Exhibit 10.47
October 13,1999
Xx. Xxxxxxx X. Xxxxx
SpectraSite Communications, Inc.
0000 Xxxxxxx Xxxx
Xxxx, XX 00000
Xxxxxx Xxxxxxx, Esq.
Nextel Partners Operating Corp.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Re: Master Site Commitment Agreement (the "Site Commitment Agreement")
dated as of April 20, 1999 among Nextel Communications, Inc., Nextel
of New York, Inc., Nextel Communications of the Mid-Atlantic, Inc.,
Nextel South Corp., Nextel of Texas, Inc., Nextel West Corp., Nextel
of California, Inc., Tower Parent Corp. (collectively, "Nextel"),
SpectraSite Holdings, Inc. ("Tower Aggregator"), and Tower Asset
Sub, Inc. ("Tower Sub")
Dear Gentlemen:
This letter (the "Letter") sets forth the agreement of the
above-referenced parties and Nextel Partners Operating Corp. ("Partners")
regarding the Site Commitment Agreement and that certain designation letter
attached hereto as Annex A and incorporated herein by reference (the
"Designation") among Nextel WIP Corp. ("NWIP"), Partners, and Nextel Partners,
Inc. Capitalized terms used in this Letter but not otherwise defined herein
shall have the same meanings assigned to them in the Site Commitment Agreement.
With respect to any Work (as defined in the Designation) performed by or
on behalf of Partners, as the designee of NWIP under the terms and conditions of
the Designation, the parties hereto agree as follows:
o Pursuant to the Designation, Partners shall be responsible for the
performance of all obligations of Nextel relating to the development
and construction of the New Sites in the Partner Area.
o Pursuant to Section 2.1 of the Site Commitment Agreement, Nextel
Communications, Inc. hereby designates Partners as a "Transferring
Subsidiary" for purposes of the Site Commitment Agreement.
o As a Transferring Subsidiary only, Partners shall be bound by and
subject to the terms and conditions and benefits of the Site
Commitment Agreement as though it were an original party thereto.
o Annex B to this Letter sets forth a complete list of all New Sites
currently under development or construction in the Partner Area as
of the date hereof, including the location (or search area, if
applicable), status, and expected completion dates of such New
Sites. Unless otherwise specified on Annex B, all such New Sites
shall be deemed to be Purchased New Sites pursuant to Section 2.2 of
the Site Commitment Agreement, and this Letter shall constitute, and
otherwise satisfy the requirements of, the "Initial Notice" for
purposes of Section 2.2(b) of the Site Commitment Agreement with
respect to such New Sites.
Xx. Xxxxxxx X. Xxxxx
Xxxxxx Xxxxxxx, Esq.
October 13, 1999
Page 2
o All Work shall be performed by Partners and the Contractors (as
defined in the Designation) in accordance with the terms and
conditions of the Site Commitment Agreement.
o Without limiting the generality of the foregoing, it is expressly
agreed and acknowledged that all New Sites that are Purchased New
Sites developed and constructed by Partners pursuant to the
Designation that meet the Minimum Specifications of the Site
Commitment Agreement, all New Sites designated by Partners as
Constructed New Sites, and all Proposed Tower Sub Co-Location Sites
leased by Partners shall constitute "Qualifying Sites" as defined in
Section 2.6 of the Site Commitment Agreement and shall count towards
any and all commitments by Nextel to Tower Aggregator and Tower Sub
under Section 3.3 of the Site Commitment Agreement. Partners shall
convey each Purchased New Site in accordance with the terms of
Section 2.4 of the Site Commitment Agreement and shall execute all
agreements, documents, instruments, and the like which are
contemplated by Section 2.4 to effectuate such conveyance; provided,
however, that notwithstanding anything to the contrary contained in
Section 2.4, Partners shall convey each Purchased New Site directly
to Tower Sub rather than to Tower Parent Corp.
o Tower Sub shall provide Nextel and NWIP with copies of any notices
delivered by it to Partners pursuant to the Site Commitment
Agreement.
o Each of the parties represents and warrants to the others that (i)
it is duly authorized to execute, deliver, and perform its
obligations under this Letter, the Designation, and the Site
Commitment Agreement, (ii) no consents, authorizations, approvals,
or notices are needed to affect the transactions contemplated by
this Letter, the Designation, or the Site Commitment Agreement, and
(iii) the execution and delivery of this Letter and the Designation,
and performance of its obligations under this Letter, the
Designation, and the Site Commitment Agreement will not contravene
any applicable laws, rules, or regulations, and will not conflict
with or result in any material breach of, or constitute a material
default under any indenture, mortgage, deed of trust, or other
instrument or agreement to which it is a party or by which any of
its assets may be subject.
