EXHIBIT 2.1
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
In re: ) Chapter 11
)
SPECTRASITE HOLDINGS, INC., ) Case No. 02-03631-5-(ATS)
)
)
Debtor. )
PROPOSED PLAN OF REORGANIZATION OF SPECTRASITE
HOLDINGS, INC. UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
POYNER & SPRUILL LLP
Terri L. Gardner
3600 Glenwood Avenue
Raleigh, North Carolina 27605
Telephone: (919) 783-6400
Facsimile: (919) 783-1075
and
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
Andrew N. Rosenberg
James H. Millar
Claudia R. Tobler
Alexander V. Rohan
1285 Avenue of the Americas
New York, New York 10019
Telephone: (212) 373-3000
Facsimile: (212) 757-3990
Attorneys for the Debtor
Dated: November 18, 2002
SpectraSite Holdings, Inc. proposes the following plan of reorganization
under section 1121(a) of the Bankruptcy Code.
I.
DEFINITIONS AND CONSTRUCTION OF TERMS
A. DEFINITIONS. UNLESS OTHERWISE DEFINED HEREIN, OR THE CONTEXT
OTHERWISE REQUIRES, THE FOLLOWING TERMS SHALL HAVE THE RESPECTIVE MEANINGS SET
FORTH BELOW:
ADMINISTRATIVE CLAIM means any right to payment constituting a cost
or expense of administration of the Chapter 11
Case of a kind specified under section 503(b) of
the Bankruptcy Code and entitled to priority
under section 507(a)(1) or 507(b) of the
Bankruptcy Code, including, without limitation,
any actual and necessary costs and expenses of
preserving the Debtor's estate, any actual and
necessary costs and expenses of operating the
Debtor's business, any indebtedness or
obligations incurred or assumed by the Debtor in
Possession in connection with the conduct of its
business, including, without limitation, all
compensation and reimbursement of expenses to
the extent awarded by the Court under sections
330, 331 or 503 of the Bankruptcy Code, and any
fees or charges assessed against the Debtor's
estate under section 1930 of chapter 123 of
title 28 of the United States Code.
ADMINISTRATIVE, PRIORITY has the meaning assigned to such term in
AND CONVENIENCE Article VI.B.3.(b)(i) of the Plan.
CLAIMS RESERVE
ALLOWED CLAIM means, with reference to any Claim, (a) any
Claim against the Debtor which has been listed
by the Debtor in its Schedules, as such
Schedules may be amended by the Debtor from time
to time in accordance with Bankruptcy Rule 1009,
as liquidated in amount and not disputed or
contingent, and with respect to which no
contrary proof of claim has been filed, (b) any
Claim specifically allowed under the Plan, (c)
any Claim which is not Disputed, or (d) any
Claim the amount or existence of which, if
Disputed, (i) has been determined by a Final
Order of a court of competent jurisdiction other
than the Court, or (ii) has been allowed by
Final
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Order of the Court; provided, however, that any
Claims allowed solely for the purpose of voting
to accept the Plan pursuant to an order of the
Court shall not be considered "Allowed Claims"
hereunder.
AMENDED BY-LAWS means the Amended and Restated By-Laws of
Reorganized SpectraSite Holdings, Inc., which
shall be in substantially the form contained in
the Plan Supplement.
AMENDED CERTIFICATE OF means the amended and restated Certificate of
INCORPORATION Incorporation of Reorganized SpectraSite
Holdings, Inc., which shall be in substantially
the form contained in the Plan Supplement.
AVAILABLE SHARES means all shares of New Common Stock to be
distributed to the holders of General Unsecured
Claims less the number of shares of New Common
Stock deposited into the Disputed Claims
Reserve.
BALLOTS means each of the ballot forms distributed with
the Disclosure Statement to each holder of an
Impaired Claim or Interest (other than to
holders not entitled to vote on the Plan) upon
which is to be indicated, among other things,
acceptance or rejection of the Plan.
BANKRUPTCY CODE means title 11 of the United States Code, 11
U.S.C. ss.ss. 101 et seq., as in effect on the
date hereof.
BANKRUPTCY RULES means the Federal Rules of Bankruptcy Procedure
as promulgated by the United States Supreme
Court under section 2075 of title 28 of the
United States Code, and local rules of the
Court, as the context may require.
BUSINESS DAY means any day on which commercial banks are open
for business, and not authorized to close, in
the City of New York, New York, except any day
designated as a legal holiday by Bankruptcy Rule
9006(a).
CASH means legal tender of the United States of
America.
CAUSES OF ACTION means all claims, choses in action and causes of
action (including those assertable
derivatively), liabilities, obligations, suits,
debts, sums of money, damages, demands,
judgments, whether
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known or unknown, now owned or hereafter
acquired by the Debtor, and the Cash and
non-Cash proceeds thereof, whether arising under
the Bankruptcy Code or other Federal, state or
foreign law, equity or otherwise, including,
without limitation, any causes of action arising
under sections 510, 544, 547, 548, 549, 550, 551
or any other section of the Bankruptcy Code.
CHAPTER 11 CASE means the chapter 11 case commenced by the
Debtor.
CLAIM means any claim against the Debtor as such term
is defined in section 101(5) of the Bankruptcy
Code.
CLASS means a group of Claims or Equity Interests as
classified under the Plan.
COLLATERAL means any property or interest in property of
the Debtor's estate subject to a Lien to secure
the payment or performance of a Claim, which
Lien is not subject to avoidance under the
Bankruptcy Code or otherwise invalid under the
Bankruptcy Code or applicable state law.
CONFIRMATION DATE means the date on which the Confirmation Order
is entered by the Court.
CONFIRMATION HEARING means the hearing to consider confirmation of
the Plan pursuant to section 1128 of the
Bankruptcy Code, as it may be adjourned or
continued from time to time.
CONFIRMATION ORDER means the order entered by the Court (i)
confirming the Plan pursuant to section 1129 of
the Bankruptcy Code; (ii) approving and
authorizing the transactions contemplated by the
SBC Transaction; and (iii) finding, among other
things, that each of the transactions
contemplated to occur on or immediately after
the Effective Date by the SBC Transaction is at
arm's length, made in good faith, for reasonably
equivalent value, and in the best interest of
the Debtor's creditors.
CONVENIENCE CLAIMS means and includes any Claim which would
otherwise be a General Unsecured Claim (other
than a Senior Notes Claim) that (i) is Allowed
in an amount of $25,000 or less, or (ii) is
Allowed
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in an amount greater than $25,000 but which is
reduced to $25,000 by the election of the holder
thereof pursuant to the holder's Ballot.
COURT means, (a) the United States Bankruptcy Court
for the Eastern District of North Carolina,
Raleigh Division, having jurisdiction over the
Chapter 11 Case; (b) to the extent there is no
reference pursuant to section 157 of title 28 of
the United States Code, the United States
District Court for the Eastern District of North
Carolina, Raleigh Division, and (c) any other
court having jurisdiction over the Chapter 11
Case.
CREDITORS COMMITTEE means the Official Committee of Unsecured
Creditors appointed or to be appointed by the
Court in the Chapter 11 Case, as constituted
from time to time.
DEBTOR means SpectraSite Holdings, Inc.
DEBTOR IN POSSESSION means the Debtor in its capacity as debtor in
possession in the Chapter 11 Case pursuant to
sections 1107(a) and 1108 of the Bankruptcy
Code.
DISCLOSURE STATEMENT means the written disclosure statement that
relates to this Plan, as approved by the Court
pursuant to section 1125 of the Bankruptcy Code
and Bankruptcy Rule 3017, as such disclosure
statement may be amended, modified or
supplemented from time to time.
DISPUTED CLAIM means (a) any Claim, proof of which was not
timely or properly filed and which has been or
hereafter is listed on the Schedules as
unliquidated, disputed or contingent, or is not
listed in the Schedules; (b) any Claim as to
which the Debtor or any other party in interest
has filed an objection or request for estimation
on or before the Effective Date or such other
applicable limitation period fixed by the Plan,
the Bankruptcy Code, the Bankruptcy Rules or the
Court; or (c) any Claim as to which a proof of
claim is timely and properly filed, except to
the extent that the amount asserted in such
proof of claim exceeds the liquidated,
undisputed and noncontingent amount set forth in
the Schedules with respect to such Claim. A
Claim that is a
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Disputed Claim under subsection (b) of this
definition shall cease to be Disputed upon the
withdrawal of such objection or request for
estimation or a determination thereon by a Final
Order in favor of the holder of such Claim. Any
Claim that is a Disputed Claim under subsection
(c) of this definition shall cease to be
Disputed if no objection or request for
estimation to such Claim is filed by the Debtor
pursuant to Article VI.B.3.(a) of the Plan.
DISPUTED CLAIMS RESERVE means any shares of New Common Stock issued to
the Transfer Agent for distribution on
Subsequent Distribution Dates and the Final
Distribution Date pursuant to Article VI.B.1.(f)
of the Plan.
EFFECTIVE DATE means the first Business Day on which all of the
conditions specified in Article XII.A. of the
Plan have been satisfied or waived in accordance
with Article XII.B. of the Plan; provided,
however, that if a stay of the Confirmation
Order is in effect on such date, the Effective
Date will be the first Business Day after such
stay is no longer in effect.
EQUITY INCENTIVE PLAN has the meaning assigned to such term in Article
V.D. of the Plan. Such plan shall be on the
terms described in Exhibit C hereto and, along
with a form of individual stock option agreement
with respect thereto, shall be in substantially
the form contained in the Plan Supplement.
EQUITY INTEREST OR INTEREST means any share of preferred stock or common
stock or other instrument evidencing an
ownership interest in the Debtor, whether or not
transferable, and any option, warrant, or right,
contractual or otherwise, to acquire, sell or
subscribe for any such interest.
FINAL DISTRIBUTION DATE means the date on which Reorganized SpectraSite
makes a final distribution pursuant to Article
VI.B.1.(e) of this Plan. The Final Distribution
Date shall be a date, as determined by
Reorganized SpectraSite, after resolution of all
Disputed Claims.
FINAL ORDER means an order or judgment of the Court, or
other court of competent jurisdiction, as
entered
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on the docket in the Chapter 11 Case, the
operation or effect of which has not been
stayed, reversed, vacated or amended, and as to
which order or judgment (or any revision,
modification, or amendment thereof) the time to
appeal, petition for certiorari, or seek review
or rehearing has expired and as to which no
appeal, petition for certiorari, or petition for
review or rehearing was filed or, if filed,
remains pending.
GENERAL UNSECURED CLAIM means an Unsecured Claim (other than an
Administrative Claim, Priority Tax Claim, Other
Priority Claim or Convenience Claim), including,
without limitation, a Senior Note Claim and a
Rejected Obligation Claim.
GOVERNMENT has the meaning assigned to such term in Article
VII.J.3. of the Plan.
IMPAIRED means, when used with reference to a Claim or
Interest, a Claim or Interest that is impaired
within the meaning of section 1124 of the
Bankruptcy Code.
INDENTURE TRUSTEE means, with respect to the Senior Note
Indentures, HSBC Bank USA, as successor to Bank
of New York, as successor to United States Trust
Company of New York, in its capacity as trustee
under each such indenture.
INDENTURE TRUSTEE EXPENSES means any reasonable fees and reasonable
documented out-of-pocket costs and expenses
incurred after the Petition Date and through and
including the Final Distribution Date by the
Indenture Trustee under the Senior Notes
Indentures. Such amounts shall include, without
limitation, the reasonable documented
out-of-pocket costs and expenses and reasonable
fees of legal counsel to the Indenture Trustee
(as determined in accordance with the Senior
Notes).
INITIAL DISTRIBUTION DATE means the Effective Date or as soon thereafter
as practicable.
INITIAL HOLDER means, (a) any person or entity who will
initially hold shares of New Common Stock on the
Effective Date, (b) any investment fund for
which any person thereof acts as manager, (c)
any partnership or other entity for which any
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person thereof acts directly or indirectly as a
general partner, managing member or controlling
stockholder, and (d) any person otherwise
affiliated with any of the foregoing individuals
or entities.
LIEN has the meaning set forth in section 101 of the
Bankruptcy Code.
NEW COMMON STOCK means the common stock of Reorganized
SpectraSite, par value $.01 per share, to be
authorized and issued by Reorganized SpectraSite
on the Effective Date pursuant to the Plan.
NEW SENIOR MANAGEMENT has the meaning assigned to such term in Article
EMPLOYMENT CONTRACTS V.A.2. of the Plan.
NEW WARRANTS means the warrants to purchase in the aggregate
1,250,000 shares of New Common Stock, which
shall be on the terms described in Exhibit A
hereto and shall be in substantially the form
contained in the Plan Supplement and which shall
be issued pursuant to the terms of the Warrant
Agreement.
OLD COMMON STOCK means the common stock, par value $.001 per
share, issued by the Debtor and outstanding on
the Effective Date, including, without
limitation, any common stock issued in
connection with the SBC Transaction.
OTHER EQUITY INTEREST means any Equity Interest (other than Old Common
Stock).
OTHER GUARANTY CLAIM means a Claim arising from one or more of the
agreements listed on Schedule 1.
OTHER PRIORITY CLAIM means a Claim entitled to priority pursuant to
section 507(a) of the Bankruptcy Code (other
than Administrative Claims and Priority Tax
Claims).
OTHER SECURED CLAIM means a Secured Claim (other than a Senior
Secured Guaranty Claim or an Other Guaranty
Claim).
PETITION DATE means November 15, 2002, the date on which the
Debtor filed its petition for relief commencing
the Chapter 11 Case.
PLAN means this plan of reorganization, as it may
be amended or modified from time to time,
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together with all addenda, exhibits, schedules
or other attachments, if any.
PLAN DOCUMENTS means the documents to be included in the Plan
Supplement.
PLAN SUPPLEMENT means the forms of documents specified in
Article IX.M. of the Plan.
