EXHIBIT 2.5
EXECUTION COPY
AMENDMENT NO. 2 TO THE AGREEMENT TO SUBLEASE
Amendment No. 2 (the "Amendment"), dated as of November 14,
2001, to the Agreement to Sublease, dated as of August 25, 2000 among SBCW, for
itself and on behalf of the Sublessor Entities, TowerCo Parent and TowerCo, as
amended by Amendment No. 1 dated December 14, 2000 (as amended and modified, the
"Agreement"). Unless otherwise defined herein, defined terms shall have such
meanings ascribed to them in the Agreement.
WHEREAS, pursuant to Section 16.19 of the Agreement, SBCW,
TowerCo and TowerCo Parent desire to amend the Agreement as more particularly
set forth herein; and
WHEREAS, on the date hereof, the Owners (as defined in the
SMA) and SpectraSite Communications, Inc. are executing and delivering that
certain Amendment No. 1 to the Site Marketing Agreement dated as of December 14,
2000 (the "SMA") in the form attached hereto as Exhibit A.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants and agreements contained herein, the parties hereby agree as
follows:
1. Payment to SBCW.
On the date hereof, TowerCo shall pay $35,000,000 to SBC Tower
Holdings, LLC, as consideration for the concessions set forth herein, by wire
transfer of immediately available funds through the Federal Reserve System to
the account designated on Annex I hereto.
2. Amendment to definition of "End Date".
The definition of "End Date" is hereby deleted in its entirety
and replaced by the following:
"End Date" shall mean the later of (a) December 14,
2003 and (b) the Final Transfer Date.
3. Amendment to Section 4.1.
Section 4.1 is hereby amended by adding the following
paragraph (e) after paragraph (d) thereof (it being agreed that the term "the
date hereof", as used in the following paragraph (e), shall mean the date of
this Amendment):
"(e) Notwithstanding anything to the contrary in
this Agreement (including Section 4.1):
(i) The parties acknowledge and agree
that: (a) in no event shall more than 3,600 Sites become
Included Sites under this
Agreement; (b) they shall continue to conduct Closings in
the ordinary course consistent with all Closings prior to the
date hereof until the earlier of (x) 2,750 Sites have become
Included Sites (the Closing on which the last of such 2,750
Sites become Included Sites, the "Threshold Closing") and (y)
the Final Closing; provided, however, that in no event shall
any Closings occur after the Threshold Closing or Final
Closing Date, as applicable, except as hereinafter provided in
this Section 4.1(e); and (c) following the Threshold Closing
or the Final Closing, as applicable, and up to and including
the Final Transfer Date (as defined herein), the parties shall
continue to select Existing Sites (from Annex A to the
Agreement) to become Included Sites at a Transfer Closing (as
defined herein) (such Sites, the "Transfer Sites").
(ii) The parties acknowledge and agree
that all of the obligations of the parties to close the
Transfer Sites included in any Transfer Closing shall be
subject to the satisfaction or waiver, prior to or at such
Transfer Closing, of each of the conditions set forth in
Articles XI and XII of the Agreement. Each of the parties
acknowledges and agrees that, with respect to the Transfer
Sites, (a) for purposes of determining the satisfaction of the
conditions set forth in Sections 11.1 and 12.1 at the
applicable Transfer Closing, the representations and
warranties of SBCW and the Sublessor Entities (other than
Section 6.5) and TowerCo and TowerCo Parent (other than
Sections 8.7 and 9.5) contained in the Agreement or in any
schedule, certificate or document delivered by such party
pursuant to the Agreement shall have been true and correct in
all material respects on and as the date when made and shall
be deemed to be made again at and as of the date of such
Transfer Closing and shall be true and correct in all material
respects at and as of such date (in the case of
representations and warranties which are made only as a
specific date, such representations and warranties need only
be true and correct in all material respects at and as of such
date); (b) for purposes of determining the satisfaction of the
conditions set forth in Sections 11.2 and 12.2 at the
applicable Transfer Closing, the measurement date for
determining the parties' performance of and compliance with
the covenants, agreements and conditions required by the
Agreement shall be the date of the relevant Transfer Closing;
and (c) the Closing Certificates contemplated by Sections 11.3
and 12.3 shall be delivered by the parties at the applicable
Transfer Closing and shall be dated as of the Transfer Date of
such Transfer Closing.
