AMENDMENT NUMBER 1 TO FORMATION AGREEMENT
AMENDMENT NUMBER 1 TO FORMATION AGREEMENT (the "Amendment") dated as of
March 31, 1999, by and among Cellco Partnership, a Delaware general partnership
doing business as Xxxx Atlantic Mobile ("BAM"), the Transferring Partnerships
listed on the signature pages hereto, Crown Castle International Corp., a
Delaware corporation ("Bidder"), and CCA Investment Corp., a Delaware
corporation ("Bidder Member").
BACKGROUND
A. BAM, Bidder, Bidder Member and the Transferring Partnerships are parties
to a Formation Agreement dated as of December 8, 1998. All capitalized terms
used herein and not otherwise defined herein shall have the respective meanings
ascribed thereto in the Formation Agreement.
B. BAM, Bidder, Bidder Member and the Transferring Partnerships desire to
make certain amendments to the Formation Agreement and are entering into this
Amendment for that purpose.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Bidder Contributed Cash. Among other things, the Formation Agreement
provides that: (a) in connection with the formation of OpCo, Bidder Member will
contribute the Bidder Contributed Cash ($250,000,000 in cash) in exchange for
the Bidder OpCo Interest, (b) in connection with the formation of HoldCo Sub,
Bidder Member will contribute the Bidder OpCo Interest to HoldCo Sub in exchange
for the Bidder's interest in HoldCo Sub, (c) immediately prior to the formation
of HoldCo, OpCo will distribute $200,000,000 of the Bidder Contributed Cash to
HoldCo Sub and retain $50,000,000 of the Bidder Contributed Cash for working
capital and capital expenditure purposes, (d) in connection with the formation
of HoldCo, Bidder Member will contribute the Bidder HoldCo Sub Interest and the
Bidder Contributed Shares to HoldCo in exchange for the Bidder HoldCo Interest,
and (e) immediately after Closing, HoldCo Sub will distribute $200,000,000 in
cash to HoldCo and HoldCo will then immediately make the Contributed Cash
Distribution ($200,000,000 in cash) to BAM and the Transferring Partnerships.
BAM, Bidder, Bidder Member and the Transferring Partnerships desire to
amend the relevant provisions of the Formation Agreement that cover the
foregoing formation steps to provide that: (i) in connection with the formation
of OpCo, Bidder Member will contribute $50,000,000 in cash (the "Bidder
Contributed Cash to OpCo") in exchange for the Bidder OpCo Interest, (ii) in
connection with the formation of HoldCo Sub, Bidder Member will contribute the
Bidder OpCo Interest in exchange for the Bidder HoldCo Sub Interest, (iii) in
connection with the formation of HoldCo, Bidder Member will contribute the
Bidder HoldCo Sub Interest, the Bidder Contributed Shares and $200,000,000 in
cash (the "Bidder Contributed Cash to HoldCo"; and, together with the Bidder
Contributed Cash to OpCo, the "Bidder Contributed Cash") in exchange for the
Bidder HoldCo Interest, and (iv) immediately after Closing, HoldCo will make the
Contributed Cash Distribution ($200,000,000 in cash) to BAM and the Transferring
Partnerships.
Accordingly, the following amendments to the Formation Agreement are hereby
made to effectuate the foregoing:
(A) Clauses (ii), (vi) and (vii) of the third sentence of the Preamble
to the Formation Agreement are amended and restated as follows:
"(ii) cause Bidder Member to contribute $50,000,000 in cash (the
"Bidder Contributed Cash to OpCo") to OpCo in exchange for membership
interests in OpCo;
(vi) [intentionally omitted];
(vii) thereafter, contribute their membership interests in HoldCo Sub
to a newly organized Delaware limited liability company named Crown
Atlantic Holding Company LLC ("HoldCo") and, in addition, Bidder
Member will contribute the Bidder Contributed Shares (hereinafter
defined) and $200,000,000 in cash (the "Bidder Contributed Cash to
HoldCo") to HoldCo in exchange for membership interests in HoldCo;"
(B) The defined term "Bidder Contributed Cash" in Article 1 of the
Formation Agreement is amended and restated as follows:
"`Bidder Contributed Cash' means the Bidder Contributed Cash to OpCo
and the Bidder Contributed Cash to HoldCo."