PREPETITION NOTEHOLDERS means the informal committee of certain holders
COMMITTEE of Senior Notes that was formed prior to the
Petition Date, whose members are Apollo
Management V L.P., Capital Research and
Management Company, Conseco Capital Management,
Fidelity Management & Research Co., and Oaktree
Capital Management LLC.
PRIORITY TAX CLAIM means any Unsecured Claim held by a governmental
unit entitled to a priority in right of payment
under section 507(a)(8) of the Bankruptcy Code.
PRO RATA means, at any time, the proportion that the
amount of a Claim or Interest in a particular
Class bears to the aggregate amount of all
Claims or Interests, as the case may be
(including Disputed Claims), in such Class,
unless in each case the Plan provides otherwise.
RECORD DATE means the record date for purposes of making
distributions under the Plan on account of
Allowed Claims, which date shall be the
Effective Date.
REGISTRATION RIGHTS means a registration rights agreement by
AGREEMENT Reorganized SpectraSite in favor of certain
Initial Holders, which shall be in substantially
the form contained in the Plan Supplement.
REJECTED OBLIGATION CLAIM means any Unsecured Claim of any entity against
the Debtor arising from the rejection pursuant
to sections 365 or 1123(b) of the Bankruptcy
Code of (a) a lease of real or personal property
entered into with the Debtor, or (b) any
contract with the Debtor.
RELEASED PARTIES has the meaning assigned to such term in Article
VII.I. of the Plan.
REORGANIZED SPECTRASITE means the Debtor, or any successor thereto by
merger, consolidation, or otherwise, on and
after the Effective Date.
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SBC TRANSACTION means, collectively, all of the transactions
described on Exhibit D hereto and as
contemplated by (x) the agreements listed on
Schedule A to Exhibit D hereto (to the extent
not fully performed or consummated prior to the
Effective Date), (y) the agreements listed on
Schedule B to Exhibit D hereto (to the extent
not fully performed or consummated prior to the
Effective Date) and (z) any other collateral
amendments or other documents that may be
executed therewith (to the extent not fully
performed or consummated prior to the Effective
Date).
SCHEDULED means, with respect to any Claim or Equity
Interest, the status and amount, if any, of such
Claim or Equity Interest as set forth in the
Schedules.
SCHEDULES means the schedules of assets and liabilities,
filed with the Court by the Debtor, including
any amendments or supplements thereto.
SECURED CLAIM means a Claim that is secured by a Lien on
property or interests in property, in which the
Debtor has an interest, to the extent of the
value as of the Effective Date, or such other
date as is established by the Court, of such
interest or Lien determined by a Final Order of
the Court pursuant to Section 506 of the
Bankruptcy Code or as otherwise agreed upon in
writing by the Debtor and the holder of such
Claim.
SENIOR NOTES means the 12-1/2% Senior Notes due 2010, the
6-3/4% Senior Convertible Notes due 2010, the
10-3/4% Senior Notes due 2010, the 12-7/8%
Senior Discount Notes due 2010, the 11-1/4%
Senior Discount Notes due 2009, and the 12%
Senior Discount Notes due 2008 issued by the
Debtor pursuant to the Senior Note Indentures.
SENIOR NOTE CLAIM means a Claim for principal and accrued and
unpaid prepetition interest arising with respect
to the Senior Notes through the Petition Date.
SENIOR NOTE INDENTURES means, collectively, (a) the Indenture, dated as
of December 20, 2000, between SpectraSite
Holdings, Inc. and United States Trust Company
of New York, as Trustee, with respect
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to the 12-1/2% Senior Notes; (b) the Indenture,
dated as of November 20, 2000, between
SpectraSite Holdings, Inc. and United States
Trust Company of New York, as Trustee, with
respect to the 6-3/4% Senior Convertible Notes;
(c) the Indenture, dated as of March 15, 2000,
between SpectraSite Holdings, Inc. and United
States Trust Company of New York, as Trustee,
with respect to the 10-3/4% Senior Notes; (d)
the Indenture, dated as of March 15, 2000,
between SpectraSite Holdings, Inc. and United
States Trust Company of New York, as Trustee,
with respect to the 12-7/8% Senior Discount
Notes; (e) the Indenture, dated as of April 20,
1999, between SpectraSite Holdings, Inc. and
United States Trust Company of New York, as
Trustee, with respect to the 11-1/4% Senior
Discount Notes; and (f) the Indenture, dated as
of June 26, 1998, between SpectraSite Holdings,
Inc. and United States Trust Company of New
York, as Trustee, as amended March 25, 1999 and
June 6, 2000, with respect to the 12% Senior
Discount Notes.
SENIOR SECURED CREDIT means the Amended and Restated Credit Agreement
AGREEMENT among SpectraSite Communications, Inc., as
Borrower; SpectraSite Holdings, Inc., as a
Guarantor; CIBC World Markets Corp. and Credit
Suisse First Boston, as Joint Lead Arrangers and
Bookrunners; CIBC World Markets Corp., Credit
Suisse First Boston, Bank Of Montreal, Chicago
Branch and TD Securities (USA) Inc., as
Arrangers; Credit Suisse First Boston, as
Syndication Agent; Bank Of Montreal, Chicago
Branch and TD Securities (USA) Inc., as
Co-Documentation Agents; Canadian Imperial Bank
of Commerce, as Administrative Agent and
Collateral Agent; the other credit parties party
thereto, dated February 22, 2001, as amended by
First Amendment to Amended and Restated Credit
Agreement dated October 31, 2001 and Second
Amendment to Amended and Restated Credit
Agreement dated August 14, 2002.
SENIOR SECURED GUARANTY means a Secured Claim arising from the Debtor's
CLAIM guaranty obligations under the Senior Secured
Credit Agreement.
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SUBORDINATED SECURITY CLAIM means any claim arising from rescission of a
purchase or sale of Old Common Stock of the
Debtor or of an affiliate of the Debtor, for
damages arising from the purchase and sale of
such a security, or for reimbursement or
contribution allowed under section 502 of the
Bankruptcy Code on account of such a claim.
SUBSEQUENT DISTRIBUTION means any distribution of Available Shares made
to the holders of General Unsecured Claims on a
Subsequent Distribution Date in accordance with
Article VI.B.1.(d) of the Plan.
SUBSEQUENT DISTRIBUTION DATE means any date, as determined by Reorganized
SpectraSite, which is after the Effective Date
and prior to the Final Distribution Date on
which a distribution of Available Shares is made
to holders of General Unsecured Claims in
accordance with Article VI.B.1.(d) of the Plan.
TRANSFER AGENT means the transfer agent for the New Common
Stock.
UNSECURED CLAIM means any Claim that is not a Secured Claim.
WARRANT AGENT means the agent for the New Warrants.
WARRANT AGREEMENT means a warrant agreement pursuant to which the
New Warrants will be issued.
B. INTERPRETATION, APPLICATION OF DEFINITIONS AND RULES OF CONSTRUCTION.
Wherever from the context it appears appropriate, each term stated in
either the singular or the plural shall include both the singular and plural,
and pronouns stated in the masculine, feminine or neuter gender shall include
the masculine, feminine and neuter, such meanings to be applicable to both the
singular and plural forms of the terms defined. Capitalized terms in the Plan
that are not defined herein shall have the same meaning assigned to such terms
by the Bankruptcy Code or Bankruptcy Rules, as the case may be. The words
"herein," "hereof," and "hereunder" and other words of similar import refer to
the Plan as a whole and not to any particular section or subsection in the Plan
unless expressly provided otherwise. All gender references shall be deemed to
refer to both genders. The words "includes" and "including" are not limiting and
mean that the things specifically identified are set forth for purposes of
illustration, clarity or specificity and do not in any respect qualify,
characterize or limit the generality of the class within which such things are
included. The rules of construction set forth in section 102 of the Bankruptcy
Code shall apply to this Plan. In computing any period of time prescribed or
allowed by this Plan, the provisions of Bankruptcy Rule 9006(a) shall apply.
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II.
CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS
A. INTRODUCTION.
All Claims and Equity Interests, except Administrative Claims and
Priority Tax Claims, are placed in the Classes set forth below. In accordance
with section 1123(a)(1) of the Bankruptcy Code, Administrative Claims and
Priority Tax Claims, as described below, have not been classified.
A Claim or Equity Interest is placed in a particular Class only to the
extent that the Claim or Equity Interest falls within the description of that
Class, and is classified in other Classes to the extent that any portion of the
Claim or Equity Interest falls within the description of such other Classes. A
Claim is also placed in a particular Class for the purpose of receiving
distributions pursuant to the Plan only to the extent that such Claim is an
Allowed Claim in that Class and such Claim has not been paid, released, or
otherwise settled prior to the Effective Date.
1. UNCLASSIFIED CLAIMS (NOT ENTITLED TO VOTE ON THE PLAN).
a. Administrative Claims.
b. Priority Tax Claims.
2. UNIMPAIRED CLASSES OF CLAIMS (DEEMED TO HAVE ACCEPTED THE PLAN AND,
THEREFORE, NOT ENTITLED TO VOTE ON THE PLAN).
a. Class 1: Other Priority Claims.
Class 1 consists of all Other Priority Claims.
b. Class 2: Senior Secured Guaranty Claims.
Class 2 consists of all Senior Secured Guaranty Claims.
c. Class 3: Other Secured Claims.
Class 3 consists of all Other Secured Claims.
d. Class 4: Other Guaranty Claims.
Class 4 consists of all Other Guaranty Claims.
e. Class 5: Convenience Claims.
Class 5 consists of all Convenience Claims.
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3. IMPAIRED CLASSES OF CLAIMS AND EQUITY INTERESTS (ENTITLED TO VOTE ON
THE PLAN).
a. Class 6: General Unsecured Claims.
Class 6 consists of all General Unsecured Claims
b. Class 7: Old Common Stock.
Class 7 consists of all Old Common Stock.
4. IMPAIRED CLASSES OF EQUITY INTERESTS (DEEMED TO HAVE REJECTED THE
PLAN AND, THEREFORE, NOT ENTITLED TO VOTE ON THE PLAN).
a. Class 8: Subordinated Security Claims.
Class 8 consists of all Subordinated Security Claims.
b. Class 9: Other Equity Interests.
Class 9 consists of all Other Equity Interests.
III.
TREATMENT OF ADMINISTRATIVE
CLAIMS AND PRIORITY TAX CLAIMS
A. ADMINISTRATIVE CLAIMS.
Except to the extent that any entity entitled to payment of any Allowed
Administrative Claim agrees to a different treatment, each holder of an Allowed
Administrative Claim shall receive (a) Cash in an amount equal to such Allowed
Administrative Claim on the later of the Effective Date and the date such
Administrative Claim becomes an Allowed Administrative Claim, or as soon
thereafter as is practicable, or (b) such other treatment as the Debtor and such
holder shall have agreed upon in writing; provided, however, that Allowed
Administrative Claims representing liabilities incurred in the ordinary course
of business by the Debtor in Possession or liabilities arising under loans or
advances to or other obligations incurred by the Debtor in Possession (to the
extent authorized and approved by the Court if such authorization and approval
was required under the Bankruptcy Code) shall be paid in full and performed by
Reorganized SpectraSite, as the case may be, in the ordinary course of business
in accordance with the terms and subject to the conditions of any agreements
governing, instruments evidencing, or other documents relating to, such
transactions.
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B. PROFESSIONAL COMPENSATION AND REIMBURSEMENT CLAIMS.
All entities seeking an award by the Court of compensation for services
rendered or reimbursement of expenses incurred through and including the
Confirmation Date under sections 503(b)(2), 503(b)(3), 503(b)(4) or 503(b)(5) of
the Bankruptcy Code (a) shall file their respective final applications for
allowances of compensation for services rendered and reimbursement of expenses
incurred through the Effective Date by the date that is 30 days after the
Effective Date or such other date as may be fixed by the Court in the
Confirmation Order, and (b) if granted, such an award by the Court shall be paid
in full in such amounts as are awarded by the Court on the date such
Administrative Claim becomes an Allowed Administrative Claim, or as soon
thereafter as is practicable.
C. PRIORITY TAX CLAIMS.
Except to the extent that a holder of an Allowed Priority Tax Claim
agrees to a different treatment, each holder of an Allowed Priority Tax Claim
shall receive, at the sole option of Reorganized SpectraSite, (a) Cash in an
amount equal to such Allowed Priority Tax Claim on the later of the Effective
Date and the date such Priority Tax Claim becomes an Allowed Priority Tax Claim,
or as soon thereafter as is practicable, or (b) over a period through the sixth
anniversary of the date of assessment of such Allowed Priority Tax Claim, equal
annual Cash payments in an aggregate amount equal to such Allowed Priority Tax
Claim, together with interest (i) with respect to federal taxes, at a fixed
annual rate equal to the federal statutory rate as provided in 26 U.S.C. ss.
6621, and (ii) with respect to state and city taxes, at the rate applicable
under state or local law.
IV.
TREATMENT OF CLAIMS AND
EQUITY INTERESTS
A. CLASS 1 - OTHER PRIORITY CLAIMS.
1. DISTRIBUTIONS. Except to the extent that a holder of an Allowed Other
Priority Claim shall have agreed in writing to a different treatment, in full
and final satisfaction of such claim each holder of an Allowed Other Priority
Claim shall receive payment in an amount equal to such Allowed Claim in full in
Cash on the later of the Effective Date and the date when such Other Priority
Claim becomes an Allowed Claim, or as soon thereafter as practicable.
2. IMPAIRMENT AND VOTING. Class 1 is unimpaired under the Plan. Holders
of Allowed Claims in Class 1 are presumed to accept the Plan and are not
entitled to vote to accept or reject the Plan.
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B. CLASS 2 - SENIOR SECURED GUARANTY CLAIMS.
