EXHIBIT 2.7
CONFIDENTIAL
AGREEMENT TO SUBLEASE
by and among
BELLSOUTH PERSONAL COMMUNICATIONS, INC.,
BELLSOUTH CAROLINAS PCS, L.P.,
CROWN CASTLE INTERNATIONAL CORP.
and
CROWN CASTLE SOUTH INC.
AUGUST 1, 1999
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS 2
1.1 Definitions 2
1.2 Other Capitalized Terms 8
ARTICLE 2 AGREEMENT DOCUMENTS 8
ARTICLE 3 CONVEYANCE AND CONSIDERATION 9
3.1 Conveyance 9
3.2 Consideration 9
3.3 Maintained Sites 9
3.4 Proration 10
3.5 Consents Under Ground Leases 11
ARTICLE 4 CLOSINGS 12
4.1 Closings 12
4.2 Transactions and Documents at the Closings 12
4.3 Costs of Closing 13
4.4 Further Assurances 14
4.5 Field Inspection 15
4.6 Deferral of Closings 15
4.7 Re-Recordation 16
4.8 Title Searches 16
ARTICLE 5 ADDITIONAL AGREEMENTS 16
5.1 Expenses 16
5.2 Brokers 17
5.3 Risk of Loss and Insurance 17
5.4 Condemnation 17
5.5 Publicity 17
5.6 TowerCo's Access and Inspection 18
5.7 Cooperation 18
5.8 Governmental Filings 18
5.9 Confidentiality 19
5.10 Real Estate Matters 20
5.11 Update of Information 21
5.12 CCIC's Guaranty 21
ARTICLE 6 REPRESENTATIONS, WARRANTIES AND COVENANTS OF TRANSFERRING
ENTITIES 23
6.1 Organization, Authority and Qualification 23
6.2 Capacity; Inconsistent Obligations 23
6.3 Consents 24
6.4 No Violation; Compliance with Laws 24
6.5 Litigation; Contingencies 24
6.6 Leased and Owned Sites 24
6.7 Real Property 24
6.8 Eminent Domain 25
6.9 Taxes 25
6.10 Governmental Permits 25
6.11 Environmental Matters 26
6.12 Leases and Other Agreements 26
6.13 No Undisclosed Liabilities 26
6.14 Authorization 26
6.15 No Other Warranties 26
ARTICLE 7 REPRESENTATIONS, WARRANTIES AND COVENANTS OF TOWERCO 27
7.1 Organization, Authority and Qualification 27
7.2 Ownership of Shares; Subsidiaries 27
7.3 Capacity; Inconsistent Obligations 28
7.4 Consents 28
7.5 No Violation; Compliance with Laws 28
7.6 Liabilities 28
7.7 Litigation; Contingencies 29
7.8 No Broker 29
7.9 No Other Warranties 29
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF CCIC 29
8.1 Organization, Authority and Qualification 29
8.2 Capacity; Inconsistent Obligations 29
8.3 Consents 29
8.4 No Violation; Compliance with Laws 30
8.5 Litigation; Contingencies 30
8.6 No Other Warranties 30
ARTICLE 9 CONDUCT OF BUSINESS PENDING CLOSINGS 30
9.1 Conduct of Business by the Transferring Entities 30
9.2 Conduct of Business by CCIC and TowerCo 31
ARTICLE 10 CONDITIONS TO OBLIGATIONS OF TRANSFERRING ENTITIES 32
10.1 Representations and Warranties 32
10.2 Compliance with Agreements and Conditions 32
10.3 Closing Certificates 32
10.4 Corporate Consents 32
10.5 Consents and Approvals 32
10.6 No Litigation 33
10.7 Fundamental Transactions 33
10.8 Build-to-Suit Agreement 33
10.9 Sublease 33
10.10 Site Maintenance Agreement 33
10.11 Amendment to Site Marketing Agreement 33
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ARTICLE 11 CONDITIONS TO OBLIGATIONS OF CCIC AND TOWERCO 34
11.1 Representations and Warranties 34
11.2 Compliance with Agreements and Conditions 34
11.3 Closing Certificates 34
11.4 Corporate Consents 34
11.5 Consents and Approvals 35
11.6 No Litigation 35
11.7 Build-to-Suit Agreement 35
11.8 Sublease 35
11.9 Site Maintenance Agreement 35
11.10 Amendment to Site Marketing Agreement 35
ARTICLE 12 INDEMNIFICATION 36
12.1 Indemnification by Transferring Entity 36
12.2 Indemnification by CCIC 36
12.3 Indemnification by TowerCo 37
12.4 Procedure for Claims 37
12.5 Defense of Claims 38
12.6 Certain Limitations 39
12.7 Limitation on Liability 39
12.8 Survival 39
ARTICLE 13 TERMINATION 40
13.1 Termination for Certain Causes by BSPCI 40
13.2 Termination for Passage of Time 41
13.3 TowerCo's Remedies 41
ARTICLE 14 GENERAL PROVISIONS 42
14.1 Notices 42
14.2 Facsimile as Writing 43
14.3 Assignment; Binding Effect 43
14.4 Headings 43
14.5 Exhibits and Schedules 44
14.6 Defined Terms 44
14.7 Arbitration 44
14.8 Partial Invalidity and Severability 45
14.9 Waiver 45
14.10 Rights Cumulative 45
14.11 Time of Essence; Dates 45
14.12 Governing Law 46
14.13 Counterparts 46
14.14 Attorneys' Fees 46
14.15 Authority 46
14.16 Counsel 46
14.17 Number and Gender 46
14.18 No Construction Against Preparer 46
14.19 Entire Agreement; Modification 46
14.20 Power of Attorney 46
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AGREEMENT TO SUBLEASE
THIS AGREEMENT TO SUBLEASE, made and entered into this 1st day of August,
1999 (the "AGREEMENT"), by and among BELLSOUTH PERSONAL COMMUNICATIONS, INC., a
Delaware corporation ("BSPCI"), BELLSOUTH CAROLINAS PCS, L.P., a Delaware
limited partnership (the "CAROLINAS PARTNERSHIP" and collectively with BSPCI,
the "TRANSFERRING ENTITIES"), CROWN CASTLE INTERNATIONAL CORP., a Delaware
corporation ("CCIC"), and CROWN CASTLE SOUTH INC., a wholly owned subsidiary of
CCIC and a Delaware corporation ("TOWERCO"),
W I T N E S S E T H:
WHEREAS, the Transferring Entities are engaged in the business of, among
other things, operating a wireless communications network in their licensed FCC
territories in the states of Georgia, North Carolina, South Carolina, eastern
Tennessee, eastern Georgia and portions of Virginia and Kentucky (collectively,
the "TERRITORY") which network is comprised of PCS communications cell site
locations as to which such Transferring Entities own fee simple title or a
leasehold interest, leasehold estate or other real property interest; and
WHEREAS, CCIC, TowerCo and CCIC subsidiaries are engaged in the business
of, among other things, developing, constructing, managing, maintaining,
marketing, operating and leasing networks of communications tower facilities,
including the management of cellular communications sites and networks owned by
third party providers of wireless telecommunications services; and
WHEREAS, in order to optimize the utilization and value of the cell site
locations and network within the Territory, the Transferring Entities desire to
enter into an agreement relating to: (i) the design, construction and
installation by TowerCo on certain cell site locations radio tower structures
and other improvements pursuant to the terms and conditions of the Agreement to
Build to Suit of even date herewith (the "BUILD-TO-SUIT AGREEMENT"), among
BSPCI, CCIC and TowerCo; (ii) lease or sublease of certain cell site locations,
including locations which are subject to the Build-to-Suit Agreement, by BSPCI
and TowerCo pursuant to the terms and conditions of the Sublease of even date
herewith (the "SUBLEASE"), among BSPCI, CCIC and TowerCo; (iii) marketing,
maintenance and operation of certain cell site locations by TowerCo for the
benefit of BSPCI and its Affiliates and other providers of wireless
telecommunications services pursuant to the terms and conditions of the Site
Maintenance Agreement (as defined in SECTION 1.1); and (iv) various other
agreements with respect to the respective rights, duties and obligations of the
parties relating to the subject matter hereof, all as more particularly
described in and subject to the terms and conditions of this Agreement;
NOW, THEREFORE, for and in consideration of the premises, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. For purposes of this Agreement, the following capitalized
terms have the following respective meanings:
"ACTION" means any action, suit, litigation, complaint, counterclaim,
claim, petition, mediation contest, or administrative proceeding, whether at
law, in equity, in arbitration or otherwise, and whether conducted by or before
any Government or other Person.
"AFFILIATE" of a Party means any individual or firm, corporation,
partnership, limited liability company, association, trust or other entity
which, whether directly or indirectly, Controls, is Controlled by, or is under
common Control with the subject party.
"AGREEMENT" means this Agreement and the Exhibits and Schedules hereto, as
any of the foregoing may, from time to time, be amended, modified or restated in
accordance with the provisions hereof.
"AMENDMENT TO SITE MARKETING AGREEMENT" means Sixth (6th) Amendment to Site
Marketing Agreement of even date herewith between Crown Communication Inc. and
BSPCI.
"APPLICABLE TRANSFERRING ENTITIES" has the meaning given to such term in
SECTION 11.1.
"BUILD-TO-SUIT AGREEMENT" has the meaning given to such term in Preamble.
"BSPCI AFFILIATE" has the meaning given to such term in the Sublease.
"BSPCI INDEMNIFIED LOSSES" has the meaning given to such term in SECTION
12.2(a).
"BSPCI INDEMNITEE" means BSPCI, its Affiliates, and the respective
directors, officers, employees, contractors, subcontractors, advisors and
consultants of BSPCI or any BSPCI Affiliate.
"BTS SITES" has the meaning given to such term in the Build-to-Suit
Agreement.
"CAROLINAS PARTNERSHIP" has the meaning given to such term in the Preamble.
"CCIC INDENTURE" means the Indenture dated as of November 25, 0000 xxxxxxx
XXXX xxx Xxxxxx Xxxxxx Trust Company of New York, as Trustee, and any
modification, amendment or supplement thereto or replacement thereof.
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"CLOSING(S)" has the meaning given to such term in SECTION 4.1(a).
"CLOSING DATE(S)" has the meaning given to such term in SECTION 4.1(a).
"CLOSING SCHEDULE" has the meaning given to such term in SECTION 4.1(a).
"COLOCATION AGREEMENTS" has the meaning given to such term in the Sublease.
"CONFIDENTIAL INFORMATION" has the meaning given to such term in SECTION
5.9(b).
"Consideration" has the meaning given to such term in SECTION 3.2(a).
"CONTROL" means the ownership, directly or indirectly, of sufficient voting
shares of an entity, or otherwise the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of an
entity, whether through the ownership of voting securities, by contract or
otherwise.
"DEDUCTIBLE AMOUNT" has the meaning given to such term in SECTION 12.6(b).
"DISCLOSEE" has the meaning given to such term in SECTION 5.11(a).
"DISCLOSING PARTY" has the meaning given to such term in SECTION 5.11(a).
"DISCLOSURE SCHEDULE" has the meaning given to such term in SECTION 4.6(b).
"ENVIRONMENTAL LAWS" means all Laws and Orders in effect at the time of the
applicable Closing, relating to the Hazardous Materials and/or protection of the
environment from pollution or contamination.
"ENVIRONMENTAL CONDITIONS" means, as to each Site, any conditions or
circumstances, including without limitation, the presence of Hazardous
Materials, that (i) require abatement or correction under the Environmental
Laws, (ii) give rise to any civil or criminal Liability under any Environmental
Law relating to the use or occupancy of any Site or (iii) constitute a public or
private nuisance.
"EXCLUDED SITES" means any Site excluded from the Sublease pursuant to the
terms of this Agreement.
"EXISTING BUILD-TO-SUIT AGREEMENTS" has the meaning given to such term in
the Build-to-Suit Agreement.
"EXISTING LEASES" means Existing Subleases under the Sublease.
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"EXISTING SITES" means the Sites, the Towers and Improvements on which have
been constructed and used by the Transferring Entities prior to the date hereof,
as such Sites and Transferring Entities are listed in ANNEX A attached hereto,
as may be amended from time to time.
"FAA" means the Federal Aviation Administration.
"FCC" means the Federal Communications Commission.
"FINAL CLOSING" has the meaning given to such term in SECTION 4.1(b).
"FINAL CLOSING DATE" has the meaning given to such term in SECTION 4.1(b).
"FORUM" means any federal, national, state, local, municipal or foreign
court, governmental agency, administrative body or agency, tribunal, private
alternative dispute resolution system, or arbitration panel.
"GAAP" means generally accepted accounting principles, consistently
applied.
"GOVERNMENT" means any federal, state, territorial, county, municipal,
local or other government or governmental agency or body or any other type of
regulatory body, whether domestic or foreign, including without limitation the
FCC and the FAA.
"GOVERNMENTAL PERMITS" means any and all governmental approvals, permits,
licenses, registrations, certificates of occupancy, approvals and other
governmental authorizations.
"GROUND LEASE" has the meaning given to such term in the Sublease.
"GROUND LESSOR" has the meaning given to such term in the Sublease.
"GROUND LESSOR CONSENT" has the meaning given to such term in SECTION
3.5(a).
"GROUND LESSOR CONSENT SITE" means any Site requiring a Ground Lessor
Consent.
"GROUND RENT" has the meaning given to such term in the Sublease.
"HAZARDOUS MATERIALS" means and includes petroleum products, flammable
explosives, radioactive materials, asbestos or any material containing asbestos,
polychlorinated biphenyls, or any hazardous, toxic or dangerous waste, substance
or material defined as such or defined as a hazardous substance or any similar
term, by, in or for the purposes of the Environmental Laws, including, without
limitation Section 101(14) of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980. The term Hazardous Materials excludes
quantities of
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materials or substances maintained by the applicable Transferring Entity on or
about any of its Sites (including Tower and Improvements thereon) in the
ordinary course of business, so long as such materials are maintained in
accordance with the applicable Environmental Laws.
"HSR ACT" has the meaning given to such term in SECTION 5.10(a).
"IMPROVEMENTS" has the meaning given to such term in the Sublease.
"INCLUDED SITES" means any Existing Sites and BTS Sites that become subject
to the Sublease.
"INDEMNIFIED LOSSES" means collectively, BSPCI Indemnified Losses and
TowerCo Indemnified Losses.
"INDEMNIFIED PARTY" has the meaning given to such term in SECTION 12.4.
"INDEMNIFYING PARTY" has the meaning given to such term in SECTION 12.4.
"INITIAL CLOSING" has the meaning given to such term in SECTION 4.1(b).
"INITIAL CLOSING DATE" has the meaning given to such term in SECTION
4.1(b).
"KNOWN," "TO THE BEST KNOWLEDGE OF," or words of similar import means, as
to each party hereto, the actual knowledge of any person who is part of the
management of such party (and any person succeeding to any such position prior
to the Final Closing but only to the extent they acquire actual knowledge).
"LAND" has the meaning given to such term in the Sublease.
"LAWS" means all federal, state, county, municipal and other governmental
constitutions, statutes, ordinances, codes, regulations, resolutions, rules,
requirements and directives and all decisions, judgments, writs, injunctions,
orders, decrees or demands of courts, administrative bodies and other
authorities construing any of the foregoing.
"LEASED SITE" means any Site that is leased, subleased or licensed to
TowerCo pursuant to the Sublease.
"LIABILITY" means any liability or obligation whether asserted or
unasserted, absolute or contingent, accrued or unaccrued, liquidated or
unliquidated and whether due or to become due.
