EXHIBIT 10.3
EXECUTION COPY
CINGULAR WIRELESS LLC
SBC WIRELESS LLC
5565 GLENRIDGE CONNECTOR
SUITE 2000
ATLANTA, GEORGIA 30342
November 14, 2002
Southern Towers, Inc.
SpectraSite Holdings, Inc.
and SpectraSite Communications, Inc.
c/o SpectraSite Communications, Inc.
100 Regency Forest Drive, Suite 400
Cary, North Carolina 27511
SBC Tower Holdings LLC
c/o SBC Communications Inc.
175 E. Houston
San Antonio, Texas 78205
Re: Amended and Restated Transaction Documents Amendment
Ladies and Gentlemen:
Reference is made to (i) that certain Transaction Documents
Amendment Letter Agreement, dated as of May 15, 2002, by and among SBC Wireless
LLC, SBC Tower Holdings LLC, Cingular Wireless LLC, SpectraSite Holdings, Inc.,
SpectraSite Communications, Inc. and Southern Towers, Inc. (the "Original
Unwind Side Letter") and (ii) those certain agreements and amendments thereto
identified and defined on Schedule A hereto (the "Transaction Documents").
Capitalized terms used and not defined herein shall have the respective
meanings ascribed thereto in the Agreement to Sublease (as amended and modified
from time to time).
In connection with the November Agreement, dated as of the
date hereof, by and among certain of the parties hereto and certain of their
respective affiliates (the "November Agreement"), the parties hereto desire to
amend and restate the Original Unwind Side Letter as follows (this letter
agreement, the "Amended and Restated Unwind Side Letter"):
1. Transaction Documents. Subject to the provisions of
this Amended and Restated Unwind Side Letter and notwithstanding anything to
the contrary contained in the Transaction Documents, the parties agree to and
acknowledge the following modifications to the Transaction Documents. Except as
expressly amended hereby or by other documents executed on or about or prior to
the date hereof and
described on Schedule C, the Transaction Documents shall remain in full force
and effect.
(a) The parties hereto agree that in accordance with
Section 16.19 of the Agreement to Sublease and for good and valuable
consideration including all provisions set forth herein, on the
Effective Date (as defined herein) the Agreement to Sublease is hereby
amended and modified as follows:
(i) The definition of "Site" is hereby amended
to delete from said definition and from
Annex A to the Agreement to Sublease 187
sites located in California and Nevada
identified on the attached Schedule B (the
"California and Nevada Unclosed Sites").
Without limiting the foregoing, the
California and Nevada Unclosed Sites shall
not be deemed to constitute Existing Sites,
Excluded Sites or Included Sites thereunder
or under any Transaction Document.
(ii) Notwithstanding anything to the contrary in
Amendment No. 2 to the Agreement to
Sublease, dated as of November 14, 2001
("Amendment No. 2"), in no event shall more
than 3,306 Sites become Included Sites
under the Agreement to Sublease. As of the
date hereof there are 2,706 Included Sites
under the Agreement to Sublease.
Notwithstanding anything to the contrary in
Amendment No. 2, with respect to the
remaining 600 Sites which may become
Included Sites: (1) the Transfer Dates
shall be as follows: May 15, 2003; August
15, 2003; November 17, 2003; February 16,
2004; May 17, 2004; and August 16, 2004;
(each, a "Transfer Date") and "Final
Transfer Date" shall mean the earlier to
occur of (x) August 16, 2004 and (y) that
date of the Transfer Closing at which 3,306
Sites have become Included Sites (the
closing occurring on the Final Transfer
Date, the "Final Transfer Closing") and (2)
the parties shall use commercially
reasonable efforts to include on each
Transfer Date 100 Transfer Sites selected
by the parties in accordance with Section
4.1(e)(i) of the Agreement to Sublease to
become Included Sites and in any event
shall not be required to include on any
such Transfer Date in excess of 100
Transfer Sites to become Included Sites
(except that such 100
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Transfer Sites limitation shall not apply
on the Final Transfer Date).
(iii) Article XV of the Agreement to Sublease is
hereby deleted therefrom and shall have no
further force or effect.
(iv) Immediately prior to the exchange of Parent
Stock for the consideration to be issued by
TowerCo Parent in connection with a
restructuring of the debt and capital
structure of TowerCo Parent (on
substantially the terms set forth in
Exhibit 2 attached to the November
Agreement, to be effectuated under a
chapter 11 case under 11 U.S.C. ss.ss. 101
et seq. filed by Parent) (the
"Consideration"), TowerCo Parent shall
issue 12,144,381 shares of Parent Stock
(which number of shares is subject to
appropriate adjustment in the event of any
stock dividends, splits, reverse splits,
combinations or subdivisions occurring
prior to such issuance) to SBC Tower
Holdings LLC ("SBC TowerCo") in full
satisfaction of its obligation to pay (x)
the Stock Portion of the prepaid Rent
pursuant to Sections 3.2(a) and (b) of the
Agreement to Sublease for any and all of
the remaining 600 Transfer Sites and (y)
any adjustments with respect to the Parent
Stock required under Sections 3.2(c)-(i) of
the Agreement to Sublease. The parties
agree and acknowledge that with respect to
each Transfer Closing, Tower Co and TowerCo
Parent shall only be obligated to pay the
Cash Portion of the prepaid Rent with
respect to each Transfer Site that becomes
an Included Site at a Transfer Closing and
that TowerCo and TowerCo Parent shall have
no further obligations to issue any Parent
Stock in connection with the transactions
contemplated by the Agreement to Sublease.