1. DISTRIBUTIONS. Except to the extent that a holder of an Allowed
Senior Secured Guaranty Claim shall have agreed in writing to a different
treatment, in full and final satisfaction of such claim each Allowed Senior
Secured Guaranty Claim shall be reinstated and rendered unimpaired in accordance
with section 1124(1) of the Bankruptcy Code on the Effective Date.
2. IMPAIRMENT AND VOTING. Class 2 shall be unimpaired under the Plan.
The holders of Allowed Claims in Class 2 are presumed to accept the Plan and are
not entitled to vote to accept or reject the Plan.
C. CLASS 3 - OTHER SECURED CLAIMS.
1. DISTRIBUTIONS. Except to the extent that a holder of an Allowed Other
Secured Claim shall have agreed in writing to a different treatment, at the sole
option of the Debtor, in full and final satisfaction of such claim (i) each
Allowed Other Secured Claim shall be reinstated and rendered unimpaired in
accordance with section 1124(2) of the Bankruptcy Code, notwithstanding any
contractual provision or applicable nonbankruptcy law that entitles the holder
of an Allowed Other Secured Claim to demand or receive payment of such Allowed
Other Secured Claim prior to the stated maturity of such Allowed Other Secured
Claim from and after the occurrence of a default, (ii) each holder of an Allowed
Other Secured Claim shall receive Cash in an amount equal to such Allowed Other
Secured Claim, including any interest on such Allowed Other Secured Claim
required to be paid pursuant to section 506(b) of the Bankruptcy Code, on the
later of the Effective Date and the date such Other Secured Claim becomes an
Allowed Other Secured Claim, or as soon thereafter as is practicable, or (iii)
each holder of an Allowed Other Secured Claim shall receive the Collateral
securing its Allowed Other Secured Claim and any interest on such Allowed Other
Secured Claim required to be paid pursuant to section 506(b) of the Bankruptcy
Code, in full and complete satisfaction of such Allowed Other Secured Claim on
the later of the Effective Date and the date such Other Secured Claim becomes an
Allowed Other Secured Claim, or as soon thereafter as is practicable.
2. IMPAIRMENT AND VOTING. Class 3 is unimpaired under the Plan. The
holders of Allowed Other Secured Claims in Class 3 are presumed to accept the
Plan and are not entitled to vote to accept or reject the Plan.
D. CLASS 4 - OTHER GUARANTY CLAIMS.
1. DISTRIBUTIONS. Except to the extent that a holder of an Allowed Other
Guaranty Claim shall have agreed in writing to a different treatment, in full
and final satisfaction of such Claim each Allowed Other Guaranty Claim shall be
reinstated and rendered unimpaired in accordance with section 1124(1) of the
Bankruptcy Code on the Effective Date.
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2. IMPAIRMENT AND VOTING. Class 4 is unimpaired under the Plan. The
holders of Allowed Other Guaranty Claims in Class 4 are presumed to accept the
Plan and are not entitled to vote to accept or reject the Plan.
E. CLASS 5 - CONVENIENCE CLAIMS.
1. DISTRIBUTIONS. Except to the extent that a holder of an Allowed
Convenience Claim shall have agreed in writing to a different treatment, in full
and final satisfaction of such claim each holder of an Allowed Convenience Claim
shall receive payment in an amount equal to such Allowed Claim in full in Cash
on the later of the Effective Date and the date when such Convenience Claim
becomes an Allowed Claim, or as soon thereafter as practicable.
2. IMPAIRMENT AND VOTING. Class 5 is unimpaired under the Plan. Holders
of Allowed Claims in Class 5 are presumed to accept the Plan and are not
entitled to vote to accept or reject the Plan.
3. ELECTION TO BE TREATED AS A CONVENIENCE CLAIM. By checking the
appropriate box on a timely cast Ballot, the holder of an Allowed General
Unsecured Claim (other than a Senior Notes Claim) in an amount greater than
$25,000 may elect to reduce the amount of such holder's Allowed General
Unsecured Claim to $25,000 and to receive a distribution upon such Allowed Class
5 Convenience Claim in such amount. Such an election shall be irrevocable and
shall constitute a waiver of the right to collect, and a release of, the amount
of the Allowed General Unsecured Claim in excess of $25,000, and the holder of
such Allowed Class 5 Convenience Claim shall be deemed to have released the
Debtor, its estate, and its property from any and all liability for such excess
amount. The holder of an Allowed General Unsecured Claim (other than a Senior
Notes Claim) which timely elects to reduce the amount of its Allowed Claim shall
be deemed to be the holder of an Allowed Class 5 Convenience Claim for
classification, voting and all other purposes under the Plan.
F. CLASS 6 - GENERAL UNSECURED CLAIMS.
1. DISTRIBUTIONS. Each holder of an Allowed General Unsecured Claim in
Class 6 shall receive its Pro Rata share of 23,750,000 shares of the New Common
Stock (which represents 100% of the New Common Stock to be issued on the
Effective Date).
2. IMPAIRMENT AND VOTING. Class 6 is impaired under the Plan. Each
holder of General Unsecured Claim in Class 6 is entitled to vote to accept or
reject the Plan.
3. ALLOWANCE OF SENIOR NOTE CLAIMS. As of the Effective Date, the Senior
Note Claims shall be deemed to be Allowed General Unsecured Claims in the
following amounts and holders of Senior Note Claims shall not be required to
file proofs of claim in the Chapter 11 Case in order to establish and be
entitled to distributions with respect to such claims:
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a. Claims in respect of the Debtor's 12-1/2% Senior Notes due
2010 shall be Allowed in the aggregate amount of $212,500,000.00.
b. Claims in respect of the Debtor's 6-3/4% Senior Convertible
Notes due 2010 shall be Allowed in the aggregate amount of
$206,750,000.00.
c. Claims in respect of the Debtor's 10-3/4% Senior Notes due
2010 shall be Allowed in the aggregate amount of $214,333,333.33.
d. Claims in respect of the Debtor's 12-7/8% Senior Discount
Notes due 2010 shall be Allowed in the aggregate amount of
$418,579,751.95.
e. Claims in respect of the Debtor's 11-1/4% Senior Discount
Notes due 2009 shall be Allowed in the aggregate amount of
$502,643,720.80.
f. Claims in respect of the Debtor's 12% Senior Discount Notes
due 2008 shall be Allowed in the aggregate amount of $208,479,653.93.
G. CLASS 7 - OLD COMMON STOCK.
1. DISTRIBUTIONS. Each holder of Old Common Stock in Class 7 shall
receive its Pro Rata share of 100% of the New Warrants.
2. IMPAIRMENT AND VOTING. Class 7 is impaired under the Plan. Each
holder of Old Common Stock in Class 7 is entitled to vote to accept or reject
the Plan.
H. CLASS 8 - SUBORDINATED SECURITY CLAIMS.
1. DISTRIBUTIONS. The holders of Class 8 Allowed Subordinated Security
Claims shall receive no distributions whatsoever on account of such Subordinated
Security Claims.
2. IMPAIRMENT AND VOTING. Class 8 is impaired under the Plan. As the
holders of Allowed Subordinated Security Claims are receiving no distributions,
they are conclusively presumed to have rejected the Plan and are not entitled to
vote to accept or reject the Plan.
I. CLASS 9 - OTHER EQUITY INTERESTS.
1. DISTRIBUTIONS. The holders of Class 9 Other Equity Interests shall
receive no distributions whatsoever on account of such Other Equity Interests.
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2. IMPAIRMENT AND VOTING. Class 9 is impaired under the Plan. As the
holders of Other Equity Interests are receiving no distributions, they are
conclusively presumed to have rejected the Plan and are not entitled to vote to
accept or reject the Plan. On the Effective Date, Other Equity Interests shall
be deemed cancelled and shall have no further legal effect.
V.
PROVISIONS REGARDING CORPORATE GOVERNANCE AND
MANAGEMENT OF THE REORGANIZED DEBTOR
A. DIRECTORS AND OFFICERS OF REORGANIZED SPECTRASITE; AMENDED
CERTIFICATE OF INCORPORATION AND AMENDED BY-LAWS.
1. THE INITIAL BOARD OF DIRECTORS. The initial board of directors of
Reorganized SpectraSite shall consist of five (5) members, four (4) of whom
shall be designated by the Prepetition Noteholders Committee and elected by the
existing board, whose names shall be disclosed on or before the date of the
Confirmation Hearing, and one (1) of whom shall be the Chief Executive Officer
of Reorganized SpectraSite. The Board of Directors of Reorganized SpectraSite
shall select a Chairman at their initial meeting. At all times, the composition
of the Board of Directors shall satisfy all requirements for director
independence.
2. MANAGEMENT OF REORGANIZED SPECTRASITE. The officers of the Debtor
immediately prior to the Effective Date shall serve as the initial officers of
Reorganized SpectraSite on and after the Effective Date. Such officers shall
serve in accordance with any employment agreement with Reorganized SpectraSite
and applicable nonbankruptcy law, as the case may be. Amended or new employment
agreements for Stephen H. Clark, President and Chief Executive Officer, David P.
Tomick, Executive Vice President and Chief Financial Officer, and Timothy G.
Biltz, Chief Operating Officer, shall be on the terms described in Exhibit B
hereto and shall be in substantially the forms contained in the Plan Supplement
and shall become effective on the Effective Date (the "New Senior Management
Employment Contracts").
3. AMENDED CERTIFICATE OF INCORPORATION AND AMENDED BY-LAWS. The
adoption of the Amended Certificate of Incorporation and Amended By-Laws shall
be deemed to have occurred and be effective as of the Effective Date without any
further action by the directors or stockholders of the Debtor or Reorganized
SpectraSite. The Amended Certificate of Incorporation will, among other things,
contain appropriate provisions (i) governing the authorization of up to
250,000,000 shares of New Common Stock (of which 23,750,000 shares will be
issued on the Effective Date) that will be available for issuance and whose
terms and conditions may be established by the Board of Directors of Reorganized
SpectraSite, and (ii) prohibiting the issuance of nonvoting equity securities to
the extent required by section 1123(a)(6) of the Bankruptcy Code. On or prior to
the Effective Date, the Debtor will file with the Secretary of State of the
State of Delaware, in accordance
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with sections 103 and 303 of the Delaware General Corporation Law, the Amended
Certificate of Incorporation and such certificate shall be the certificate of
incorporation for Reorganized SpectraSite.
B. SECURITIES TO BE ISSUED PURSUANT TO THE PLAN.
1. NEW COMMON STOCK. On the Effective Date, Reorganized SpectraSite will
issue 23,750,000 shares of New Common Stock to holders of Allowed General
Unsecured Claims without further act or action under applicable law, regulation,
rule or order. Holders of New Common Stock will have the right to participate
proportionately in any dividends distributed by Reorganized SpectraSite.
2. THE NEW WARRANTS. On the Effective Date, Reorganized SpectraSite
shall issue New Warrants to purchase 1,250,000 shares of New Common Stock
without further act or action under applicable law, regulation, rule or order.
C. SECURITIES LAWS MATTERS.
Each Initial Holder receiving a distribution of New Common Stock
representing more than 10% of the aggregate New Common Stock issued on the
Effective Date shall be entitled to become a party to the Registration Rights
Agreement, which provides that Reorganized SpectraSite will provide certain
demand registration rights to such holders for the New Common Stock.
Certificates evidencing shares of New Common Stock received by an Initial Holder
who is a beneficiary of the Registration Rights Agreement of the Debtor by
reason of its equity holdings or otherwise will bear a legend stating, in
substance, that such shares have not been registered under the Securities Act or
under the securities laws of any state or other jurisdiction and may not be
sold, offered for sale or otherwise transferred unless registered or qualified
under such Act and applicable state securities laws or unless Reorganized
SpectraSite receives a certificate executed by a duly authorized officer of such
Initial Holder or an opinion of counsel, as applicable, reasonably satisfactory
to Reorganized SpectraSite, that such registration or qualification is not
required.
Commencing on the Effective Date, Reorganized SpectraSite shall use its
reasonable efforts to list the New Common Stock (i) on a national securities
exchange or the NASDAQ Stock Market; or (ii) if Reorganized SpectraSite cannot
satisfy the applicable requirements for listing on a national securities
exchange or the NASDAQ Stock Market, on the NASDAQ Small Cap Market; or (iii) if
Reorganized SpectraSite cannot satisfy the applicable requirements for listing
on the NASDAQ Small Cap Market, on another qualifying inter-dealer quotation
system.
D. REORGANIZED SPECTRASITE EQUITY INCENTIVE PLAN.
On the Effective Date, a stock plan (the "Equity Incentive Plan") which
grants to certain of Reorganized SpectraSite's officers, directors and
management options with respect to shares of New Common Stock shall become
effective. Such plan, and a form of individual stock option agreement with
respect thereto, shall be on
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the terms described in Exhibit C hereto and shall be in substantially the form
contained in the Plan Supplement.
E. SBC TRANSACTION.
Except for the issuance of 12,144,381 shares of Old Common Stock to SBC
immediately prior to the Effective Date in connection with the SBC Transaction,
immediately subsequent to the effectiveness of the Plan, Reorganized SpectraSite
will consummate the SBC Transaction and will cause Southern Towers, Inc. to take
all necessary actions to consummate the SBC Transaction. The Plan shall
constitute the Debtor's and Reorganized SpectraSite's approval of the SBC
Transaction.
VI.
PROVISIONS REGARDING VOTING
AND DISTRIBUTIONS UNDER THE PLAN
AND TREATMENT OF DISPUTED, CONTINGENT AND
UNLIQUIDATED ADMINISTRATIVE CLAIMS AND CLAIMS
A. VOTING OF CLAIMS.
Each holder of an Allowed Claim or Interest in an Impaired Class of
Claims or Interests, as the case may be, shall have the opportunity to vote
separately to accept or reject the Plan (to the extent such holder is not deemed
to reject the Plan).