o Nextel shall have no liability or obligation, under the Site
Commitment Agreement or otherwise, with respect to the Work,
including, without limitation, any liability whatsoever for any
delays, deficiencies or other defaults relating to Partners'
performance of the Work. Tower Sub, for itself and its successors
and assigns, hereby releases and forever discharges Nextel and each
of its affiliates, subsidiaries, predecessors, officers, directors,
agents, shareholders, employees, insurers, and representatives
(other than Partners) from and against any and all liability,
claims, demands or actions in any way relating to the Work, and
Tower Sub agrees that Partners shall be solely liable for any breach
of the Site Commitment Agreement (including, without limitation, the
terms of Section 2.1 thereof) relating to New Sites in the Partner
Area, provided that the foregoing shall not limit the obligations of
the Transferring Subsidiaries under Section 3.3 of the Site
Commitment Agreement. This paragraph shall survive the termination
or expiration of this Letter.
Xx. Xxxxxxx X. Xxxxx
Xxxxxx Xxxxxxx, Esq.
October 13, 1999
Page 3
o This Letter shall remain in effect for so long as the Designation
remains in effect and shall terminate automatically upon the
revocation or expiration of the Designation; provided, however, that
the termination of this Letter shall not discharge, affect, or
otherwise modify the rights and obligations of the parties with
respect to the completion of construction or sale and purchase of
any Constructed New Sites or Purchased New Sites in progress as of
the termination date.
o Except as provided herein, the terms and conditions of the Site
Commitment Agreement shall remain unchanged and in full force and
effect.
Please indicate your acceptance of the foregoing by causing this letter to
be signed by a duly authorized representative and returned to me at your
earliest convenience.
NEXTEL COMMUNICATIONS, INC.
NEXTEL OF NEW YORK, INC.
NEXTEL COMMUNICATIONS OF
THE MID-ATLANTIC, INC.
NEXTEL SOUTH CORP.
NEXTEL OF TEXAS, INC.
NEXTEL WEST CORP.
NEXTEL OF CALIFORNIA, INC.
TOWER PARENT CORP.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------------
Title: Vice President
----------------------------------
ACCEPTED AND AGREED: ACCEPTED AND AGREED:
SPECTRASITE HOLDINGS, INC. TOWER ASSET SUB, INC.
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
-------------------------------- -------------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx
------------------------------ -----------------------------------
Title: President/CEO Title: President/CEO
----------------------------- ----------------------------------
ACCEPTED AND AGREED: ACCEPTED AND AGREED:
NEXTEL PARTNERS NEXTEL PARTNERS, INC.
OPERATING CORP.
By: /s/ Xxxxxx X. Xxxxxxx By: Xxxxxx X. Xxxxxxx
-------------------------------- -------------------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
------------------------------ -----------------------------------
Title: Vice President Title: Vice President
----------------------------- ----------------------------------
ANNEX A
October 13, 1999
Xxxxxx Xxxxxxx, Esq.
Nextel Partners Operating Corp.
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Re: Appointment of Nextel Partners Operating Corp. ("Partners") as
Designee of Nextel WIP Corp. ("NWIP") to Perform Specified Duties
under Section 6.9 of Joint Venture Agreement (the "JVA") dated as of
January 29, 1999 by and among Partners, NWIP, and Nextel Partners,
Inc. ("NPI")
Dear Don:
This letter (the "Designation") sets forth the agreement with respect to
(i) the appointment of Partners to perform specified duties on behalf of NWIP
and as NWIP's designee under and for purposes of Section 6.9 of the JVA, and
(ii) the designation of Partners as a "Transferring Subsidiary" for purposes of
the Site Commitment Agreement (as defined below). Capitalized terms used in this
Designation but not otherwise defined herein shall have the same meanings
assigned to them in the JVA.
o In exercising its rights under Section 6.9 of the JVA, NWIP hereby
authorizes and appoints Partners to perform specified duties on its
behalf and as its designee for the sole purpose of contracting
directly with one or more third parties (the "Contractors"),
including Tower Asset Sub, Inc. ("Tower Sub"), to perform (subject
to Section 6.9A of the JVA) the Site Acquisition Work and tower
construction work referenced in Section 6.9B of the JVA
(collectively, the "Work").
