EXHIBIT 2.2
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 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, 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 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.
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
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 Administration
PENNSYLVANIA RSA NO. 6 (II) 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: Network Planning
and Administration
