, tower structures and related
improvements, Site Related Materials and all other rights relating to such BTS
Sites including as to any Construction Sites, all rights and other Site Related
Materials as necessary for the Completion of the Construction Sites or as to any
Milestone Site, as otherwise necessary to evidence a Completed Milestone as to
such Milestone Sites.
"SITE RELATED MATERIAL" means collectively and without duplication, as
applicable to any BTS Site, all materials, supplies, structural designs,
construction documents and specifications, equipment keys, contracts, documents,
zoning reports (including related correspondence and exhibits), applications and
all other reports, books of account and records obtained or maintained by Vendor
or any Vendor Affiliate for any BTS Site and any documents or information
including the Compliance Data, Site Data Package or Due Diligence Package for
such BTS Sites and Completed CA/NV Sites (to the extent the completion thereof
is then appropriate) obtained or maintained by Vendor or its Affiliates in
connection with any BTS Site and specifically including without limitation, the
Construction Package as to the Construction Sites and Milestone Package as to
the Milestone Sites.
"SS NEWCO PURCHASE AGREEMENT" means that certain proposed SpectraSite
NewCo Purchase Agreement by and among Cingular Wireless, LLC, SpectraSite
Holdings, Inc., Southern Towers, Inc. and CA/NV Tower Holdings, LLC and of even
date herewith.
"THIRD PARTY COLLOCATION AGREEMENTS" shall have the meaning ascribed
thereto in Article V, Section (b)(7) hereof.
"TOTAL CA/NV SITE PURCHASE PRICE" means the aggregate purchase price
for all of the Completed CA/NV Sites to be transferred to SBCW (or NewCo, as
applicable) as calculated in accordance with Article II, Section (b) hereof.
"TOTAL CONSTRUCTION SITE REIMBURSEMENT AMOUNT" " means the aggregate
reimbursement amount for the Construction Sites to be transferred to SBCW (or
NewCo, as applicable) as calculated in accordance with in Article III Section
(b)(3) hereof.
24
"TOTAL MILESTONE REIMBURSEMENT AMOUNT" means the sum of all the
Milestone Site Reimbursement Amounts for all of the Milestone Sites.
"TOTAL REIMBURSEMENT AMOUNT" means collectively the Total Construction
Site Reimbursement Amount and Total Milestone Reimbursement Amount.
"TRANSACTION CLOSING DATE" means the closing date of the transaction
contemplated by the SS NewCo Purchase Agreement.
"VENDOR AFFILIATE" means any entity which is directly or indirectly
controlled by Vendor Parent and has any right, title or interest, or
obligations, in and to any BTS Sites, including specifically, but without
limitation Southern Towers, Inc.
(b) COUNTERPARTS. This Agreement may be executed by one or more of the
parties hereto on any number of separate counterparts and all such counterparts
shall be deemed to be one and the same instrument.
(c) 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.
(d) ANNEXES, EXHIBITS AND SCHEDULES. Each and every annex, exhibit and
schedule referred to or otherwise mentioned in this Agreement is attached to
this Agreement and is and shall be construed to be made a part of this Agreement
by such reference or other mention at each point at which such reference or
other mention occurs, in the same manner and with the same effect as if each
annex and exhibit were set forth in full and at length every time it is referred
to or otherwise mentioned.
(e) EXPENSES. Except as otherwise provided 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;
PROVIDED THAT, Vendor and SBCW shall each be responsible for fifty percent (50%)
of any and all sales taxes, transfer taxes and documentary stamp taxes incurred
in connection with transferring the Completed CA/NV Sites and In Process BTS
Sites to NewCo as contemplated hereby. SBCW shall be responsible for any
recording costs incurred by it in connection with recording any individual
assignment of Ground Leases to SBCW or the applicable Cingular Group Member, but
Vendor shall be responsible for recording costs of any memorandum of Ground
Lease.
(f) 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 THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR IS
OTHERWISE VOID OR VOIDABLE). THIS WAIVER IS A
25
MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS AGREEMENT.
(g) NOTICES. Whenever any notice, demand, request, advice or other
communication is required or permitted under this Agreement such notice, demand
or request shall be in writing and shall be sent by registered or certified
mail, postage prepaid, return receipt requested, or be sent by nationally
recognized commercial courier for next business day delivery so long as such
commercial courier requires the recipient to sign a receipt evidencing delivery,
or by facsimile (with a follow up confirmation by another method provided for
herein) to the addresses or facsimile numbers set forth below or to such other
addresses as are specified by written notice given in accordance herewith:
SBCW OR SBCW PARTY: SBC Wireless, LLC
------------ -----
c/o Cingular Wireless LLC
5565 Glenridge Connector
Atlanta, Georgia 30342
Attention: Mila A. Ostin
Facsimile Number: (404) 236-5574
And for purposes of Article III, Section
(a)(1) hereof:
Attention: Stephen Brake or Executive
Director of Partnerships and Real Estate
Facsimile Number: (404) 236-5869
With a copy to:
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309-3424
Attention: Pinney L. Allen
Facsimile Number: (404) 881-4777
VENDOR AND TOWERCO PARENT: SpectraSite Holdings, Inc.
------ --- --------------
100 Regency Forest Drive, Suite 400
Cary, North Carolina 27511
Attention: Terry L. Armant
Facsimile No.: (919) 468-8522
With a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Mitchell L. Berg, Bruce A
Gutenplan
Facsimile No.: (212) 757-3990
26
All notices, demands, requests, advice or communications given by mailing shall
be deemed given on the date of receipt in the United States Mail; those given by
commercial courier shall be deemed given on the date such notice, demand,
request, advice or communication is delivered to the recipients address set
forth above or to such other address as is specified by written notice given in
accordance herewith and all notices, demands, requests, advice or communications
sent by facsimile to the recipients at the facsimile number set forth above
shall be deemed given on the confirmation date of facsimile transmission. Any
notice, demand, request, advice or communication not received because of changed
address or facsimile number of which no notice was given or because of refusal
to accept delivery shall be deemed received by the party to whom addressed on
the date of hand delivery, on the date of facsimile transmittal, on the first
calendar day after deposit with commercial courier, or on the third calendar day
following deposit in the United States Mail, as the case may be.
(h) GUARANTEES. Without limiting any obligations of TowerCo Parent
under the provisions of the BTS Agreement, TowerCo Parent hereby absolutely,
unconditionally and irrevocably guarantees the timely performance of all
obligations, undertakings, agreements, covenants, representations and warranties
of Vendor under this Agreement.
(i) SPECIAL DAMAGES. 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.
[EXECUTION BEGINS ON FOLLOWING PAGE]
27
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement as of the day and year first above written.
SBCW:
SBC WIRELESS, LLC,
on behalf of itself and as Agent
By: /s/ Stephen A. McGaw
-----------------------------
Name: Stephen A. McGaw
Title: Executive Vice President
- Corporate Development
VENDOR:
SPECTRASITE COMMUNICATIONS, INC.
By: /s/ Stephen H. Clark
-----------------------------
Name: Stephen H. Clark
Title: President and CEO
TOWERCO PARENT:
SPECTRASITE HOLDINGS, INC.
By: /s/ Stephen H. Clark
-----------------------------
Name: Stephen H. Clark
Title: President and CEO