o The authorization and appointment set forth in the preceding
paragraph is revocable by NWIP in its sole and absolute discretion
upon ten (10) calendar days prior written notice to Partners;
provided, however, that in the event NWIP exercises its right to
revoke this Designation for convenience, NWIP, in accordance with
and to the extent set forth in Section 6.9B of the JVA, shall be
liable for any delays in Site Acquisition Work or construction
caused by such revocation on and after such revocation, and any such
delays shall constitute an Excusable Delay as set forth in Sections
6.9B and 12.5 of the JVA.
o For so long as and to the extent this Designation is in effect, as
concerns all actions taken or omitted, and all Work performed by
Partners as designee of NWIP hereunder, Partners acknowledges and
agrees that such actions are taken or omitted, and such Work is
performed, by Partners in place of and in substitution for NWIP, and
that, notwithstanding anything to the contrary in Section 6.9 of the
JVA or any other provision of the JVA relating to liability or
responsibility for the consequences of failure to timely and
properly take or complete any such action or Work, (i) NWIP shall
have no liability or responsibility of any nature whatsoever to
Partners in connection with any such action, omission, or Work, and
(ii) Partners' failure to timely and properly take or complete (or
arrange for the taking or completion of) any such action or Work
(other than because of any act of any government in its sovereign
capacity (including zoning or licensing actions), war or
insurrection, strike or slow down, extreme weather, fire,
earthquake, flood, epidemic, quarantine restriction, or acts of God
or other such occurrences or events beyond the control of Partners)
shall not constitute an Excusable Delay for purposes of the
Xxxxxx Xxxxxxx, Esq.
October 13,1999
Page 2
JVA or otherwise relieve or release Partners from any of its
obligations under the JVA, including without limitation, those
relating to the scheduled Build Out of its ESMR Network.
o Pursuant to this Designation and the terms of Section 2.1 of the
Master Site Commitment Agreement (the "Site Commitment Agreement")
dated as of April 20, 1999 among Nextel Communications, Inc., Nextel
of New York, Inc., Nextel Communications of the Mid-Atlantic, Inc.,
Nextel South Corp., Nextel of California, Inc., Tower Parent Corp.,
SpectraSite Holdings, Inc., and Tower Asset Sub, Inc., Partners
shall be designated as, and shall be deemed to be, a "Transferring
Subsidiary" as that term is defined in the Site Commitment
Agreement. All Work shall be arranged and/or performed strictly in
accordance with the terms of the Site Commitment Agreement, and all
towers that are the subject of the Work shall meet the Minimum
Specifications of the Site Commitment Agreement, except as otherwise
expressly consented to in writing by NWIP, which consent shall not
be unreasonably withheld or delayed. Partners shall cause all
Contractors engaged by it or with its authorization to perform the
Work in compliance with this paragraph.
o Partners shall report monthly to NWIP on the status of the Work for
each tower site that is or has been constructed by Partners pursuant
to Section 6.9 of the JVA and this Designation or by Tower Sub in
the Partner Area pursuant to the Site Commitment Agreement. Such
report shall be in the form of Annex I attached hereto, which form
may be modified from time to time with the mutual agreement of the
parties. Partners shall maintain all records and information,
including, without limitation, site leases, construction plans,
permits, and the like, required to be maintained or provided by a
Transferring Subsidiary under the Site Commitment Agreement. In
addition, Partners shall provide NWIP with copies of any notices
delivered or received by it pursuant to the Site Commitment
Agreement and shall, on NWIP's request and at NWIP's expense,
provide NWIP with copies of and access to any and all information
and materials relating to Partner's performance of the Work or
relating to the Site Commitment Agreement.
o Each of NPI and Partners represents and warrants that (i) it is duly
authorized to execute, deliver, and perform its obligations under
this Designation, (ii) no consents, authorizations, approvals, or
notices are needed to effect the transactions contemplated by this
Designation, and (iii) the execution, delivery, and performance by
it of its obligations under this Designation will not contravene any
applicable laws, rules, or regulations, and will not conflict with
or result in any material breach of, or constitute a material
default under, any indenture, mortgage, deed of trust, or other
instrument or agreement to which it is a party or by which it is
bound or to which any of its assets may be subject.
o For so long as and to the extent this Designation is in effect,
Partners shall be solely liable for all costs associated with the
Work. Nextel shall have no liability or obligation to any party,
under the JVA, the Site Commitment Agreement, or otherwise, with
respect to the Work, including, without limitation, any liability
whatsoever for any delays, deficiencies or other defaults relating
to the Work. Without limiting the generality of the foregoing, so
long
Xxxxxx Xxxxxxx, Esq.
