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EXHIBIT 10.55
COST AND EXPENSE SHARING AND REIMBURSEMENT AGREEMENT
THIS COST AND EXPENSE SHARING AND REIMBURSEMENT AGREEMENT (this
"AGREEMENT") is effective as of the 31st day of August, 2000, by and between
PINNACLE TOWERS INC., a Delaware corporation ("PTI") and Pinnacle Towers IV
Inc., a Florida corporation ("PT4").
WHEREAS, PT4, through its wholly owned subsidiary, Broadcast Towers,
Inc. ("Subsidiary"), is engaged in the management of communications sites owned
by third parties; and
WHEREAS, PT4 considers it necessary or convenient to utilize certain of
PTI's personnel, facilities and general and administrative overhead in
connection with its business and that of its Subsidiary, and PTI is willing to
make such available to PT4 and Subsidiary; and
WHEREAS, PT4 has agreed to reimburse PTI for the allocable share of the
cost and expense of such shared personnel, facilities and general and
administrative overhead as determined in the manner hereinafter provided;
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements herein contained, the parties agree as follows:
1. PROVISION OF SHARED COSTS AND EXPENSES. During the term of this
Agreement, upon the reasonable request of PT4 or Subsidiary, PTI will make
available to PT4 and Subsidiary any of PTI's office and administrative personnel
and facilities, consultants and contractors, and general and administrative
office overhead and costs, including inter alia office space, record retention,
photocopy facilities, facsimile and telephone equipment, sales and marketing
support, office supplies, and computer services (collectively, the "SHARED COSTS
AND EXPENSES").
2. REIMBURSEMENT. PT4 agrees to reimburse PTI for the costs and
expenses incurred by PTI on behalf of or for the benefit of PT4 and Subsidiary
in an amount equal to the sum of the following amounts (the "REIMBURSEMENT
AMOUNT") determined annually as of the end of each calendar year:
(a) With respect to any Shared Costs and Expenses directly
attributable solely to PT4 or Subsidiary, an amount equal to the
marginal or incremental cost or expense thereof incurred by PTI; and
(b) With respect to any Shared Costs and Expenses not
described in (a) above, the pro rata share of such Shared Costs and
Expenses based on the product obtained by multiplying the gross amount
of such Shared Costs and Expenses by the quotient obtained by dividing
the consolidated gross revenues of PT4 and Subsidiary for the year by
the sum of the consolidated gross revenues for the year of all of PTI,
PT4 and Subsidiary, or an amount determined on such other reasonable
basis as the parties may mutually agree.
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The Reimbursement Amount for each calendar year shall be determined no later
than three months after the end of such calendar year and payment of the
Reimbursement Amount shall be due on or before the April 10th of the year
following the end of such calendar year.
3. STANDARD OF CARE. PTI agrees that it and its personnel shall
exercise the same degree of diligence, care and prudence in connection with
matters conducted on behalf of, or provided for the benefit of, PT4 or
Subsidiary as it exercises matters conducted on its own behalf or provided for
its own benefit.
4. LIMITATION OF LIABILITY.
(a) PTI and its affiliates, and the officers, directors,
employees, shareholders, partners, representatives, consultants and
agents of PTI and its affiliates (collectively, "PROVIDING PARTIES")
shall not be liable to the party on whose behalf the Shared Costs and
Expenses are incurred, its affiliates, or to any officer, director,
employee, shareholder, partner, representative, consultant or agent of
such party or its affiliates (collectively, "RECEIVING PARTIES"), for
any liability, cost, damage, expense or loss, including, without
limitation, any special, indirect, consequential or punitive damages
(i) arising or allegedly arising out of any actions or failures to act
by any of the Providing Parties with respect to the Shared Costs and
Expenses to be provided hereunder, or (ii) as a result of the reliance
by any of the Receiving Parties on any advice or data that any of the
Providing Parties may provide pursuant to this Agreement; provided,
however, that the foregoing shall not apply to limit liability of a
party to the extent caused by such party's gross negligence or willful
misconduct.
(b) The Receiving Parties shall indemnify and hold harmless
each and every of the Providing Parties from and against any liability,
cost, damage, expense or loss (including court costs and reasonable
attorneys' fees) which such Providing Parties may sustain or incur by
reason of any claim, demand, suit or recovery by any person or entity,
directly resulting from acts or omissions committed by the Receiving
Party in connection with this Agreement; provided, however, that no
person may benefit from the foregoing indemnity in the event of its
gross negligence or willful misconduct.
5. TERM. The term of this Agreement shall commence as of the date
hereof and end December 31, 2001, unless earlier terminated effective as of the
end of a calendar month by either party upon no less than two months' prior
written notice to the other party. The term of this Agreement shall
automatically renew for successive periods of one year each unless either party
provides to the other party notice in writing that this Agreement will not so
renew and such notice is given at least two months prior to the then termination
date of this Agreement. In the event this Agreement is terminated prior to the
end of a calendar year, the Reimbursement Amount shall be determined as of the
effective date of termination based on gross revenues of each party through the
date of termination.
