Exhibit 99.5
EXCLUSIVE MANAGEMENT AGREEMENT
EXCLUSIVE MANAGEMENT AGREEMENT (the "Agreement") dated as of March 31,
1999, by and among Cellco Partnership, a Delaware general partnership doing
business as Xxxx Atlantic Mobile ("BAM"), the Listed Partnerships (listed
on the signature pages hereof), and Crown Atlantic Company LLC ("Manager")
with reference to the following Preamble:
BAM and the Listed Partnerships (each, an "Owner" and,
collectively, the "Owners") are the owners of certain tower
structures, interests in real property related thereto, and related
assets, property rights, liabilities and obligations (hereinafter
defined as Managed Assets and Related Liabilities). Manager is engaged
in the business of owning, managing and operating assets similar to
the Managed Assets and Related Liabilities. BAM and the Listed
Partnerships desire to engage Manager to provide, and Manager desires
to provide, Management Services (hereinafter defined) for such Managed
Assets and Related Liabilities upon the terms and conditions herein
contained. BAM, Crown Castle International Corp., CCA Investment Corp.
and certain other Transferring Partnerships are parties to a Formation
Agreement dated as of December 8, 1998 (as amended through the date
hereof, the "Formation Agreement"). (All capitalized terms used herein
and not otherwise defined herein shall have the respective meanings
ascribed thereto in the Formation Agreement.)
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
ARTICLE 1.
Definitions
1.1 "Managed Assets" with respect to an Owner shall mean all right,
title and interest of such Owner in and to all of the assets, properties
and rights of such Owner to all Tower Structures of such Owner, all of such
Owner's rights to all Tower Sites; all Tower Related Assets of such Owner;
and all rights under any Governmental Permits (excluding FCC licenses) held
exclusively with respect to the ownership or use of the Tower Structures or
Tower Sites of such Owner and not used or useful by such Owner in any other
part of its business and operations, to the extent such Governmental
Permits may be managed hereunder. The Managed Assets shall not include any
Excluded Assets.
1.2 "Excluded Assets" shall mean (a) all assets, properties and rights
contributed to Manager on the date hereof pursuant to the Formation
Agreement, (b) any communications antennae, microwave transmitters or
receivers, wiring, devices, switches, generators or other communications
equipment, or any buildings, shelters or other structures housing such
equipment with respect to the Tower Structures and Tower Sites; (c) an
Owner's rights to the real estate listed in Schedule 2.3.2(b) to the
Formation Agreement, being real estate on which switch equipment of such
Owner or its Affiliates is located; (d) corporate seals, Charter Documents,
minute books, stock books, tax returns, books of account and other
financial records of an Owner, sales and marketing catalogs, brochures and
advertising material, the names "NYNEX," "Xxxx Atlantic," "Xxxx Atlantic
Mobile," "BAM," "Cellco," "Cellular One" and all other names under which an
Owner or any of its Affiliates (excluding Manager, if for some reason
Manager falls within the definition of an Affiliate of an Owner) conducts
business; (e) all Intellectual Property of an Owner or any Affiliate of an
Owner, other than plans and specifications of the Tower Structures and data
(in electronic or machine-readable form) with respect to third party
tenants and lessors with respect to the Tower Structures; (f) any equipment
or transmissions systems used by an Owner for the remote monitoring of the
Tower Structures; (g) any assets, properties or rights which are not
exclusively Managed Assets including, but not limited to, any funded
employee benefit plan assets attributable to an employee benefit plan
maintained by an Owner or any Affiliate of an Owner; (h) the rights that
accrue or will accrue to an Owner under this Agreement or any of the other
Transaction Documents; (i) any claims or rights against third parties
except solely to the extent such claims or rights relate to Assumed
Liabilities, the BAM Contributed Assets, the Managed Assets or the Related
Liabilities; (j) any and all rights retained by and/or granted to BAM
pursuant to the Global Lease; (k) the assets specified in Schedule 2.3.2 to
the Formation Agreement; and (l) any Tower Sites (and all Tower Structures,
Tower Related Assets and other BAM Contributed Assets associated with such
Tower Sites) excluded from the BAM Contributed Assets pursuant to Sections
2.3.5, 2.3.6 and 6.1.7 of the Formation Agreement or which would have been
excluded from the Managed Assets if the Managed Assets had been BAM
Contributed Assets.
1.3 "Excluded Liabilities" means (a) all Liabilities of an Owner under
all Contracts and purchase orders included within the Managed Assets which
would be BAM Retained Liabilities if such Managed Assets had been included
in the BAM Contributed Assets; (b) all other Liabilities of an Owner in
respect of the Managed Assets existing as of the date hereof which would be
BAM Retained Liabilities if the Managed Assets had been included in the BAM
Contributed Assets; and (c) the rents, revenues, Taxes, charges and
payments that would be apportioned for the account of an Owner pursuant to
Section 2.3.8 of the Formation Agreement if the Managed Assets were BAM
Contributed Assets under the Formation Agreement.
1.4 "Related Liabilities" means (a) all Liabilities (other than any of
the Excluded Liabilities) of an Owner under all Contracts and purchase
orders included within the Managed Assets; (b) all Liabilities (other than
any of the Excluded Liabilities) of an Owner in respect of the Managed
Assets existing as of the date hereof; and (c) the rents, revenues, Taxes,
charges and payments that would be apportioned for the account of the
Manager pursuant to Section 2.3.8 of the Formation Agreement if the Managed
Assets were BAM Contributed Assets under the Formation Agreement.