B. DISTRIBUTIONS.
1. METHOD OF DISTRIBUTIONS UNDER THE PLAN.
(a) Date and Delivery of Distributions. Distributions under the Plan
shall be made by Reorganized SpectraSite or its designee to the holders of
Allowed Administrative Claims, Allowed Priority Tax Claims, Allowed Other
Priority Claims, Allowed Convenience Claims and, to the extent applicable,
Allowed Other Secured Claims at the addresses set forth on the Schedules, unless
such addresses are superseded by proofs of claim or transfers of claim filed
pursuant to Bankruptcy Rule 3001 (or at the last known addresses of such holders
if the Debtor or Reorganized SpectraSite has been notified in writing of a
change of address). Distributions of New Common Stock and New Warrants shall be
made initially to the Indenture Trustee, Transfer Agent, Warrant Agent, or as
determined by the Debtor, who shall make the distributions to the holders of
Allowed General Unsecured Claims and Old Common Stock. New Common Stock
(including dividends paid on account thereof) will be held in trust by the
disbursing agent or Reorganized SpectraSite, as applicable, for the benefit of
holders of Disputed Claims until such time as such shares are distributed to
holders of Allowed Claims. Until such distribution, shares of New Common Stock
held for the benefit of Disputed Claims holders shall be treated as treasury
stock for voting purposes.
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(b) Distribution of Cash. Any payment of Cash by Reorganized SpectraSite
pursuant to the Plan shall be made at the option and in the sole discretion of
Reorganized SpectraSite by (i) a check drawn on, or (ii) wire transfer from, a
domestic bank selected by Reorganized SpectraSite.
(c) Effective Date Distributions. On the Effective Date, or as soon
thereafter as practicable, Reorganized SpectraSite shall distribute Available
Shares to the holders of Allowed General Unsecured Claims and the New Warrants
to the holders of Old Common Stock.
(d) Distributions on Subsequent Distribution Dates. Unless otherwise
provided in the Plan, to the extent there are Available Shares subsequent to the
Effective Date as a result of the release of shares of New Common Stock from the
Disputed Claims Reserve in accordance with Article VI.B.1.(f) of the Plan,
Reorganized SpectraSite shall, on a Subsequent Distribution Date, distribute
such Available Shares to the holders of General Unsecured Claims entitled
thereto that were Allowed on the Effective Date or subsequently have become
Allowed on or before the Subsequent Distribution Date in amounts necessary to
cause such holders to have received aggregate distributions of shares of New
Common Stock in respect of such Allowed Claims equal to the distributions that
such holders would have received in respect of such Allowed Claims on the
Effective Date if (x) such Available Shares had been available for distribution
on the Effective Date, (y) such Allowed Claims had been Allowed on the Effective
Date in the amounts in which they are Allowed on the Subsequent Distribution
Date, and (z) Claims or portions thereof that have become disallowed subsequent
to the Effective Date and on or before the Subsequent Distribution Date had been
disallowed on the Effective Date, provided, however, that in no event shall
Reorganized SpectraSite be obligated to make such an interim distribution if, in
the discretion of Reorganized SpectraSite, there are not sufficient Available
Shares to make a cost-efficient distribution, taking into account the size of
the distribution to be made and the number of recipients of such distribution.
(e) Distributions on the Final Distribution Date. Unless otherwise
provided in this Plan, to the extent there are Available Shares subsequent to
the Effective Date from the release of shares of New Common Stock from the
Disputed Claims Reserve in accordance with Article VI.B.1.(f) of the Plan,
Reorganized SpectraSite shall, on the Final Distribution Date, distribute all
such Available Shares to the holders of General Unsecured Claims entitled
thereto that were, if applicable, Allowed on the Effective Date, or subsequently
have become Allowed on or before the Final Distribution Date in amounts
necessary to cause such holders to have received aggregate distributions of
shares of New Common Stock in respect of such Allowed Claims equal to the
distributions that such holders would have received in respect of such Allowed
Claims on the Effective Date if (x) such Available Shares had been available for
distribution on the Effective Date, (y) such Allowed Claims had been Allowed on
the Effective Date in the amounts in which they are Allowed on the Final
Distribution Date, and (z) Claims or portions thereof that have become
disallowed subsequent to the Effective Date and on or before the Final
Distribution Date had been disallowed on the Effective Date.
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(f) Reserve Shares for Disputed Claims. On the date on which Reorganized
SpectraSite makes its initial distribution of New Common Stock to holders of
Allowed General Unsecured Claims pursuant to Article VI.B.1. of the Plan,
Reorganized SpectraSite shall hold in trust an aggregate number of New Common
Stock sufficient to distribute to each holder of a Disputed Claim (i) the number
of shares of New Common Stock that such holder would have been entitled to
receive under the Plan if such Claim had been an Allowed General Unsecured Claim
on the date of such initial distribution, or (ii) such lesser amount as the
Court may estimate pursuant to Article VI.C. of the Plan or may otherwise order.
Shares of New Common Stock shall be withheld by Reorganized SpectraSite and
reserved for distribution to holders of Disputed Claims until such time as such
shares are distributed to holders of Allowed Claims. Until such distribution,
shares of New Common Stock held for the benefit of Disputed Claims holders shall
be treated as treasury stock for voting purposes.
(g) Unclaimed Distributions. Any distribution of Cash under the Plan
which is unclaimed after the later to occur of (a) two years after the Initial
Distribution Date and (b) six months after the date on which such claimant's
Claim is Allowed shall be transferred to Reorganized SpectraSite notwithstanding
state or other escheat or similar laws to the contrary. Any distribution of New
Common Stock and/or New Warrants under the Plan which is unclaimed after the
later to occur of (a) two years after the Initial Distribution Date and (b) six
months after the date on which the Claim or Interest that entitles the holders
to such New Common Stock or New Warrants becomes Allowed shall be canceled and
any dividends or interest which has been paid with respect to such securities
shall be transferred to Reorganized SpectraSite and entitlement by the holder of
a Claim to such distribution shall be extinguished and forever barred.
(h) Saturdays, Sundays, or Legal Holidays. If any payment or act under
the Plan is required to be made or performed on a date that is not a Business
Day, then the making of such payment or the performance of such act may be
completed on the next succeeding Business Day, and shall be deemed to have been
completed as of the required date.
(i) Fractional Shares and Warrants. Notwithstanding any other provision
in the Plan to the contrary, no fractional shares of New Common Stock or
fractional warrants of New Warrants shall be issued pursuant to the Plan.
Whenever any payment of a fraction of a share of New Common Stock or fractional
warrant of New Warrants would otherwise be required under the Plan, the actual
distribution made shall reflect a rounding of such fraction to the nearest whole
share or warrant (up or down), with half shares or warrants or less being
rounded down and fractions in excess of a half of a share or warrant being
rounded up. If two or more holders are entitled to equal fractional entitlements
and the number of holders so entitled exceeds the number of whole shares or
warrants, as the case may be, which remain to be allocated, the Transfer Agent
or Warrant Agent shall allocate the remaining whole shares or warrants to such
holders by random lot or such other impartial method as it deems fair, in such
agent's sole discretion. Upon the allocation of all of the whole
23
shares or warrants authorized under the Plan, all remaining fractional portions
of the entitlements shall be canceled and shall be of no further force and
effect.
(j) Distributions to Holders as of the Record Date. As of the close of
business on the Record Date, the claims register and equity holders register
shall be closed, and there shall be no further changes in the record holders of
any Claims or Interests. The Debtor and Reorganized SpectraSite shall have no
obligation to recognize any transfer of any Claims or Interests occurring after
the Record Date. The Debtor and Reorganized SpectraSite shall instead be
entitled to recognize and deal for purposes under the Plan (except as to voting
to accept or reject the Plan pursuant to Article VI.A.) with only those record
holders stated on the claims register and equity holder register as of the close
of business on the Record Date.
(k) Indenture Trustee's Fees and Expenses. The Indenture Trustee shall
be entitled to payment from Reorganized SpectraSite of Indenture Trustee
Expenses incurred in connection with such Trustee's making distributions under
the Plan without further Court approval. These payments will be made on terms
agreed to with Reorganized SpectraSite and will not be deducted from
distributions to be made pursuant to the Plan.
2. DISPUTED GENERAL UNSECURED CLAIMS. The holder of a Disputed General
Unsecured Claim that becomes an Allowed Claim subsequent to the Initial
Distribution Date shall receive a distribution of New Common Stock as soon
thereafter as is practicable. Such distributions shall be made in accordance
with the Plan based on the distributions that would have been made to such
holder under the Plan if such Disputed Claim had been an Allowed Claim on or
prior to the Effective Date.
3. OBJECTIONS TO AND RESOLUTION OF ADMINISTRATIVE CLAIMS AND CLAIMS;
ADMINISTRATIVE, PRIORITY AND CONVENIENCE CLAIMS RESERVE.
(a) Objections To And Resolution of Administrative Claims and Claims.
The Debtor and Reorganized SpectraSite shall have the exclusive right to make
and file objections to Administrative Claims and Claims subsequent to the
Effective Date. Unless otherwise ordered by the Court, the Debtor and
Reorganized SpectraSite shall file all objections to Administrative Claims and
Claims that are the subject of proofs of claim or requests for payment filed
with the Court (other than applications for allowances of compensation and
reimbursement of expenses, objections to which will be due in accordance with
the schedule set forth in the Plan or Confirmation Order) and serve such
objections upon the holders of the Administrative Claim or Claim as to which the
objection is made as soon as is practicable, but in no event later than 60 days
after the Effective Date or such later date as may be approved by the Court.
(b) Administrative, Priority and Convenience Claims Reserve.
24
(i) Establishment of Administrative, Priority and Convenience
Claims Reserve. On the Effective Date, Reorganized SpectraSite shall
place into reserve an amount of Cash equal to (i) the sum of the
aggregate amount of all Disputed Administrative Claims, Disputed
Priority Tax Claims, Disputed Other Priority Claims and Disputed
Convenience Claims, plus (ii) an amount to be determined by the Court to
be reserved for any Disputed Administrative Claims, Disputed Priority
Tax Claims, Disputed Other Priority Claims and Disputed Convenience
Claims that are unliquidated (the "Administrative, Priority and
Convenience Claims Reserve").
(ii) Cash Held in Administrative, Priority and Convenience
Claims Reserve. Cash held in the Administrative, Priority and
Convenience Claims Reserve shall be deposited in a bank account or
accounts in the name of Reorganized SpectraSite and designated as held
in trust for the benefit of holders of Allowed Administrative Claims,
Allowed Priority Tax Claims, Allowed Other Priority Claims and Allowed
Convenience Claims. Cash held in the Administrative, Priority and
Convenience Claims Reserve shall not constitute property of Reorganized
SpectraSite. Reorganized SpectraSite shall pay, or cause to be paid, out
of the funds held in the Administrative, Priority and Convenience Claims
Reserve, any tax imposed on the Administrative, Priority and Convenience
Claims Reserve by any governmental unit with respect to income generated
by Cash held in the Administrative, Priority and Convenience Claims
Reserve. Any Cash held in the Administrative, Priority and Convenience
Claims Reserve after all Administrative, Priority and Convenience Claims
have been Allowed or disallowed shall be transferred to and become the
property of Reorganized SpectraSite.
(c) Allowance of Disputed Administrative, Priority and Convenience
Claims. If, on or after the Effective Date, any Disputed Administrative,
Priority or Convenience Claim becomes an Allowed Claim, Reorganized SpectraSite
shall, not later than thirty days after the date on which such Claim becomes an
Allowed Claim, or as soon thereafter as is practicable, distribute from the
Administrative, Priority and Convenience Claims Reserve to the holder of such
Allowed Administrative, Priority or Convenience Claim Cash equal to the amount
that such holder would have been entitled to had such Claim been Allowed on the
Effective Date.
(d) Release of Shares from Disputed Claims Reserve. If at any time or
from time to time after the Effective Date, there shall be shares of New Common
Stock in the Disputed Claims Reserve in an amount in excess of the amount which
Reorganized SpectraSite is required at such time to reserve on account of
Disputed Claims under the Plan or pursuant to any Order of the Court, such
excess shares of New Common Stock shall become available for distribution to
holders of Allowed General Unsecured Claims in accordance with the Plan.
25
(e) Allocation of Consideration. The aggregate consideration to be
distributed to the holders of Allowed Claims in each Class under the Plan (other
than the Claims, if any, of the Internal Revenue Service) shall be treated as
first satisfying an amount equal to the stated principal amount of the Allowed
Claim for such holders and any remaining consideration as satisfying accrued,
but unpaid, interest and costs, if any, and attorneys' fees where applicable.
(f) Cancellation and Surrender of Existing Securities and Agreements.
Except as otherwise provided in the Plan and in any contract, instrument or
other agreement or document created in connection with the Plan, on the
Effective Date, the promissory notes, share certificates (including treasury
stock), other instruments evidencing any Claims or Interests, and all options,
warrants, calls, rights, puts, awards, commitments or any other agreements of
any character to acquire or issue such Interests shall be deemed canceled and of
no further force and effect, without any further act or action under any
applicable agreement, law, regulation, order or rule, and the obligations of the
Debtor under the notes, share certificates and other agreements and instruments
governing such Claims and Interests shall be discharged. The holders of or
parties to such canceled notes, share certificates and other agreements and
instruments shall have no rights arising from or relating to such notes, share
certificates and other agreements and instruments or the cancellation thereof,
except the rights provided pursuant to the Plan.