(iii) The parties shall use commercially
reasonable efforts to include on each Transfer Date 213
Transfer Sites selected by the parties in accordance with this
Section 4.1(e)(i) to become Included Sites (the "Target
Amount") and shall effect the closing of such Transfer Sites
by performing the actions set forth in Section 4.2(a) (the
"Transfer Closing"). Notwithstanding anything to the contrary
in this Section 4.1(e), TowerCo may, from time to time, at its
option, upon thirty days written
notice to SBCW, (a) accelerate the Transfer Closing with
respect to one or more Transfer Sites prior to the Transfer
Dates specified herein (provided that such accelerated closing
shall only occur on the first calendar day of a calendar month
and shall be effective as of 12:01 a.m. of such day; provided
that if such date is not a business day, the Rent payable with
respect to each Transfer Site being conveyed at such Transfer
Closing shall be paid by TowerCo on the next business day);
provided further that such accelerated closing shall not
affect the schedule of Transfer Dates set forth in Section
4.1(e)(iv), including the next Transfer Date and (b) elect to
close more than the Target Amount of Transfer Sites on any
Transfer Date (or any such accelerated date); provided that to
the extent that TowerCo elects to accelerate Transfer Closings
or elects to close on more than the Target Amount on a
Transfer Date (such number of Transfer Sites included in an
accelerated closing and such number of Transfer Site in excess
of the Target Amount, collectively, the "Excess Sites"), then
the Target Amount for the next Transfer Date shall be reduced
by the number of Excess Sites. Any Transfer Site that does not
become an Existing Site on or before the Final Transfer
Closing (as defined herein) shall become an Excluded Site. Any
Transfer Site included in a Transfer Closing shall become an
Included Site upon the consummation of such Transfer Closing.
Each of the parties acknowledges and agrees that the
provisions of Section 4.9 shall apply to all Transfer
Closings.
(iv) The Transfer Dates shall be as
follows: April 1, 2003; July 1, 2003; October 1, 2003; and
January 1, 2004 (each, a "Transfer Date") and "Final Transfer
Date" shall mean the earlier to occur of (x) January 1, 2004
and (y) the date of the Transfer Closing at which 3,600 Sites
have become Included Sites (the closing occurring on the Final
Transfer Date, the "Final Transfer Closing"). Notwithstanding
anything to the contrary herein, (a) the Transfer Closings on
the applicable Transfer Dates shall be effective as of 12:01
a.m. of such Transfer Date and (b) if the Transfer Date is not
a business day, the Rent payable with respect to each Transfer
Site being conveyed at such Transfer Closing shall be paid by
TowerCo on the next business day."
4. Amendment to Sections 4.4, 4.5, 4.6, 5.3, 5.4, 5.7, 5.10, 10.1
and 10.2.
The parties acknowledge and agree that, with respect to
Transfer Sites, (a) each reference to Closing and Closing Date, respectively, in
Sections 4.4, 4.5, 4.6, 5.3, 5.4, 5.7, 5.10, 10.1 and 10.2 shall be replaced
with a reference to the Transfer Closing and Transfer Date, respectively and (b)
Section 4.6(b) is further amended by deleting in its entirety the phrase
"pursuant to the Closing Schedule" in the first sentence.
5. Amendment to Section 4.8.
The first sentence of Section 4.8 is hereby deleted in its
entirety and replaced by the following:
"Notwithstanding anything to the contrary herein,
SBCW may at any time up to the Final Closing Date, amend Annex A to
substitute a Site which has become an Excluded Site with another Site
in a similar market with a similar structural design capacity, in which
case such Site shall constitute an Existing Site hereunder (each a
"Substitute Site")."
6. Amendment to Section 4.6(a), 5.6, 5.10(d) and 5.12.
The parties acknowledge and agree that, with respect to
Transfer Sites, (a) each reference to Final Closing in Sections 4.6(a), 5.6,
5.10(d) and 5.12 shall be replaced with a reference to the Final Transfer
Closing; and (b) Section 5.6 is further amended by deleting in its entirety the
parenthetical appearing after the reference to the Final Closing.
7. Amendment to Article XIII.
The parties acknowledge and agree that, with respect to the
Transfer Sites, for all purposes under Article XIII, each reference to the
Closing Date and the Closing, respectively, shall be replaced with a reference
to the Transfer Date and the Transfer Closing, respectively.
8. Continuing Effect of Agreement.
This Amendment 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.
9. Counterparts.
This Amendment may be executed by one or more of the parties
hereto on any number of separate counterparts and all such counterparts shall be
deemed to be one and the same instrument. Each party hereto confirms that any
facsimile copy of such party's executed counterpart of this Amendment (or its
signature page thereof) shall be deemed to be an executed original thereof.
10. Governing Law.
This Amendment shall be governed by, and interpreted and
construed in accordance with, the laws of the State of New York, without regard
to conflicts of laws or rules.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, each of the parties hereto has executed
this agreement, as of the day and year first above written.
SBC WIRELESS, LLC, for itself and
on behalf of the Sublessor Entities
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
as Attorney-in-Fact by Power of
Attorney
SBC TOWER HOLDINGS, LLC
By: /s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
Vice President
SOUTHERN TOWERS, INC.
By: /s/Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
Vice President
SPECTRASITE HOLDINGS, INC.
By: /s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
Chief Development Officer