1.5 "Tower Related Assets" shall mean with respect to an Owner (a) the
leases of rights to use spaces on the Tower Structures that are identified
in Annex I hereto for such Owner and located on Tower Sites of such Owner
(the "Tower Leases") and security deposits (if any) from tenants under the
Tower Leases, (b) the Site Leases of such Owner, (c) all Contracts with
respect to the management, operation, maintenance, servicing and
construction of, and the provision of utility services to, the Tower
Structures ("Tower Service Contracts"), (d) any existing leases (or
licenses or other Contracts) of an Owner for equipment or other personal
property which are Tower Structures ("Tower Equipment Leases"), (e) all
prepaid items, unbilled costs and fees, and accounts, notes and other
receivables under the Tower Service Contracts, Site Leases and Tower
Equipment Leases as of the date hereof ("Prepaid Expenses"), (f) all rights
to any warranties held by an Owner with respect to the Tower Structures or
Tower Related Assets to the extent such rights are assignable, including
those assignable with consent to the extent such consents are received, or,
to the extent not so received, all amounts received by an Owner with
respect to claims made after the date hereof with respect to such
unassigned rights to any warranties, and (g) copies of, or extracts from,
all current files and records of an Owner to the extent that
such files or records contain information solely related to the design,
construction, management, operation, maintenance, ownership, occupancy or
leasing of the Managed Assets.
1.6 "Tower Sites" shall mean the sites of the Tower Structures that
are owned or leased by such Owner, including all fee, ground leasehold
interests and easements pertaining to such tower sites owned by such Owner
and shall include the leasehold interest in and to the real property
associated with the Tower Structures pursuant to the terms of the ground
leases related thereto identified in Annex I (the "Site Leases").
1.7 "Tower Structures" shall mean with respect to an Owner the
communications tower structures situated at the locations that are
identified on Annex I and owned or leased by such Owner, and such Owner's
rights to all attached tower lighting equipment, alarm systems, grounding
systems and physical improvements on each Tower Site, including fencing,
along with any tenant leases, easement rights necessary for access to the
Tower Structure and for location of the Tower Structure and guy wires, if
any, associated therewith; provided however, such term does not include any
equipment, property or other assets placed upon the Tower Structures or
Tower Sites by third parties pursuant to Tower Leases or other Contracts or
any Excluded Assets.
ARTICLE 2.
Services, Compensation
2.1 Management Services. As regards Managed Assets of an Owner,
Manager shall provide to each such Owner the services described in this
Section 2.1 (the "Management Services"). Manager shall manage all aspects
of the ownership and operation of the Managed Assets and in connection
therewith, Manager shall (i) punctually pay and perform on behalf of each
Owner all obligations of the Owner under all Contracts or other Liabilities
with respect to the Managed Assets relating to periods on or after the date
hereof, and (ii) punctually collect on behalf of the Owner all revenues
relating to periods on or after the date hereof from the Managed Assets and
exercise all rights on behalf of the Owner with respect to the Managed
Assets. Without limiting the generality of the foregoing, Manager shall
have the right, without obtaining the prior consent of any Owner, to
exercise any renewal or extension option or right expressly set forth in
any of the Contracts, Site Leases or other Managed Assets. Alternatively,
Manager shall have the right to give a written direction to an Owner for
the Owner to exercise any such option or right; and each Owner agrees that
it shall promptly comply with any such written direction from Manager.
Further, Manager shall have the right, without obtaining the prior consent
of any Owner, at Manager's sole risk, cost and expense, to make capital
improvements to the Managed Assets provided that Manager has the express
right to do so under the provisions of the applicable Site Lease and
Manager performs same in a manner consistent with all tenant leases of
space on the applicable Tower Structures (if applicable) and in a manner
that does not disturb, interfere with or otherwise adversely affect the use
or operation of an Owner's communications facilities or equipment located
on or at the applicable Managed Asset or an Owner's access to such
communications facilities or equipment. From time to time Manager may
negotiate on behalf of each Owner such leases of rights to use spaces on
the Tower Structures included in the Managed Assets, subject to the prior
written approval of such Owner as to the terms and conditions thereof,
which approval shall not be unreasonably withheld or delayed and shall be
given if the terms and conditions of a proposed lease are substantially
similar to the standard terms and conditions that Manager uses in leasing
rights to use space on communications tower structures owned by Manager.
2.2 Standard of Performance. Management Services performed by Manager
pursuant to this Agreement shall be provided with the same standard of
care, diligence and performance which Manager is obligated to meet under
the Global Lease (as if the Manager were the "Lessor" under the Global
Lease and the Managed Assets were properties subject to a "Supplement"
under the Global Lease). Except for the duties or actions expressly
reserved to the Owner under this Agreement with respect to the Managed
Assets, Manager shall perform all actions and render the same services with
respect to the Managed Assets as Manager would be required to perform and
render if Manager were the "Lessor" under the Global Lease and the Managed
Assets were properties subject to a "Supplement" under the Global Lease.
Each Owner shall be entitled to rights (including, without limitation, use
rights) and obligations (including, without limitation, payment
obligations, which payment obligations are set forth in Annex II hereto and
are subject to the provisions of Section 2.3(a) below) with respect to such
Owner's Managed Assets as such Owner would be entitled to or required to
perform if such Owner were the "Lessee" under the Global Lease and such
Managed Assets were properties subject to a "Supplement" under the Global
Lease. Manager agrees to perform the Management Services in accordance with
the time commitments of the Owners that may be expressly set forth in the
Contracts, Site Leases or other Managed Assets. Manager will not commingle
funds of an Owner with those of Manager or any other party. Manager will
assure that assets and properties of an Owner will be clearly identified
and treated as belonging to the Owner and not to Manager. Manager will be
responsible for the consequences of its performance or failure to perform
in a timely or appropriate manner.
2.3 Amount of Compensation. The payments provided for in this Section
2.3 shall be the sole compensation to which Manager is entitled for the
performance of Manager's duties under this Agreement. It is the intent of
the parties that from and after the date of this Agreement, Manager shall
be responsible for, and entitled to, all economic gain and loss associated
with the use, ownership, possession, operation, leasing, management or all
other activities related to the Managed Assets.