C. ESTIMATION.
The Debtor, Reorganized SpectraSite or the Creditors Committee (if any)
may, at any time, request that the Court estimate any Disputed Claim pursuant to
section 502(c) of the Bankruptcy Code regardless of whether the Debtor,
Reorganized SpectraSite or the Creditors Committee have previously objected to
such Claim. The Court will retain jurisdiction to estimate any Claim at any
time, including during litigation concerning any objection to such Claim. In the
event that the Court estimates any Disputed Claim, that estimated amount may
constitute either the Allowed amount of such Claim, the amount on which a
reserve is to be calculated for purposes of the Disputed Claims Reserve, or a
maximum limitation on such Claim, as determined by the Court. If the estimated
amount constitutes a maximum limitation on such Claim, the Debtor, Reorganized
SpectraSite or the Creditors Committee may elect to pursue any supplemental
proceedings to object to any ultimate payment of such Claim. All of the
aforementioned Claims objection, estimation and resolution procedures are
cumulative and not necessarily exclusive of one another.
D. ADMINISTRATIVE CLAIMS OF INDENTURE TRUSTEE; TREATMENT OF PREPETITION
NOTEHOLDERS COMMITTEE PROFESSIONALS.
1. ADMINISTRATIVE CLAIMS OF INDENTURE TRUSTEE.
In addition to any other Administrative Claim that may be filed by the
Indenture Trustee pursuant to the provisions set forth herein, the Indenture
Trustee
26
shall have an Allowed Administrative Claim in an amount equal to the Indenture
Trustee Expenses.
2. TREATMENT OF PREPETITION NOTEHOLDERS COMMITTEE PROFESSIONALS.
Notwithstanding anything to the contrary in this Plan:
(a) Financial Advisor. The engagement letter between the Debtor and the
Prepetition Noteholders Committee financial advisor, Houlihan, Lokey, Howard &
Zukin Capital, dated July 25, 2002, is assumed by the Debtor as of the Effective
Date pursuant to the Plan. On the Effective Date, Reorganized SpectraSite shall
pay all fees and expenses due thereunder without application by or on behalf of
such financial advisor to the Court.
(b) Counsel. As of the Effective Date and pursuant to the Plan,
Reorganized SpectraSite shall assume the Retainer Agreement between the Debtor
and Hennigan, Bennett & Dorman LLP, dated September 5, 2002, and be obligated to
pay (or reimburse the Prepetition Noteholders Committee for payment to) counsel
to the Prepetition Noteholders Committee, consisting of Hennigan, Bennett &
Dorman LLP and North Carolina counsel selected by the Prepetition Noteholders
Committee, all amounts incurred for reasonable fees and expenses on account of
representation of the Prepetition Noteholders Committee through the Effective
Date. On the Effective Date, Reorganized SpectraSite shall pay all fees and
expenses due to such counsel without application by or on behalf of such counsel
to the Court.
E. NONCONSENSUAL CONFIRMATION.
As the holders of Subordinated Security Claims in Class 8 and Other
Equity Interests in Class 9 are deemed to reject the Plan, the Debtor will seek
to have the Court confirm the Plan under section 1129(b) of the Bankruptcy Code.
VII.
EFFECT OF CONFIRMATION OF THIS PLAN
A. THE AMENDED CERTIFICATE OF INCORPORATION, THE AMENDED BY-LAWS AND
OTHER IMPLEMENTATION DOCUMENTS.
On or before the Effective Date, Reorganized SpectraSite will execute
the Amended Certificate of Incorporation, the Amended By-Laws, and all other
documents required and necessary to implement the Plan, without the requirement
of any further corporate action.
B. CONTINUED CORPORATE EXISTENCE.
The Debtor, as Reorganized SpectraSite, shall continue to exist after
the Effective Date with all powers of a corporation under the laws of its state
of incorporation and without prejudice to any right to alter or terminate such
existence (whether by merger or otherwise) under such applicable state law; and
Reorganized
27
SpectraSite may operate its business free of any restrictions imposed by the
Bankruptcy Code, the Bankruptcy Rules or by the Court, subject only to the terms
and conditions of the Plan.
C. VESTING OF ASSETS.
Except as otherwise expressly provided in the Plan, on the Effective
Date, or as soon as practicable thereafter, Reorganized SpectraSite shall be
vested with all of the property of the Debtor's estate free and clear of all
Claims, Liens, encumbrances, charges and other interests of creditors and equity
security holders.
D. DISCHARGE OF THE DEBTOR.
The rights afforded herein and the treatment of all Claims and Equity
Interests herein shall be in exchange for and in complete satisfaction,
discharge, and release of all Claims and Equity Interests of any nature
whatsoever, including any interest accrued on such Claims from and after the
Petition Date, against the Debtor, the Debtor in Possession, Reorganized
SpectraSite or any of its assets or properties, arising prior to the Effective
Date. Except as otherwise expressly specified in the Plan, the Confirmation
Order shall act as of the Effective Date as a discharge of all debts of, Claims
against, Liens on, and Equity Interests in the Debtor, its assets and
properties, arising at any time before the entry of the Confirmation Order,
regardless of whether a proof of Claim or Equity Interest with respect thereto
was filed, whether the Claim or Equity Interest is Allowed, or whether the
holder thereof votes to accept the Plan or is entitled to receive a distribution
hereunder. Except as otherwise expressly specified in the Plan, after the
Effective Date, any holder of such discharged Claim or Equity Interest shall be
precluded from asserting against the Debtor, Reorganized SpectraSite, or any of
its assets or properties, any other or further Claim or Equity Interest based on
any document, instrument, act, omission, transaction, or other activity of any
kind or nature that occurred before the entry of the Confirmation Order.
E. INJUNCTION.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE PLAN, THE CONFIRMATION
ORDER, OR A SEPARATE ORDER OF THE COURT, ALL ENTITIES WHO HAVE HELD, HOLD, OR
MAY HOLD CLAIMS AGAINST OR EQUITY INTERESTS IN THE DEBTOR WHICH AROSE BEFORE OR
WERE HELD AS OF THE EFFECTIVE DATE, ARE PERMANENTLY ENJOINED, ON AND AFTER THE
EFFECTIVE DATE, FROM (A) COMMENCING OR CONTINUING IN ANY MANNER ANY ACTION OR
OTHER PROCEEDING OF ANY KIND AGAINST THE DEBTOR, WITH RESPECT TO ANY SUCH CLAIM
OR EQUITY INTEREST, (B) THE ENFORCEMENT, ATTACHMENT, COLLECTION, OR RECOVERY BY
ANY MANNER OR MEANS OF ANY JUDGMENT, AWARD, DECREE, OR ORDER AGAINST THE DEBTOR
ON ACCOUNT OF ANY SUCH CLAIM OR EQUITY INTEREST, (C) CREATING, PERFECTING, OR
ENFORCING ANY ENCUMBRANCE OF ANY KIND AGAINST THE DEBTOR OR AGAINST THE PROPERTY
OR INTERESTS IN PROPERTY OF THE DEBTOR ON ACCOUNT OF ANY SUCH CLAIM OR EQUITY
INTEREST, AND (D) ASSERTING ANY RIGHT OF SETOFF, SUBROGATION, OR RECOUPMENT OF
ANY KIND AGAINST ANY OBLIGATION DUE FROM THE DEBTOR OR AGAINST THE PROPERTY OR
INTERESTS IN PROPERTY OF THE DEBTOR ON ACCOUNT OF ANY SUCH CLAIM OR
28
EQUITY INTEREST. SUCH INJUNCTION SHALL EXTEND TO SUCCESSORS OF THE DEBTOR
(INCLUDING, WITHOUT LIMITATION, REORGANIZED SPECTRASITE) AND ITS PROPERTIES AND
INTERESTS IN PROPERTY.
F. MAINTENANCE OF CAUSES OF ACTION.
Reorganized SpectraSite shall have, retain, reserve and be entitled to
assert all Causes of Action, rights of setoff and other legal or equitable
defenses which the Debtor had immediately prior to the Petition Date as fully as
if the Chapter 11 Case had not been commenced; and all of Reorganized
SpectraSite's legal and equitable rights respecting any such Causes of Action
which are not specifically waived, extinguished or relinquished by the Plan may
be asserted after the Effective Date to the same extent as if the Chapter 11
Case had not been commenced.
G. VOTES SOLICITED IN GOOD FAITH.
The Debtor has, and upon confirmation of the Plan shall be deemed to
have, solicited acceptances of the Plan in good faith and in compliance with the
applicable provisions of the Bankruptcy Code.
H. ADMINISTRATIVE CLAIMS INCURRED AFTER THE CONFIRMATION DATE.
Administrative Claims incurred by Reorganized SpectraSite after the date
and time of the entry of the Confirmation Order, including (without limitation)
Claims for professionals' fees and expenses incurred after such date, including,
without limitation, fees and expenses by Reorganized SpectraSite, and the
Creditors Committee (if any), shall not be subject to application and may be
paid by Reorganized SpectraSite in the ordinary course of business and without
application for or Court approval.
I. THE DEBTOR'S RELEASE.
On the Effective Date, the Debtor and Reorganized SpectraSite, on behalf
of themselves and the estate, shall be deemed to release unconditionally each of
the members of the Creditors Committee (if any), members of the Prepetition
Noteholders Committee, the Indenture Trustee, and The Altman Group, Inc., as
notice, claims, solicitation and balloting agent, and each of their, and those
of the Debtor's and Reorganized SpectraSite's, respective present officers,
directors, advisors, attorneys, financial advisors, accountants, and other
professionals (the "Released Parties") from any and all claims, obligations,
suits, judgments, damages, rights, Causes of Action and liabilities whatsoever,
whether known or unknown, foreseen or unforeseen, existing or hereafter arising,
in law, equity or otherwise, based in whole or in part upon actions taken in
their respective capacities described above, arising in connection with, or
related to, any transaction, event or other occurrence taking place on or prior
to the Effective Date in any way relating to the Debtor, the Chapter 11 Case,
the Forbearance, Lock-Up, and Voting Agreements between the Debtor and members
of the Prepetition Noteholders Committee or the Plan, except that (i) no
individual shall be released from
29
any express contractual or financial obligation to the Debtor or Reorganized
SpectraSite (other than obligations under the Forbearance, Lock-Up, and Voting
Agreements between the Debtor and members of the Prepetition Noteholders
Committee), (ii) no individual shall be released from any act or omission that
constitutes gross negligence or willful misconduct, and (iii) Reorganized
SpectraSite shall not relinquish or waive the right to assert any of the
foregoing as a legal or equitable defense or right of set-off or recoupment
against any Claims of any such persons asserted against the Debtor.
J. EXCULPATION, RELEASE AND INJUNCTION OF RELEASED PARTIES.
1. EXCULPATION. The Debtor, Reorganized SpectraSite, members of the
Creditors Committee (if any), members of the Prepetition Noteholders Committee,
the Indenture Trustee and the other Released Parties (i) shall have no liability
whatsoever to any holder or purported holder of an Administrative Claim, Claim,
or Equity Interest for any act or omission in connection with, or arising out
of, the Plan, the Disclosure Statement, the Forbearance, Lock-Up, and Voting
Agreements between the Debtor and members of the Prepetition Noteholders
Committee, the negotiation of the Plan or the Forbearance, Lock-Up, and Voting
Agreements, the negotiation of the other Plan Documents, the pursuit of approval
of the Disclosure Statement or the solicitation of votes for confirmation of the
Plan, the Chapter 11 Case, the consummation of the Plan, the administration of
the Plan or the property to be distributed under the Plan, or any transaction
contemplated by the Plan or Disclosure Statement or in furtherance thereof
(including, without limitation, employment contracts, programs and arrangements
adopted in connection with the Plan or the Chapter 11 Case), except for willful
misconduct or gross negligence as determined by a Final Order, and (ii) in all
respects, shall be entitled to rely upon the advice of counsel with respect to
their duties and responsibilities under the Plan. This exculpation shall be in
addition to, and not in limitation of, all other releases, indemnities,
exculpations and any other applicable law or rules protecting such Released
Parties from liability.
2. INJUNCTION. PURSUANT TO SECTION 105 OF THE BANKRUPTCY CODE, NO HOLDER
OR PURPORTED HOLDER OF AN ADMINISTRATIVE CLAIM, CLAIM OR EQUITY INTEREST SHALL
BE PERMITTED TO COMMENCE OR CONTINUE ANY ACTION, EMPLOYMENT OF PROCESS, OR ANY
ACT TO COLLECT, OFFSET, OR RECOVER ANY CLAIM AGAINST A RELEASED PARTY THAT
ACCRUED ON OR PRIOR TO THE EFFECTIVE DATE AND HAS BEEN RELEASED OR WAIVED
PURSUANT TO ARTICLE VII.J.1.
3. LIMITATION OF GOVERNMENTAL RELEASES. Notwithstanding Articles
VII.J.1. and 2. of the Plan, the Plan shall not release, discharge, or exculpate
any non-debtor party from any debt owed to the United States Government and/or
its agencies, including the Pension Benefit Guaranty Corporation (the
"Government"), or from any liability arising under the Internal Revenue Code,
the Employee Retirement Income Security Act of 1974, as amended, or the
environmental laws, securities laws or criminal laws of the United States. In
addition, notwithstanding Articles VII.J.1.
30
and 2. of the Plan, the Plan shall not enjoin or prevent the Government from
collecting any such liability from any such non-debtor party.
K. TERM OF BANKRUPTCY INJUNCTION OR STAYS.
All injunctions or stays provided for in the Chapter 11 Case under
sections 105 or 362 of the Bankruptcy Code, or otherwise, and in existence on
the Confirmation Date, shall remain in full force and effect until the Effective
Date.
L. PRESERVATION OF INSURANCE.
The Debtor's discharge and release from all Claims as provided herein,
except as necessary to be consistent with this Plan, shall not diminish or
impair the enforceability of any insurance policy that may cover Claims against
the Debtor, Reorganized SpectraSite (including, without limitation, its officers
and directors) or any other person or entity.
