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EXHIBIT 2.2
AMENDMENT NO. 1 TO ASSET PURCHASE AGREEMENT
This Amendment No. 1 (this "Amendment") to the Asset Purchase
Agreement dated as of February 24, 2000 (the "APA"), by and between Pinnacle
Towers Inc. ("Purchaser") and Microcell Management, Inc. ("Seller") is entered
into this 2nd day of March, 2000.
RECITALS
Purchaser and Seller have agreed to go forward with the
Initial Closing under the APA with respect to 134 Tower Sites rather than 150
Tower Sites as originally contemplated by the APA and hereby wish to amend the
APA to reflect such agreement and to set forth their mutual understanding with
respect to certain arrangements to be entered into between them as a result of
reducing the Threshold Number of Tower Sites.
TERMS
NOW, THEREFORE, Purchaser and Seller hereby agree as follows:
1. Defined Terms.
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(a) Capitalized terms not defined herein shall
have the meaning given to them in the APA.
(b) Section 1.1 of the APA is hereby amended by
adding the following defined terms:
"Section 6.15 Correction" has the meaning
set forth in Section 6.15 hereof.
"Section 6.15 Cure Period" has the meaning
given to such term in Section 6.15 hereof.
"Section 6.15 Cure Period Termination Date"
has the meaning given to such term in
Section 6.15 hereof.
"Section 6.15 Payment Date" has the meaning
set forth in Section 6.15 hereof.
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"Section 6.15 Tower Sites" has the meaning
set forth in Section 6.15 hereof.
"Tower Site Monthly Cash Flow" means, with
respect to any Tower Site, the monthly
rental revenue from such Tower Site less
all direct operating expenses and costs
related to such Tower Site, including
without limitation, ground rents,
utilities, taxes and maintenance fees.
(c) Paragraph (kkk) of Section 1.1 of the APA
is hereby amended by substituting the number "one hundred thirty-four (134)"
for the number "one hundred fifty (150)."
2. Amendments of Section 2.7.
(a) Section 2.7(b)(i) of the APA is hereby
amended by adding the following proviso at the end thereof:
", provided, further, that with respect to each
Section 6.15 Tower Site, the Subsequent Closing
thereof shall occur on the third business day
following the date on which Seller has provided
Purchaser with written evidence that the Section
6.15 Correction for such Section 6.15 Tower Site has
been made."
(b) Section 2.7(b)(ii) of the APA is hereby
amended by the adding the following sentence at the end thereof:
"The foregoing procedures shall not govern a
Subsequent Closing of a Section 6.15 Tower Site,
which shall be governed by the last proviso of
Section 2.7(b)(i)."
3. Amendment of Article VI. Article VI of the APA is
hereby amended by adding the following new Section
6.15:
"6.15 Additional Covenants Regarding Certain Tower Sites."
With respect to the Tower Sites listed on Schedule 6.15 (the "Section 6.15
Tower Sites"), Seller agrees that it will use commercially reasonable best
efforts, throughout the period (the "Section 6.15 Cure Period") commencing on
the Initial Closing Date and terminating on the date (the "Section 6.15 Cure
Period Termination Date") that is the first to occur of (i) the ninetieth
(90th) day following the Initial Closing Date and (ii) the first date as of
which a total of no less than one hundred fifty (150) Tower Sites have been
conveyed to Purchaser, to correct the defects listed on Schedule 6.15 in the
manner specified on Schedule 6.15 (the "Section 6.15 Corrections"), provided,
that in no event shall Seller be required to spend more than an aggregate of
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[ ] in fulfilling its
obligations hereunder. In addition, commencing on April 15, 2000 and continuing
on the fifteenth day of each month thereafter up to and including the month
immediately succeeding the month in which the Section 6.15 Cure Period
Termination Date occurs (each such 15th day of a month, a "Section 6.15 Payment
Date"), Seller shall pay to Purchaser the excess, if any, over (i) all Tower
Site Monthly Cash Flow due to Seller during the month prior to such Section
6.15 Payment Date (e.g., during April 2000, with respect to the payment due on
May 15, 2000) with respect to the Section 6.15 Tower Sites which were held by
Seller during such month and (ii) all Tower Site Monthly Cash Flow due to
Purchaser with respect to all Tower Sites (other than Section 6.15 Tower Sites)
conveyed to Purchaser in any Subsequent Closing which occurred during the month
which is two months prior to such Section 6.15 Payment Date (e.g., during
March, 2000 with respect to any payment due hereunder on May 15, 2000). The
foregoing determination of Tower Site Monthly Cash Flow in the case of a month
in which one or more Section 6.15 Tower Sites are conveyed to Purchaser shall
be prorated on the basis of the actual number of days in such month such Tower
Site(s) were held by Seller, and, in the case of the month in which the Initial
Closing Date or the Section 6.15 Cure Period Termination Date occurs, on the
basis of the actual number of days occurring in such month following the
Initial Closing Date and prior to the Section 6.15 Cure Period Termination
Date, respectively.
4. Amendments to Section 7D.
(a) The first sentence of Section 7D is hereby
amended by adding the following proviso at the end thereof:
", provided, further, that the only condition
applicable to the Closing of a Section 6.15 Tower
Site shall be the completion of the applicable
Section 6.15 Correction."
(b) The last sentence of Section 7D of the APA
is hereby amended by substituting therefore in its entirety the following:
"Except as required under Section 6.15, in no event
shall Seller have any obligation, express or
implied, to cure, or to take any action to cure, any
defect alleged by Purchaser affecting a
Non-Conforming Site, and in no event shall Seller
have any liability to Purchaser for Seller's failure
to so cure (or take any action to cure)."
5. Amendments of Schedules 1.1(oo), 2.2(a), 2.2(b) and
2.4(a). Schedules 1.1(oo), 2.2(a), 2.2(b) and 2.4(a) of the APA are hereby
amended by
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deleting Site Number MI 0945 therefrom. Schedule 1.1(oo) is hereby further
amended to provide that only the Phase I Reports having a date next to the site
name have been furnished to Purchaser.
6. Amendment of Schedule 3.9. Schedule 3.9 of the APA
is hereby amended by substituting therefor the attached Schedule 3.9.
7. Other Terms of APA. Except as set forth herein, all
other terms of the APA shall remain in full force and effect.
Executed in one or more counterparts as of the date first
written above.
PINNACLE TOWERS INC.,
a Delaware corporation
By:
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Name:
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Title:
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MICROCELL MANAGEMENT, INC.,
a Delaware corporation
By:
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Name:
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Title:
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