(a) Periodic Cash Payment. The "Periodic Cash Payment" for any
period of time shall mean the remainder of the total amount of cash
actually received by each Owner from third parties during that period with
respect to the Managed Assets, plus an amount equal to the amount which the
Owner would otherwise have paid Manager if such Owner's Managed Assets were
properties subject to a "Supplement" under the Global Lease, as such amount
is specified in Annex II hereto, reduced by the total amount of cash
actually paid by the Owner (including the following amounts owing by the
Owner under Site Leases: rents, real estate taxes and personal property
taxes assessed other than those personal property taxes attributable to the
Owner's equipment located on the applicable Tower Structures) with respect
to the Managed Assets. During the Term, Manager shall be entitled to
receive and retain all cash received by Manager from third parties with
respect to the Managed Assets. During the Term, Manager shall be
responsible for bearing all taxes, costs and expenses of any type
whatsoever relating to the Managed Assets, excepting only personal property
taxes attributable to the Owners' equipment located on Tower Structures.
During the Term, Manager shall be obligated to pay all such taxes, costs
and expenses, excepting only those set forth in the following sentence, and
shall not (i) seek reimbursement for any such expense from any Owner or
(ii) pay any expense out of any funds of any Owner. During the Term, each
Owner shall pay (directly to the landlord or lessor or applicable taxing
authority) the following amounts owing by the Owner under Site Leases:
rents, real estate taxes and personal property taxes; and all such amounts,
excepting only personal property taxes attributable to the Owner's
equipment located on Tower Structures, shall be for the account of Manager
and a deduction in the calculation of the Periodic Cash Payment amounts. No
later than the 20th day of each calendar month, each Owner shall pay to
Manager an amount equal to the Periodic Cash Payment for the previous
calendar month, which payment shall be accompanied by a reasonably detailed
calculation of the Periodic Cash Payment, together with reasonable evidence
supporting the calculation.
(b) Related Liabilities. Manager shall pay and discharge each of
the Related Liabilities in accordance with their terms.
(c) Excluded Liabilities. Each Owner shall pay and discharge each
of the Excluded Liabilities related to such Owner's Managed Assets in
accordance with their terms.
(d) Apportionments. Manager shall pay to each Owner and each
Owner shall pay to Manager the amounts which would have been required to be
paid for prorations with respect to the Managed Assets and Related
Liabilities under Section 2.3.8 of the Formation Agreement if such Managed
Assets had been BAM Contributed Assets under the Formation Agreement.
(e) Costs and Expenses. Manager shall pay its own costs and
expenses and the costs and expenses of its agents and subcontractors and no
part of such payments shall be for the account of an Owner.
ARTICLE 3.
Ancillary Covenants
3.1 Access, Audit.
(a) Manager shall give to each Owner and such Owner'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 premises, properties, assets, records, contracts and other documents
relating to its business and shall permit them to consult with the
officers, employees, accountants, counsel and agents of Manager for the
purpose of making such investigation of the Managed Assets, the Related
Liabilities, the Management Services, the Periodic Cash Payments and the
apportionments as such Owner shall desire to make, provided that such
investigation shall not unreasonably interfere with the business operations
of Manager. Furthermore, Manager shall furnish to each Owner copies of all
documents and records and information with respect to the Managed Assets,
the Related Liabilities, the Management Services, the Periodic Cash
Payments and the apportionments and copies of any working papers relating
thereto as an Owner shall from time to time reasonably request and shall
permit an Owner and its agents to make such physical inventories and
inspections of the properties and assets used in connection with its
business as an Owner may reasonably request from time to time. Manager
shall maintain complete records of all revenues, costs, cash receipts, cash
disbursements and other items taken into account in determining the
Periodic Cash Payments hereunder for three (3) years after termination of
this Agreement. All such records shall be maintained in accordance with
recognized accounting practices. Each of the Owners shall have the right,
through its authorized representatives, to examine and audit such records
at all reasonable times.
(b) Each Owner shall give to Manager and its 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 and
other documents relating to such Owner's payment obligations and
indemnification obligations under this Agreement and shall permit them to
consult with the officers,
employees, accountants, counsel and agents of such Owner for the purpose of
making such investigation of such payment and indemnification obligations
of such Owner that Manager shall desire to make, provided that such
investigation shall not unreasonably interfere with the business operations
of such Owner. Furthermore, each Owner shall furnish to Manager copies of
all documents and records and information with respect to such Owner's
payment and indemnification obligations under this Agreement as Manager
shall from time to time reasonably request. Each Owner shall maintain
complete records relating to its payment and indemnification obligations
under this Agreement for three (3) years after termination of this
Agreement. All such records shall be maintained in accordance with
recognized accounting practices. Manager shall have the right, through its
authorized representatives, to examine and audit such records at all
reasonable times.
3.2 Insurance.
(a) The parties hereby waive (for themselves and for any party
which may have a right of subrogation or similar right, including, without
limitation, any insurer) any and all rights of action for negligence
against the other which may hereafter arise on account of damage to a Tower
Structure, resulting from any fire, or other casualty of the kind covered
by standard fire insurance policies with extended coverage, regardless of
whether or not, or in what amounts, such insurance is now or hereafter
carried by the parties, or either of them. Manager agrees that any Owner
may self-insure against any loss or damage which could be covered by a
comprehensive general public liability insurance policy.
(b) Notwithstanding the foregoing, Manager shall at all times,
maintain adequate insurance covering the Managed Assets and its properties
and other assets used in connection with performing its obligations
hereunder, in at least the amounts and types of coverage customary in the
wireless telecommunications industry. In the event of any accident,
casualty or occurrence which results in damage to, or impairment of use of
a Tower Structure, Manager shall take all actions necessary to promptly
restore the Tower Structure to a condition fit for the applicable Owner's
intended use, utilizing the proceeds of any applicable insurance proceeds
in addition to any other sums which may be required.
