EXHIBIT 10.1
EXECUTION COPY
NOVEMBER AGREEMENT
This November Agreement, dated as of November 14, 2002 (this
"November Agreement"), amends the SpectraSite NewCo Purchase Agreement (the
"Agreement") dated as of May 15, 2002, by and among Cingular Wireless LLC
("Buyer"), SpectraSite Holdings, Inc. ("Seller Parent"), SpectraSite
Communications, Inc., Southern Towers, Inc.("Seller") and CA/NV Tower Holdings
(the "Company"). Unless otherwise defined herein, defined terms shall have such
meanings ascribed to them in the Agreement.
WHEREAS, pursuant to Section 8.4 of the Agreement, Buyer,
Seller Parent, Seller and the Company desire to reinstate and modify the
Agreement as more particularly set forth herein.
NOW, THEREFORE, in consideration of the above and the mutual
warranties, representations, covenants, and agreements set forth herein, the
parties agree as follows:
1. Reinstatement of Agreement.
(a) Buyer hereby rescinds the notice of termination dated October
11, 2002 and Seller Parent, Seller and the Company hereby accept such
rescission. Buyer, Seller Parent, Seller and the Company hereby agree that the
Agreement is reinstated in its entirety and is and shall be in full force and
effect as if such notice of termination had never been delivered, except as and
to the extent expressly amended by the terms hereof.
(b) Except to the extent set forth on Exhibit 5 hereto, Seller
Parent and Seller reaffirm each of the representations, warranties and
covenants of the Agreement as amended by this November Agreement.
Notwithstanding the foregoing, the parties acknowledge and agree that no
exception identified on Exhibit 5 has been approved by Buyer, and at the
Closing each representation and warranty shall be true, complete and correct
and each covenant shall have been satisfied, in each case to the extent
required under the Agreement as amended by this November Agreement.
2. Amendment to Section 1.2.
Section 1.2 of the Agreement is hereby deleted in its
entirety and replaced with the following:
"The aggregate purchase price for the Membership Interest
shall be Seventy Three Million Five Hundred Thousand Dollars
($73,500,000)."
3. Amendment to Section 2.2(c)(iii).
Section 2.2(c)(iii) of the Agreement is hereby deleted in its
entirety and replaced with the following.
"(iii) constitute or result in a Default under any Order
applicable to any Seller Entity or any of their respective
assets or (iv) require any Consent pursuant to any Order
(other than the Confirmation Order) applicable to any Seller
Entity or any of their respective assets."
4. Amendment to Section 2.2(d).
Section 2.2(d) of the Agreement is hereby amended by adding
the words "(other than the Confirmation Order)" after the word "Regulatory
Authority".
5. Amendment to Section 2.17.
Section 2.17 of the Agreement is hereby deleted in its
entirety and replaced with the following:
"There has not been filed any petition or application with
respect to, or any proceeding commenced by or against, any of
the assets of any Seller Entity (other than Seller Parent)
under any Bankruptcy Law which has not been dismissed or
stayed, and no Seller Entity has made any assignment for the
benefit of creditors. No Seller Entity is "insolvent" within
the meaning of any Bankruptcy Law or any Federal or State
fraudulent transfer law (provided, however, that Seller
Parent's solvency shall be determined after giving effect to
the restructuring contemplated by Seller Parent's Plan of
Reorganization). Neither the execution and delivery of this
Agreement nor the consummation of the transactions
contemplated hereby shall render any Seller Entity insolvent,
leave such party with an unreasonably small amount of assets
to conduct its business or unable to pay its debts as they
become due (in each case, with respect to Seller Parent,
after giving effect to the restructuring contemplated by
Seller Parent's Plan of Reorganization). Each of Seller and
Seller Parent acknowledges that, upon receipt of the Purchase
Price, Seller will have received fair market value for the
Membership Interest."
6. Amendment to Section 2.18.
Section 2.18 of the Agreement is hereby deleted in its
entirety.
7. Amendment to Section 6.2(j)
Section 6.2(j) of the Agreement is hereby deleted in its
entirety and replaced with the following:
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"(j) Recapitalization Transaction. The Confirmation Order
with respect to Seller Parent's Plan of Reorganization shall
have been entered and all conditions to the effectiveness of
Seller Parent's Plan of Reorganization shall have been
satisfied (other than a self-executing condition that
requires the consummation of the transactions contemplated by
this Agreement). The parties acknowledge and agree that
except for the issuance of 12,144,381 shares of Parent Stock
(as defined in the Agreement to Sublease) to SBC Tower
Holdings LLC which, pursuant to Section 1(a)(iv) of the
Amended and Restated Unwind Side Letter, shall occur
immediately prior to the exchange of Parent Stock for the
consideration to be issued by Seller Parent in connection
with the restructuring of the debt and capital structure of
Seller Parent, the Closing shall be deemed to have occurred
immediately following the effective time of the
implementation of the Confirmation Order and restructuring of
indebtedness pursuant to the Seller Parent's Plan of
Reorganization."