"LIENS" means an interest or a claim by a Person other than a Transferring
Entity or its Affiliates, whether such interest or claim is based on the common
law, statute, or contract, including, without limitation, liens, charges,
claims, security interests, pledges, Mortgages,
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leases, licenses, conditional agreements, title retention agreements,
preference, priority or other security agreements or preferential arrangements
of any kind, reservations, exceptions, encroachments, easements, rights-of-way,
covenants, conditions, restrictions and other title exceptions and encumbrances
affecting all or any part of Land, the Tower and Improvements thereon.
"MAINTAINED SITES" means Sites which become subject to the Site Maintenance
Agreement contemporaneously with the execution of the Site Maintenance Agreement
or at any time thereafter in accordance with the Site Maintenance Agreement, and
shall include Revenue Sharing Sites and Ground Lessor Consent Sites.
"MATERIAL ADVERSE EFFECT" means as to any Site, a material adverse effect
on any Transferred Interest granted by the Transferring Entity in respect of
such Site.
"MAXIMUM INDEMNIFICATION" has the meaning given to such term in SECTION
12.6(c).
"MORTGAGES" means any recorded mortgage, deed to secure debt, deed of
trust, trust deed or other conveyance of, or encumbrance against the Sites or
the Transferred Interests as security for any debt.
"OBLIGATIONS" has the meaning given to such term in SECTION 5.15(a).
"ORDERS" means all applicable orders, writs, judgments, decrees, rulings,
consent agreements, and awards of or by any Forum or entered by consent of the
party to be bound.
"OWNED SITE" means any Site that is owned by BSPCI or the Carolinas
Partnership.
"PERSON" means an individual, partnership, joint venture, limited liability
company, association, corporation, trust or any other legal entity.
"PERMITTED LIENS" means: (i) statutory liens for current real or personal
property taxes not yet due and payable; (ii) worker's, carrier's and
materialman's liens incurred in the ordinary course of business related to
obligations not yet due and payable; (iii) easements, rights of way or similar
grants of rights to a third party for access to or across any Site, including,
without limitation, rights of way or similar rights granted to any utility or
similar entity in connection with the provision of electric, telephone or
similar services; (iv) Colocation Agreements; (v) Existing Leases; (vi) liens
that are immaterial in character, amount or extent, or that do not materially
detract from the value and interfere in any material respect with the Permitted
Use of any Site; (vii) restrictions and conditions due to zoning laws and
regulations; and (viii) reservations, restrictions, limitations, conditions and
other liens of public record.
"PERMITTED USE" has the meaning given to such term in the Sublease.
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"PREPAID EXPENSES" means any and all prepaid items, unbilled costs and
fees, and rents, revenues, payments, accounts, notes and other receivables under
any service contracts, Existing Leases, Colocation Agreements as of the
applicable Closing Date.
"QUALIFYING INTEREST" means any possessory interest in real property held
by a Transferring Entity that is capable of being transferred to TowerCo as a
Transferred Interest consistent with the terms of the Sublease in all material
respects.
"REAL ESTATE REPRESENTATION" means (i) any real estate representation or
warranty made by any Transferring Entity in SECTIONS 6.1 through 6.5, or (ii) a
representation or warranty made by any Transferring Entity in any of SECTIONS
6.6, 6.7, 6.8, 6.9, 6.10, 6.11, 6.12 or 6.13.
"RESERVED SPACE" has the meaning given to such term in the Sublease.
"RETURNS" has the meaning given to such term in SECTION 6.9.
"REVENUE SHARING SITES" means any Site whose Ground Lease provides that the
ground lessee thereunder is required to share with the Ground Lessor a
percentage of revenues from the subleasing of the Site.
"SITE MAINTENANCE AGREEMENT" means the Site Maintenance Agreement to be
entered into by and among Crown Network Systems, Inc. and the Transferring
Entities.
"SITES" means all cell tower sites that are owned or leased by the
Transferring Entities located within the Territory that are now or hereafter
subject to the Transaction Documents, excluding without limitation any Sites
that are the subject of the Existing Build to Suit Agreements. Sites shall
include Existing Sites, BTS Sites, Excluded Sites and Maintained Sites. The
term "Sites" excludes (i) any and all cell tower sites that are the subject of
the Agreement to Sublease dated as of June 1, 1999 among BellSouth Mobility Inc,
BellSouth Telecommunications, Inc., CCIC and TowerCo, (ii) any Sites excluded
from this transaction by the rural telephone companies which are limited
partners in the Carolinas Partnership, and (iii) any Sites funded by such rural
telephone companies under a Coverage Extension Agreement.
"SUBLEASE" has the meaning given to such term in the Preamble.
"SUBLEASED PROPERTY" has the meaning given to such term in the Sublease.
"SURVIVAL PERIOD" has the meaning given to such term in SECTION 12.8.
"TAXES" means all taxes, duties, charges, fees, levies or other assessments
imposed by any taxing authority, whether domestic or foreign, including, without
limitation, income (net, gross or other including recapture of any tax items
such as investment tax credits), alternative or add-on minimum tax, capital
gains, gross receipts, value-added, excise, withholding, personal
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property, real estate, sale, use, ad valorem, license, lease, service,
severance, stamp, transfer, payroll, employment, customs, duties, alternative,
estimated and franchisee taxes (including any interest, levies, charges,
penalties or additions attributable to or imposed on or with respect to any such
assessment).
"TERMINATION FEE" has the meaning given to such term in SECTION 13.1(b).
"TERRITORY" has the meaning given to such term in the Preamble.
"TOWER" has the meaning given to such term in the Sublease.
"TOWERCO INDEMNIFIED LOSSES" has the meaning set forth in SECTION 12.1(a).
"TOWERCO INDEMNITEES" means TowerCo, its Affiliates, and the respective
directors, officers, employees, agents, subcontractors, advisors and consultants
of TowerCo or its Affiliates (except BSPCI, any BSPCI Affiliate and any
contractors, subcontractors, advisors and consultants of BSPCI).
"TOWERCO SHARES" has the meaning given to such term in SECTION 7.2(a).
"TRANSFERRING ENTITIES" has the meaning given to such term in the Preamble.
"TRANSFERRED INTERESTS" has the meaning given to such term in SECTION
3.1(a).
"TRANSACTION DOCUMENTS" means collectively this Agreement, the Sublease,
the Build-to-Suit Agreement, the Site Maintenance Agreement and each of the
other documents and agreements listed in ARTICLES 4, 10 and 11.
1.2 OTHER CAPITALIZED TERMS. Any other capitalized terms used in this
Agreement shall have the respective meanings given to them elsewhere in this
Agreement.
ARTICLE 2
AGREEMENT DOCUMENTS
This Agreement shall consist of the following documents, as amended from
time to time as provided herein:
(A) this Agreement document;
(B) the following Exhibits:
Exhibit A Assignment And Assumption Agreement
Exhibit B Proration
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(C) such additional documents as are incorporated by reference,
including without limitation the Schedules attached hereto and each
Disclosure Schedule provided by the Transferring Entities.
If any of the foregoing are inconsistent, this Agreement shall prevail over
Exhibits and additional incorporated documents.
ARTICLE 3
CONVEYANCE AND CONSIDERATION
3.1 CONVEYANCE. (a) Subject to the terms and conditions of this
Agreement, each Transferring Entity agrees to grant, convey and deliver to
TowerCo, and TowerCo agrees to take and accept from such Transferring Entity, at
the Closings, a leasehold, subleasehold interest, or other interest consistent
with the terms of the Sublease, as applicable, in and to the Subleased Property
of all of the Existing Sites and BTS Sites which the applicable Transferring
Entity is not legally precluded from leasing or subleasing to TowerCo, as more
particularly described in the Sublease and applicable Site Designation
Supplements (collectively, the "TRANSFERRED INTERESTS").
(b) Notwithstanding anything to the contrary contained in SECTION 3.1(a),
the Transferred Interests shall not include, without limitation, any of the
following: (i) the Reserved Space of the Included Sites; (ii) BSPCI's or its
Affiliate's Improvements on the Included Sites; (iii) any equipment or
transmissions systems used for the remote monitoring of the Included Sites; (iv)
any and all rights that accrue or will accrue to any Transferring Entity under
the Transaction Documents, including, without limitation, the Consideration; (v)
any and all rights retained by and/or granted to any Transferring Entity
pursuant to the Transaction Documents; and (vi) the Excluded Sites.
3.2 CONSIDERATION. (a) Subject to the prorations and adjustments set forth
in this ARTICLE 3, the aggregate consideration for the Transferred Interests
(the "CONSIDERATION"), based on 773 Existing Sites, shall be equal to
$316,930,000 in cash.
(b) At each Closing, TowerCo shall pay the applicable Transferring Entity
(A) $410,000 in Cash multiplied by (B) the number of the Included Sites being
conveyed at such Closing.
(c) Each payment under SECTION 3.2 shall be made by wire transfer of
immediately available funds through the Federal Reserve System to an account
designated in writing by BSPCI.
3.3 MAINTAINED SITES. Subject to the right of a Transferring Entity to
defer the Closing of a Site until a later Closing under SECTION 4.6, if at any
Closing a Transferring Entity is unable to
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deliver to TowerCo the Transferred Interest with respect to any Site as a result
of such Transferring Entity's failure to satisfy any condition set forth in
SECTION 11.5, TowerCo does not waive that condition, and such Site does not
become a leased or a subleased Site pursuant to the Sublease on or prior to the
Final Closing, then for purposes of this Agreement, such Site shall at the
Transferring Entity's option, to be exercised by such Transferring Entity's
written notice to TowerCo on or prior to the applicable Closing, either (i)
become an Excluded Site or (ii) become subject to the Site Maintenance Agreement
in which case such Site shall become a Maintained Site under the Site
Maintenance Agreement pursuant to the execution by the applicable Transferring
Entity and TowerCo of one or more Addenda to the Site Maintenance Agreement;
provided, however, that, if as of the applicable Closing the only unsatisfied
and unwaived condition is the absence of any required consent of the Ground
Lessor, such Site shall be deferred until such a consent is received; provided,
further, that, if as of the Final Closing the parties have not obtained such
consent, such Site shall be a Maintained Site or an Excluded Site, at the
Transferring Entity's option as provided herein. For purposes of determining the
Consideration pursuant to SECTION 3.2, Sites that become Maintained Sites
pursuant to this SECTION 3.3 or Excluded Sites pursuant to SECTION 4.6, 5.3 OR
5.4 shall not constitute an Included Site.
3.4 PRORATION. (a) At each Closing, the following items shall be
apportioned between the Transferring Entity and TowerCo: (i) federal, state,
local or foreign Taxes (other than income taxes) payable with respect to the
Transferred Interests of Included Sites; and (ii) the other items set forth in
EXHIBIT B attached hereto. Such apportionments shall be made pro rata on a per
diem basis as of each Closing Date so that all such Taxes and other payments
attributable to the period prior to such Closing Date shall be for the account
of the Transferring Entity, and all such Taxes and other payments attributable
to the period from and after such Closing Date shall be for the account of
TowerCo. Notwithstanding anything to the contrary in this Agreement, all up-
front, bolt-on or attachment fees or payments and escrow amounts related to
Existing Leases paid prior to the applicable Closing shall remain with the
applicable Transferring Entity.
(b) In the event that the amount of any item to be prorated is not
determinable at the time of each Closing, such proration shall be made on the
basis of the best available information, and the applicable Transferring Entity
and TowerCo shall re-prorate such item promptly upon receipt of the applicable
bills therefor and shall make between themselves any equitable adjustment
required by reason of any difference between the estimated amount used as a
basis for the proration at each Closing and the actual amount subject to
proration. In the event any prorated item is due and payable at the time of a
Closing, the same shall be paid at such Closing. If any prorated item is not
paid at a Closing, and either party has identified that item at Closing as a
properly prorated item, the applicable Transferring Entity shall deliver to
TowerCo the bills therefor promptly upon receipt thereof and TowerCo shall be
responsible for the payment of TowerCo's pro rata share in full thereof within
the time fixed for payment thereof and before the same becomes delinquent,
provided that TowerCo's obligation to make such payment before it has become
delinquent is subject to TowerCo's having received the xxxx therefor in a
sufficiently timely manner. In no event shall TowerCo be responsible for any
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prorated item about which TowerCo receives notice more than eighteen (18) months
following the applicable Closing.
3.5 CONSENTS UNDER GROUND LEASES.
(a) Notwithstanding anything to the contrary in this Agreement, if the
Ground Lessor with respect to any particular Site refuses to give its consent to
BSPCI's subleasing of such Site to TowerCo and TowerCo's subsequent subleasing
of portions of such Site to third parties (each, a "GROUND LESSOR CONSENT"), all
pursuant to the Sublease, then BSPCI may, in its sole discretion, offer to such
Ground Lessor, as an inducement to give such consent, an increase in the Ground
Rent. If the proposed increase of the Ground Rent as to any Site is equal to or
less than 25% of the then current Ground Rent (which then current Ground Rent is
based on all then recurring monthly payments, it being understood that after the
Ground Rent is increased, all future adjustments in the nature of annual or
other recurring increases and/or existing revenue sharing arrangements shall
apply to such increased Ground Rent) and such offer is accepted by the
applicable Ground Lessor, then BSPCI shall give CCIC written notice of such
increase promptly thereafter and CCIC shall accept such Site and such Site shall
become subject to the Sublease. If the applicable Ground Lessor will agree to
grant its consent to BSPCI's sublease of the Site to TowerCo and TowerCo's
subsequent sublease of portions of the Site to third parties only if BSPCI is
willing to increase the Ground Rent under the applicable Ground Lease by more
than twenty-five percent (25%) of the then current Ground Rent (which then
current Ground Rent is based on all then recurring monthly payments, it being
understood that after the Ground Rent is increased, all future adjustments in
the nature of annual or other recurring increases and/or existing revenue
sharing arrangements shall apply to such increased Ground Rent), then TowerCo
will have (i) the right to participate in any subsequent discussions with the
applicable Ground Lessor regarding the obtaining of its consent and (ii) an
option, exercisable within ten (10) days of receipt of notice from BSPCI to
cause such Site not to become subject to the Sublease, in which event such Site
shall constitute a Maintained Site.
(b) If the parties are unable to obtain any Ground Lessor Consent by the
applicable Closing, the parties shall continue using commercially reasonable
efforts to obtain such Ground Lessor Consent in accordance with SECTION 3.5(a);
provided, that if the parties subsequently obtain such Ground Lessor Consent as
to any Site, the Closing for such Site shall take place at the Closing next
succeeding the date on which such Ground Lessor Consent is obtained, or, if the
Final Closing has occurred, within six (6) months after the Final Closing at a
time agreed by the parties; provided further, no Closings for such Sites shall
occur after the expiration of such six (6) month period, unless the parties
otherwise agree.
(c) In pursuing any Ground Lessor Consent for any Site pursuant to SECTION
3.5(a), BSPCI may not offer to the Ground Lessor any right to share in revenues
received by TowerCo from such Site unless the maximum amount of shared revenues
would not exceed twenty-five percent (25%) of the then-current base Ground Rent
for such Site.