3.3 Subcontracting. Manager shall be liable for the conduct of each
subcontractor engaged by Manager to perform any of the Management Services
to the same extent as Manager's liability under this Agreement and for all
fees and expenses of such subcontractor.
3.4 Property. Title to all assets, properties or rights owned by the
Owners and furnished to Manager shall remain that of the Owners and be used
only in the performance of this Agreement until such time, if any, that
such assets, properties or rights are transferred or conveyed to Manager
under Section 5.4 below. Manager shall be responsible for any loss of or
damage to the assets, properties or rights of an Owner which are in
Manager's possession or control, but Manager shall not be obligated to pay
or reimburse Owner for any amounts in respect of any loss of or damage to
any of the Managed Assets. Manager and its representatives shall, while on
the premises of an Owner, comply with all site rules and regulations in
effect, including security requirements. However, in light of the parties'
intention that from and after the date of this Agreement, Manager shall be
responsible for, and entitled to, all economic gain and loss associated
with the use, ownership, possession, operation, leasing, management or all
other activities related to the Managed Assets, in order for an Owner to
increase the space that it occupies or uses on any Tower Structure or Tower
Site included in the Managed Assets beyond the space that such Owner
occupies or uses on such Tower Structure or Tower Site, such Owner
shall be required to pay Manager an amount for increased space that is
equal to the amount that would have been payable by such Owner to Manager
under the Global Lease, if the applicable Managed Assets were properties
subject to a "Supplement" under the Global Lease.
3.5 Compliance with Laws. Manager, its employees and representatives
shall, in providing Management Services under this Agreement, comply with
all local, state and federal laws, rules and regulations applicable to it.
Each Owner, its employees and representatives shall, in performing such
Owner's obligations under this Agreement, comply with all local, state and
federal laws, rules and regulations applicable to it.
3.6 Information Regarding Managed Assets. On or before April 30, 1999,
each Owner shall deliver to Manager, with respect to the Managed Assets of
such Owner, completed (but not executed) "Supplements" under the Global
Lease or another form of documentation which provides Manager with the same
information regarding such Managed Assets as would be provided if such
Owner completed a "Supplement" under the Global Lease for such Managed
Assets.
ARTICLE 4.
Indemnification
4.1 Indemnification by Manager. From and after the Closing, Manager
shall indemnify and hold harmless each Owner, its successors and assigns
and its officers, directors, employees, agents and any Person who controls
any of the foregoing within the meaning of the Securities Act or the
Exchange Act (each, an "Indemnified Owner Party") from and against any
Losses that such Indemnified Owner Party may sustain, suffer or incur and
that result from, arise out of or relate to (i) the use, ownership,
possession, operation, leasing, management or any other activities (other
than activities of any Owner or of any Affiliate of any Owner, excluding
Manager, if for some reason Manager falls within the definition of an
Affiliate of an Owner) related to the Managed Assets during the Term and
any Management Services provided hereunder (except only an Owner's
obligation to pay to Manager the compensation provided for in Section 2.3
hereof), (ii) any Related Liability, (iii) any apportionments allocated to
Manager pursuant to Section 2.3(d) hereof, (iv) any claim that any of the
Management Services (including, without limitation, any report or document
delivered by Manager as part of the Management Services) infringes or
misappropriates any patent, copyright, trademark, trade secret or other
intellectual property right of any third party, or (v) any breach by
Manager of any covenant, obligation or warranty contained herein.
4.2 Indemnification by Owners. From and after the Closing, each Owner
shall indemnify and hold harmless Manager, its successors and assigns and
its officers, directors, employees, agents and any Person who controls any
of the foregoing within the meaning of the Securities Act or the Exchange
Act (each, an "Indemnified Manager Party") from and against any Losses that
such Indemnified Manager Party may sustain, suffer or incur and that result
from, arise out of or relate to (i) the use, ownership, possession,
operation, leasing, management or any other activities related to such
Owner's Managed Assets prior to the commencement of the Term or any
activities of any Owner or of any Affiliate of any Owner (excluding
Manager, if for some reason Manager falls within the definition of an
Affiliate of an Owner), (ii) any Excluded Liability related to such Owner's
Managed Assets, (iii) any apportionments allocated to such Owner pursuant
to Section 2.3(d) hereof, and (iv) any breach by such Owner of any
covenant, obligation or warranty contained herein.
4.3 Procedure for Indemnification Claims.
(a) Any Indemnified Owner Party or Indemnified Manager Party that
desires to seek indemnification under any provision of this Article 4 or
any other provision of this Agreement providing for indemnification (each,
in such capacity, an "Indemnified Party") shall give notice (a "Claim
Notice") to party that is obligated to indemnify the Indemnified Party
hereunder, either Manager or the appropriate Owner (each, in such capacity,
an "Indemnitor"). Such Claim Notice shall briefly explain the nature of the
claim and the parties known to be involved, and shall specify the amount
thereof. If the matter to which a claim relates shall not have been
resolved as of the date of the Claim Notice, the Indemnified Party shall
estimate the amount of the claim in the Claim Notice, but also specify
therein that the claim has not yet been liquidated (an "Unliquidated
Claim"). If an Indemnified Party gives a Claim Notice for an Unliquidated
Claim, the Indemnified Party shall also give a second Claim Notice (the
"Liquidated Claim Notice") within sixty (60) days after the matter giving
rise to the claim becomes finally resolved, and the Second Claim Notice
shall specify the amount of the claim. Any failure to give a Claim Notice
in a timely manner pursuant to this Section 4.3(a) shall not limit the
obligation of the Indemnitor under this Article 4, except to the extent
such Indemnitor is prejudiced thereby. Each Indemnitor to which a Claim
Notice is given shall respond to any Indemnified Party that has given a
Claim Notice (a "Claim Response") within thirty (30) days (the "Response
Period") after the later of (i) the date that the Claim Notice is given or
(ii) if a Claim Notice is first given with respect to an Unliquidated
Claim, the date on which the Liquidated Claim Notice is given. Any Claim
Notice or Claim Response shall be given in accordance with the notice
requirements hereunder, and any Claim Response shall specify whether or not
the Indemnitor giving the Claim Response disputes the claim described in
the Claim Notice. If any Indemnitor fails to give a Claim Response within
the Response Period, such Indemnitor shall be deemed not to dispute the
claim described in the related Claim Notice. If any Indemnitor elects not
to dispute a claim described in a Claim Notice, whether by failing to give
a timely Claim Response or otherwise, then the amount of such claim shall
be conclusively deemed to be an obligation of such Indemnitor. If the
Indemnitor notifies the Indemnified Party in the Claim Response that it
disputes the claim made by the Indemnified Party, then the Indemnitor and
the Indemnified Party shall endeavor in good faith for a period of thirty
(30) days to settle and compromise such claim, and if unable to agree on
any settlement or compromise, such claim for indemnification shall be
settled by arbitration in accordance with the provisions of Section 6.1 of
this Agreement, and any Loss established by reason of such settlement,
compromise or arbitration shall be deemed to be finally determined.