M. OFFICERS' AND DIRECTORS' INDEMNIFICATION RIGHTS AND INSURANCE.
Notwithstanding any other provisions of the Plan, the obligations of the
Debtor to indemnify its directors, officers, and employees serving immediately
prior to the Effective Date against any obligations, liabilities, costs or
expenses which arise out of facts or circumstances occurring prior to the
Effective Date, pursuant to the articles of incorporation or by-laws of the
Debtor, applicable state law, specific agreement, or any combination of the
foregoing, shall survive the Effective Date.
VIII.
RETENTION OF JURISDICTION
The Court shall have exclusive jurisdiction of all matters arising out
of, and related to, the Chapter 11 Case and the Plan pursuant to, and for the
purposes of, section 105(a) and section 1142 of the Bankruptcy Code and for,
among other things, the following purposes: (1) to hear and determine
applications for the assumption or rejection of executory contracts or unexpired
leases pending on the Confirmation Date, and the allowance of Claims resulting
therefrom; (2) to determine any other applications, adversary proceedings, and
contested matters pending on the Effective Date; (3) to ensure that
distributions to holders of Allowed Claims and Equity Interests are accomplished
as provided herein; (4) to resolve disputes as to the ownership of any Claim or
Interest; (5) to hear and determine timely objections to Administrative Claims
and Claims; (6) to enter and implement such orders as may be appropriate in the
event the Confirmation Order is for any reason stayed, revoked, modified or
vacated; (7) to issue such orders in aid of execution of the Plan, to the extent
authorized by section 1142 of the Bankruptcy Code; (8) to consider any
modifications of the Plan, to cure any defect or omission, or to reconcile any
inconsistency in any order of the Court, including, without limitation, the
Confirmation Order; (9) to hear and determine all applications for compensation
and reimbursement of expenses of professionals under
31
sections 330, 331 and 503(b) of the Bankruptcy Code; (10) to hear and determine
disputes arising in connection with the interpretation, implementation, or
enforcement of the Plan; (11) to hear and determine any issue for which the Plan
requires a Final Order of the Court; (12) to hear and determine matters
concerning state, local, and federal taxes in accordance with sections 346, 505
and 1146 of the Bankruptcy Code; (13) to hear any other matter not inconsistent
with the Bankruptcy Code; (14) to hear and determine disputes arising in
connection with compensation and reimbursement of expenses of professionals for
services rendered during the period commencing on the Confirmation Date through
and including the Effective Date; and (15) to enter a final decree closing the
Chapter 11 Case.
IX.
MISCELLANEOUS PROVISIONS
A. PAYMENT OF STATUTORY FEES.
All fees payable on or before the Effective Date (i) pursuant to section
1930 of title 28 of the United States Code, as determined by the Court at the
Confirmation Hearing, and (ii) to the United States Trustee's office or the
Bankruptcy Administrator, shall be paid by the Debtor on or before the Effective
Date and all such fees payable after the Effective Date shall be paid by
Reorganized SpectraSite.
B. DISSOLUTION OF CREDITORS COMMITTEE.
The Creditors Committee (if any) shall continue in existence until the
Effective Date to exercise those powers and perform those duties specified in
section 1103 of the Bankruptcy Code and shall perform such other duties as it
may have been assigned by the Court prior to the Effective Date. On the
Effective Date, the Creditors Committee shall be dissolved and its members shall
be deemed released of all their duties, responsibilities and obligations in
connection with the Chapter 11 Case or the Plan and its implementation, and the
retention or employment of the Creditors Committee's attorneys and other agents
shall terminate, except with respect to (i) the assertion of Claims for
professional fees and expenses, and (ii) any appeals of the Confirmation Order.
C. MODIFICATION OF THE PLAN.
The Debtor reserves the right, in accordance with the Bankruptcy Code,
to amend or to modify the Plan prior to the entry of the Confirmation Order with
the prior consent of the Prepetition Noteholders Committee. After entry of the
Confirmation Order, Reorganized SpectraSite or the Debtor may amend or modify
the Plan, or remedy any defect or omission or reconcile any inconsistency in the
Plan, in such a manner as may be necessary to carry out the purpose and intent
of the Plan.
32
D. GOVERNING LAW.
Unless a rule of law or procedure is supplied by Federal law (including
the Bankruptcy Code and Bankruptcy Rules) or the Delaware General Corporation
Law, the laws of the State of New York (without reference to the conflicts of
laws provisions thereof) shall govern the construction and implementation of the
Plan and any agreements, documents, and instruments executed in connection with
the Plan.
E. FILING OR EXECUTION OF ADDITIONAL DOCUMENTS.
On or before the Effective Date, the Debtor or Reorganized SpectraSite
shall file with the Court or execute, as appropriate, such agreements and other
documents as may be necessary or appropriate to effectuate and further evidence
the terms and conditions of the Plan.
F. WITHHOLDING AND REPORTING REQUIREMENTS.
In connection with the Plan and all instruments issued in connection
therewith and distributions thereon, the Reorganized Debtor shall comply with
all withholding and reporting requirements imposed by any federal, state, local
or foreign taxing authority and all distributions hereunder shall be subject to
any such withholding and reporting requirements.
G. EXEMPTION FROM TRANSFER TAXES.
Pursuant to section 1146(c) of the Bankruptcy Code, the issuance,
transfer or exchange of the New Common Stock and New Warrants under the Plan,
the making or assignment of any lease or sublease or the making or delivery of
any other instrument whatsoever, in furtherance of or in connection with the
Plan shall not be subject to any stamp, real estate transfer, recording or other
similar tax.
H. SECTION 1145 EXEMPTION.
Pursuant to, in accordance with, and solely to the extent provided under
section 1145 of the Bankruptcy Code, the issuance of New Common Stock and New
Warrants to the Debtor's creditors and interest holders under the Plan is exempt
from the registration requirements of Section 5 of the Securities Act, as
amended, and any State or local law requiring registration for offer or sale of
a security or registration or licensing of an issuer of, underwriter of, or
broker or dealer in such New Common Stock and New Warrants and is deemed to be a
public offering of New Common Stock and New Warrants.
I. WAIVER OF FEDERAL RULE OF CIVIL PROCEDURE 62(A).
The Debtor may request that the Confirmation Order include (a) a finding
that Fed. R. Civ. P. 62(a) shall not apply to the Confirmation Order, and
33
(b) authorization for the Debtor to consummate the Plan immediately after entry
of the Confirmation Order.
J. HEADINGS.
Headings used in the Plan are for convenience of reference only and
shall not constitute a part of the Plan for any purpose.
K. EXHIBITS/SCHEDULES.
All Exhibits and Schedules to the Plan are incorporated into and
constitute a part of the Plan as if set forth herein.
L. NOTICES.
All notices, requests, and demands hereunder to be effective shall be in
writing and unless otherwise expressly provided herein, shall be deemed to have
been duly given or made when actually delivered or, in the case of notice by
facsimile transmission, when received and telephonically confirmed, addressed as
follows:
To the Debtor: SpectraSite Holdings, Inc., 100 Regency Forest Drive,
Suite 400, Cary, North Carolina 29511, Attention: Stephen H. Clark, President
and Chief Executive Officer; telephone (919) 465-6800; facsimile (919) 388-9475,
with copies to Poyner & Spruill LLP, 3600 Glenwood Avenue, Raleigh, NC 27605,
Attention: Terri L. Gardner; telephone (919) 783-6400; facsimile (919) 783-1075
and Paul, Weiss, Rifkind, Wharton & Garrison, 1285 Avenue of the Americas, New
York, NY 10019-6064, Attention: Andrew N. Rosenberg; telephone: (212) 373-3000;
facsimile: (212) 757-3990.
To the Prepetition Noteholders Committee: Nicholls & Crampton, P.A.,
4300 Six Forks Road, Suite 700, P.O. Box 18237, Raleigh, NC 27609, Attention:
Gregory B. Crampton; telephone: (919) 781-1311; facsimile: (919) 782-0465; and
Hennigan, Bennett & Dorman LLP, 601 South Figueroa Street, Suite 3300, Los
Angeles , CA 90017, Attention: Bruce Bennett and James O. Johnston; telephone
(213) 694-1200; facsimile: (213) 694-1234.
[TO THE CREDITORS COMMITTEE: [TO BE INSERTED]]
M. PLAN DOCUMENTS/PLAN SUPPLEMENT.
The documents relating to the Amended Certificate of Incorporation, the
Amended By-Laws, the Registration Rights Agreement, the Warrant Agreement, the
New Senior Management Employment Contracts, the Equity Incentive Plan, and a
form of individual stock option agreement with respect thereto, and the SBC
Transaction shall be in forms acceptable to the Prepetition Noteholders
Committee and be contained in the Plan Supplement which will be filed with the
Clerk of the Court at least ten Business Days prior to the Confirmation Hearing.
The Plan Supplement may
34
be inspected in the office of the Clerk of the Court during normal court hours.
Holders of Claims or Equity Interests may obtain a copy of the Plan Supplement
upon written request to the Debtor in accordance with Article IX.L. of the Plan.
N. CONFLICT.
The terms of this Plan shall govern in the event of any inconsistency
with the summaries of the Plan set forth in the Disclosure Statement.
O. SETOFF BY THE UNITED STATES.
The valid setoff rights, if any, of the United States of America will be
unaffected by this Plan or confirmation thereof.
X.
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
On the Effective Date, the executory contracts and unexpired leases set
forth on Schedule 2 shall be deemed rejected by the Debtor.
Other than (i) executory contacts or unexpired leases which (w) are set
forth on Schedule 2, which are deemed rejected, (x) are the subject of a motion
to reject pending on the Confirmation Date, (y) were previously assumed or
rejected by the Debtor, or (z) have expired or terminated pursuant to their own
terms during the pendency of the Chapter 11 Case, and (ii) employment
agreements, if any, terminated prior to or in connection with the Plan, all of
the executory contracts (including, subject to consummation of the SBC
Transaction, the executory contracts with respect to the SBC Transaction),
unexpired leases and employment agreements that exist between the Debtor and any
person are specifically assumed as of the Effective Date pursuant to the Plan
(and to the extent required by the SBC Transaction, will be assigned pursuant to
the SBC Transaction). All Claims for damages arising from the rejection of
executory contracts or unexpired leases must be filed with the Court or claims
agent, as the case may be, in accordance with the Bankruptcy Rules or any order
of the court setting a bar date. Any Claims not filed within such time will be
forever barred from assertion against the Debtor, its estate and Reorganized
SpectraSite. All Allowed Claims arising from the rejection of executory
contracts or unexpired leases shall be treated, as the case may be, as (i)
General Unsecured Claims unless the holder elects or otherwise falls within
Convenience Claim treatment, or (ii) Other Equity Interests. Reorganized
SpectraSite, except as otherwise agreed by the parties, will cure any and all
undisputed defaults within 60 days of the Effective Date under any executory
contract, unexpired lease or employment agreement assumed pursuant to the Plan
in accordance with section 365 of the Bankruptcy Code. All disputed defaults
that are required to be cured shall be cured either within 30 days of the entry
of a Final Order determining the amount, if any, of the Debtor or Reorganized
SpectraSite's liability with respect thereto, or as may otherwise be agreed to
by the parties.
35
XI.
BENEFIT PLANS
All employment and severance agreements and policies, and all employee
compensation and benefit plans, policies, and programs of the Debtor applicable
generally to its employees, as in effect on the Effective Date, including,
without limitation, all savings plans, retirement plans, health care plans,
disability plans, severance benefit plans, incentive plans, and life, accidental
death, and dismemberment insurance plans, shall be deemed to be, and shall be
treated as though they are, executory contracts that are assumed under the Plan,
and the Debtor's obligations under such agreements and programs shall survive
the Effective Date of the Plan, without prejudice to Reorganized SpectraSite's
rights under applicable non-bankruptcy law to modify, amend, or terminate the
foregoing arrangements, except for (i) such executory contracts or plans
specifically rejected pursuant to the Plan, and (ii) such executory contracts or
plans as have previously been terminated, or rejected, pursuant to a Final
Order, or specifically waived by the beneficiaries of such plans, contracts, or
programs.
XII.
EFFECTIVENESS OF THE PLAN
A. CONDITIONS PRECEDENT TO EFFECTIVENESS.
The Plan shall not become effective unless and until it has been
confirmed and the following conditions have been satisfied in full or waived
pursuant to Article XII.B.: (1) the Confirmation Order in a form satisfactory to
the Debtor and the Prepetition Noteholders Committee shall have become a Final
Order; (2) the Amended Certificate of Incorporation shall have been properly
filed with the Secretary of State of the State of Delaware; (3) all
authorizations, consents and regulatory approvals required (if any) for the
Plan's effectiveness shall have been obtained; (4) the SBC Transaction shall be
in a form satisfactory to the Debtor and the Prepetition Noteholders Committee,
all conditions precedent to closing thereunder shall have been satisfied (other
than the condition requiring effectiveness of the Plan), and the SBC Transaction
shall close immediately after the Plan becomes effective (other than the
issuance of 12,144,381 shares of Old Common Stock to SBC immediately prior to
the Effective Date); (5) the Plan Documents shall be in a form acceptable to the
Debtor and the Prepetition Noteholders Committee, and shall have been executed
and delivered; (6) the maximum potential aggregate amount of Allowed Other
Secured Claims does not exceed $1 million; (7) the maximum potential aggregate
amount of Allowed General Unsecured Claims (other than Senior Note Claims) does
not exceed $21 million; (8) the Plan and Projections submitted to the Arranger
(each as defined in the Senior Secured Credit Agreement) shall satisfy the
requirements of an "Acceptable Restructuring Plan" (as defined in the Senior
Secured Credit Agreement), (9) there shall be no Default or Event of Default
(each as defined in
36
the Senior Secured Credit Agreement) existing under the Senior Secured Credit
Agreement, and (10) the Court shall have entered a Final Order (which may be the
Confirmation Order), in a form reasonably acceptable to the Debtor, the
Prepetition Noteholders Committee, SBC Wireless, Inc. and Cingular Wireless LLC,
that finds and determines that each of the transactions contemplated by the SBC
Transaction that will occur on or immediately after the Effective Date is
authorized and approved and is at arms length, made in good faith, for
reasonably equivalent value, and in the best interests of the Debtor's
creditors.