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ARTICLE 4
CLOSINGS
4.1 CLOSINGS. (a) Subject to prior termination of this Agreement by BSPCI
pursuant to ARTICLE 14, the consummation of the transfer and conveyance of the
Transferred Interests and other transactions contemplated by this Agreement
shall occur in multiple closings (individually, a "CLOSING", and collectively,
the "CLOSINGS"), and each such Closing shall take place at the offices of
Xxxxxxxxxx Xxxxxxxx LLP, Suite 2800, 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
00000-0000, at such times and on such dates (each, the "CLOSING DATE"), as
specified in the closing schedule set forth in SCHEDULE 4.1 attached hereto, as
modified pursuant to the terms hereof (the "CLOSING SCHEDULE").
(b) Notwithstanding anything to the contrary contained herein, the parties
acknowledge and agree that each Closing shall be subject to the provisions of
ARTICLES 10 and 11 of this Agreement and shall take place after all the
conditions set forth in such ARTICLES 10 and 11 have been satisfied or waived.
The parties further acknowledge that the initial Closing (the "INITIAL CLOSING")
shall be effective August 1, 1999, with funding to occur on such date as the
parties agree (the "INITIAL CLOSING DATE"), and thereafter each Closing shall
take place as provided in the Closing Schedule; provided, however, that in no
event shall the final Closing (the "FINAL CLOSING") occur later than on December
31, 1999 (the "FINAL CLOSING DATE").
(c) The parties shall use commercially reasonable efforts to include in the
Initial Closing at least two hundred fifty (250) Sites, whether as an Included
Site, Excluded Site or Maintained Site, including, without limitation, any Sites
deferred pursuant to SECTION 3.3 or 4.6 from the previous Closings.
4.2 TRANSACTIONS AND DOCUMENTS AT THE CLOSINGS. (a) At each Closing:
(i) TowerCo shall pay the applicable Consideration in respect of all
of the Transferred Interests being conveyed at such Closing;
(ii) Each of CCIC and TowerCo shall execute and deliver to the
applicable Transferring Entity any and all documents and instruments
relating to the acceptance of the Transferred Interest of each of its
Included Sites, including, without limitation, (A) Site Designation
Supplements with respect to Transferred Interests of the Included Sites
being conveyed at such Closing, (B) an assignment and assumption agreement
in substantially the form attached hereto as EXHIBIT A (each, an
"ASSIGNMENT AND ASSUMPTION AGREEMENT") relating to the assignment of the
Existing Leases affecting the Included Sites subject to such Closing; (C)
if required, an Addendum to the Site Maintenance Agreement reflecting any
additions of Sites to the Maintained Sites pursuant to SECTION 3.3 and any
additional Transferring Entities; and (E) such other documents,
certificates, agreements and other papers as set forth in ARTICLE 10 or may
be necessary or convenient to
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effectuate the consummation of the transactions contemplated by this
Agreement and other Transaction Documents, and its purposes and intent.
(iii) Each Transferring Entity shall execute and deliver to
TowerCo any and all documents and instruments relating to the transfer of
the Transferred Interest of each Included Site, including, without
limitation, (A) all consents, authorizations and approvals in respect of
the Included Sites that are necessary for the consummation of each Closing,
including any and all required consents of Ground Lessors and Governmental
Permits; (B) the Assignment and Assumption Agreement relating to assignment
of the Existing Leases affecting the Included Sites subject to such
Closing; (C) Site Designation Supplements with respect to the Transferred
Interests of Included Sites being conveyed at such Closing; (D) if
required, one or more Addenda to the Site Maintenance Agreement reflecting
any additions of Sites to the Maintained Sites pursuant to SECTION 3.3; (E)
a receipt for the Consideration delivered to it at such Closing; and (F)
such other documents, certificates, agreements and other papers as set
forth in ARTICLE 11 or may be necessary or convenient to effectuate the
consummation of the transactions contemplated by this Agreement and other
Transaction Documents, and its purposes and intent.
(b) In addition to and not in limitation of SECTION 4.2(a):
(i) At the Initial Closing, TowerCo, CCIC and BSPCI (for itself
and on behalf of the Carolinas Partnership) shall execute and deliver the
Sublease;
(ii) At the Initial Closing, TowerCo, CCIC and BSPCI (for itself
and on behalf of the Carolinas Partnership) shall execute and deliver the
Build-to-Suit Agreement; and
(iii) On or prior to the Initial Closing, TowerCo, BSPCI (for
itself and on behalf of the Carolinas Partnership) shall execute and
deliver the Site Maintenance Agreement.
4.3 COSTS OF CLOSING. Except as otherwise provided in the Transaction
Documents, the applicable Transferring Entity shall be responsible for and pay
any and all transfer taxes and routine closing costs and expenses, including,
without limitation, (i) any transfer Tax payable on the transfer, if any, and
(ii) all recording costs relating to any title clearance matters, if any, it
being understood and agreed that such recording costs shall not include
recording costs for which CCIC is responsible under SECTION 5.12(c).
Notwithstanding anything to the contrary contained herein, (i) any fees, costs
and expenses incurred by or on behalf of TowerCo for the services ordered or
requested by TowerCo for which such Transferring Entity is not liable under the
Transaction Documents shall be the responsibility of and shall be paid for by
TowerCo and (ii) any fees, costs and expenses incurred by or on behalf of any
Transferring Entity for services ordered or requested
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by such Transferring Entity for which such Transferring Entity is expressly
liable under the Transaction Documents shall be the responsibility of and shall
be paid for by such Transferring Entity.
4.4 FURTHER ASSURANCES; CORRECTIONS. (a) At each Closing, and from time to
time thereafter, each Transferring Entity shall do all such additional and
further acts, and shall execute and deliver all such additional and further
instruments, certificates and documents, as TowerCo may reasonably require fully
to vest in and assure to TowerCo full right, title and interest in and to the
Transferred Interests to the full extent contemplated by this Agreement and
otherwise to effectuate the consummation of the transactions contemplated by
this Agreement. Each of the parties hereto will cooperate with the others and
execute and deliver to the other parties such other instruments and documents
and take such other actions as may be reasonably requested from time to time by
any other party as necessary to carry out, evidence and confirm the intended
purposes of this Agreement.
(b) If in the review of any Site Designation Supplement either party
identifies any corrections that in either party's judgment necessitate further
revisions to EXHIBIT B, C or D to such Site Designation Supplement, the parties
may at either party's request effect the correction by SE Technologies of such
EXHIBIT B, C or D, and defer the recordation of such Site Designation Supplement
until such revisions are made, for up to thirty (30) days.
(c) In addition, with respect to the Included Sites, the parties shall have
the right to review and make corrections, if necessary, to any and all exhibits
to the Site Designation Supplements applicable to such Included Sites after the
applicable Closing. After making any such corrections, TowerCo shall re-record
any such Site Designation Supplements to reflect such corrections, if requested
by the applicable Transferring Entity.
(d) If after any Closing any party discovers that the name of the
Transferring Entity as set forth in any Site Designation Supplement is
incorrect, the applicable Transferring Entity shall re-execute such Site
Designation Supplement in such a manner as to correct such name, and TowerCo
shall re-record such Site Designation Supplement, unless the parties agree that
such re-recordation is not necessary. The foregoing obligation shall survive
the Closing in respect of which such Site Designation Supplement was executed
for a period of six (6) months.
(e) The Transferring Entity shall have the right, at its sole expense, to
cause any amendment to the Site Designation Supplement to be recorded. In
addition, the parties shall cooperate with each other to cause changes to be
made in the documentation for any Site, and in the Site Designation Supplement
for such Site, if such changes are requested by the Transferring Entity to
evidence any permitted changes in the Reserved Space or Transferred Interest
respecting such Site, including without limitation changes in such Transferring
Entity's antennas or other parts of its Communications Facility at such Site.
Such obligation shall survive any Closing without limitation.
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4.5 FIELD INSPECTION. After the applicable Closing Date, CCIC shall, or
may cause its agent to, collect data relating to the Existing Sites, sufficient
to confirm that such Existing Sites have been adequately described and EXHIBITS
B, C and D for all Site Designation Supplements relating to such Existing Sites
have been properly prepared. CCIC shall pay all the fees and expenses of any
such agent. BSPCI shall cooperate with CCIC to coordinate any such field
inspection. CCIC shall notify BSPCI of the results of any such field
inspection, promptly after receiving the results thereof. The Transferring
Entities may also collect similar data relating to the Existing Sites. CCIC
shall, or shall cause such agent to, make such changes in its documentation as
may be requested by the applicable Transferring Entity to effect any correction,
whether before or after the applicable Closing. Such obligation shall survive
the applicable Closing until six (6) months after the Final Closing. The
parties agree that, as between the parties, the description of Existing Sites
shall be sufficient to adequately describe the Transferred Interests, and agree
to effect changes and corrections requested by a party consistent with that
objective. In addition, where any discrepancy in EXHIBITS B, C or D requires
verification in the field, including without limitation verification as to the
number of antennas, height of antennas, location of antennas or location of
antenna mounting hardware, the parties shall provide adequate resources and
personnel to resolve such discrepancy within thirty (30) days after the
applicable Closing.
4.6 DEFERRAL OF CLOSINGS; UPDATING OF REPRESENTATIONS. (a) Each
Transferring Entity will have the right to defer the Closing as to any Site to a
later Closing by virtue of (i) the failure of such Site to satisfy any condition
to the obligations of CCIC or TowerCo respecting such Site (including without
limitation the failure to obtain any Ground Lessor Consent, as contemplated by
SECTION 3.5) or (ii) the breach by the applicable Transferring Entity of any
Real Estate Representation as to such Site. If, by the Final Closing, the
applicable Transferring Entity fails, after the exercise of reasonable efforts,
to cause any such unsatisfied (and unwaived) condition to be satisfied or to
cure any such (unwaived) breach of a Real Estate Representation, such Site shall
constitute an Excluded Site or Maintained Site pursuant to and as provided in
SECTION 3.3. CCIC shall notify BSPCI prior to the applicable Closing of any Site
that it believes does not satisfy any condition in this Agreement to its
obligations to acquire the Transferred Interest in such Site, including without
limitation by virtue of a breach of a Real Estate Representation as to such
Site. The applicable Transferring Entity will have the right to cure any such
breach of a representation, warranty or covenant and/or remedy such condition,
and defer the Closing of such Site to facilitate such cure, as provided above.
(b) As soon as reasonably practicable prior to the date scheduled for
any Closing in the Closing Schedule, the applicable Transferring Entity shall
disclose in writing any material information, known to such Transferring Entity
without additional inquiry, that is required to (x) be provided pursuant to any
representation or warranty made by a Transferring Entity pursuant to ARTICLE 6
or (y) cause any Real Estate Representation with respect to any Existing Site to
be true and correct in all material respects and would modify, amend or
supplement such Real Estate Representation, including without limitation: (i) to
set forth exceptions to any such representations and warranties, where such
exceptions were not theretofore set forth in this Agreement or any Schedule
hereto, or (ii) to reflect any lease,
15
sublease or license that becomes an Existing Lease entered into after the date
of this Agreement in the ordinary course of business consistent with past
practices and matters related thereto. The applicable Transferring Entity shall
provide any such disclosure that relates to such Transferring Entity and does
not constitute a Real Estate Representation prior to the first Closing in which
any Sites of such Transferring Entity is included. Any such disclosure shall be
deemed to create and constitute a portion of, and all such disclosures together
shall be, the "DISCLOSURE SCHEDULE". Any Existing Site in respect of which the
applicable Transferring Entity makes any disclosure pursuant to this SECTION
4.6(b) may, at CCIC's option, be deferred to a later Closing Date pursuant to
SECTION 4.6(a), where the matters so described would have a Material Adverse
Effect on such Existing Site. The sole remedy of CCIC and TowerCo in respect of
any such disclosure as to any Site shall be to cause such Site to be a
Maintained Site pursuant to SECTION 3.3 or, at the applicable Transferring
Entity's option pursuant to SECTION 4.6, to be an Excluded Site hereunder or to
defer the Closing for such Site to a later Closing Date.
4.7 RE-RECORDATION. Whenever in this Agreement either party is required
or has the right to record or re-record any document, including without
limitation any Site Designation Supplement, Ground Lease or a memorandum
thereof, TowerCo shall, or shall cause the agent effecting such recordation to,
deliver a copy of the document to the other party promptly after receipt
thereof, and in any event contemporaneously with its first delivery thereof to
the recording party.
4.8 TITLE SEARCHES. For each Closing, TowerCo shall (i) cause a national
title insurance company with licensed agents in each part of the Territory to
cause a full title search to be undertaken as to each Site in such part of the
Territory for which BSPCI does not have a recent title search or report and (ii)
may cause such a title insurance company to cause a bring-down of existing title
searches or reports on Sites for which BSPCI has a recent title search, report
or bring-down. TowerCo shall deliver copies of each such title search to BSPCI
not less than ten (10) days prior to the date scheduled for such Closing in the
Closing Schedule, and in any event contemporaneously with the delivery of such
searches to any Crown Affiliate or agent of any Crown Affiliate. Each
Transferring Entity whose Sites are covered by the foregoing obligation shall
provide access to any documents reasonably available to it, to the extent
necessary to facilitate such title search.
ARTICLE 5
ADDITIONAL AGREEMENTS
5.1 EXPENSES. (a) Except as otherwise provided herein, all expenses
incurred by TowerCo in connection with the negotiations among the parties, and
the authorization, preparation, execution and performance of the Transaction
Documents and the transactions contemplated hereby shall be paid by TowerCo.
(b) Except as otherwise provided herein, all expenses incurred by CCIC
in connection with the negotiations among the parties, and the authorization,
preparation, execution
16
and performance of the Transaction Documents and the transactions contemplated
hereby shall be paid by CCIC.
(c) Except as otherwise provided herein, all expenses incurred by the
Transferring Entities in connection with the negotiations among the parties, and
the authorization, preparation, execution and performance of the Transaction
Documents and the transactions contemplated hereby shall be paid by the
Transferring Entities; provided that BSPCI may allocate a pro rata portion of
fees, costs and expenses that are not specific to its Sites to the Carolinas
Partnership, based on its percentage of all Included Sites.
5.2 BROKERS. Each Transferring Entity hereby represents and warrants to
TowerCo that no broker or finder has acted on its behalf in connection with this
Agreement or the transactions contemplated herein and agrees to indemnify
TowerCo Indemnitees from and against any and all claims or demands for
commissions or other compensation by any broker, finder or similar agent
claiming to have been employed by or on behalf of BSPCI. CCIC and TowerCo,
jointly and severally, hereby represent and warrant to each Transferring Entity
that no broker or finder has acted on their behalf or on behalf of any of them
in connection with this Agreement or the transactions contemplated herein and
each of them agrees, jointly and severally, to indemnify BSPCI Indemnitees from
and against any and all claims or demands for commissions or other compensation
by any broker, finder or similar agent claiming to have been employed by or on
behalf of the CCIC and TowerCo.
5.3 RISK OF LOSS AND INSURANCE. Between the date of this Agreement and each
Closing, the risks and obligations of ownership and loss of the Transferred
Interests with respect to the Sites subject to such Closing and the correlative
rights against insurance carriers and third parties shall belong to the
applicable Transferring Entity. In the event of the damage or destruction of all
or a substantial portion of the Transferred Interests prior to any Closing, the
affected Sites shall become Excluded Sites and the Consideration shall be
reduced in accordance with SECTION 3.3, unless the parties agree to the
contrary.
5.4 CONDEMNATION. In the event of the taking of any part of the Transferred
Interest of any Site, or any interest therein, by eminent domain proceedings, or
the commencement or bona fide threat of the commencement of any such
proceedings, prior to any Closing, the affected Sites shall become Excluded
Sites and the Consideration shall be reduced in accordance with SECTION 3.3,
unless the parties agree to the contrary.