(b) Any Loss that is finally determined in the manner set forth
in Section 4.3(a) shall be paid by the Indemnitor to the Indemnified Party
within thirty (30) days after (i) the last day of the Claim Response Period
or (ii) the date on which such settlement, compromise or arbitration
described in the last sentence of Section 4.3(a) shall have been deemed to
be finally determined, as the case may be. If any Indemnitor fails to pay
all or part of any indemnification obligation when due, then such
Indemnitor shall also be obligated to pay to the applicable Indemnified
Party interest on the unpaid amount for each day during which the
obligation remains unpaid at an annual rate equal to the Prime Rate plus
two percent (2%) per annum, and the Prime Rate in effect on the first (1st)
business day of each calendar quarter shall apply to the amount of the
unpaid obligation during such calendar quarter.
4.4 Third Party Claims. An Indemnified Party that desires to seek
indemnification under any part of this Article 4 with respect to any
actions, suits or other administrative or judicial proceedings (each, an
"Action") that may be instituted by a third party shall give each
Indemnitor prompt notice of a third party's institution of such Action and
tender defense of such Action to the Indemnitor, with counsel
reasonably satisfactory to such Indemnified Party; provided, however, that such
Indemnified Party shall have the right to participate at its own expense in
the defense of such Action; and provided, further, that the Indemnitor
shall not consent to the entry of any judgment or enter into any
settlement, that (x) does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a complete
release therefrom, or (y) provides for injunctive or other non-monetary
relief affecting the Indemnified Party, except with the written consent of
such Indemnified Party (which consent shall not be unreasonably withheld,
delayed or conditioned). The Indemnified Party shall render all assistance
and cooperation to the Indemnitor (at Indemnitor's sole expense) which the
Indemnitor may request in defense of any such Action including, without
limitation, the making of witnesses and documents available for
depositions, interrogatories and court proceedings. Any failure to give
prompt notice and to tender the defense of an Action pursuant to this
Section 4.4 shall not bar an Indemnified Party's right to claim
indemnification under this Article 4, except to the extent that an
Indemnitor shall have been materially harmed by such failure.
ARTICLE 5.
Term; Termination
5.1 Effective Date and Term. The term of this Agreement ("Term") shall
be effective as of the date first above written, and shall continue until
the earlier to occur of (a) the transfer and contribution to Manager of all
of the Managed Assets pursuant to Section 5.4 below, (b) the expiration of
the term of the last to expire of the Site Leases included within the
Managed Assets, if at the time of such expiration there are no owned Tower
Sites included within the Managed Assets, or (c) termination by either
party as provided in Section 5.2.
5.2 Termination. This Agreement shall terminate upon (i) the execution
of an agreement between the parties hereto providing for the termination of
this Agreement, (ii) the dissolution of Manager pursuant to the terms and
provisions of its operating agreement, or (iii) Manager or is adjudged
bankrupt or insolvent; makes a general assignment for the benefit of its
creditors; a trustee or receiver is appointed for Manager or for any of its
property; or any voluntary petition by or on behalf of Manager is filed to
take advantage of any debtor's act or to reorganize under the bankruptcy or
similar laws. This Agreement shall terminate with respect to any Managed
Assets to the extent that such Managed Assets shall have been transferred
and contributed to Manager, or excluded from the Managed Assets, in each
case pursuant to Section 5.4 hereof.
5.3 Obligations Upon Termination. In the event that this Agreement is
terminated pursuant to this Article 3, the obligations of Manager and each
Owner pursuant to Section 2.3 and Article 4 shall survive such termination.