6. RELATIONSHIP OF THE PARTIES. In all matters relating to this
Agreement, each party hereto shall be solely responsible for the acts of its
employees, and employees of one party shall not be considered employees of the
other party. No party shall have any right, power or authority to create any
obligation, express or implied, on behalf of any other party. Nothing in
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this Agreement is intended to create or constitute a joint venture or
partnership relationship between the parties hereto or persons referred to
herein.
7. FORCE MAJEURE. PTI shall be excused from performance hereunder for
any period and to the extent that it is prevented from performance hereunder, in
whole or in part, as a result of delays caused by PT4 or Subsidiary or any act
of God, war, civil disturbance, court order, strike, labor dispute, law or
regulation of any governmental authority, or other cause beyond the reasonable
control of PTI. Such nonperformance shall not be a default hereunder. PTI shall
take all reasonable actions to resume performance of its obligations hereunder
as soon as feasible.
8. AMENDMENTS AND WAIVER. No amendment, waiver or consent with respect
to any provision of this Agreement shall in any event be effective, unless the
same shall be in writing and signed by the parties hereto, and then such
amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
9. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be, personally delivered or sent by
facsimile transmission with confirming copy sent by overnight courier (such as
Express Mail, Federal Express, etc.) and a delivery receipt obtained and
addressed to the intended recipient as follows:
If to PTI:
Pinnacle Towers Inc.
000 Xxxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxx Xxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to PT4:
Pinnacle Towers IV Inc.
000 Xxxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Any party may change its address or add or change parties for receiving notice
by written notice given to the others named above. Notices shall be deemed given
as of the date of receipt.
10. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
11. SUCCESSORS AND ASSIGNS; BENEFICIARIES. This Agreement shall bind
and inure to the benefit of the parties named herein and their respective
successors and assigns. No party may assign any rights, benefits, duties or
obligations under this Agreement without the prior written consent of the other
party. Except for Subsidiary which is an intended beneficiary of this
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Agreement, and except as specifically provided in Section 4, no third party
shall be entitled to enforce any provision hereof or to benefit from this
Agreement.
12. ENTIRE AGREEMENT. This Agreement and the documents referred to
herein contain the entire agreement and understanding among the parties with
respect to the transactions contemplated hereby and supersede all other
agreements, understandings and undertakings among the parties on the subject
matter hereof.
13. PARTIAL INVALIDITY. In the event that any provision of this
Agreement shall be held invalid or unenforceable by any court or competent
jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof.
14. GOVERNING LAW; JURISDICTION. This Agreement shall be interpreted in
accordance with the substantive laws of the State of Florida applicable to
contracts made and to be performed wholly within said State. All disputes, legal
actions, suits and proceedings arising out of or relating to this Agreement
shall be brought in a federal district or state court located in Tampa, Florida.
Each party hereby consents to the jurisdiction of the federal district or state
court in Tampa, Florida. Each party hereby irrevocably waives all claims of
immunity from jurisdiction and any right to object on the basis that any
dispute, action, suit or proceeding brought in the federal district or state
court of Tampa, Florida has been brought in an improper or inconvenient venue or
forum.
15. DISPUTES.
(a) PTI and PT4 mutually desire that friendly collaboration
will develop between themselves. Accordingly, they shall attempt to
resolve in a friendly manner all disagreements and misunderstandings
connected with their respective rights and obligations under this
Agreement, including any amendments hereof.
(b) (i) To the extent that any misunderstanding or
dispute cannot be resolved agreeably in a friendly manner, the dispute
will be mediated by a mutually acceptable mediator to be chosen by PTI
and PT4 within forty-five (45) days after written notice by one of the
parties demanding mediation. Neither party may unreasonably withhold
consent to the selection of a mediator, however, by mutual agreement
PTI and PT4 may postpone mediation until each has completed specified
but limited discovery with respect to a dispute. The parties may also
agree to attempt some other form of alternative dispute resolution
("ADR") in lieu of mediation, including by way of example and without
limitation, neutral fact-finding or a mini-trial.
(ii) Any dispute which the parties cannot resolve
through negotiation, mediation or other form of ADR within six months
of the date of the initial demand for it by one of the parties may then
be submitted to the courts for resolution. The use of any ADR
procedures will not be construed under the doctrine of laches, waiver
or estoppel to affect adversely the rights of either party. Nothing in
this Section 15 will prevent any party from resorting to judicial
proceedings if (A) good faith efforts to resolve the dispute under
these procedures have been unsuccessful or (B) interim relief from a
court is necessary to prevent serious and irreparable injury to one
party or to others.
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(c) Each of the parties shall bear its own costs of mediation
or ADR, but the parties agree that the shared costs of mediation or ADR
shall be shared 50% by PTI and 50% by PT4.
16. AUTHORSHIP. The parties hereto agree that the terms and language of
this Agreement were the result of negotiations between the parties and, as a
result, there shall be no presumption that any ambiguities in this Agreement
shall be resolved against either party. Any controversy over construction of
this Agreement shall be decided without regard to events of authorship or
negotiation.
17. DEFINED TERMS. All capitalized terms not defined herein shall have
the meanings ascribed to them in the Asset Purchase Agreement.
18. RECITALS. The recitals hereto are true and correct and are by this
reference incorporated herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
PINNACLE TOWERS INC. PINNACLE TOWERS IV INC.
By: By:
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Name: Name:
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Title: Title:
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