B. WAIVER OF CONDITIONS.
The Debtor may waive any or all of the conditions set forth in Article
XII.A. (except for entry of the Confirmation Order) above at any time, with the
prior consent of the Prepetition Noteholders Committee, without leave of or
order of the Court and without any formal action.
C. EFFECT OF FAILURE OF CONDITIONS.
In the event that the Effective Date does not occur on or before one
hundred and twenty (120) days after the Confirmation Date, upon notification
submitted by the Debtor to the Court: (1) the Confirmation Order shall be
vacated, (2) no distributions under the Plan shall be made, (3) the Debtor and
all holders of Claims and Equity Interests shall be restored to the status quo
ante as of the day immediately preceding the Confirmation Date as though the
Confirmation Date had never occurred, and (4) the Debtor's obligations with
respect to the Claims and Equity Interests shall remain unchanged and nothing
contained in the Plan shall constitute or be deemed a waiver or release of any
Claims or Equity Interests by or against the Debtor or any other person or to
prejudice in any manner the rights of the Debtor or any person in any further
proceedings involving the Debtor.
37
D. VACATUR OF CONFIRMATION ORDER.
If an order denying confirmation of the Plan is entered, then the Plan
shall be null and void in all respects, and nothing contained in the Plan shall
(a) constitute a waiver or release of any Claims against or Equity Interests in
the Debtor; (b) prejudice in any manner the rights of the holder of any Claim
against, or Equity Interest in, the Debtor; (c) prejudice in any manner any
right, remedy or claim of the Debtor; or (d) be deemed an admission against
interest by the Debtor.
Dated: November 18, 2002
SPECTRASITE HOLDINGS, INC.
By: /s/ STEPHEN H. CLARK
----------------------------------------
Name: Stephen H. Clark
--------------------------------------
Title: President and Chief Executive Officer
-------------------------------------
38
TABLE OF CONTENTS
Page
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I. DEFINITIONS AND CONSTRUCTION OF TERMS......................................................2
A. Definitions.......................................................................2
B. Interpretation, Application of Definitions and Rules of Construction.............12
II. CLASSIFICATION OF CLAIMS AND EQUITY INTERESTS.............................................13
A. Introduction.....................................................................13
1. Unclassified Claims.....................................................13
2. Unimpaired Classes of Claims............................................13
3. Impaired Classes of Claims and Equity Interests.........................14
4. Impaired Classes of Equity Interests....................................14
III. TREATMENT OF ADMINISTRATIVE CLAIMS AND PRIORITY TAX CLAIMS................................14
A. Administrative Claims............................................................14
B. Professional Compensation And Reimbursement Claims...............................15
C. Priority Tax Claims..............................................................15
IV. TREATMENT OF CLAIMS AND EQUITY INTERESTS..................................................15
A. Class 1 - Other Priority Claims..................................................15
1. Distributions..........................................................15
2. Impairment and Voting..................................................15
B. Class 2 - Senior Secured Guaranty Claims.........................................16
1. Distributions..........................................................16
2. Impairment and Voting..................................................16
C. Class 3 - Other Secured Claims...................................................16
1. Distributions..........................................................16
2. Impairment and Voting..................................................16
D. Class 4 - Other Guaranty Claims..................................................16
1. Distributions..........................................................16
2. Impairment and Voting..................................................17
E. Class 5 - Convenience Claims.....................................................17
1. Distributions..........................................................17
2. Impairment and Voting..................................................17
3. Election to be Treated as a Convenience Claim..........................17
F. Class 6 - General Unsecured Claims...............................................17
1. Distributions..........................................................17
2. Impairment and Voting..................................................17
3. Allowance of Senior Note Claims........................................17
G. Class 7 - Old Common Stock.......................................................18
1. Distributions..........................................................18
2. Impairment and Voting..................................................18
Page
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H. Class 8 - Subordinated Security Claims...........................................18
1. Distributions..........................................................18
2. Impairment and Voting..................................................18
I. Class 9 - Other Equity Interests.................................................18
1. Distributions..........................................................18
2. Impairment and Voting..................................................19
V. PROVISIONS REGARDING CORPORATE GOVERNANCE AND MANAGEMENT OF THE REORGANIZED DEBTOR........19
A. Directors and Officers of Reorganized SpectraSite; Amended Certificates
of Incorporation and Amended By-Laws.............................................19
1. The Initial Board of Directors..........................................19
2. Management of Reorganized SpectraSite...................................19
3. Amended Certificate of Incorporation and Amended By-Laws................19
B. Securities to Be Issued Pursuant to the Plan.....................................20
1. New Common Stock........................................................20
2. The New Warrants........................................................20
C. Securities Laws Matters..........................................................20
D. Reorganized SpectraSite Equity Incentive Plan....................................20
E. SBC Transaction..................................................................21
VI. PROVISIONS REGARDING VOTING AND DISTRIBUTIONS UNDER THE PLAN AND TREATMENT OF DISPUTED,
CONTINGENT AND UNLIQUIDATED ADMINISTRATIVE CLAIMS AND CLAIMS.....................21
A. Voting of Claims.................................................................21
B. Distributions....................................................................21
1. Method of Distributions Under the Plan..................................21
2. Disputed General Unsecured Claims.......................................24
3. Objections To And Resolution of Administrative Claims and Claims;
Administrative, Priority and Convenience Claims Reserve.................24
C. Estimation.......................................................................26
D. Administrative Claims of Indenture Trustee; Treatment of Prepetition Noteholders
Committee Professionals..........................................................26
1. Administrative Claims of Indenture Trustee..............................26
2. Treatment of Prepetition Noteholders Committee Professionals............27
E. Nonconsensual Confirmation.......................................................27
VII. EFFECT OF CONFIRMATION OF THIS PLAN.......................................................27
A. The Amended Certificate of Incorporation, the Amended By-Laws and Other
Implementation Documents.........................................................27
B. Continued Corporate Existence....................................................27
C. Vesting of Assets................................................................28
D. Discharge of the Debtor..........................................................28
ii
Page
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E. Injunction.......................................................................28
F. Maintenance of Causes of Action..................................................29
G. Votes Solicited in Good Faith....................................................29
H. Administrative Claims Incurred after the Confirmation Date.......................29
I. The Debtor's Release.............................................................29
J. Exculpation, Release and Injunction of Released Parties..........................30
1. Exculpation.............................................................30
2. Injunction..............................................................30
3. Limitation of Governmental Releases.....................................30
K. Term of Bankruptcy Injunction or Stays...........................................31
L. Preservation of Insurance........................................................31
M. Officers' and Directors' Indemnification Rights and Insurance....................31
VIII. RETENTION OF JURISDICTION.................................................................31
IX. MISCELLANEOUS PROVISIONS..................................................................32
A. Payment of Statutory Fees........................................................32
B. Dissolution of Creditors Committee...............................................32
C. Modification of the Plan.........................................................32
D. Governing Law....................................................................33
E. Filing or Execution of Additional Documents......................................33
F. Withholding and Reporting Requirements...........................................33
G. Exemption From Transfer Taxes....................................................33
H. Section 1145 Exemption...........................................................33
I. Waiver of Federal Rule of Civil Procedure 62(a)..................................33
J. Headings.........................................................................34
K. Exhibits/Schedules...............................................................34
L. Notices..........................................................................34
M. Plan Documents/Plan Supplement...................................................34
N. Conflict.........................................................................35
O. Setoff by the United States......................................................35
X. EXECUTORY CONTRACTS AND UNEXPIRED LEASES..................................................35
XI. BENEFIT PLANS.............................................................................36
XII. EFFECTIVENESS OF THE PLAN.................................................................36
A. Conditions Precedent to Effectiveness............................................36
B. Waiver of Conditions.............................................................37
C. Effect of Failure of Conditions..................................................37
D. Vacatur of Confirmation Order....................................................38
iii
Exhibits to the Plan
Exhibit A Summary of Warrant Agreement
Exhibit B Summary of New Senior Management Employment Contracts
Exhibit C Summary of Equity Incentive Plan
Exhibit D Summary of SBC Transaction
Schedules to the Plan
Schedule 1 Agreements Giving Rise to Other Guaranty Claims
Schedule 2 Rejected Executory Contracts and Unexpired Leases
EXHIBIT A
SUMMARY OF NEW WARRANTS
The following are the key terms of Reorganized SpectraSite's New
Warrants:
ISSUER: SpectraSite Holdings, Inc.
ISSUE: Warrants to purchase New Equity.
DENOMINATIONS: Par $0.01.
EXPIRATION: 7 years (2010).
LIMITATION OF May be exercised for an amount not to exceed 1,250,000
WARRANTS: shares of New Common Stock.
STRIKE PRICE: $32.00
THE NEW WARRANTS SHALL BE IN SUBSTANTIALLY THE SAME FORM INCLUDED IN THE PLAN
SUPPLEMENT TO BE FILED WITH THE CLERK OF THE COURT PRIOR TO THE CONFIRMATION
HEARING.
EXHIBIT B
SUMMARY OF NEW SENIOR MANAGEMENT
EMPLOYMENT CONTRACTS
The following are the key terms of the New Senior Management Employment
Contents:
Salary Same as current.
Bonus The existing bonus plan will be continued, and
the targets for 2002 will remain as currently
set. The bonus targets for 2003 and thereafter
will be determined by the Reorganized
SpectraSite's Board of Directors.
Term 3 years with automatic 1-year renewals, unless
notice is given by either party at least 6
months prior to expiration.
Severance 24 months of severance (base salary plus
annualized bonus) and benefits will be granted
if a covered employee is fired without Cause
other than during the 2-year period following a
Change of Control. 36 months of severance (base
salary plus annualized bonuses) and benefits
will be granted if a covered employee is fired
without Cause or resigns with Good Reason during
the 2-year period following a Change of Control.
(Same terms as existing Severance Plan A.
Defined terms "Cause", "Good Reason" and "Change
of Control" as defined in Severance Plan A,
except that the transaction contemplated by the
Plan will not constitute a Change of Control.)
Right to Resign Following a In addition to the severance provision described
Change of Control above, a covered employee can resign without
Good Reason during the 30-day period beginning
on the first anniversary of a Change of Control
and receive 24 months of severance (base salary
plus annualized bonuses) and benefits. The
definition of "Change of Control" will be
modified to exclude share purchases by or
transfers of shares among members of the
Prepetition Noteholders Committee.
Option Vesting Following For service-based options, full acceleration
Termination (New Options) upon termination without Cause, resignation with
Good Reason, death or disability; the
Reorganized SpectraSite's Board of Directors to
determine the terms relating to the acceleration
of performance-based Options; provided that
there will be no acceleration for Options with
performance-based vesting for which the
performance period has passed and the target has
not been hit.
Exercise Period of Vested Continuing exercisability for:
Options Following
Termination (New Options) - the applicable severance period upon
termination without Cause or resignation with
Good Reason;
- 2 years following death or disability; and
- 90 days following a resignation without Good
Reason.
All Options immediately terminate upon a
termination by the Reorganized SpectraSite for
Cause.
Option Vesting Upon a If the Change of Control is a cash for stock
Change of Control transaction, full acceleration of service-based
(New Options) Options will occur upon the Change of Control;
Reorganized SpectraSite's Board of Directors to
determine the terms relating to the acceleration
of performance-based Options; provided that
there will be no acceleration for Options with
performance-based vesting for which the
performance period has passed and the target has
not been hit.
If the Change of Control is a stock for stock
transaction, there will be no acceleration
solely as a result of such change of control and
options will be converted into options on the
new stock.
Golden Parachute Modified No severance or other payment or portion thereof
Cut-Back will be paid if, after payment of any "golden
parachute" excise tax, the employee would be in
a better position economically if such payment
or portion thereof is not made.
Other Terms: Same as existing employment agreements and
compensation and benefit arrangements.
Emergence Bonus: On the Effective Date, the Debtor will pay to
Mr. Clark an emergence bonus in the amount
required to allow Mr. Clark to retain $1.45
million after tax. On the
B-2
Effective Date, the Debtor will pay to Mr.
Tomick an emergence bonus in the amount required
to allow Mr. Tomick to retain $600,000 after
tax.
THE NEW SENIOR MANAGEMENT EMPLOYMENT CONTRACTS SHALL BE IN SUBSTANTIALLY
THE SAME FORM INCLUDED IN THE PLAN SUPPLEMENT TO BE FILED WITH THE CLERK OF THE
COURT PRIOR TO THE CONFIRMATION HEARING.
B-3
EXHIBIT C
SUMMARY OF REORGANIZED SPECTRASITE'S
EQUITY INCENTIVE PLAN
The following are the key terms of Reorganized SpectraSite's Equity Incentive
Plan:
Shares Available Options to purchase 10% of Reorganized
SpectraSite's New Common Stock on a fully
diluted basis will be granted under the Equity
Incentive Plan.
Eligible Participants Approximately 72 employees, including senior
management.
Grant Date All options under the Equity Incentive Plan will
be granted on the Effective Date.
Exercise Price Exercise price of the options to be set based on
the average of the closing prices of New Common
Stock on the first 20 days of trading after the
Effective Date.
Vesting 20% of the options will be vested immediately
upon grant. 50% of the options will vest evenly
on a monthly basis over the 3-year period
following the Effective Date. The remaining
options will vest evenly on each of the first
three anniversaries of the Effective Date,
subject to meeting appropriate performance
targets set by the Board of Directors of
Reorganized SpectraSite.
Duration of Options Options held by an employee will expire on the
earliest of (i) 1 year following death or
disability; (ii) a termination by Reorganized
SpectraSite for "cause"; (iii) 90 days following
a termination by Reorganized SpectraSite without
"cause" or a resignation with or without "good
reason"; and (iv) the tenth anniversary of the
grant date.