5.4 Transfer of Managed Assets; Exclusion of Managed Assets.
(a) At Subsequent Closings (defined below), an Owner shall transfer
and contribute to Manager and Manager shall receive from such Owner the
Managed Assets without additional consideration other than the assumption
of all liabilities related to such Managed Assets and the final settlement
of all amounts payable with respect to such Managed Assets pursuant to
Section 2.3 and Article 4 hereof. "Subsequent Closings" with respect to any
group of Managed Assets relating to a Tower Structure shall be held
promptly after (i) the waiver or lapse of any restrictions contained in any
Contract related to such Managed Assets, (ii) the completion of all
filings, (iii) the receipt of all necessary consents and approvals, in each
case to the extent necessary to permit such contribution in compliance with
all Contracts and applicable law, (iv) the delivery of Required BAM Phase I
Reports for such Managed Assets, which reports do not reveal any
Environmental Condition affecting such Managed Assets, or (v) the
completion of the work required under Section 6.1.7 of the Formation
Agreement to be performed by BAM (itself or on behalf of another Owner) to
remediate any Environmental Conditions affecting such Managed Assets, as
applicable. Each Owner shall use commercially reasonable efforts to
complete such filings and obtain such consents and approvals that relate to
such Owner's Managed Assets. Each Owner shall be responsible for paying any
fees and costs required to complete such filings and obtain such consents
and approvals that relate to such Owner's Managed Assets provided, however,
that no Owner shall be obligated to pay any fee or cost required to obtain
any such consent or approval unless the fee or cost is commercially
reasonable or expressly payable by the Owner pursuant to the provisions of
the Contract or other applicable Managed Asset. At each Subsequent Closing,
the Owner and Manager shall execute and deliver a contribution and
assignment and instrument of assumption and if applicable, a memorandum of
assignment of lease (and any other necessary instrument of transfer) with
respect to the applicable Managed Assets and all liabilities related
thereto, which shall be in substantially the forms executed and delivered
with respect to the BAM Contributed Assets at the Closing under the
Formation Agreement. With respect to all of the Managed Assets, BAM hereby
makes to Manager, as of the date of this Agreement, the representations and
warranties set forth in Section 5.1 of the Formation Agreement (except for
the representations and warranties set forth in Sections 5.1.3, 5.1.4 and
5.1.11 (with respect to only those Managed Assets for which BAM has not
obtained a Required BAM Phase I Report as of the date of this Agreement) of
the Formation Agreement), as if such Managed Assets were BAM Contributed
Assets, Tower Structures, Tower Sites, Site Leases and Contracts (as
applicable) under the representations and warranties set forth in such
Section 5.1. With respect to each of the Managed Assets, BAM shall be
deemed to make the representations and warranties set forth in Sections
5.1.3 and 5.1.4 of the Formation Agreement as of the date of the Subsequent
Closing for such Managed Assets, as if such Managed Assets were BAM
Contributed Assets under the representations and warranties set forth in
such Sections 5.1.3 and 5.1.4. With respect to each of the Managed Assets
for which BAM has not obtained a Required BAM Phase I Report as of the date
of this Agreement, BAM shall be deemed to make the representations and
warranties set forth in Sections 5.1.11 of the Formation Agreement as of
the date of the Subsequent Closing for such Managed Asset, as if such
Managed Assets were Tower Sites under the representations and warranties
set forth in such Section 5.1.11. Manager's remedies and BAM's liabilities
for any breach of such representations and warranties relating to the
Managed Assets will be the same as those set forth in the Formation
Agreement for any other breach by BAM of its representations and warranties
contained in the Formation Agreement, and for purposes of such remedies of
Manager and liabilities of BAM, BAM's representations and warranties
relating to the Managed Assets shall be deemed to be representations and
warranties of BAM set forth in the Formation Agreement and, accordingly,
subject to the provisions of Article 10 of the Formation Agreement and not
subject to the provisions of Article 4 of this Agreement. At Subsequent
Closings the Managed Assets shall be transferred and contributed without
any further representations and warranties, including without limitation
any implied warranties. The transferring and contributing Owner and Manager
shall each pay one-half of all state and local sales, documentary and other
transfer Taxes, if any, due as a result of the transfer and contribution of
each Managed Asset of such Owner that is transferred and contributed to
Manager at a Subsequent Closing.
(b) Under Section 6.1.7 of the Formation Agreement, BAM had the right
to exclude any Tower Site from the BAM Contributed Assets if a third party
estimate of the total costs and expenses
to remediate Environmental Conditions affecting such Tower Site was
$150,000 or more. With respect to any Managed Asset that is affected by
Environmental Conditions, BAM (for itself or on behalf of another Owner)
shall have the right to exclude such Managed Asset from the Managed Assets
to be transferred and contributed by the applicable Owner to Manager under
this Section 5.4, which right shall be identical to BAM's right to exclude
a Tower Site from the BAM Contributed Assets under Section 6.1.7 of the
Formation Agreement including, without limitation, subject to the same
terms and conditions as those set forth in Section 6.1.7 of the Formation
Agreement. If BAM (for itself or on behalf of another Owner) so excludes
any Managed Asset from the Managed Assets to be transferred and conveyed to
Manager under this Section 5.4, (i) such Managed Asset shall be excluded
from the Managed Assets under this Agreement and this Agreement shall
terminate with respect to such Managed Asset, and (ii) the applicable Owner
shall promptly pay to Manager an amount in cash equal to $320,000.
(c) The City of Fitchburg, Massachusetts is the lessor under the
Site Lease (the "Fitchburg Site Lease") for the Tower Site located in
Fitchburg, Massachusetts, known as BAM Project Code Number 959087 (as such
site is currently located, the "Fitchburg Tower Site"). The City of
Fitchburg has taken the position that the Fitchburg Site Lease is a month
to month lease. If the Fitchburg Site Lease is terminated (other than in
connection with a replacement site lease being entered into by the
applicable Owner or Manager covering the Fitchburg Tower Site), the
Fitchburg Site Lease and all other Tower Related Assets that are related to
the Fitchburg Site Lease or the Fitchburg Tower Site shall be excluded from
the Managed Assets under this Agreement and this Agreement shall terminate
with respect to such Managed Asset. If the Fitchburg Site Lease is
terminated (other than in connection with a replacement site lease being
entered into by the applicable Owner or Manager covering the Fitchburg
Tower Site) before March 31, 2009, the applicable Owner shall pay to
Manager an amount in cash equal to the product determined by multiplying
(i) $2,667 by (ii) the number of full calendar months remaining between the
effective date of the termination of the Fitchburg Site Lease and March 31,
2009.