5.5 PUBLICITY. Except as required by applicable Laws or any applicable
stock exchange rules, all press releases and other public announcements with
respect to the subject matter hereof, including the time, form and content of
such release or announcement, shall be made only with the mutual written
agreement of TowerCo and BSPCI; provided, however, that any disclosure required
to be made under applicable Law or any applicable stock exchange rules may be
made only if a party required to make such disclosure has determined in good
faith that it is necessary to do so and has used its reasonable best efforts,
prior to the issuance of the
17
disclosure, to provide the other parties with a copy of the proposed disclosure
and to discuss the proposed disclosure with the other parties.
5.6 TOWERCO'S ACCESS AND INSPECTION. The Transferring Entities shall
provide TowerCo and its authorized representatives (i) reports as to the Sites
in electronic form, to the extent reasonably available and (ii) reasonable
access during normal business hours from and after the date hereof until the
Final Closing to the books and records of the Transferring Entities relating to
the Transferred Interests and for physical inspection of the Transferred
Interest, for the purpose of making such investigation as TowerCo may reasonably
desire, and each such party shall reasonably promptly furnish TowerCo such
information concerning the Transferred Interests as TowerCo may reasonably
request. BSPCI shall reasonably assist TowerCo in making such investigation and
shall cause BSPCI's counsel, accountants, consultants and other non-employee
representatives to be reasonably available to TowerCo for such purposes.
5.7 COOPERATION. The parties shall cooperate fully with each other and
with their respective counsel and accountants in connection with any steps
required to be taken as part of their respective obligations hereunder, and all
parties shall use commercially reasonable efforts to consummate the transactions
contemplated herein and to fulfill their obligations hereunder, including,
without limitation, causing to be fulfilled at the earliest practical date the
conditions precedent to the obligations of the parties to consummate the
transactions contemplated hereby set forth in ARTICLES 10 and 11. Without the
prior written consent of the other parties, no party hereto may take any
intentional action that would cause the conditions precedent to the obligations
of the parties hereto to effect the transactions contemplated hereby not to be
fulfilled, including, without limitation, taking or causing to be taken any
action that would cause the representations and warranties made by such party
herein not to be true, correct and complete as of each Closing.
5.8 GOVERNMENTAL FILINGS. (a) The parties shall make, or cause to be made,
all filings and submissions required to be made to any Government in connection
with the transactions contemplated by this Agreement, provided however that the
parties acknowledge and agree that no filings or submissions are required under
the Hard-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
ACT").
(b) Each party hereto agrees to use commercially reasonable efforts to
comply with all legal requirements which may be imposed on such party with
respect to the transactions contemplated by the Transaction Documents and to
obtain all consents, orders and approvals that may be or become necessary for
the consummation of the transactions contemplated by the Transaction Documents
and each party shall furnish to the other parties such necessary information
and reasonable assistance as other parties may reasonably request in connection
with the preparation of necessary filings or submissions to any governmental or
other regulatory agency in promptly seeking to obtain all such consents, orders
and approvals.
18
5.9 CONFIDENTIALITY. (a) The parties acknowledge and agree that in the
course of their discussions and negotiations of the Transaction Documents and
the transactions contemplated herein, a party hereto (the "DISCLOSING PARTY")
may already have disclosed or may hereafter disclose Confidential Information
(as defined below) to one or more of the other parties hereto (each, a
"DISCLOSEE"). Each party agrees that if the transactions contemplated herein
are not consummated, it will return to the Disclosing Party all documents and
other written information furnished to it. Each party further agrees to
maintain the confidentiality of any and all Confidential Information of a
Disclosing Party and not disclose or give any Confidential Information to any
Person or use such Confidential Information, provided, however, that the
foregoing obligations will not apply to: (i) any information which was lawfully
known by the Disclosee free of any obligation of confidentiality to any Person
prior to its disclosure by the Disclosing Party; (ii) any information which was
in the public domain prior to the disclosure thereof; (iii) any information
which comes into the public domain through no fault of the Disclosee; (iv) any
information which is disclosed to the Disclosee by a third party, other than an
Affiliate, having the legal right to make such disclosure; (v) any information
which is required to be disclosed by Order of any Forum or as required by Law;
(vi) TowerCo's disclosure of Confidential Information to third parties if
reasonably related to TowerCo's Permitted Use of the Sites as contemplated in
the Transaction Documents or (vii) the disclosure of Confidential Information by
a Transferring Entity to a BellSouth Entity Affiliate, any lender of a
Transferring Entity or a BellSouth Entity Affiliate, or any of their respective
agents. Without limiting the generality of the foregoing, each party agrees
that, when acting as a Disclosee, it will (a) restrict the disclosure of the
Confidential Information of the Disclosing Party to those employees of Disclosee
who require such information for the purposes contemplated hereunder, (b) notify
(x) all of its employees to whom Confidential Information of the Disclosing
Party is disclosed and (y) all other Persons to whom it is permitted hereunder
to disclose Confidential Information of the Disclosing Party not to use or
disclose such Confidential Information in violation of this Agreement, (c)
prevent use or disclosure by its employees of the Confidential Information of
the Disclosing Party, except as provided herein, and (d) promptly inform the
Disclosing Party of any use or disclosure of the Confidential Information of the
Disclosing Party, whether intentional or not, which violates the provisions of
this section and of which Disclosee has any knowledge.
(b) For purposes of this SECTION 5.9, "CONFIDENTIAL INFORMATION" means any
and all technical, business, and other information which is (i) possessed or
hereafter acquired by a Disclosing Party and (ii) derives economic value, actual
or potential, from not being generally known to Persons other than the
Disclosing Party, including, without limitation, technical or nontechnical data,
compositions, devices, methods, techniques, drawings, inventions, processes,
financial data, financial plans, lists of actual or potential customers or
suppliers, information regarding the business plans and operations of the
Disclosing Party, and the existence of discussions and negotiations between the
parties hereto relating to the terms hereof; provided, however, it does not
include confidential business information that does not constitute a trade
secret under applicable law after the first (1st) anniversary of the date
hereof. The provisions of this SECTION 5.9 shall survive any termination of
this Agreement for any reason and shall remain
19
in full force and effect from and after the Initial Closing Date so long as the
Sublease and the Site Maintenance Agreement remain in full force and effect.
(c) Each of CCIC and TowerCo acknowledges and agrees that the databases
respecting the Sites maintained on behalf of BSPCI are owned by BSPCI and
constitute trade secrets of BSPCI. Any data from such databases that BSPCI
provides to CCIC may be used by CCIC in accordance with the terms of this
Agreement, including without limitation SECTION 5.9.
5.10 REAL ESTATE MATTERS. (a) Prior to the applicable Closing, CCIC shall
notify BSPCI and the Carolinas Partnership if the Ground Lease or a memorandum
thereof has not been recorded for any Site. TowerCo shall use its commercially
reasonable efforts to effect such recordation, at its sole cost and expense,
except where prohibited by Law or the terms of the applicable Ground Lease. The
applicable Transferring Entity shall execute documents reasonably requested by
CCIC to effect such recordation, and shall cooperate with TowerCo in pursuing
such recordation.
(b) If notwithstanding the foregoing efforts, TowerCo is unable to record
any theretofore unrecorded Ground Lease or memorandum thereof in respect of any
Site, then TowerCo shall nonetheless use reasonable efforts to cause the Site
Designation Supplement for such Site to be duly recorded, including on the face
of the applicable Site Designation Supplement a cross reference to the
applicable deed and its recording information, submitting the Site Designation
Supplement for recordation (which Site Designation Supplement shall include a
copy of the applicable Ground Lease or a memorandum thereof), requesting that
the clerk of the applicable jurisdiction cross-index the Site Designation
Supplement to the grantor-grantee index and otherwise using reasonable efforts
to effect such recordation; provided, however, that nothing contained in this
SECTION 5.10 (including any failure of TowerCo to record any Ground Lease or a
memorandum thereof or a Site Designation Supplement in the absence of such
recordation) shall constitute a condition precedent to CCIC's or TowerCo's
obligation to close the transactions contemplated by this Agreement with respect
to such Site or otherwise release CCIC or TowerCo from the obligation to treat
such Site as an Included Site at the applicable Closing.
(c) The applicable Transferring Entity and, after the applicable Closing,
TowerCo shall each have the right to place, each at its sole cost and expense,
accurate signage on each Site to put third parties on notice of its interest in
such Site, subject to compliance with applicable Laws.
(d) Notwithstanding anything to the contrary contained herein, if TowerCo
is unable to record any unrecorded Ground Lease or memorandum thereof in respect
of any Site, record a Site Designation Supplement as aforesaid or otherwise to
protect the applicable Transferring Entity's interest in such Site and at any
time thereafter the applicable Transferring Entity loses its interest under the
Ground Lease by virtue of a foreclosure of a prior Mortgage on the fee interest
of such Site, TowerCo will have no claim against either Transferring Entity in
20
respect thereof, but if such Transferring Entity desires to locate another Tower
in the same general area, TowerCo will have the right to build the Tower for
such Transferring Entity pursuant to the Build to Suit Agreement, and such Tower
shall become subject to the Sublease. No such Tower will constitute a
Qualifying Site, as defined in the Build to Suit Agreement.
(e) Following the applicable Closing, TowerCo and each Transferring Entity
whose Sites were the subject of a Site Designation Supplement and whose Ground
Lease or memorandum was not recorded, shall continue reasonable efforts to cause
the Ground Lease or a memorandum thereof to be recorded. Such obligation shall
expire on the first anniversary of the Final Closing. If any such Ground Lease
or a memorandum is thereafter recorded in respect of any Site, the parties shall
re-record the Site Designation Supplement for such Site.
(f) Each Site Designation Supplement shall be in recordable form. CCIC
shall be responsible for effecting the recordation of all Site Designation
Supplements, unless prohibited by Law or by the applicable Ground Lease, and
CCIC shall bear all costs and expenses incurred in connection therewith.
Promptly after effecting such recordation, CCIC shall give the applicable
Transferring Entity written confirmation of such recordation and copies of the
recorded documents.
5.11 UPDATE OF INFORMATION. At all times prior to the Final Closing, TowerCo
and CCIC shall promptly provide the Transferring Entities, and the Transferring
Entities, subject to SECTION 4.6(b), shall promptly provide CCIC with written
notification of any material fact, event, occurrence or other information of any
kind whatsoever which affects, or may affect, the truthfulness, correctness or
completeness of any representation, warranty, covenant or agreement made in this
Agreement, any other Transaction Document or any document, agreement,
instrument, certificate or writing furnished to any party or its respective
Affiliates pursuant to or in connection with this Agreement, or which affects or
may affect the continued truthfulness, correctness or completeness of any
thereof through the date of the Final Closing. Each such written notification
shall specifically identify all representations, warranties, covenants and
agreements affected by the fact, event, occurrence or information that
necessitated the giving of the notice; provided, that, except as set forth in
SECTION 4.6(b), no such notification of any material fact, event, occurrence or
other information shall be deemed to modify, amend or supplement any such
representation, warranty, covenant and agreement.
5.12 CCIC'S GUARANTY. (a) CCIC unconditionally guarantees to each
Transferring Entity the full and timely performance and observance of all of the
terms, provisions, covenants and obligations of TowerCo under this Agreement and
other Transaction Documents and any Affiliate of TowerCo under any Transaction
Documents (the "OBLIGATIONS"). CCIC agrees that if TowerCo or TowerCo's
Affiliate defaults at any time in the performance of any of the Obligations,
CCIC shall faithfully perform and fulfill all Obligations and shall pay to the
applicable Transferring Entity all reasonable attorneys' fees, court costs, and
other expenses,
21
costs and disbursements incurred by it on account of any default by TowerCo or
TowerCo's Affiliate and on account of the enforcement of this guaranty.
(b) If TowerCo or TowerCo's Affiliate defaults under this Agreement or
any Transaction Documents, and BSPCI elects (on its own behalf and on behalf of
the Carolinas Partnership) to enforce the provisions of this SECTION 5.12, BSPCI
shall promptly give CCIC reasonably detailed written notice thereof, which
notice shall constitute an exercise of BSPCI's rights against CCIC pursuant to
this SECTION 5.12. Following the receipt of such notice by CCIC, CCIC shall
have the same period of time as is afforded to TowerCo or TowerCo's Affiliate
under this Agreement or any Transaction Documents to cure such default, but no
such cure period shall diminish the obligations of CCIC under this SECTION 5.12.
(c) This guaranty obligation of CCIC shall be enforceable by BSPCI in
an Action against CCIC without the necessity of any Action by BSPCI of any kind
or nature whatsoever against TowerCo or its Affiliate, without the necessity of
any notice to CCIC of TowerCo's or its Affiliate's default or breach under this
Agreement or any Transaction Documents, and without the necessity of any other
notice or demand to CCIC to which CCIC might otherwise be entitled, all of which
notices CCIC hereby expressly waive. CCIC hereby agrees that the validity of
this guaranty and the obligations of CCIC hereunder shall not be terminated,
affected, diminished, or impaired by reason of the assertion or the failure to
assert by BSPCI against TowerCo or its Affiliate any of the rights or remedies
reserved to BSPCI pursuant to the provisions of this Agreement or any
Transaction Documents or any other remedy or right which BSPCI may have at law
or in equity or otherwise.
(d) CCIC covenants and agrees that this guaranty is an absolute,
unconditional, irrevocable and continuing guaranty. The liability of CCIC
hereunder shall not be affected, modified, or diminished by reason of any
modification or termination of this Agreement and any other Transaction
Documents or any modification or waiver of or change in any of the covenants and
terms of this Agreement or any Transaction Documents by agreement of BSPCI and
TowerCo or its Affiliate, or by any unilateral action of either BSPCI or TowerCo
or its Affiliate, or by an extension of time that may be granted by BSPCI to
TowerCo or its Affiliate or any indulgence of any kind granted to TowerCo or its
Affiliate, or any dealings or transactions occurring between BSPCI and TowerCo
or its Affiliate, including, without limitation, any adjustment, compromise,
settlement, accord and satisfaction, or release, or any bankruptcy, insolvency,
reorganization, arrangement, assignment for the benefit of creditors,
receivership, or trusteeship affecting TowerCo or its Affiliate. CCIC does
hereby expressly waive any suretyship defense it may have by virtue of any Law
of any state or Government.
(e) All of BSPCI's' rights and remedies under this guaranty are
intended to be distinct, separate, and cumulative and no such right and remedy
herein is intended to be the exclusion of or a waiver of any other.
(f) CCIC hereby waives presentment, demand for performance, notice of
nonperformance, protest, notice of protest, notice of dishonor, and notice of
acceptance. CCIC
22
further waives any right to require that an action be brought against TowerCo or
its Affiliate or any other person or to require that resort be had by BSPCI to
any security held by BSPCI. The provisions of this SECTION 5.12 shall survive
any termination of this Agreement.