Change of Control If the Change of Control is a cash for stock
transaction, full acceleration of service-based
Options will occur upon the Change of Control;
Reorganized SpectraSite's Board of Directors to
determine the terms relating to the acceleration
of performance-based Options; provided that
there will be no acceleration for Options with
performance-based vesting for which the
performance period has passed and the target has
not been hit.
If the Change of Control is a stock for stock
transaction, there will be no acceleration
solely as a result of such change of control and
options will be converted into options on the
new stock.
The definition of "Change of Control" will be
modified to exclude share purchases by or
transfers of shares among members of the
Prepetition Noteholders Committee.
Other Terms Except as otherwise described in this Exhibit C,
the terms of the Equity Incentive Plan will be
substantially similar to the Debtor's existing
Stock Incentive Plan.
THE EQUITY INCENTIVE PLAN, AND A FORM OF INDIVIDUAL STOCK OPTION
AGREEMENT WITH RESPECT THERETO, SHALL BE IN SUBSTANTIALLY THE SAME FORM INCLUDED
IN THE PLAN SUPPLEMENT TO BE FILED WITH THE CLERK OF THE COURT PRIOR TO THE
CONFIRMATION HEARING.
EXHIBIT D
SUMMARY OF SBC TRANSACTION
1. Cingular to repurchase the 545 California/Nevada closed sites from
SpectraSite.
2. SBC to release SpectraSite from its obligation to close on the remaining
187 sites in California/Nevada.
3. SBC to reduce SpectraSite's total remaining commitment by an additional
107 sites to 600 sites.
4. Closings will be quarterly commencing on May 15, 2003 and will be
limited to a maximum of 100 towers per quarter. This cap does not apply
to the 6th quarter, in which all remaining towers (of the 600) will
close.
5. SpectraSite will be paid $73.5 million in cash upon Closing of the
California/Nevada transaction.
6. SBC will receive 12,144,381 shares of Old Common Stock to fulfill all of
the Debtor's obligations to deliver common stock under the Agreement to
Sublease. Such Old Common Stock shall be exchanged for New Warrants in
accordance with the Plan.
THE DOCUMENTS WITH RESPECT TO THE SBC TRANSACTION SHALL BE IN
SUBSTANTIALLY THE SAME FORM INCLUDED IN THE PLAN SUPPLEMENT TO BE FILED WITH THE
CLERK OF THE COURT PRIOR TO THE CONFIRMATION HEARING.
SCHEDULE A TO EXHIBIT D
1. Agreement to Sublease (the "AGREEMENT TO SUBLEASE"), dated August 25,
2000, by and among SBC Wireless, Inc. (predecessor entity to SBC
Wireless, LLC ("SBC WIRELESS")), for itself and on behalf of each
Sublessor Entity (as defined in the Agreement to Sublease), SpectraSite
Holdings, Inc. ("TOWERCO PARENT") and Southern Towers, Inc. ("TOWERCO"),
as amended by (a) Amendment No. 1 to the Agreement to Sublease, dated
December 14, 2000, by and among SBC Wireless for itself and on behalf of
each Sublessor Entity, TowerCo Parent and TowerCo, (b) Amendment No. 2
to the Agreement to Sublease, dated November 14, 2001, by and among SBC
Wireless, for itself and on behalf of each Sublessor Entity, TowerCo
Parent and TowerCo, (c) Amendment No. 3 to the Agreement to Sublease,
dated January 31, 2002, by and among SBC Wireless for itself and on
behalf of the other Sublessor Entities, TowerCo Parent, and TowerCo, (d)
Amendment No. 4 to the Agreement to Sublease, dated February 25, 2002,
by and among SBC Wireless for itself and on behalf of each Sublessor
Entity, TowerCo Parent and TowerCo, and (e) certain side letters
thereafter, in each case among the same parties, as applicable and SBC
Tower Holdings LLC ("SBC TOWERCO") affecting, modifying or supplementing
the Agreement to Sublease.
2. Lease and Sublease (the "LEASE AND SUBLEASE"), dated December 14, 2000,
by and among SBC TowerCo, SBC Wireless, TowerCo and TowerCo Parent as
amended by amendments entered in to at each closing and certain various
side letters by and among the parties affecting, modifying or
supplementing the Lease and Sublease.
3. Site Marketing Agreement (the "SITE MARKETING AGREEMENT"), dated
December 14, 2000, by and among SBC TowerCo and the Owners (as defined
therein) and SpectraSite Communications, Inc., as amended by Amendment
No. 1 to the Site Marketing Agreement, dated November 14, 2001, by and
between SBC TowerCo and the Owners (defined therein) and SpectraSite
Communications, Inc. and certain various side letters by and among the
parties affecting, modifying or supplementing the Site Marketing
Agreement.
4. Agreement to Build to Suit (the "AGREEMENT TO BUILD TO SUIT"), dated as
of December 14, 2000, by and among SBC Wireless LLC (for itself and as
Agent for certain SBCW Parties designated on the signature pages
thereof), TowerCo Parent and SCI, as amended by: (i) Amendment No. 1,
dated January 31, 2001; (ii) Amendment No. 2, dated August 31, 2001; and
(iii) those certain other letter agreements between the parties which,
from time to time, amend, modify or supplement the Agreement to Build to
Suit.
5. Certain Side Letters by and among SBC Wireless LLC, SBC TowerCo, TowerCo
Parent, TowerCo, SpectraSite Communications, Inc. and SBC
Communications, Inc., as applicable, affecting, modifying or
supplementing the foregoing Transaction Documents with respect to the
California or Nevada Sites, including specifically but without
limitation the following:
(A) That certain Letter Agreement dated December 14, 2000 by and
between SBC Wireless LLC and TowerCo regarding TowerCo's payment
to SBC Wireless LLC for SBC Wireless LLC's FAA/FCC analysis;
(B) That certain Letter Agreement dated December 14, 2000 by and
among SBC TowerCo, SBC Wireless LLC, TowerCo and TowerCo Parent
regarding additional cabinet space at the California or Nevada
Sites;
(C) That certain Letter Agreement dated December 14, 2000 by and
among SBC Communications, Inc., SBC TowerCo and TowerCo
regarding that certain Site Management Agreement dated as of
July 27, 1999 between Pacific Bell Mobile Services d/b/a Pacific
Bell Wireless and Site Management Solutions Inc.
(i) Assumption Agreement dated December 14, 2000 by and between
TowerCo and SBC TowerCo.
SCHEDULE B TO EXHIBIT D
1. SpectraSite NewCo Purchase Agreement, dated as of May 15, 2002, by and
among Cingular Wireless LLC, SpectraSite Holdings, Inc., SpectraSite
Communications, Inc., Southern Towers, Inc. and CA/NV Tower Holdings,
LLC, as modified by the November Agreement, dated as of November 14,
2002, by and among Cingular Wireless LLC, SpectraSite Holdings, Inc.,
Southern Towers, Inc. and CA/NV Tower Holdings, LLC (as so modified, the
"Purchase Agreement").
2. Southern Towers Assignment and Assumption Agreement, by and between
Southern Towers, Inc. and CA/NV Tower Holdings, LLC.
3. Amended and Restated Consent and Modification, dated as of November 14,
2002, by and among Southern Towers, Inc., CA/NV Tower Holdings, LLC, SBC
Tower Holdings LLC, SBC Wireless LLC and SpectraSite Holdings, Inc.
4. Termination and Amendment to Agreement to Build to Suit, dated as of May
15, 2002, by and between SBC Wireless LLC, SpectraSite Holdings, Inc.
and SpectraSite Communications, Inc., as amended by Amendment No. 1 to
the Termination and Amendment to Agreement to Build to Suit, dated as of
June 25, 2002, by and between SBC Wireless LLC, SpectraSite Holdings,
Inc. and SpectraSite Communications, Inc.
5. Amended and Restated Release, Covenant Not to Sue and Acknowledgement,
dated as of November 14, 2002, by and among SBC Wireless LLC, SBC Tower
Holdings LLC, Cingular Wireless LLC, SpectraSite Holdings, Inc.,
SpectraSite Communications, Inc. and Southern Towers, Inc.
6. Amended and Restated Unwind Side Letter, dated as of November 14, 2002,
by and among SBC Wireless LLC, SBC Tower Holdings LLC, Cingular Wireless
LLC, SpectraSite Holdings, Inc., SpectraSite Communications, Inc. and
Southern Towers, Inc.
7. Master Site Agreement/Existing Site Expansion Term Sheet Side Letter,
dated as of May 15, 2002 by and between Cingular Wireless LLC, SBC
Wireless LLC, SpectraSite Holdings, Inc., Southern Towers, Inc. and
SpectraSite Communications, Inc.
SCHEDULE 1
AGREEMENTS GIVING RISE TO OTHER GUARANTY CLAIMS
1. Sublease, dated as of August 15, 2000, by and among Verizon Wireless
(VAW) LLC, the Sublessors (as defined therein), California Tower, Inc.
and SpectraSite Holdings, Inc.
2. Strategic Relationship Agreement, dated as of December 31, 2001, by and
among Simon Business Network, LLC, Simon Property Group, L.P. and
SpectraSite Communications, Inc.
3. Guaranty dated as of February 21, 2001, by SpectraSite Holdings, Inc. of
lease, dated February 21, 2001, of the premises located at 100 Regency
Forest Drive, Suite 400, Cary, North Carolina 27511 by SpectraSite
Communications, Inc. from 250 Park Avenue, LLC.
4. Agreement of Indemnity, dated as of April 20, 2001, by and among
SpectraSite Holdings, Inc., SpectraSite Communications, Inc., XL
Specialty Insurance Company and Greenwich Insurance Company.
5. Agreement to Sublease, dated as of August 25, 2000, by and among SBC
Wireless, Inc., for itself and on behalf of the other Sublessor
Entities, and SpectraSite Holdings, Inc. and Southern Towers, Inc., and
all amendments thereto and side letters or other guarantees with respect
thereof, as modified by the SBC Transaction.
6. Lease and Sublease, dated as of December 14, 2000, by and among SBC
Tower Holdings LLC, for itself and as Agent for the SBC Group, and SBC
Wireless, LLC, as Guarantor, and Southern Towers, Inc., and SpectraSite
Holdings, Inc., as Guarantor, and all amendments thereto and side
letters or other guarantees with respect thereof, as modified by the SBC
Transaction.
7. BTS Lease Agreement, dated as of December 14, 2000, by and among
SpectraSite Communications, Inc., SpectraSite Holdings, Inc., each
TowerCo (as defined therein), SBC Wireless, LLC and each User (as
defined therein), as amended by Amendment No. 1 to the BTS Lease
Agreement, dated as of August 31, 2001, and all amendments thereto and
side letters or other guarantees with respect thereof, as modified by
the parties.
8. Corporate Indemnification, dated as of June 9, 2000, made by SpectraSite
Holdings, Inc. for the benefit of the Nevada State Contractors' Board.
SCHEDULE 2
REJECTED EXECUTORY CONTRACTS AND UNEXPIRED LEASES(1)
1. Second Amended and Restated Registration Rights Agreement, dated as of
April 20, 1999, as amended October 3, 2002, by and among the Purchasers
(as defined therein) and SpectraSite Holdings, Inc.
2. Joinder Agreement to SpectraSite Restated Registration Rights Agreement,
dated January 5, 2000, by and among the Apex Stockholders (as defined
therein) and SpectraSite Holdings, Inc.
3. Consent and Agreement to SBCW Registration Rights and Amendment to
Second Amended and Restated Registration Rights Agreement, dated as of
November 17, 2000, by and among Welsh, Carson, Anderson & Stowe III,
L.P., Tower Parent Corp, CIBC WG Argosy Merchant Fund 2, L.L.C., J.H.
Whitney III, L.P. and SpectraSite Holdings, Inc.
4. Joinder Agreement to the Second Amended and Restated Registration Rights
Agreement, dated as of December 14, 2000, by and between SpectraSite
Holdings, Inc. and SBC Tower Holdings LLC.
5. Registration Rights Agreement, dated as of November 20, 2000, by and
among SpectraSite Holdings, Inc., Trimaran Fund II, L.L.C., Trimaran
Capital, L.L.C., Trimaran Parallel Fund II, L.P., CIBC Employee Private
Equity Fund (Trimaran) Partners and CIBC World Markets Ireland Limited.
6. Warrant Agreement, dated as of November 20, 2000, by and between
SpectraSite Holdings, Inc. and First Union National Bank, as warrant
agent.
7. SpectraSite Holdings, Inc. Stock Option Plan, dated as of June 24, 1997.
8. SpectraSite Holdings, Inc. Stock Incentive Plan, dated as of August 5,
1999.
9. SpectraSite Holdings, Inc. Amended and Restated Stock Incentive Plan,
dated as of April 9, 2001.
10. SpectraSite Holdings, Inc. Employee Stock Purchase Plan, dated as of
August 5, 1999.
11. Stock Option Agreement with any individual stock option grantee.
- -----------------
(1) Inclusion of any contract on this schedule shall not be an admission by
the Debtor that the contract is in fact executory; the Debtor reserves
its rights with respect thereto.
12. Registration Rights Agreement, by and between SpectraSite Holdings, Inc.
as Issuer, and Morgan Stanley & Co. Incorporated as Placement Agent,
dated as of November 20, 2000.
13. Engagement letter dated May 4, 2001 between Goldman, Sachs & Co., on the
one hand, and SpectraSite Holdings, Inc. and SpectraSite Communications,
Inc., on the other. (The Debtor does not believe that the Engagement
Letter remains an executory contract, but for the avoidance of doubt,
the Debtor lists this agreement as a rejected executory contract to make
clear that any obligation arising thereunder will not be reinstated, but
will be considered a General Unsecured Claim under the Plan.)
2