5.5 Remedies of the Parties.
(a) If Manager or any Owner fails to perform any of its obligations
under this Agreement and such failure continues for thirty (30) days after
written notice from any Owner (if Manager fails to perform), or from
Manager (if an Owner fails to perform), any Owner (if Manager fails to
perform) or Manager (if an Owner fails to perform) shall have the right
(but not the duty), to perform such obligation on behalf and for the
account of the breaching party. In such event, the breaching party shall
reimburse the performing non-breaching party upon demand for all costs and
expenses incurred by the performing non-breaching party in performing such
obligations of the breaching party.
(b) Each of the Owners specifically acknowledges and agrees that the
remedy at law for any breach of the covenants contained in Section 5.4 of
this Agreement will be inadequate and that Manager, in addition to any
other relief available to it under this Agreement, shall be entitled to
seek specific performance of such covenants.
(c) In no event shall any Owner and its Affiliates, or Manager and its
Affiliates be liable to the other party hereto for any special, incidental
or consequential damages incurred by such other party and caused by or
arising out of any breach of any representation, warranty, covenant or
agreement contained in this Agreement.
ARTICLE 6.
Miscellaneous
6.1 Dispute Resolution. In the case of any dispute, controversy or
claim between or among the parties hereto related to this Agreement or the
transactions contemplated hereby or the other documents referred to herein,
except for disputes related to obtaining the equitable remedy of specific
performance, an injunction or a restraining order (a "Dispute"), the
parties will use the procedures set forth in this Section 6.1, in lieu of
any party pursuing other available remedies and as the sole remedy, to
resolve the Dispute.
(a) Submission to Arbitration. Any Dispute will be settled by
arbitration before three arbitrators in accordance with the Rules of the
American Arbitration Association ("AAA") then in effect and as modified by
this Section 6.1 or by further agreement of the parties. In addition to
what is allowed by the Rules of the AAA, discovery may be conducted
according to the Federal Rules of Civil Procedure, to be enforced by the
AAA, and if necessary, by a court having jurisdiction. Any such arbitration
will be conducted in New York, New York, unless otherwise agreed by the
Owners and Manager. The arbitrators will be selected from a panel of
persons (such as retired jurists, distinguished legal or business
professionals, and similar persons) knowledgeable in the specific areas
which may be relevant to the claim, who have had more than ten (10) years
of relevant experience in such areas, who have previously acted as
arbitrators, and who are generally held in the highest regard among
professionals in fields or businesses related or pertinent to such area.
Judgment upon the award rendered by the arbitrators may be entered pursuant
to applicable arbitration statutes.
(b) Authority of Arbitrators. The arbitrators will have no
authority to award punitive damages nor any other damages not measured by
the prevailing party's actual damages, and may not, in any event, make any
ruling, finding or award that does not conform to the terms and conditions
of this Agreement.
(c) Confidentiality. Neither the parties hereto nor the
arbitrators may disclose the existence or results of any arbitration under
this Agreement or any evidence presented during the course of the
arbitration without the prior written consent of the parties, other than by
entry of a judgment upon any arbitration award.
(d) Cost of Arbitration. The arbitrators will have the authority
to award to the prevailing party its attorneys' fees and costs incurred in
any arbitration. Absent any such award, each party will bear its own costs
incurred in the arbitration. If any party hereto refuses to submit to
arbitration any Dispute required to be submitted to arbitration pursuant to
this Section 6.1, and instead commences any other proceeding, including,
without limitation, litigation (except to the extent otherwise expressly
provided in this Agreement), then the party who seeks enforcement of the
obligation to arbitrate will be entitled to its attorneys' fees and costs
incurred in any such proceeding.
6.2 Contents of Agreement; Parties in Interest; etc. This Agreement
and the other Transaction Documents set forth the entire understanding of
the parties hereto with respect to the transactions contemplated hereby.
This Agreement shall not be amended or modified except by written
instrument duly executed by each of the parties hereto. Any and all
previous agreements and understandings between or among the parties
regarding the subject matter hereof, whether written or oral, are
superseded by this Agreement and the other Transaction Documents. Any term
or provision of this Agreement, or
any breach thereof, may be waived at any time by the party entitled to the
benefit thereof by a written instrument duly executed by such party;
provided, however, that any waiver by any party of a breach of any term or
provision of this Agreement shall not operate or be construed as a waiver
of any subsequent breach, whether or not similar, unless such waiver
specifically states that it is to be construed as a continuing waiver.
6.3 Assignment and Binding Effect. This Agreement may not be assigned
by any party hereto without the prior written consent of the other parties,
provided that (a) any party may assign this Agreement to one of its
Affiliates, (b) any party may assign or transfer this Agreement in
connection with a merger, consolidation or other business reorganization
(other than a reorganization for the benefit of creditors or a similar
proceeding under Title 11 of the United States Code, or any rules or
regulations promulgated thereunder) of such party or an Affiliate of such
party (including, without limitation, a change in control of any entity
which is the ultimate parent of the party), and (c) Manager may
collaterally assign its rights hereunder to Lender (for itself and as agent
for the other financial institutions that are parties to the Loan
Agreement), or grant a security interest in Manager's rights under this
Agreement to Lender (for itself and as agent for the other financial
institutions that are parties to the Loan Agreement), in each case to
secure the obligations owing to Lender and such financial institutions
under the Loan Agreement and related loan documents. No such assignment
shall relieve an Owner or Manager of their respective obligations
hereunder. Subject to the foregoing, all of the terms and provisions of
this Agreement shall be binding upon and inure to the benefit of and be
enforceable by the permitted successors and assigns of the Owners and
Manager. All references herein to any party shall be deemed to include any
successor to such party, including any corporate successor.
6.4 Notices. All notices, consents or other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given when delivered personally, delivery charges
prepaid, or three (3) business days after being sent by registered or
certified mail (return receipt requested), postage prepaid, or one (1)
business day after being sent by a nationally recognized express courier
service, postage or delivery charges prepaid, to the parties at their
respective addresses stated below. Notices may also be given by prepaid
telegram or facsimile and shall be effective on the date transmitted if
confirmed within twenty-four (24) hours thereafter by a signed original
sent in the manner provided in the preceding sentence. Any party may change
its address for notice and the address to which copies must be sent by
giving notice of the new address to the other parties in accordance with
this Section 6.4, except that any notice of such change of address shall
not be effective unless and until received.