ARTICLE 6
REPRESENTATIONS, WARRANTIES
AND COVENANTS OF TRANSFERRING ENTITIES
As an inducement to CCIC and TowerCo to enter into and perform each and all
Transaction Documents, each Applicable Transferring Entity, severally and not
jointly, hereby represents and warrants to CCIC and TowerCo, as to itself and
its Sites, as follows (such representations and warranties being deemed made as
of the date of each Closing):
6.1 ORGANIZATION, AUTHORITY AND QUALIFICATION. BSPCI is a corporation,
duly organized, validly existing and in good standing under the laws of the
State of Delaware and the Carolinas Partnership is a limited partnership, duly
organized, validity existing and in good standing under the laws of the State of
Delaware. Each Transferring Entity is duly authorized, licensed or qualified to
do business in any jurisdiction where the ownership, use or occupancy of the
Sites would require it to be authorized, licensed or qualified, except where the
failure to be authorized, licensed or qualified would not have a Material
Adverse Effect. Each Transferring Entity has the requisite corporate or
partnership power and authority to own, lease, sublease, use and occupy the
Sites as they are now being owned, leased, subleased, used and occupied by such
Transferring Entity. Each Transferring Entity has the right, power and
authority to transfer the Transferred Interests of its Sites in accordance with
the terms, provisions and conditions of this Agreement and other Transaction
Documents.
6.2 CAPACITY; INCONSISTENT OBLIGATIONS. (a) Each Transferring Entity has
the corporate or partnership power and authority to execute and deliver the
Transaction Documents to which it is a party and to perform and comply with the
Transaction Documents to which such Transferring Entity is a party in accordance
with their respective terms. The Transaction Documents to which each
Transferring Entity is a party have been, or will be, prior to the first Closing
in which any of its Sites is included, duly and validly executed and delivered
by such Transferring Entity and constitute, or will constitute, prior to the
first Closing in which any of its Sites is included, the valid and legally
binding obligations of such Transferring Entity subject to general equity
principles, enforceable in accordance with their respective terms, except as the
same may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally.
(b) Except as set forth in the Disclosure Schedule, neither the
execution and delivery of the Transaction Documents to which such Transferring
Entity is a party, nor the consummation of the transactions contemplated therein
will (i) result in a violation of such Transferring Entity's articles of
incorporation or bylaws, or (ii) to such Transferring Entity's knowledge, result
in a breach of or default under any term or provision of any contract or
23
agreement to which such Transferring Entity is a party, except where such breach
or default would not have a Material Adverse Effect.
6.3 CONSENTS. Except for the consents specified in the Disclosure
Schedule with respect to each Closing, the execution and delivery by each
Transferring Entity of this Agreement and other Transaction Documents to which
such Transferring Entity is a party, the consummation of the transactions
contemplated herein and therein, and the performance by such Transferring Entity
hereunder and thereunder does not require the consent, approval or action of, or
any filing with or notice to, any Government or other Person.
6.4 NO VIOLATION; COMPLIANCE WITH LAWS. Except as set forth in the
Disclosure Schedule, no Transferring Entity is in default under or in violation
of (a) its articles of incorporation or bylaws, (b) any Order to which such
Transferring Entity is subject, or (c) any Existing Leases, except where such
defaults or violations would not have a Material Adverse Effect. Each
Transferring Entity has complied with all applicable Laws, except where the
failure to have so complied would not have a Material Adverse Effect.
6.5 LITIGATION; CONTINGENCIES. Except as set forth in the Disclosure
Schedule, there are no Actions pending or to the best of each Transferring
Entity's knowledge, threatened against, by or affecting such Transferring Entity
which adversely affect the Transferred Interests or which question the validity
or enforceability of this Agreement. There are no unsatisfied judgments or
Orders against any Transferring Entity to which the Transferred Interests are
subject.
6.6 LEASED AND OWNED SITES. Except as set forth in the Disclosure
Schedule: (a)(i) Such Transferring Entity holds a valid leasehold interest or
a Qualifying Interest in each of its Leased Sites pursuant to a Ground Lease,
and (ii) to the best knowledge of the applicable Transferring Entity, (x) each
of the Ground Leases is in full force and effect, (y) neither the Transferring
Entity nor the Ground Lessor is in breach of the Ground Lease, except for
breaches that would not have a Material Adverse Effect, and (z) such
Transferring Entity has delivered to CCIC copies of each of the Ground Leases,
which copies are true, correct and complete in all material respects.
(b) To the best knowledge of the applicable Transferring Entity, such
Transferring Entity holds valid fee simple title to each of the Owned Sites,
free and clear of all Liens other than Permitted Liens.
6.7 REAL PROPERTY. To the best knowledge of the Applicable Transferring
Entity, as to each Existing Site, except as set forth in the Disclosure
Schedule:
(a) Such Transferring Entity's ownership, lease or use of the Land
included in the Transferred Interests respecting such Existing Site is in
compliance with all applicable zoning and other land use requirements where the
failure to so comply would materially limit such
24
Transferring Entity's ability to use such Land in the ordinary course of its
business, or the Permitted Use of such Land.
(b) The utility services currently available to such Existing Site are
adequate for the present use of such Existing Site by such Transferring Entity,
are being supplied to such Transferring Entity by utility companies or pursuant
to valid and enforceable contracts or tariffs, and there is no condition which,
to the best of such Transferring Entity's knowledge, will result in the
termination of the present access from such Existing Site to such utility
services.
(c) Such Transferring Entity has obtained all easements and rights-of-
way that are reasonably necessary to provide vehicular and pedestrian ingress
and egress to and from each of the Existing Sites for the purposes used by such
Transferring Entity in the ordinary course. No Action is pending or threatened
which would have the effect of terminating or limiting such access.
(d) No breach or event of default by such Transferring Entity has
occurred and is continuing under any Ground Lease and Existing Lease, as
applicable, respecting one or more Sites, except where such breach or event of
default would not have a Material Adverse Effect.
6.8 EMINENT DOMAIN. Except as set forth in the Disclosure Schedule, no
Transferring Entity has received any written notice that any Government having
the power of eminent domain over any of the Land included in the Transferred
Interests has commenced or intends to exercise the power of eminent domain or a
similar power with respect to all or any part of such Land.
6.9 TAXES. To the best knowledge of the applicable Transferring Entity,
except as set forth in the Disclosure Schedule, (i) such Transferring Entity has
duly and timely filed all federal, state, municipal and local Tax returns and
reports (collectively, "RETURNS") with respect to all Taxes owing in respect of
its Existing Sites, (ii) all Taxes imposed on a Transferring Entity in respect
of its Existing Sites by any Government which have become due and payable by
such Transferring Entity for all periods through the date of this Agreement have
been paid in full, (iii) there are no proposed assessments against such
Transferring Entity of additional Taxes in respect of its Existing Sites, and
(iv) there is no dispute or Action concerning any Tax Liability of such
Transferring Entity raised by a Government in writing.
6.10 GOVERNMENTAL PERMITS. To the best knowledge of the applicable
Transferring Entity, except as set forth in the Disclosure Schedule: (i) such
Transferring Entity has obtained all Governmental Permits that are required for
the ownership, use or occupancy of its Existing Sites or the Transferred
Interests, all of which are in full force and effect, except where the failure
to obtain any such Governmental Permit or of any such Governmental Permit to be
in full force and effect would not have a material adverse effect on such
Transferring Entity or its business or on the Permitted Use; and (ii) each
Transferring Entity has complied with all such
25
Governmental Permits, except where the failure to comply would not have a
material adverse effect on such Transferring Entity or on the Permitted Use.
6.11 ENVIRONMENTAL MATTERS. Except as set forth in the Disclosure
Schedule, to the best of each Transferring Entity's knowledge, no Environmental
Condition exists and no pending or threatened Action in respect of any
Environmental Condition exists at any of its Existing Sites which would have a
material adverse effect on such Transferring Entity's use of such Existing Site
consistent with past practices or on TowerCo's use of such Existing Site
consistent with the Sublease.
6.12 EXISTING LEASES; COLOCATION AGREEMENTS; MASTER LICENSE AGREEMENTS;
OTHER AGREEMENTS. To the best knowledge of each Transferring Entity, except
for the Existing Leases and Colocation Agreements set forth in the Disclosure
Schedule, there are no leases or other agreements for use, occupancy or
possession presently in force with respect to all or any portion of the Sites.
Each Transferring Entity has made available to CCIC and TowerCo copies of the
Existing Leases, Colocation Agreements and other agreements identified in the
Disclosure Schedule. To the best knowledge of each Transferring Entity, such
copies are true and complete in all material respects and include all material
amendments, supplements and modifications thereto or material waivers currently
in effect thereunder.
6.13 NO UNDISCLOSED LIABILITIES. To the best knowledge of the applicable
Transferring Entity, except as set forth in the Disclosure Schedule, no
liabilities or obligations (whether pursuant to Contracts or otherwise) of any
kind whatsoever (whether accrued, contingent, absolute, determined, determinable
or otherwise) have been incurred by any Transferring Entity with respect to the
Transferred Interests and which have had or could reasonably be expected to have
a Material Adverse Effect after the consummation of the transactions
contemplated hereby, other than liabilities or obligations disclosed or provided
for in the Transaction Documents.
6.14 AUTHORIZATION. Each of BSPCI and the Carolinas Partnership has the
requisite power and authority to execute this Agreement and the Transaction
Documents to which any of them is a party and to consummate the transactions
performed or to be performed by any or all of them hereunder and thereunder.
Such execution, delivery and performance by BSPCI and the Carolinas Partnership
have been duly authorized by all necessary action. This Agreement and the
Transaction Documents constitute valid and binding obligations of the
Transferring Entities, enforceable in accordance with their respective terms.
6.15 NO OTHER WARRANTIES. Except for the representations, warranties and
covenants expressly set forth in this ARTICLE 6, and subject to SECTION 3(a) of
the Sublease, the Transferred Interests are being transferred by Transferring
Entities AS IS, WHERE IS, and with all faults, and there are no other warranties
being made by any of the Transferring Entities INCLUDING, WITHOUT LIMITATION,
ANY WARRANTY OF HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, EXPRESS OR IMPLIED, IN CONNECTION WITH THE TRANSFER OF THE TRANSFERRED
INTERESTS OR THE OTHER
26
TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS. Each of CCIC and TowerCo
acknowledges and agrees that: (i) no examination or investigation of the
Transferred Interests by or on behalf of TowerCo prior to any Closing shall in
any way modify, affect or increase a Transferring Entity's obligations under the
representations, warranties, covenants and agreements set forth in this ARTICLE
6; and (ii) any representation or warranty as to the adequacy of any Site or the
Tower or Improvements thereon is limited to the adequacy to the applicable
Transferring Entity and not to TowerCo, CCIC or any other Person.
ARTICLE 7
REPRESENTATIONS, WARRANTIES
AND COVENANTS OF TOWERCO
As an inducement to the Transferring Entities to enter into and perform
each and all Transaction Documents, TowerCo hereby represents and warrants to
each of the Transferring Entities as follows:
7.1 ORGANIZATION, AUTHORITY AND QUALIFICATION. TowerCo is a corporation
duly organized and validly existing under the laws of the State of Delaware.
TowerCo has its principal office and place of business at the location specified
in SCHEDULE 7.1. TowerCo has or will have at the time of the applicable Closing
full corporate power and authority to carry on its business as it has been, now
being conducted and to own or lease its properties and to carry on its
businesses as and in all places where such business is currently conducted and
such properties are or will be owned or leased. TowerCo is or will be at the
time of the applicable Closing duly authorized, licensed or qualified to do
business in all the jurisdictions where such business and the ownership, use and
occupancy of such properties would require it to be authorized, licensed or
qualified.
7.2 OWNERSHIP OF SHARES; SUBSIDIARIES. (a) TowerCo has a total authorized
share capital consisting of 3,000 common shares, par value $.01 per share, of
which 1,000 shares are presently issued and outstanding ("TOWERCO SHARES"), and
all such issued and outstanding shares are owned of record and beneficially by
CCIC or a wholly owned subsidiary of CCIC. All such issued TowerCo Shares are
duly authorized, validly issued, fully paid and nonassessable and were
authorized, offered, issued and sold in accordance with all applicable
securities and other Laws. The certificate of incorporation of TowerCo does not
provide for preemptive rights in favor of any Person. There are no outstanding
securities convertible into the share capital or rights to subscribe for or to
purchase, or any options for the purchase of, or any agreements or arrangements
providing for the issuance (contingent or otherwise) of, or any Actions relating
to, the share capital of TowerCo.
(b) Except as set forth on SCHEDULE 7.2, TowerCo does not own and has
no interest, direct or indirect, or any commitment to purchase or otherwise
acquire, any share capital or other equity interest, direct or indirect, in, or
to make any loan or other investment in, any other Person.
27
(c) CCIC or a wholly owned subsidiary of CCIC is the sole owner of the
TowerCo Shares, free and clear of any and all pledges, security interests,
options or rights of others.
7.3 CAPACITY; INCONSISTENT OBLIGATIONS. (a) TowerCo has the corporate
power and authority to execute and deliver the Transaction Documents to which it
is a party and to perform and comply with the Transaction Documents to which it
is a party in accordance with their respective terms. The Transaction Documents
to which TowerCo is a party have been duly and validly executed and delivered by
TowerCo and constitute the valid and legally binding obligations of TowerCo
subject to general equity principles, enforceable in accordance with their
respective terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally.
(b) Neither the execution and delivery of the Transaction Documents to
which TowerCo is a party, nor the consummation of the transactions contemplated
therein will (i) result in a violation of TowerCo's certificate of incorporation
or bylaws, (ii) to TowerCo's knowledge, result in a breach of or default under
any term or provision of any contract or agreement to which TowerCo is a party,
except where such breach or default would not have a material adverse effect on
TowerCo, or (iii) result in the creation or imposition of any Liens upon its
properties and assets, other than Permitted Liens.
7.4 CONSENTS. Except for compliance with (a) the consents specified in
SCHEDULE 7.4, and (b) the consents specified in the Closing Schedule with
respect to each Closing, the execution and delivery by TowerCo of this Agreement
and other Transaction Documents to which it is a party, the consummation of the
transactions contemplated herein and therein, and the performance by TowerCo
hereunder and thereunder does not require the consent, approval or action of, or
any filing with or notice to, any Government or other Person.
7.5 NO VIOLATION; COMPLIANCE WITH LAWS. Except as set forth in SCHEDULE
7.5, TowerCo is not in default under or in violation of (a) its certificate of
incorporation or bylaws, (b) to TowerCo's knowledge, any Order to which TowerCo
is subject, (c) any material contract to which it is a party, except where such
defaults or violations would not have a material adverse effect on TowerCo or
its business. TowerCo has complied with all applicable Laws, except where the
failure to have so complied would not have a material adverse effect on TowerCo
or its business.
7.6 LIABILITIES. TowerCo has no Liabilities, except (i) those reflected
on the TowerCo Existing Financial Statements or Liabilities disclosed in
SCHEDULE 7.6 to the Transaction Documents to which TowerCo is a party, (ii)
Liabilities incurred in the ordinary course of business, and (iii) those that
will not have a material adverse effect on TowerCo or its business.
28
7.7 LITIGATION; CONTINGENCIES. There are no Actions pending or, to the
best of TowerCo's knowledge, threatened against, by or affecting TowerCo
properties and assets or that question the validity or enforceability of this
Agreement.
7.8 NO BROKER. No broker, finder or similar agent has acted on behalf
of TowerCo in connection with this Agreement or the transactions contemplated
herein.
7.9 NO OTHER WARRANTIES. Except for the representations, warranties and
covenants expressly set forth in this ARTICLE 7, TowerCo has not made nor is
making any representations or warranties to BSPCI or the Transferring Entities,
express or implied, in connection with the transactions contemplated by this
Agreement.
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND COVENANTS OF CCIC
As an inducement to the Transferring Entities to enter into and perform
each and all Transaction Documents, CCIC hereby represents and warrants to each
of the Transferring Entities as follows:
8.1 ORGANIZATION, AUTHORITY AND QUALIFICATION. CCIC is a corporation
duly organized and validly existing under the laws of the State of Delaware.