(C) The following defined terms are added to Article 1 of the
Formation Agreement, immediately after the defined term "Bidder Contributed
Cash" therein:
"`Bidder Contributed Cash to HoldCo' is defined above in the preamble.
`Bidder Contributed Cash to OpCo' is defined above in the preamble."
(D) The words "Bidder Contributed Cash" in clause (i) of Section 2.1
of the Formation Agreement are deleted and the words "Bidder Contributed
Cash to OpCo" are inserted in their place.
(E) The words "Bidder Contributed Cash" in Section 2.4 of the
Formation Agreement are deleted and the words "Bidder Contributed Cash to
OpCo" are inserted in their place.
(F) Section 3.4 of the Formation Agreement is amended and restated in
its entirety as follows:
"3.4 Contributed Cash Distribution. At the Closing, immediately after
the formation of HoldCo pursuant to Section 3.5 hereof, HoldCo shall
distribute $200,000,000 in cash to BAM and the Transferring
Partnerships (such distribution by HoldCo to BAM and the Transferring
Partnerships is referred to herein as the "Contributed Cash
Distribution", and, together with the Financing Distribution, is
referred to herein as the "BAM Capital Distribution"), which
Contributed Cash Distribution shall be apportioned between BAM and the
Transferring Partnerships and among the Transferring Partnerships as
set forth
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on Exhibit A-1."
(G) The third sentence of the first paragraph of Section 3.5 of the
Formation Agreement is amended and restated in its entirety as follows:
"Bidder Member shall contribute to HoldCo (a) the Bidder HoldCo Sub
Interest, free and clear of all Encumbrances, (b) 15,597,783 shares of
validly issued, fully-paid and non-assessable shares of Common Stock
of Bidder, subject to appropriate adjustment for stock splits,
dividends, reclassifications and similar changes in the capital stock
of Bidder occurring after the date of this Agreement but prior to
Closing (the "Bidder Contributed Shares"), free and clear of all
Encumbrances, and (c) the Bidder Contributed Cash to HoldCo, in
exchange for the issuance by HoldCo to Bidder Member of a 62.3
Percentage Interest in HoldCo (the "Bidder HoldCo Interest")."
(H) The words "Bidder Contributed Cash" in Section 4.2(c) of the
Formation Agreement are deleted and the words "Bidder Contributed Cash to
OpCo" are inserted in their place.
(I) Sections 4.2(h) and (i) of the Formation Agreement are amended and
restated in their entirety as follows:
"(h) BAM, the Transferring Partnerships and Bidder Member shall form
HoldCo by executing and delivering the HoldCo Operating Agreement and
contributing to HoldCo all of their respective interests in HoldCo Sub
and by Bidder Member contributing to HoldCo the Bidder Contributed
Shares and the Bidder Contributed Cash to HoldCo;
(i) HoldCo shall deliver to BAM and the Transferring Partnerships the
Contributed Cash Distribution by wire transfer of immediately
available funds to such accounts as BAM shall specify in writing;"
(J) The words "Bidder Contributed Cash" in the first sentence of
Section 4.3 of the Formation Agreement are deleted and the words "Bidder
Contributed Cash to OpCo" are inserted in their place. The words "and the
Bidder Contributed Cash to HoldCo" are inserted at the end of the first
sentence of such Section 4.3.
(K) Section 8.2.2 of the Formation Agreement is amended and restated
in its entirety as follows:
"8.2.2 Use of Proceeds. HoldCo shall use the Bidder Contributed Cash
to HoldCo to make at Closing the Contributed Cash Distribution. HoldCo
Sub shall use the proceeds of the Anticipated Financing to make at
Closing the Financing Cash Distribution. The Bidder Contributed Cash
to OpCo shall be retained in OpCo for working capital and capital
expenditure purposes."