October 13, 1999
Page 3
as Partners is responsible for, or is authorized to make
arrangements with Contractors for, conducting the Work, and except
as expressly set forth in the second paragraph of this Designation,
Partners shall not be entitled to any remedy contemplated by Section
6.9B of the JVA with respect to such Work. This paragraph shall
survive the revocation or expiration of this Designation to the
extent it relates to Work performed or in progress during the term
of this Designation.
o Partners, for itself and its successors and assigns, hereby releases
and forever discharges, and agrees to indemnify and hold harmless,
Nextel and each of its affiliates, subsidiaries, predecessors,
officers, directors, agents, shareholders, employees, insurers, and
representatives from and against any and all liability, claims,
demands, or actions in any way relating to Partners' activities as
contemplated by this Designation or to the Work or arising from
Partners' noncompliance with the terms and conditions of this
Designation. NPI is and shall remain jointly and severally liable
with Partners for the full and punctual performance of the
indemnification obligations set forth in this paragraph. This
paragraph shall survive the revocation or expiration of this
Designation to the extent it relates to any acts or omissions
arising or occurring during the term of this Designation.
o This Designation shall remain in effect until the earlier of (i)
NWIP's revocation of its appointment of Partners in accordance with
the second paragraph hereof, and (ii) the Build Stop Date.
o Nothing in this Designation shall be construed to create the
relationship of partners, joint venturers, employer/employee,
principal/agent, or any other joint enterprise.
o The parties each shall deliver such further documents or assurances
as may be reasonably required by the other to effect the
authorization and appointment contemplated hereby.
o Except as provided herein, the terms and conditions of the JVA shall
remain unchanged and in full force and effect.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Xxxxxx Xxxxxxx, Esq.
October 13,1999
Page 4
Please indicate your acceptance of the foregoing by causing this letter to
be signed by a duly authorized representative and returned to me at your
earliest convenience.
NEXTEL WIP CORP.
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
ACCEPTED AND AGREED:
NEXTEL PARTNERS
OPERATING CORP.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: Vice President
-----------------------------
ACCEPTED AND AGREED:
NEXTEL PARTNERS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------
Title: Vice President
-----------------------------
ANNEX B
SITEID_840 SITE NAME SITE ADDRESS CITY STATE
---------- --------- ------------ ---- -----
AL8001 Cottage Hill-New 00000-X Xxxxx Xx Xxxxx Xxx XX
XX0000 Xxxx Xxxx XXXX XX XXX 00 X XXXX XXXX XX
XX0000 White Springs 00 X & XXXXXXXX XXXXXX XXXX XXXX XXXX XX
XX0000 Lacrosse XXXX XXXXXX XXXX 00 & X-00 XXXXXXXX XXXXXX XX
XX0000 CAPTAIN XXXX - Xxxxx Halekii & Kekee South Kona HI
IA0526 Xxxxxxxxx - Xxxxxxxx 0000 Xxxxxxx Xxxxx Xxxx Xxxxxxxxx XX
XX0000 TABLE ROCK - JB Trust Bowler Top of Table Rock Road
APN: S0918314910, Sec 00, XXXXX XX
XX0000 XXXXXXXX XXXX - Xxxxxxxx 000 XXXXXX XXXXXX XXXXXXXX XX