8. Amendment to Section 6.2(k).
Section 6.2(k) of the Agreement is hereby deleted in its
entirety and replaced with the following.
"(k) No Seller Bankruptcy Case. Neither Seller nor the
Company shall have filed, or joined or consented to the
filing of, a petition for relief or similar proceeding with
respect to Seller or the Company under any Bankruptcy Law.
The court having jurisdiction over a chapter 11 case under 11
U.S.C. ss.ss. 101 et seq. filed by Seller Parent shall not
have substantively consolidated the assets of Seller or the
Company into Seller Parent's bankruptcy estate. Creditors
shall not have filed an involuntary petition or similar
proceeding against Seller or the Company seeking a judgment,
decree or order of any court granting any relief under any
Bankruptcy Law which has not been dismissed or stayed."
9. New Section 6.2(l).
The following is hereby inserted as a new Section 6.2(l) of
the Agreement:
"(l) Seller shall have received the opinion of a nationally
recognized investment banking firm, dated as of a date within
thirty (30) days of the Confirmation Order to the effect that
the consideration to be received by Seller in the
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transactions contemplated hereby is fair, from a financial
point of view, to Seller."
10. New Section 6.4.
The following is hereby inserted as a new Section 6.4 of the
Agreement:
"6.4 SELLER BANKRUPTCY.
In the event (a) Seller or the Company shall have
filed, or joined or consented to the filing of, a petition
for relief or similar proceeding with respect to Seller or
the Company under any Bankruptcy Law, (b) the court having
jurisdiction over a chapter 11 case under 11 U.S.C. ss.ss.
101 et seq. filed by Seller Parent shall have substantially
consolidated the assets of Seller or the Company into Seller
Parent's bankruptcy estate, or (c) creditors shall have filed
an involuntary petition or similar proceeding against Seller
or the Company seeking a judgment, decree or order of any
court granting any relief under any Bankruptcy Law which has
not been dismissed or stayed, in each case prior to the time
Closing under this Agreement would otherwise be scheduled to
occur, Buyer may defer Closing until such time as the
bankruptcy court having jurisdiction over such proceeding
approves acceptance and assumption by the Trustee (or the
Debtor in Possession, as the case may be) of all of Seller's
or the Company's obligations under this Agreement and the
Transaction Documents (as defined in the Amended and Restated
Unwind Side Letter)."
11. Amendment to Section 7.1(d).
Section 7.1(d) of the Agreement is hereby deleted in its
entirety and replaced with the following
"(d) By either Buyer or Seller in the event that the
transactions contemplated by this Agreement shall not have
been consummated by June 1, 2003 if the failure to consummate
the transactions contemplated hereby on or before such date
is not caused by any breach of this Agreement by the party
electing to terminate pursuant to this Section 7.1(d)."
12. Amendment to Section 7.1.
Section 7.1 of the Agreement is hereby amended by adding the
following:
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"(e) By Buyer (i) upon confirmation of any plan of
reorganization with respect to Seller Parent on terms that
are materially different from the terms of Seller Parent's
Plan of Reorganization or (ii) if Seller Parent's Plan of
Reorganization is rejected by the class of claims that
includes the holders of Seller Parent's senior notes."
"(f) By Buyer if (i) Seller or the Company shall have filed,
or joined or consented to the filing of, a petition for
relief or similar proceeding with respect to Seller or the
Company under any Bankruptcy Law, or (ii) the court having
jurisdiction over a chapter 11 case under 11 U.S.C. ss.ss.
101 et seq. filed by Seller Parent shall have substantively
consolidated the assets of Seller or the Company into Seller
Parent's bankruptcy estate."
"(g) By Buyer if Seller Parent (i) rejects or fails to assume
all executory contracts with respect to the Agreement or the
Transaction Documents or (ii) fails to cause Seller and the
Company to perform their obligations under the Agreement or
any of the Transaction Documents if such a failure would have
a material adverse effect on Seller, the Company or the Sites
taken as a whole."
13. Amendment to Section 8.1(a).
(a) Section 8.1(a) of the Agreement is hereby amended by
adding the following definitions:
""CONFIRMATION ORDER" means an order of the court having
jurisdiction over a chapter 11 case under 11 U.S.C. ss.ss.