2. Identified Employees. BAM, Bidder, Bidder Member and the Transferring
Partnerships have agreed that identifying the employees of BAM who may be hired
by OpCo or HoldCo Sub, and the compensation and other benefits to be offered by
OpCo and HoldCo Sub, will be dealt with after Closing,
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and that the Formation Agreement will not contain any representations,
warranties, covenants or conditions relating to those issues. Accordingly, the
following amendments to the Formation Agreement are hereby made:
(A) The defined terms "Agreement Regarding Identified Employees" and
"Identified Employee" are deleted from Article 1 of the Formation
Agreement.
(B) The words "or the Identified Employees" at the end of the defined
term "Tower Related Assets" in Article 1 of the Formation Agreement are
deleted.
(C) Clause (iv) of Section 2.3.4 of the Formation Agreement is amended
and restated in its entirety as follows:
"(iv) except to the extent that such Liabilities are to be assumed by
OpCo, as may be set forth in a written agreement between OpCo and BAM,
any Liabilities arising prior to or as a result of the Closing to or
with respect to any employees, agents or independent contractors of
BAM or any of the Transferring Partnerships, whether or not employed
by OpCo after the Closing and whether or not arising under any
applicable Law, Benefit Plan or other arrangement with respect
thereto;"
(D) The following provisions of the Formation Agreement are deleted in
their entirety and the words "[Intentionally Omitted]" are inserted in
their place: Sections 5.1.9, 5.1.10, 6.3.2 and 8.6, and clause (c) of
Section 6.1.2.
3. Tower Structures Under Construction. The following amendments to the
Formation Agreement are hereby made, each of which relates to Tower Structures
under construction on Tower Sites as of the Closing:
(A) The following defined term is added to Article 1 of the Formation
Agreement, immediately after the defined term "Tower Structures" therein:
"`Tower Structures Under Construction' shall mean the Tower Structures
identified in subsection (d) of Annex I."
(B) Clause (viii) of Section 2.3.4 of the Formation Agreement is
amended and restated in its entirety as follows:
"(vii) except to the extent specifically included in the Assumed
Liabilities, any and all costs, expenses, payment or performance
obligations associated with the completion of construction of the
Tower Structures located on Tower Sites to be conveyed hereunder
(including, without limitation, the Tower Structures Under
Construction), except to the extent that Bidder and BAM have agreed to
modifications to such Tower Structures in which case the cost of such
modifications shall be included in the Assumed Liabilities, and;"
(C) Section 5.1.4 of the Formation Agreement is amended by adding the
following
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sentence at the end of such Section:
"As regards each of the Tower Structures Under Construction (and Tower
Sites related thereto), BAM has received all Governmental Permits
necessary to commence the construction of such Tower Structures Under
Construction."
(D) Article 8 of the Formation Agreement is amended to include the
following new Section 8.7:
"8.7 Completion of Tower Structures Under Construction. From and after
the Closing, BAM and the Transferring Partnerships shall, at their
sole cost and expense, complete construction of all Tower Structures
Under Construction. BAM and the Transferring Partnerships shall
perform and complete such construction obligations in accordance with
existing Governmental Permits and BAM's existing practices, policies
and standards relating to the construction of communication tower
structures. Notwithstanding the foregoing, Tower Structures Under
Construction shall, as of the Closing Date, be subject to the terms
and provisions of the Global Lease, and lease Supplements (as defined
in the Global Lease) shall be executed effective the Closing Date with
respect to all Tower Structures Under Construction."
4. Delaware Law to Govern. This Amendment shall be governed by and
interpreted and enforced in accordance with the laws of the State of Delaware,
without regard to the principles of conflict of law thereof.
5. Severability. Any provision of this Amendment which is invalid or
unenforceable in any jurisdiction shall be ineffective to the extent of such
invalidity or unenforceability without invalidating or rendering unenforceable
the remaining provisions hereof, and any such invalidity or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
6. Ratification. Except as specifically modified by this Amendment, all of
the provisions of the Formation Agreement are hereby ratified and confirmed to
be in full force and effect.