XX0000 NAMPA - Adzem 1st Street South Nampa ID
XX0000 XXXXX XXXXX XXXXXX - Xxxxxx 000 Xxxxx Xxxxxxxxxx Xx. Xxxxx XX
XX0000 Xxxxx 20361 East 0000 Xxxxx Xxxx Xxxxx XX
XX0000 Normal XX 0 Xxxxxx XX
XX0000 XxXxx Xxxxx Xxxxx 0 Xxx 000X Xxxxx XX
XX0000 XxXxxx 000 Xxxx Xxxxx Xxxxxx XxXxxx XX
XX0000 Lincoln 0000 Xxx Xxxxx 000 Xxxxxxx XX
XX0000 Ashkum 0000 X 000 Xxxx Xx. Xxxxxx XX
XX0000 Vinton 0000 Xxxx Xxxx Xxxxxx XX
XX0000 Sulphur 0000 Xxxx Xxxxxxx 00 Xxxxxxx XX
XX0000 XxXxxxxxx - Xxxxxxx 0000 X. Xxxxxx Xxxx Xxxxx XX
XX0000 Xxxxxxxxx - Xxxxxx 0000-X Xxxx Xxxxx Xxxxxx Xxxxxx XX
XX0000 Rayne-Sewer Plant Rayne Sewer Treatment Plant
1301 - AW Xxxx Xxxxx Xxxxx XX
XX0000 Xxxx - Xxxx 0000 Xxxxxxxxx Xx Xxxxxxxx XX
XX0000 Xxxxxx-Xxxxxxx,LA 00000 Xxxxxxxxx Xx Xxxx XX
MS8000 Vidalia-Juneau 00000 Xxxxxxx Xx Xxxx Xxxxxxxxx XX
XX0000 Xxxxx 00 Xxxxxx Xxxx Xxxxxxxxx Xxxxxx Xxxxx XX
XX0000 Pattersonville 0000 Xxxxxx Xxxx Xxxxxxxxxxxxxx Xxxxxx NY
NY5206 Brewerton 000 Xxxxxxxxx Xx Xxxxxxxxx XX
XX0000 Eastwood 000 Xxxxxx Xxxx Xxxxx Xxxxxx XX
XX0000 Xxxxxxx 0000 Xxxx Xxxx Xxxxxx XX
XX0000 Farmington 0000 Xxxxxx Xxxx 0 Xxxxxxxxxx XX
XX0000 Batavia 0000 Xxxxx Xx. Xxxxxxx XX
XX0000 Brighton 0000 Xxxxxxxx-Xxxxxxxxx Xxxx X Xxxxxxxxx XX
XX0000 Mount Read 0000 Xxxxx Xxxx Xxxxxx XX
XX0000 City of West 0000 X. Xxxxxxxx Xxxx XX
XX0000 Fannet 0000 Xxxxx Xxxx Xxxxxxxx XX
XX0000 Vidor 000 Xxxxxxx Xxxx Xxxxx XX
XX0000 Orange 0000 Xxxxxxxx Xxxx Xxxxxx XX
XX0000 Xxxxx 0000 X-00 Xxxx Xxxxxx XX
XX0000 Temple 0000 X 00xx Xxxxxx Xxxxxx XX
WI5000 Xxxxx X0000 Xxxxxxx X Xxxxx XX
XX0000 Chippewa Falls 0000 000xx Xxxxxx Xxxxxxxx Xxxxx XX
XX0000 Xxx Xxxx Xxxx 0000 Xxx Xxxx Xxxx Xxxx Xxx Xxxxxx XX
Tower Sites
Partner Site ID Information Nextel Site ID Information Market Build Status
----------------------------------- ---------------------------------------------- -------------------------------------------
Partner's Nextel's
Region Section Service Service Project Project Name Site ID Market Build-out RF Design Search Xxxx Xxxx
# # Xxxx # Xxxx Name Code (Site Name) (with prefix) Name Year Complete Released Leased
------ ------- ------- --------- ------- ------------ ------------- -------- --------- --------- ----------- -------
3 34 559 X-00 Xxxxx XX0000 Forsyth Southeast 1 Complete Complete Complete
3 34 561 X-00 Xxxxx XX0000 Bolingbroke Southeast 1 Complete Complete Complete
3 34 561 X-00 Xxxxx XX0000 Smarr Southeast 1 Complete Complete Complete
3 34 561 X-00 Xxxxx XX0000 Johnstonville Southeast 1 Complete Complete Complete
3 34 561 X-00 Xxxxx XX0000 Xxxxxxxxxx St. Southeast 1 Complete Complete Complete
Partner Market Build Status
------- --------------------------------------------------------------------------------------------------------
Lease
Region Site Build Permit Lease Commencement Colo / Raw Land / Construction Construction
# Zoned Obtained Rate Date Tenant Improvement Started Complete Site On-Air
------ ------ ------------ ----- ------------ ------------------ ------------ ------------ -----------
3 Complete Complete $500 10/1/94 RL Complete Complete Complete
3 Complete Complete $300 12/1/94 RL Complete Complete Complete
3 Complete Complete $250 11/1/94 RL Complete Complete Complete
3 Complete Complete $167 12/1/94 RL Complete Complete Complete
3 Complete Complete $420 6/1/98 RL Complete Complete Complete