101 et seq. filed by Seller Parent (i) confirming Seller
Parent's Plan of Reorganization; (ii) approving and
authorizing the transactions contemplated by the Agreement;
and (iii) finding that the transactions contemplated by the
Agreement are at arms length, made in good faith, for
reasonably equivalent value, and in the best interests of
Seller Parent's creditors."
""CONSENT AND MODIFICATION AGREEMENT" means the Amended and
Restated Consent and Modification Agreement, dated as of the
date hereof and attached as Exhibit 1 hereto."
""SELLER PARENT'S PLAN OF REORGANIZATION" means a plan of
reorganization providing for, among other things, the
approval of the transactions contemplated by the
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Agreement (and assumption of all executory contracts with
respect to the Agreement and the Transaction Documents) and
the restructuring of the debt and capital structure of Seller
Parent, on substantially the terms set forth in Exhibit 2
attached hereto, to be effectuated under a chapter 11 case
under 11 U.S.C. ss.ss. 101 et seq. filed by Seller Parent."
(b) The definition of Joint Side Letter in Section
8.1(a) of the Agreement is hereby deleted in its
entirety and replaced with the following:
""AMENDED AND RESTATED RELEASE AND ACKNOWLEDGEMENT" means the
Amended and Restated Release, Covenant Not to Sue and
Acknowledgement attached as Exhibit F to the Agreement and
all references in the CA/NV Documents (as defined in the
Amended and Restated Release and Acknowledgement) to the
Joint Side Letter shall be deemed to refer to such document."
(c) The definition of Unwind Side Letter in Section
8.1(a) of the Agreement is hereby deleted in its
entirety and replaced with the following:
""AMENDED AND RESTATED UNWIND SIDE LETTER" means the Amended
and Restated Unwind Side Letter attached as Exhibit E to the
Agreement and all references in the CA/NV Documents (as
defined in the Amended and Restated Release and
Acknowledgement) to the Unwind Side Letter shall be deemed to
refer to such document."
14. Amendment to Exhibits E and F.
Exhibits E and F to the Agreement are hereby amended and
restated as set forth on Exhibits 4 and 3, respectively, to this November
Agreement.
15. Amendment to Exhibit B to the Agreement.
The Southern Towers Assignment and Assumption Agreement to be
executed and delivered at the Closing of the transactions contemplated by the
Agreement shall be revised from the form attached as Exhibit B to the Agreement
to (i) incorporate the changes contemplated by this November Agreement and the
other documents executed concurrently herewith by conforming the recitals
thereto and certain definitions as expressly contemplated herein and changing
the "Side Letter Obligation" in the definition of "Assumed Liabilities" from
$10 million in cash to $7.5 million in cash, (ii) update and amend the
schedules thereto as contemplated thereby and to reflect additional collocation
agreements and tower improvements to the extent they have been approved by
Buyer from May 15, 2002 through the Closing and (iii) to delete the form of
Consent
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and Modification attached thereto and substitute in lieu of that form the
Amended and Restated Consent and Modification attached hereto as Exhibit 1.
16. Continuing Effect of Agreement.
This November Agreement shall not constitute an amendment or
modification of any other provision of the Agreement not expressly referred to
herein. Except as expressly amended or modified herein, the provisions of the
Agreement are and shall remain in full force and effect.
17. Governing Law.
The parties agree that this November Agreement shall be
governed by and construed in all respects in accordance with the laws of the
State of New York, without regard to its conflicts of law or choice of law
principles.
18. Counterparts.
This November Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
19. Captions; Sections.
The captions contained in this November Agreement are for
reference purposes only and are not part of this November Agreement. Unless
otherwise indicated, all references to Sections shall mean and refer to the
referenced Sections of the Agreement.
20. Entire Agreement.
Except as otherwise expressly provided herein, this November
Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all other prior agreements,
understandings, representations and warranties both written and oral, between
the parties hereto with respect to the subject matter hereof.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, each of the parties has caused this
November Agreement to be duly executed as of the day and year first above
written.
CINGULAR WIRELESS LLC
By: /s/ STEPHEN A. MCGAW
-------------------------------------------------
Name: Stephen A. McGaw
Title: Executive Vice President -
Corporate Development
SPECTRASITE HOLDINGS, INC.
By: /s/ STEPHEN H. CLARK
-------------------------------------------------
Stephen H. Clark
President and Chief Executive Officer
SOUTHERN TOWERS, INC.
By: /s/ STEPHEN H. CLARK
-------------------------------------------------
Stephen H. Clark
President and Chief Executive Officer
CA/NV TOWER HOLDINGS, LLC
By: Southern Towers, Inc., its sole Member
By: /s/ STEPHEN H. CLARK
-------------------------------------------------
Stephen H. Clark
President and Chief Executive Officer
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