CCIC is duly authorized, licensed or qualified in all the jurisdictions where
such authorization, license or qualification is necessary.
8.2 CAPACITY; INCONSISTENT OBLIGATIONS. (a) CCIC has the corporate
power and authority to execute and deliver the Transaction Documents to which it
is a party and to perform and comply with the Transaction Documents to which it
is a party in accordance with their respective terms. The Transaction Documents
to which CCIC is a party have been duly and validly executed and delivered by
CCIC and constitute the valid and legally binding obligations of CCIC subject to
general equity principles, enforceable in accordance with their respective
terms, except as the same may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally.
(b) Neither the execution and delivery of the Transaction Documents to
which CCIC is a party, nor the consummation of the transactions contemplated
therein will (i) result in a violation of CCIC's articles of incorporation or
bylaws, or (ii) to CCIC's knowledge, result in a breach of or default under any
term or provision of any contract or agreement to which CCIC is a party, except
where such breach or default would not have a material adverse effect on CCIC.
8.3 CONSENTS. Except for compliance with the consents specified in
SCHEDULE 8.3, the execution and delivery by CCIC of the Transaction Document to
which it is a party, the consummation of the transactions contemplated therein,
and the performance by CCIC thereunder does not require the consent, approval or
action of, or any filing with or notice to, any
29
Government or other Person. Without limiting the generality of the foregoing,
CCIC represents and warrants that no such consent is required under any CCIC
Indenture, and agrees that it will not amend or modify any CCIC Indenture in any
manner that would cause this representation and warranty to no longer by true
and correct.
8.4 NO VIOLATION; COMPLIANCE WITH LAWS. Except as set forth in SCHEDULE
8.4, CCIC is not in default under or in violation of (a) its articles of
incorporation or bylaws, (b) to CCIC's best knowledge, any Order to which CCIC
is subject, or (c) any material contract to which it is a party except where
such defaults or violations would not have a material adverse effect on CCIC or
its business. CCIC has complied with all applicable Laws, except where the
failure to have so complied would not have a material adverse effect on CCIC or
its business.
8.5 LITIGATION; CONTINGENCIES. There are no Actions pending or to the best
knowledge of CCIC, threatened against, by or affecting CCIC that question the
validity or enforceability of this Agreement.
8.6 NO OTHER WARRANTIES. Except for the representations, warranties and
covenants expressly set forth in this ARTICLE 8, CCIC has not made nor is making
any representations or warranties to BSPCI or the Transferring Entities, express
or implied, in connection with the transactions contemplated by this Agreement.
ARTICLE 9
CONDUCT OF BUSINESS
PENDING CLOSINGS
9.1 CONDUCT OF BUSINESS BY THE TRANSFERRING ENTITIES. Each Transferring
Entity severally and not jointly covenants and agrees that pending each Closing,
except as otherwise agreed to in writing by TowerCo, and except in connection
with the performance of the transactions contemplated hereby, as to its Existing
Sites only:
(a) Since July 1, 1999, such Transferring Entity has operated,
maintained and serviced, and from and after the date hereof such Transferring
Entity shall operate, maintain and service, the Sites in the ordinary course of
business consistent with past practices and in compliance in all material
respects with all applicable Laws, including without limitation entering into
any leases, licenses or subleases of its Sites in the ordinary course of
business consistent with past practices, provided that such leases, licenses or
subleases shall constitute Existing Leases. The parties specifically agree that,
under the foregoing, each Transferring Entity has added and subtracted antennas
from the Site in the ordinary course of business, and any net additions of
antennas made prior to the date hereof shall not constitute a breach of the
foregoing so long as made in the ordinary course of business consistent with
past practices.
(b) Each Transferring Entity shall use its commercially reasonable
efforts to conduct its business in such a manner that on each Closing Date the
representations and
30
warranties of such Transferring Entity contained in this Agreement and
applicable to such Closing shall be true as though such representations and
warranties were made on and as of such date. Each Transferring Entity shall
cooperate with CCIC and TowerCo and use their commercially reasonable efforts to
cause all of the conditions to the obligations of the parties under this
Agreement to be satisfied on or prior to each Closing Date.
(c) With respect to any net additions of antennas since July 1, 1999 on
a Tower which is included in a Closing, Sections 5(b) and 5(c) of the Sublease
shall be applicable.
9.2 CONDUCT OF BUSINESS BY CCIC AND TOWERCO. Each of CCIC and TowerCo
covenants and agrees that pending each Closing, except as otherwise agreed to in
writing by BSPCI, and except in connection with the performance of the
transactions contemplated hereby:
(a) Each of CCIC and TowerCo shall promptly disclose to BSPCI any material
information contained in its representations and warranties or any of the
Schedules hereto which, because of an event occurring after the date hereof, is
incomplete or is no longer correct as of all times after the date hereof until
the Closing Date with respect to which such representations and warranties are
made; provided, however, that none of such disclosures shall be deemed to
modify, amend or supplement the representations and warranties of CCIC and
TowerCo or the Schedules hereto for the purposes of ARTICLES 7 and 8, unless
BSPCI shall have consented thereto in writing.
(b) Each of CCIC and TowerCo shall use its commercially reasonable efforts
to conduct its business in such a manner that on each Closing Date the
representations and warranties of CCIC and TowerCo contained in this Agreement
and applicable to such Closing shall be true as though such representations and
warranties were made on and as of such date. Each of CCIC and TowerCo shall
cooperate with BSPCI and use its commercially reasonable efforts to cause all of
the conditions to the obligations of the parties under this Agreement to be
satisfied on or prior to each Closing Date.
(c) Each of CCIC and TowerCo shall provide to BSPCI's officers, employees,
counsel, accountants and other representatives free and full access to and the
right to inspect, during normal business hours, all of the records, contracts
and other documents relating to its business, provided that such inspection
shall not unreasonably interfere with the business operations of CCIC and
TowerCo. Each of CCIC and TowerCo shall furnish to BSPCI all such documents and
copies of documents and records and information with respect to the affairs of
its business and copies of any working papers relating thereto as BSPCI shall
from time to time reasonably request from time to time. Notwithstanding the
foregoing, nether CCIC nor TowerCo shall be required to provide any such
information to BSPCI if, in the reasonable determination of CCIC or TowerCo, or
their respective counsel, as applicable, access to such information by BSPCI is
prohibited by the provisions of any confidentiality agreement to which either of
CCIC or TowerCo is a party or by applicable Law.
31
ARTICLE 10
CONDITIONS TO OBLIGATIONS OF TRANSFERRING ENTITIES
All obligations of the Transferring Entities hereunder are subject to the
fulfillment and satisfaction, prior to or at each Closing, of each and every one
of the following conditions, any or all of which may be waived in whole or in
part by BSPCI, provided that no such waiver will be effective unless it is set
forth in a writing executed by BSPCI as of such Closing Date:
10.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of CCIC and TowerCo contained in this Agreement or in any schedule, certificate
or document delivered by CCIC and TowerCo to BSPCI pursuant to the provision
hereof shall have been true and correct in all material respects on and as of
the date when made and shall be deemed to be made again at and as of the date of
each Closing and shall be true and correct in all material respects at and as of
such time.
10.2 COMPLIANCE WITH AGREEMENTS AND CONDITIONS. Each of CCIC and TowerCo
shall have performed and complied in all material respects with all covenants,
agreements and conditions required by this Agreement to be performed or complied
with by each of them prior to or on the date of each Closing, and no unwaived
event of default shall have occurred and be continuing under SECTION 31(D) of
the Sublease that would give BSPCI the right to terminate the Sublease as to all
Sites.
10.3 CLOSING CERTIFICATES. Each of the Transferring Entities shall have
received from each of CCIC and TowerCo certificates dated the date of each
Closing, in each case certifying in such detail as BSPCI may reasonably request
as to the fulfillment and satisfaction of the conditions specified in SECTIONS
10.1 and 10.2 and, in the case of the certificate for the Initial Closing only,
the absence of any material adverse change in the businesses or assets of CCIC
or TowerCo since March 5, 1999.
10.4 CORPORATE CONSENTS. Each of the Transferring Entities shall have
received from each of CCIC and TowerCo, at the Initial Closing, minutes of the
meetings of its Board of Directors or a consent action taken by such Board of
Directors in lieu of a meeting, in each case, certified by its Secretary, an
Assistant Secretary or another of its authorized officers, (a) authorizing and
approving the execution and delivery of this Agreement and other Transaction
Documents on behalf of CCIC and TowerCo and the consummation of the transactions
contemplated herein and therein, and (b) authorizing and approving all other
necessary and proper actions to enable CCIC and TowerCo to comply with the terms
hereof and thereof.
10.5 CONSENTS AND APPROVALS. Each of the Transferring Entities shall
have obtained authorizations, consents and approvals from any Person whose
authorization, consent or approval is required or necessary to consummate the
transactions contemplated herein, including (a) if applicable, the consents and
approval of any environmental agency having jurisdiction over the transactions
contemplated hereby within the Territory and applicable to such Closing shall
32
have been obtained, (b) the consents specified in the Disclosure Schedule
pursuant to SECTION 6.3 and applicable to such Closing shall have been obtained
or waived, (c) any consents specified in the Disclosure Schedule and applicable
to such Closing shall have been obtained or waived, (d) any consents of any
limited partners of the Carolinas Partnership applicable to particular Sites
shall have been obtained and (e) all Governmental Permits applicable to such
Closing, shall have been obtained or waived.
10.6 NO LITIGATION. No Action shall have been instituted, be threatened
in writing or be pending, in each case by any Government or other Person (a)
against CCIC or TowerCo to restrain or prohibit the consummation of the
transactions contemplated in this Agreement, and (b) which could reasonably be
expected to have a material adverse effect on the business, assets, properties,
Liabilities, affairs, results of operations, prospects, conditions (financial or
otherwise), or cash flow of CCIC and TowerCo.
10.7 FUNDAMENTAL TRANSACTIONS. Neither TowerCo nor CCIC shall have (a)
been a party to any merger, consolidation or business combination in which
TowerCo or CCIC was not the surviving corporation, (b) been liquidated, wound-up
or dissolved, or (c) sold, transferred or disposed of all or substantially all
of its properties and assets.
10.8 BUILD-TO-SUIT AGREEMENT. At the Initial Closing Date, CCIC and
TowerCo shall have executed and delivered to the Build-to-Suit Agreement, and
the same shall have become effective as of the Initial Closing Date.
10.9 SUBLEASE. At the Initial Closing Date, CCIC and TowerCo shall
have executed and delivered to BSPCI, the Sublease and the Sublease shall have
become effective as of the Initial Closing Date.
10.10 SITE MAINTENANCE AGREEMENT. On or prior to the Initial Closing,
CCIC and TowerCo shall have executed and delivered to BSPCI the Site Maintenance
Agreement, and the same shall have become effective as of the date of the
Initial Closing.
10.11 AMENDMENT TO SITE MARKETING AGREEMENT. On or prior to the Initial
Closing Date, CCIC shall have executed and delivered the Amendment to Site
Marketing Agreement and the same shall have become effective on or before the
Initial Closing Date and shall terminate on the Final Closing Date.
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ARTICLE 11
CONDITIONS TO OBLIGATIONS OF CCIC AND TOWERCO
All obligations of CCIC and TowerCo hereunder in respect of any Existing
Site included in any Closing are subject to the fulfillment and satisfaction,
prior to or at such Closing, of each and every one of the following conditions,
to the extent such condition relates to such Existing Site, any or all of which
may be waived in whole or in part by TowerCo, provided that no such waiver will
be effective unless it is set forth in a writing executed by TowerCo:
11.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties
of each of the Transferring Entities whose Sites are included in such Closing
("APPLICABLE TRANSFERRING ENTITIES") contained in this Agreement or in any
schedule, certificate or document delivered by such Transferring Entities to
TowerCo pursuant to the provision hereof shall have been true and correct in all
material respects on and as of the date when made and shall be deemed to be made
again at and as of the date of each Closing and shall be true and correct in all
material respects at and as of such time. For purposes of determining under
SECTION 11.1 whether a condition to a Closing has been satisfied, and not for
any other purposes, the representations and warranties made shall be deemed
made, unless otherwise specifically provided, without the qualification set
forth therein that such representations and warranties are made subject to the
Applicable Transferring Entity's best knowledge.
11.2 COMPLIANCE WITH AGREEMENTS AND CONDITIONS. Each of the Applicable
Transferring Entities shall have performed and complied in all material respects
with all covenants, agreements and conditions required by this Agreement to be
performed or complied with by each of them prior to or on the date of each
Closing.
11.3 CLOSING CERTIFICATES. TowerCo shall have received from each
Applicable Transferring Entity a certificate dated the date of each Closing, (a)
certifying in such detail as TowerCo may reasonably request as to (i) the
fulfillment and satisfaction of the conditions specified in SECTIONS 11.1 and
11.2 and (ii) no event or circumstance having had a Material Adverse Effect on
the Sites of such Transferring Entity included in such Closing has occurred
since July 1, 1999, and (b) setting forth any net additions of microwave dishes
or antenna arrays with more than nine (9) antennas, on each Tower included in
such Closing since the date hereof.
11.4 CORPORATE CONSENTS. On or before each Closing, TowerCo shall have
received (a) from BSPCI, minutes of the meeting of its Board of Directors or a
consent action taken by such Board of Directors in lieu of a meeting (or, in
either case, appropriate committee thereof), in each case, certified by its
Secretary, an Assistant Secretary or another of its authorized officers, and (b)
from the Carolinas Partnership, minutes of the meetings of its Executive
Committee, certified by the Secretary or an Assistant Secretary of BSPCI, as its
sole general partner, (i) authorizing and approving the execution and delivery
of this Agreement and other Transaction Documents on behalf of such Transferring
Entity and the consummation of the transactions
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contemplated herein and therein, and (ii) authorizing and approving all other
necessary and proper actions to enable such Transferring Entity to comply with
the terms hereof and thereof.
11.5 CONSENTS AND APPROVALS. All necessary consents and approvals shall
have been obtained from any Government or other Person, whose consent or
approval is required or necessary to consummate the transactions contemplated
herein, including the following: (a) if applicable, the consents and approval
of any environmental agency having jurisdiction over the transactions
contemplated hereby within the Territory and applicable to such Closing, shall
have been obtained, (b) the consents specified in the Disclosure Schedule and
applicable to such Closing shall have been obtained or waived, and (c) all
Governmental Permits applicable to such Closing shall have been obtained or
waived.
11.6 NO LITIGATION. No Action shall have been instituted, be threatened
in writing or be pending, in each case by any Government or other Person, (a)
against the Applicable Transferring Entity to restrain or prohibit its
consummation of the transactions in this Agreement, and (b) which could
reasonably be expected to have a material adverse effect on the Transferred
Interests.
11.7 BUILD-TO-SUIT AGREEMENT. On or prior to the Initial Closing Date,
BSPCI shall have executed and delivered to CCIC and TowerCo, the Build-to-Suit
Agreement, and the same shall have become effective as of the Initial Closing
Date.
11.8 SUBLEASE. On or prior to the Initial Closing Date, BSPCI shall have
executed and delivered to CCIC and TowerCo the Sublease, and the same shall have
become effective as of the Initial Closing Date.
11.9 SITE MAINTENANCE AGREEMENT. On or prior to the Initial Closing,
each Transferring Entity shall have executed and delivered to CCIC and TowerCo
the Site Maintenance Agreement and the same shall have become effective as of
the date of such Closing.