7. Binding Effect. This Amendment shall be binding upon, and shall inure to
the benefit of the parties and their respective permitted successors and
assigns.
8. Counterparts. This Amendment may be executed in any number of
counterparts and any party hereto may execute any such counterpart, each of
which when executed and delivered shall be deemed to be an original and all of
which counterparts taken together shall constitute but one and the same
instrument. This Amendment shall become binding when one or more counterparts
taken together shall have been executed and delivered by the parties. It shall
not be necessary in making proof of this Amendment or any counterpart hereof to
produce or account for any of the other counterparts.
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment on
the date first written.
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CROWN CASTLE INTERNATIONAL CORP.
By: /s/ Xxxxx X. Xxx
-----------------------------------
Name: Xxxxx X. Xxx
Title: President
CCA INVESTMENT CORP.
By: /s/ Xxxxx X. Xxx
-----------------------------------
Name: Xxxxx X. Xxx
Title: President
CELLCO PARTNERSHIP
By: Xxxx Atlantic Mobile, Inc., its
managing general partner
By: /s/ X.X. Xxxxxx
-----------------------------------
Name: X.X. Xxxxxx
Title: Vice President
Network Planning and
Administration
TRANSFERRING PARTNERSHIPS:
ALLENTOWN SMSA LIMITED PARTNERSHIP
By: Xxxx Atlantic Mobile Systems of Allentown, Inc., its
managing general partner
By: Cellco Partnership, its
managing general partner
By: Xxxx Atlantic Mobile, Inc., its
managing general partner
By: /s/ X. X. Xxxxxx
------------------------------------
Name: X.X. Xxxxxx
Title: Vice President
Network Planning and Administration
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COLUMBIA CELLULAR TELEPHONE COMPANY
By: Cellco Partnership, its managing general partner
By: Xxxx Atlantic Mobile, Inc., its
managing general partner
By: /s/ X.X.Xxxxxx
------------------------------------
Name: X.X. Xxxxxx
Title: Vice President
Network Planning and Administration
NEW YORK SMSA LIMITED PARTNERSHIP
By: Cellco Partnership, its managing general partner
By: Xxxx Atlantic Mobile, Inc., its
managing general partner
By: /s/ X.X. Xxxxxx
------------------------------------
Name: X.X. Xxxxxx
Title: Vice President
Network Planning and Administration
ORANGE COUNTY-POUGHKEEPSIE MSA
LIMITED PARTNERSHIP
By: NYNEX Mobile Limited Partnership 2, its
managing general partner
By: Cellco Partnership, its
managing general partner
By: Xxxx Atlantic Mobile, Inc., its
managing general partner
By: /s/ X.X. Xxxxxx
------------------------------------
Name: X.X. Xxxxxx
Title: Vice President
Network Planning and Xxxxxxxxxxxxxx
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XXXXXXXXXXXX XXX XX. 0 (XX) LIMITED PARTNERSHIP
By: Cellco Partnership, its managing general partner
By: Xxxx Atlantic Mobile, Inc., its
managing general partner
By: /s/ X.X. Xxxxxx
------------------------------------
Name: X.X. Xxxxxx
Title: Vice President
Network Planning and Administration
PITTSBURGH SMSA LIMITED PARTNERSHIP
By: Cellco Partnership, its managing general partner
By: Xxxx Atlantic Mobile, Inc., its
managing general partner
By: /s/ X.X. Xxxxxx
------------------------------------
Name: X.X. Xxxxxx
Title: Vice President
Network Planning and Administration
WASHINGTON, DC SMSA LIMITED PARTNERSHIP
By: Cellco Partnership, its managing general partner
By: Xxxx Atlantic Mobile, Inc., its
managing general partner
By: /s/ X.X. Xxxxxx
------------------------------------
Name: X.X. Xxxxxx
Title: Vice President
Network Planning and Administration
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