The parties acknowledge and agree that the
Parent Stock issued to SBC TowerCo
hereunder shall be the Parent Stock
outstanding prior to the effective date of
the Seller Parent's Plan of Reorganization
(as defined in the November Agreement) and
that such Parent Stock issued to SBC
TowerCo hereunder, together with all Parent
Stock previously issued to SBC TowerCo,
shall then be exchanged into Consideration
under the Seller Parent's Plan of
Reorganization in the
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same manner and pro rata percentage as all
other holders of Parent Stock receive in
such exchange.
(b) From and after the date hereof, all obligations and
rights of the parties to the Site Marketing Agreement shall be
terminated with respect to the California and Nevada Sites (as defined
below), including, without limitation, the obligation and right of
Marketer (as defined in the Site Marketing Agreement) to provide
marketing services for the California and Nevada Sites and the right
of the Marketer to receive fees and other compensation thereunder with
respect to the California and Nevada Sites (whether or not Marketer
has provided marketing services with respect thereto prior to the
effective date of this letter agreement); provided, however, that the
foregoing shall not constitute a release of, and the parties to the
Site Marketing Agreement shall each retain, any other liability or
obligation of such party to the extent arising out of events occurring
or actions taken prior to the effective date of this letter agreement
(including, without limitation, the parties' rights to indemnification
as provided in Section 19 of the Site Marketing Agreement). For
purposes hereof, the "California and Nevada Sites" are collectively
all Sites located in California or Nevada.
(c) The Lease and Sublease shall be amended to the
extent and as provided in that certain Amended and Restated Consent
and Modification Agreement dated as of the date hereof.
2. Special Payment.
For and in consideration of the amendment to the Transaction
Documents outlined above, the various other agreements and undertakings of the
parties contained herein and the various agreements and undertakings of the
parties contained in the Amended and Restated Release and Acknowledgement (as
such term is defined in the Purchase Agreement), on the Effective Date, TowerCo
shall be obligated to pay to SBC TowerCo Seven Million Five Hundred Thousand
Dollars ($7,500,000) (the "Special Payment"). The parties acknowledge and agree
(i) that said obligation will be assigned to and assumed by CA/NV Tower
Holdings, LLC ("NewCo") pursuant to the Assignment and Assumption Agreement (as
such term is defined in the Purchase Agreement) and (ii) that such assignment
and assumption is hereby consented to and shall in no manner affect the Amended
and Restated Release and Acknowledgement by, between and among the parties
hereto executed contemporaneously herewith. The parties agree and acknowledge
that upon the consummation of the transactions contemplated by the Purchase
Agreement, none of the SCI Releasees (as such term is defined in the Amended
and Restated Release and Acknowledgement) shall have any obligation or
liability with respect to the fulfillment of NewCo's obligation to pay the
Special Payment, and that immediately after the closing of the transactions
contemplated by the Purchase Agreement, NewCo shall pay the Special Payment to
SBC TowerCo.
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3. Binding Effect. This Amended and Restated Unwind
Letter shall be binding upon and shall inure to the benefit of the parties
hereto and their respective legal representatives, successors and assigns and
may not be modified or amended except by a written agreement executed by all
parties hereto.
4. Counterparts. This Amended and Restated Unwind Side
Letter may be executed in several counterparts, each of which shall be deemed
an original, and all of such counterparts together shall constitute one and the
same instrument.
5. Governing Law. The parties agree that this Amended
and Restated Unwind Side Letter 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.
6. Severability. Any term or provision of this Amended
and Restated Unwind Side Letter which is invalid or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Amended and Restated Unwind Side
Letter in any other jurisdiction. If any provision of this Amended and Restated
Unwind Side Letter is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
7. Effectiveness. Except as provided in paragraph 1(b)
above, which shall be effective immediately, this Amended and Restated Unwind
Side Letter shall become effective upon the Closing (as defined in the Purchase
Agreement) of the transactions contemplated by the Purchase Agreement (the
"Effective Date"); provided that if the Purchase Agreement is terminated in
accordance with its terms prior to the Closing thereunder, this Amended and
Restated Unwind Side Letter shall terminate and be null and void.
8. Entire Agreement. Except as otherwise expressly
provided herein, this Amended and Restated Unwind Side Letter constitutes the
entire agreement between the parties and supersedes the Original Unwind Side
Letter and all other prior agreements, understandings, representations and
warranties both written and oral, between the parties hereto with respect to
the subject matter hereof.
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Please confirm your acceptance of and agreement to the
foregoing by signing and returning the accompanying copy of this Amended and
Restated Unwind Side Letter, whereupon this Amended and Restated Unwind Side
Letter shall become binding on the parties hereto.
CINGULAR WIRELESS LLC
By: /s/ STEPHEN A. MCGAW
----------------------------------------
Name: Stephen A. McGaw
Title: Executive Vice President -
Corporate Development
SBC WIRELESS LLC
By: STEPHEN A. MCGAW
----------------------------------------
Name: Stephen A. McGaw
Title: Executive Vice President -
Corporate Development
The undersigned accept and agree to the
Foregoing, as of the date first written
above:
SBC TOWER HOLDINGS, LLC
By: /s/ JAMES S. KAHAN
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Name: James S. Kahan
Title: President
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
SPECTRASITE COMMUNICATIONS, INC.
By: /s/ STEPHEN H. CLARK
----------------------------------------------
Stephen H. Clark
President and Chief Executive Officer
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