11.10 AMENDMENT TO SITE MARKETING AGREEMENT. On or prior to the Initial
Closing Date, BSPCI shall have executed and delivered the Amendment to Site
Marketing Agreement, and the same shall have become effective on or before the
Initial Closing Date.
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ARTICLE 12
INDEMNIFICATION
12.1 INDEMNIFICATION BY TRANSFERRING ENTITY. (a) As to each Included
Site, from and after the Closing Date of such Site, each Transferring Entity,
severally and not jointly, shall indemnify and hold harmless each of the TowerCo
Indemnitees from and against any and all Liabilities, claims, causes of action,
demands, judgments, losses, costs, damages or expenses whatsoever (including
reasonable attorneys' fees and disbursements of every kind, nature and
description) incurred by such TowerCo Indemnitee in connection therewith
(collectively, "TOWERCO INDEMNIFIED LOSSES") that such TowerCo Indemnitee may
sustain, suffer or incur and that result from, arise out of or relate to (i) any
breach of any of the representations, warranties, covenants or agreements of
such Transferring Entity contained in this Agreement with respect to the
applicable Closing or (ii) such Transferring Entity's failure to perform any
obligations under any Existing Leases prior to the applicable Site Commencement
Date.
(b) TowerCo acknowledges and agrees that no Transferring Entity shall
have any Liability under any provision of this Agreement for any TowerCo
Indemnified Losses to the extent that such TowerCo Indemnified Losses relate to
the negligence, willful misconduct or breach of any representation, warranty,
covenant or agreement of TowerCo contained in this Agreement or any Transaction
Document by TowerCo, CCIC or any other Person (other than the Transferring
Entities or their Affiliates) or their respective officers, agents, employees,
representatives, contractors, licensees, tenants or subtenants.
(c) TowerCo shall take and shall cause its Affiliates to take all
reasonable steps to mitigate any TowerCo Indemnified Losses upon becoming aware
of any event which would reasonably be expected to, or does give rise thereto,
including incurring costs only to the minimum extent necessary to remedy the
breach which gives rise to the TowerCo Indemnified Losses.
(d) Nothing herein shall be deemed to limit or restrict in any manner
any rights or remedies which TowerCo has or may have, at law, in equity or
otherwise, against any Transferring Entity based on a willful misrepresentation
or willful breach of any covenant or agreement of such Transferring Entity
hereunder.
12.2 INDEMNIFICATION BY CCIC. (a) From and after the Initial Closing,
CCIC shall indemnify and hold harmless each of the BSPCI Indemnitees from and
against any and all Liabilities, claims, causes of action, demands, judgments,
losses, costs, damages or expenses whatsoever (including reasonable attorneys'
fees and disbursements of every kind, nature and description) incurred by such
BSPCI Indemnitee in connection therewith (collectively, "BSPCI INDEMNIFIED
LOSSES") that such BSPCI Indemnitee may sustain, suffer or incur and that result
from, arise out of or relate to any breach of any of the representations,
warranties, covenants or agreements of CCIC contained in this Agreement with
respect to the applicable Closing.
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(b) Each Transferring Entity acknowledges and agrees that neither
TowerCo nor CCIC shall have any Liability under any provision of this Agreement
for BSPCI Indemnified Losses to the extent that such BSPCI Indemnified Losses
relate to the negligence, willful misconduct or breach of any representation,
warranty, covenant or agreement of such Transferring Entity contained in this
Agreement or any Transaction Document by such Transferring Entity, or any other
Person (other than CCIC, TowerCo or their Affiliates) or their respective
officers, agents, employees, representatives, contractors, licensees, tenants or
subtenants.
(c) Each Transferring Entity shall take all reasonable steps to mitigate
any BSPCI Indemnified Losses upon becoming aware of any event which would
reasonably be expected to, or does give rise thereto, including incurring costs
only to the minimum extent necessary to remedy the breach which gives rise to
the BSPCI Indemnified Losses.
(d) Nothing herein shall be deemed to limit or restrict in any manner
any rights or remedies which any Transferring Entity has or may have, at law, in
equity or otherwise, against CCIC based on a willful misrepresentation or
willful breach of any covenants or agreements of CCIC hereunder.
12.3 INDEMNIFICATION BY TOWERCO. (a) From and after the Initial
Closing, TowerCo shall indemnify and hold harmless each BSPCI Indemnitee from
and against any BSPCI Indemnified Losses that such BSPCI Indemnitee may sustain,
suffer or incur and that result from, arise out of or relate to (i) any breach
of any of the representations, warranties, covenants or agreements of TowerCo
contained in this Agreement with respect to the applicable Closing or (ii)
TowerCo's failure to perform any obligations under any Existing Leases after the
applicable Site Commencement Date.
(b) Each Transferring Entity shall take and cause its Affiliates to take
all reasonable steps to mitigate any BSPCI Indemnified Losses upon becoming
aware of any event which would reasonably be expected to, or does give rise
thereto, including incurring costs only to the minimum extent necessary to
remedy the breach which gives rise to the BSPCI Indemnified Losses.
(c) Nothing herein shall be deemed to limit or restrict in any manner
any rights or remedies which a BSPCI Indemnitee has or may have, at law, in
equity or otherwise, against TowerCo based on a willful misrepresentation or
willful breach of any covenant or agreement by TowerCo hereunder.
12.4 PROCEDURE FOR CLAIMS. Any Person obligated to pay or reimburse any
Indemnified Losses hereunder (whether one or more, an "INDEMNIFYING PARTY")
shall, subject to the provisions of SECTION 12.5, reimburse the party entitled
to recover the Indemnified Losses, as the case may be (whether one or more, an
"INDEMNIFIED PARTY"), within ten days of written demand on the Indemnifying
Party therefor. If the Indemnifying Party objects to any claim made by an
37
Indemnified Party hereunder and the Indemnified Party initiates legal action
with respect thereto, the Indemnifying Party agrees, to the extent it can do so,
to join all affected parties in such action so that the rights and liabilities
of the parties under this Agreement with respect to such claim may be resolved
in one action.
12.5 DEFENSE OF CLAIMS. (a) If any Action arises after the date hereof
for which an Indemnifying Party may be liable under the terms of this Agreement,
then the Indemnified Party shall notify the Indemnifying Party within a
reasonable time after such Action arises and is known to the Indemnified Party,
and shall give the Indemnifying Party a reasonable opportunity: (i) to conduct
any proceedings or negotiations in connection therewith and necessary or
appropriate to defend the Indemnified Party; (ii) to take all other required
steps or proceedings to settle or defend any such Action; and (iii) to employ
counsel to contest any such Action in the name of the Indemnified Party or
otherwise.
(b) The expenses of all proceedings, contests or lawsuits with respect
to such Actions shall be borne by the Indemnifying Party. If the Indemnifying
Party wishes to assume the defense of such Action, then the Indemnifying Party
shall give written notice to the Indemnified Party within thirty (30) days after
notice from the Indemnified Party of such Action (unless the Action reasonably
requires a response in less than thirty (30) days after the notice is given to
the Indemnifying Party, in which event the Indemnifying Party shall notify the
Indemnified Party at least ten days prior to such reasonably required response
date), and the Indemnifying Party shall thereafter assume the defense of any
such Action, through counsel reasonably satisfactory to the Indemnified Party;
provided, that the Indemnified Party may participate in such defense at its own
expense. The Indemnified Party shall have the right to control the defense of
the Action unless and until the Indemnifying Party shall assume the defense of
such Action.
(c) If the Indemnifying Party does not assume the defense of, or if
after so assuming the Indemnifying Party fails to defend, any such Action, then
the Indemnified Party may defend against such Action in such manner as such
Indemnified Party may deem appropriate (provided, that the Indemnifying Party
may participate in such defense at its own expense); provided, however, that the
Indemnified Party may not settle such Action without the Indemnifying Party's
prior written consent, and the Indemnifying Party shall promptly reimburse the
Indemnified Party for the amount of all expenses, legal and otherwise,
reasonably and necessarily incurred by the Indemnified Party in connection with
the defense against and settlement of such Action. If no settlement of such
Action is made, the Indemnifying Party shall satisfy any judgment rendered in
such Action, before the Indemnified Party is required to do so, and pay all
expenses, legal or otherwise, reasonably and necessarily incurred by the
Indemnified Party in the defense of such Action.
(d) If an Order is rendered against the Indemnified Party in any Action
covered by the indemnification hereunder, or any Lien in respect of such Order
attaches to any of the assets of the Indemnified Party, the Indemnifying Party
shall immediately upon such entry or attachment pay any amount required by such
Order in full or discharge such Lien unless, at the expense and request
38
of the Indemnifying Party, an appeal is taken under which the execution of the
Order or satisfaction of the Lien is stayed. If and when a final Order is
rendered in any such Action, the Indemnifying Party shall forthwith pay any
amount required by such Order or discharge such Lien before the Indemnified
Party is compelled to do so.
12.6 CERTAIN LIMITATIONS. (a) Nothing in this Agreement shall be deemed
to require any Transferring Entity to indemnify any TowerCo Indemnitee for or in
respect of any of the Real Estate Representations. Without limiting the
generality of the foregoing, the sole remedies of TowerCo or CCIC in respect of
a breach of any Real Estate Representation by any Transferring Entity shall be
to cause (i) such Transferring Entity to continue to use reasonable efforts to
cure such breach, as contemplated by SECTION 4.6, until the Final Closing Date,
or (ii) the Site as to which such Real Estate Representation is breached to be a
Maintained Site (or, at the applicable Transferring Entity's election, an
Excluded Site) or to defer the Closing of such Site to a later Closing Date,
provided that the failure of any such deferred Site to become an Included Site
or Maintained Site on or prior to the Final Closing shall not constitute a
default under this Agreement or give CCIC or TowerCo any remedy.
(b) Notwithstanding anything to the contrary contained herein, no
Transferring Entity shall have any obligation under this SECTION 12 to TowerCo
Indemnitees with respect to the breach of representations, warranties, covenants
or agreements by BSPCI, unless, until and only to the extent that the aggregate
of all TowerCo Indemnified Losses from all such breaches exceeds on a cumulative
basis $10,000,000 (the "DEDUCTIBLE AMOUNT"), and then only to the extent of such
excess amount.
(c) Anything in this Agreement to the contrary notwithstanding, in no
event shall any Transferring Entity be liable under this Agreement for any
indemnification obligation pursuant to this SECTION 12 in excess of the
aggregate amount of the Cash Consideration having been paid to such Transferring
Entity as of the date on which the claim for indemnification arose (the "MAXIMUM
INDEMNIFICATION").
12.7 LIMITATION ON LIABILITY. In no event shall any party hereto or its
respective Affiliates be liable to the other parties for any special, incidental
or consequential damages suffered or incurred by such other parties to this
Agreement or any third parties and caused by or arising out of any breach of any
representation, warranty, covenant or agreement contained in this Agreement.
12.8 SURVIVAL. The representations and warranties of the parties
contained in this Agreement shall survive any investigation before or after the
date of this Agreement made by the other parties and the consummation of the
transactions contemplated by this Agreement and shall continue in full force and
effect for the periods specified below ("SURVIVAL PERIOD"):
39
(a) no representations and warranties of a Transferring Entity
relating to real estate matters, including without limitation SECTIONS 3.5
and 6.6 through 6.13, shall survive the Closing; and
(b) all other representations and warranties in this Agreement shall
be of no further force and effect after the first anniversary of the date
hereof.
Anything to the contrary notwithstanding, the Survival Period shall be extended
automatically to include any time period necessary to resolve a claim for
indemnification which was made before expiration of the Survival Period, but not
resolved prior to its expiration, and any such extension shall apply only as to
the claims asserted and not so resolved within the Survival Period. Liability
for any such item shall continue until such claim shall have been finally
settled, decided or adjudicated.
ARTICLE 13
TERMINATION
13.1 TERMINATION FOR CERTAIN CAUSES BY BSPCI. (a) This Agreement may be
terminated at any time prior to the Final Closing by BSPCI upon written notice
to TowerCo, upon the occurrence of one or more of the following events,
effective as of the date designated by BSPCI in its notice of termination:
(i) If any of the conditions set forth in ARTICLE 10 have not been
satisfied, performed or waived in writing on or as of any applicable
Closing Date;
(ii) If any representation or warranty of CCIC or TowerCo set forth in
ARTICLE 7 or 8 shall prove to be untrue or incorrect in any material
respect;
(iii) If CCIC's or TowerCo's failure to comply with conditions
hereunder constitute (A) a breach of representation or warranty by CCIC
TowerCo or either of them in any material respect, (B) a failure by CCIC or
TowerCo to perform any of the terms, covenants, conditions, agreements,
requirements, restrictions or provisions of this Agreement in any material
respect, or (C) a default by CCIC or TowerCo; or
(iv) If CCIC or TowerCo fail to keep, observe, perform, satisfy or
comply with, fully and completely, in any material respect, any of the
terms, covenants, conditions, agreements, requirements, restrictions or
provisions required by this Agreement to be kept, observed, performed,
satisfied or complied with by CCIC or TowerCo.
40
(v) If an unwaived event of default shall have occurred and be
continuing under Section 31(d) of the Sublease that would give BSPCI the
right to terminate the Sublease as to all Sites;
provided; however that for the events listed in clauses (i) through (iv) above
occurring after the Initial Closing, BSPCI shall have the right to terminate
this Agreement only if such event or events shall have or would have a
substantial likelihood of preventing or delaying a Closing (it being understood
that such prevention or delay may be caused by BSPCI's exercise of its other
rights under this Agreement in its reasonable discretion), such termination to
be effective after notice to TowerCo and an opportunity for TowerCo to cure all
such events within (A) ninety (90) days of such notice, in the case of a failure
of a condition described in SECTION 10.6(A) and (B) twenty (20) days of such
notice, in all other cases.
(b) If this Agreement is terminated by BSPCI pursuant to SECTION 13.1(A),
then BSPCI shall be entitled to and CCIC shall pay BSPCI, within five (5)
business days following the date of such termination, a termination fee in the
amount of $20,000,000 (the "TERMINATION FEE"). Upon any such termination, all
Transaction Documents between the parties shall be terminated (including the
Site Marketing Agreement to the extent applicable to the Sites only), and, at
the option of BSPCI, all prior Closings shall be rescinded. If released to
BSPCI, the Escrow Fund shall be applied toward CCIC's obligation to pay the
Termination Fee. If BSPCI exercises its option to rescind the prior Closings,
payment of the Termination Fee shall be made by netting it against the amounts
previously paid to Transferring Entities at the previous Closings, and BSPCI
shall pay to CCIC any amounts paid to Transferring Entities at the prior
Closings which are in excess of the Termination Fee.
13.2 TERMINATION FOR PASSAGE OF TIME. This Agreement may be terminated
by either party (a) if the Initial Closing shall not have occurred on or before
September 30, 1999 or (ii) if the conditions to Closing contained in ARTICLES 10
and 11 shall not have been satisfied or waived in writing on or before December
31, 1999. Upon any such termination, no party shall have any further rights,
Liabilities or obligations hereunder.
13.3 TOWERCO'S REMEDIES. (a) Notwithstanding anything to the contrary
contained herein, if the parties fail to consummate any Closing contemplated by
the Closing Schedule as a result of BSPCI's failure to keep, observe, perform,
satisfy or comply with, fully and completely, any of the terms, covenants,
conditions, agreements, requirements, restrictions or provisions required by
this Agreement to be kept, observed, performed, satisfied or complied with by
BSPCI, then TowerCo may exercise such all such rights and remedies as may be
provided for or allowed by law or in equity. Except as expressly set forth in
the Transaction Documents, CCIC may, in addition to any other remedies that may
be available at law or in equity, bring an action for specific performance,
including attorneys' fees and costs of suit.
(b) Each Transferring Entity hereby acknowledges and agrees that in
the event of such Transferring Entity's default hereunder, TowerCo shall be
entitled to, without limitation, (i)
41
an Action for specific performance against such Transferring Entity and (b) the
right to seek, prove and recover direct damages from such Transferring Entity
incurred by TowerCo in connection with such Action, including, without
limitation, court costs and attorneys' fees in connection with such Action.
ARTICLE 14
GENERAL PROVISIONS
14.1 NOTICES. All notices or other communications required or permitted
to be given or made hereunder shall be in writing and delivered personally or
sent by nationally recognized overnight courier (such as Federal Express) on an
overnight basis or pre-paid, first class certified or registered mail, return
receipt requested, or by facsimile transmission, to the intended recipient
thereof at its address or facsimile number set out below. Any such notice or
communication shall be deemed to have been duly given immediately (if given or
made in person, or by facsimile confirmed by mailing a copy thereof to the
recipient in accordance with this SECTION 14.1 on the date of such facsimile),
one day after pickup in the case of delivery by overnight courier, or two days
after mailing (if given or made by mail), and in proving same it shall be
sufficient to show that the envelope containing the same was delivered to the
delivery service and duly addressed, or that receipt of a facsimile was
confirmed by the recipient as provided above. The addresses and facsimile
numbers of the parties for purposes of this Agreement are:
If to TowerCo: If to BSPCI:
Crown Castle South Inc. BellSouth Personal Communications, Inc.
000 Xxxxxxxxxxx Xxxx. 0000 Xxxxxxxxx Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
Attention: General Counsel Attention.: Xxxxxx X. Xxxxx, Esq.
with a copy to: with a copy to:
Xxxxxx, Xxxxxxx & Wratcher BellSouth Corporation.
1515 Xxxxx Building 0000 Xxxxxxxxx Xxxxxx, XX, 00xx Xxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Xx. Attention: E. Xxxx Xxxxxxxx, Esq.
42
If to CCIC: If to the Carolinas Partnership:
Crown Castle International Corp. BellSouth Carolinas PCS, L.P.
000 Xxxxxx Xxxxx, Xxxxx 000 c/o BellSouth Personal Communications, Inc.
Xxxxxxx, Xxxxx 00000 0000 Xxxxxxxxx Xxxxxx, XX, Xxxxx 000
Facsimile No: (000) 000-0000 Xxxxxxx, XX 00000
Attention: Chief Executive Officer Facsimile No.: (000) 000-0000
General Counsel Attention: Xxxxxx X. Xxxxx, Esq.
with a copy to: with a copy to:
Cravath, Swaine & Xxxxx BellSouth Corporation
000 Xxxxxx Xxxxxx, Xxxxxxxxx Xxxxx 0000 Xxxxxxxxx Xxxxxx, XX, 00xx Floor
New York, New York 10019-7475 Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000 Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx Attention: E. Xxxx Xxxxxxxx, Esq.
(b) Either party may change the address to which notices or other
communications to such party shall be delivered or mailed by giving notice
thereof to the other party hereto in the manner provided herein.
14.2 FACSIMILE AS WRITING. The parties expressly acknowledge and agree
that, notwithstanding any statutory or decisional law to the contrary, the
printed product of a facsimile transmittal shall be deemed to be "written" and a
"writing" for all purposes of this Agreement.
14.3 NO ASSIGNMENT; BINDING EFFECT. Each Transferring Entity may assign,
delegate or otherwise transfer any of their rights or obligations under this
Agreement, in whole or in part, without the written consent of Crown or TowerCo,
to any BSPCI Affiliate it being understood that upon such assignment, such
Transferring Entity will not be released from its obligations hereunder. Neither
Crown nor TowerCo may assign, delegate or otherwise transfer any of their rights
or obligations under this Agreement, in whole or in part, without the written
consent of the other parties. This Agreement shall be binding upon and will
inure to the benefit of the parties hereto and their respective permitted
successors and assigns. A Person may become a Transferring Entity hereunder and
a party hereto or to any Transaction Document by executing and delivering to
CCIC a Site Designation Supplement or other written instrument reasonably
acceptable to CCIC, setting forth its agreement to be bound by the terms hereof
or thereof, whereupon such Person shall be a party hereto or thereto.
14.4 HEADINGS. The headings of particular provisions of this Agreement
are inserted for convenience only and are not to be construed as a part of this
Agreement or serve as a limitation or expansion on the scope of any term or
provision of this Agreement.
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14.5 EXHIBITS AND SCHEDULES. Each and every exhibit and schedule
referred to or otherwise mentioned in this Agreement is attached to this
Agreement and is and shall be construed to be made a part of this Agreement by
such reference or other mention at each point at which such reference or other
mention occurs, in the same manner and with the same effect as if each exhibit
and schedule were set forth in full and at length every time it is referred to
or otherwise mentioned.
14.6 DEFINED TERMS. Capitalized terms used in this Agreement shall have
the meanings ascribed to them at the point where first defined, irrespective of
where their use occurs, with the same effect as if the definitions of such terms
were set forth in full and at length every time such terms are used.
14.7 ARBITRATION. (a) Any and all disputes arising out of or in
connection with the negotiation, execution, interpretation, performance or
nonperformance of this Agreement (other than the payment of moneys) shall be
solely and finally settled by arbitration which shall be conducted in
Washington, D.C., in accordance with the Rules for Non-Administered Arbitration
of Business Disputes (the "RULES") as promulgated from time to time by the CPR
Institute for Dispute Resolution in New York, New York (the "CPR"), by a panel
of three arbitrators selected by the CPR in accordance with the Rules (the
"ARBITRATORS"). The Arbitrators shall be lawyers experienced in real estate and
corporate transactions in the tower industry and shall not have been employed by
or affiliated with any of the Parties or their Affiliates. The Parties hereby
renounce all recourse to litigation and agree that the award of the Arbitrators
shall be final and subject to no judicial review; provided however, that neither
the provisions of this SECTION 14.7 nor the recourse to arbitration, shall
prejudice the right of any Party to apply to any court of ordinary jurisdiction
for the request of temporary or permanent injunctive or similar judicial relief.
A written transcript shall be kept of all proceedings. The Arbitrators shall
decide the issues submitted to them, in writing, stating the reasons for their
decision, in accordance with: (i) the provisions and purposes of this
Agreement; and (ii) the laws of the State of Georgia (without regard to its
conflicts of laws rules). Unless the parties otherwise agree in writing, the
arbitrators shall render their decision within sixty (60) days.
(b) The parties agree to facilitate the arbitration by: (i) making
available to one another and to the Arbitrators for examination, inspection and
extraction all documents, books, records and personnel under their control if
determined by the Arbitrators to be relevant to the dispute; (ii) conducting
arbitration hearings to the greatest extent possible on successive days; and
(iii) observing strictly the time periods established by the Rules or by the
Arbitrators for submission of evidence or briefs.
(c) Judgment on the award of the Arbitrators may be entered in any court
having jurisdiction over the Party against which enforcement of the award is
being sought. The Arbitrators are expressly authorized to enter orders of
interim or provisional relief each of which may be enforced as a final award.
The Arbitrators shall divide all costs (other than fees of
44
counsel) incurred in conducting the arbitration in their final award in
accordance with what they deem just and equitable under the circumstances.
14.8 PARTIAL INVALIDITY AND SEVERABILITY. All rights and restrictions
contained herein may be exercised and are applicable and binding only to the
extent that they do not violate any applicable Laws and are intended to be
limited to the extent necessary to render this Agreement legal, valid and
enforceable. If any term of this Agreement, or part thereof, not essential to
the commercial purpose of this Agreement is held to be illegal, invalid or
unenforceable by a Forum of competent jurisdiction, it is the intention of the
parties that the remaining terms hereof, or part thereof, constitute their
agreement with respect to the subject matter hereof and all such remaining
terms, or parts thereof, remain in full force and effect. To the extent legally
permissible, any illegal, invalid or unenforceable provision of this Agreement
will be replaced by a valid provision which will implement the commercial
purpose of the illegal, invalid or unenforceable provision.
14.9 WAIVER. Any term or condition of this Agreement may be waived at
any time by the party which is entitled to the benefit thereof, but only if such
waiver is evidenced by a writing signed by such party. No failure on the part
of any party hereto to exercise, and no delay in exercising any right, power or
remedy created hereunder, will operate as a waiver thereof, nor will any single
or partial exercise of any right, power or remedy by either party preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. No waiver by either party hereto of any breach of or default in any
term or condition of this Agreement will constitute a waiver of or assent to any
succeeding breach of or default in the same or any other term or condition
hereof.
14.10 RIGHTS CUMULATIVE. All rights, remedies, powers and privileges
conferred under this Agreement on the parties shall be cumulative of and in
addition to, but not restrictive of or in lieu of, those conferred by law.
14.11 TIME OF ESSENCE; DATES. Time is of the essence of this Agreement.
Anywhere a day certain is stated for payment or for performance of any
obligation, the day certain so stated enters into and becomes a part of the
consideration for this Agreement. If any date set forth in this Agreement shall
fall on, or any time period set forth in this Agreement shall expire on, a day
which is a Saturday, Sunday, federal or state holiday, or other non-business
day, such date shall automatically be extended to, and the expiration of such
time period shall automatically to be extended to, the next day which is not a
Saturday, Sunday, federal or state holiday or other non-business day. The final
day of any time period under this Agreement or any deadline under this Agreement
shall be the specified day or date, and shall include the period of time through
and including such specified day or date. All references to the "EFFECTIVE DATE"
shall be deemed to refer to the later of the date of TowerCo's or BSPCI's
execution of this Agreement, as indicated below their executions hereon.
45
14.12 GOVERNING LAW. The validity and effect of this Agreement shall be
governed by, construed under and interpreted and enforced in accordance with the
laws of the State of Georgia, without regard to its conflicts of laws rules.
14.13 COUNTERPARTS. This Agreement 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.
14.14 ATTORNEYS' FEES. In the event of any litigation between the
parties arising under or in connection with this Agreement, the prevailing party
shall be entitled to recover from the other party the expenses of litigation
(including reasonable attorneys' fees, expenses and disbursements) incurred by
the prevailing party.
14.15 AUTHORITY. Each party hereto warrants and represents that such
party has full and complete authority to enter into this Agreement and each
person executing this Agreement on behalf of a party warrants and represents
that he has been fully authorized to execute this Agreement on behalf of such
party and that such party is bound by the signature of such representative.
14.16 COUNSEL. Each party hereto warrants and represents that each
party has been afforded the opportunity to be represented by counsel of its
choice in connection with the execution of this Agreement and has had ample
opportunity to read, review, and understand the provisions of this Agreement.
14.17 NUMBER AND GENDER. Where the context requires, the use of the
singular form herein includes the plural, the use of the plural includes the
singular, and the use of any gender includes any and all genders.
14.18 NO CONSTRUCTION AGAINST PREPARER. No provision of this
Agreement shall be construed against or interpreted to the disadvantage of any
party by any court or other governmental or judicial authority by reason of such
party's having or being deemed to have prepared or imposed such provision.
14.19 ENTIRE AGREEMENT; MODIFICATION. This Agreement supersedes all
prior discussions and agreements between the parties with respect to the subject
matter hereof, and this Agreement contains the sole and entire agreement between
the parties with respect to the matters covered hereby. This Agreement will not
be altered or amended except by an instrument in writing signed by or on behalf
of the party entitled to the benefit of the provision against whom enforcement
is sought.
14.20 POWER OF ATTORNEY. (a) The Carolinas Partnership hereby
irrevocably constitutes and appoints BSPCI as its agent to modify, amend or
otherwise change the Agreement to Sublease, any other Transaction Documents or
any of their respective terms or provisions
46
(including modifications, amendments or changes subsequent to any Closing), to
take all actions and to execute all documents necessary or desirable to
consummate the transactions contemplated by the Agreement to Sublease, and to
take all actions and to execute all documents which may be necessary or
desirable in connection therewith, to give and receive consents and all notices
hereunder, to negotiate and settle claims for indemnification thereunder and to
perform any other act arising under or pertaining to the Transaction Documents
and the transactions contemplated thereby. The Carolinas Partnership agrees that
service of process upon BSPCI in any action or proceeding arising under or
pertaining to the Transaction Documents shall be deemed to be valid service of
process upon the Carolinas Partnership, and any claim by CCIC against the
Carolinas Partnership in respect to the Transaction Documents may be settled by
BSPCI. BSPCI shall be deemed to have accepted the appointment herein upon its
execution of this Agreement.
(b) It is expressly understood and agreed that the foregoing power of
attorney and the agency created thereby is coupled with an interest of the
respective parties hereto and shall be binding on and enforceable against the
respective successors and assigns of the undersigned, and each of them, and said
power of attorney shall not be revoked or terminated in any event, including,
without limitation, the dissolution, bankruptcy or insolvency of any
Transferring Entity, shall continue to be binding and enforceable in the manner
provided herein and shall survive any and all Closings.
(c) Nothing contained herein shall be deemed to make BSPCI liable to the
Carolinas Partnership because of service in its capacity as agent or otherwise.
In performing any of its duties under this letter agreement, BSPCI shall not
incur or be responsible for any liabilities, claims, causes of action, demands,
judgments, losses, costs, damages or expenses whatsoever ("Losses") to the
Carolinas Partnership, except for BSPCI's fraud, willful default or gross
negligence, and the Carolinas Partnership shall indemnify BSPCI against all
Losses.
(d) Notwithstanding any other provision of this Agreement or any other
Transaction Document to the contrary, and notwithstanding any liability or
obligation that BSPCI would have as a general partner of the Carolinas
Partnership under this Agreement or any other Transaction Document (in each
case, whether or not expressly set forth in such Transaction Document), by
operation of law or otherwise, (i) BSPCI will have no personal liability for the
payment or performance of any obligation of the Carolinas Partnership under this
Agreement or any other Transaction Document (the "Obligations"), and (ii) CCIC
and TowerCo may proceed only against, and rely solely on, the Carolinas
Partnership for payment or performance of any of the Obligations, and shall not
xxx or otherwise proceed against BSPCI, for or in respect of the Carolinas
Partnership's failure to pay or perform any Obligation.
[SIGNATURES APPEAR ON FOLLOWING PAGES]
47
IN WITNESS WHEREOF, the Parties have caused this Agreement to Sublease to
be executed and sealed by their duly authorized representatives, all effective
as of the day and year first written above.
TOWERCO:
CROWN CASTLE SOUTH INC.
By:______________________________
Name:_________________________
Title:________________________
CCIC:
CROWN CASTLE INTERNATIONAL CORP.
By:______________________________
Name:_________________________
Title:________________________
[Signatures continued on following page]
[Signatures continued from preceding page]
BSPCI:
BELLSOUTH PERSONAL COMMUNICATIONS,
INC.
By:__________________________________________
Name:_____________________________________
Title:____________________________________
THE CAROLINAS PARTNERSHIP:
BELLSOUTH CAROLINAS PCS, L.P.,
By: BellSouth Personal Communications, Inc.,
its sole general partner:
By:__________________________________________
Name:_____________________________________
Title:____________________________________