(a) If to an Owner:
Name of Owner
c/x Xxxx Atlantic Mobile
000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, CFO
Fax. No.: 000-000-0000
with a required copy to:
Xxxx Atlantic Mobile
000 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Fax. No.: 000-000-0000
(b) If to Manager
Crown Atlantic Company LLC
c/o Crown Network Systems, Inc.
000 Xxxxxxxxxxx Xxxx.
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, President
Fax No.: (000) 000-0000
With required copies to:
Crown Castle International Corp.
000 Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attention: CEO and General Counsel
Fax No.: (000) 000-0000
and:
Crown Communication Inc.
USA Headquarters
Southpointe
000 Xxxxxxxxxxx Xxxx.
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx Xxxxx, President
Fax No.: (000) 000-0000
6.5 Delaware Law to Govern. This Agreement shall be governed by and
interpreted and enforced in accordance with the laws of the State of
Delaware, without regard to the principles of conflict of law thereof.
6.6 No Benefit to Others. Except as expressly provided herein, the
representations, warranties, covenants and agreements contained in this
Agreement are for the sole benefit of the parties hereto and they shall not
be construed as conferring any rights on any other persons.
6.7 Table of Contents; Headings. The table of contents and all Section
headings contained in this Agreement are for convenience of reference only,
do not form a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
6.8 Schedules and Exhibits. All Exhibits, Annexes and Schedules
referred to herein are intended to be and hereby are specifically made a
part of this Agreement.
6.9 Severability. Any provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall be ineffective to the
extent of such invalidity or unenforceability without invalidating or
rendering unenforceable the remaining provisions hereof, and any such
invalidity or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
6.10 Counterparts. This Agreement may be executed in any number of
counterparts and any party hereto may execute any such counterpart, each of
which when executed and delivered shall be deemed to be an original and all
of which counterparts taken together shall constitute but one and the same
instrument. This Agreement shall become binding when one or more
counterparts taken together shall have been executed and delivered by the
parties. It shall not be necessary in making proof of this Agreement or any
counterpart hereof to produce or account for any of the other counterparts.
6.11 Directly or Indirectly. Any provision in this Agreement referring
to action to be taken by any Person, or that such Person is prohibited from
taking, shall be applicable whether such action is taken directly or
indirectly by such Person.
6.12 Interpretation. When a reference is made in this Agreement to an
Article or Section, such reference shall be to an Article or Section of
this Agreement unless otherwise indicated. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed
to be followed by the words "without limitation." The words "hereof,"
"herein" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. Any agreement, instrument or
statute defined or referred to herein or in any agreement or instrument
that is referred to herein means such agreement, instrument or statute as
from time to time amended, modified or supplemented, including (in the case
of agreements or instruments) by waiver or consent and (in the case of
statutes) by succession of comparable successor statutes and references to
all attachments thereto and instruments incorporated therein. References to
a Person are also to its permitted successors and assigns.
6.13 Relationship. Manager shall perform its duties and obligations
hereunder as an independent contractor retained by each of the Owners. No
employee of Manager shall for any reason be deemed to be an employee of any
Owner and no employee of Manager shall be entitled to participate in or
receive any benefit or right as an employee of any Owner under any employee
benefit and welfare plan of any Owner as a result of Manager entering into
and performing this Agreement. The obligations of the Owners hereunder
shall be several and not joint. Nothing contained in this Agreement shall
be deemed to create a relationship of employer/employee, master/servant,
agency, partnership or joint venture between any of the Owners or any
person employed by them and Manager or among any of the Owners. Nothing
contained in this Agreement shall be construed as an attempt by an Owner to
assign or transfer to Manager any Contract, Governmental Permit, franchise,
claim or asset that is by its terms or by Law nonassignable without the
consent of any other Person unless such consent or approval shall have been
given, or as to which all the remedies for the enforcement thereof
available to the Owner would not by Law pass to Manager as an incident of
the arrangements provided for by this Agreement.
6.14 Further Assurances. Each of the parties hereto will cooperate
with the other and execute and deliver to the other parties hereto such
other instruments and documents and take such other actions
as may be reasonably requested from time to time by any other party hereto as
necessary to carry out, evidence and confirm the intended purposes of this
Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first above written.
CROWN ATLANTIC COMPANY, LLC
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Name: Xxxxx X. Xxxxx
Title: President
CELLCO PARTNERSHIP
By Xxxx Atlantic Mobile, Inc.
Its Managing General Partner
By: /s/ X. X. Xxxxxx
--------------------------------
Name: X. X. Xxxxxx
Title: Vice President
Network Planning and
Administration
ALLENTOWN SMSA LIMITED PARTNERSHIP
By: Xxxx Atlantic Mobile Systems
of Allentown, Inc., its managing
general partner
By: Cellco Partnership, its
managing general partner
By: Xxxx Atlantic Mobile,
Inc., its managing
general partner
By: /s/ X. X. Xxxxxx
------------------------
Name: X.X. Xxxxxx
Title: Vice President
Network Planning
and Administration
COLUMBIA CELLULAR TELEPHONE COMPANY
By: Cellco Partnership, its
managing general partner
By: Xxxx Atlantic Mobile, Inc.,
its managing general partner
By: /s/ X. X. Xxxxxx
----------------------------
Name: X.X. Xxxxxx
Title: Vice President
Network Planning and
Administration
NEW YORK SMSA LIMITED PARTNERSHIP
By: Cellco Partnership, its managing
general partner
By: Xxxx Atlantic Mobile, Inc.,
its managing general partner
By: /s/ X.X. Xxxxxx
----------------------------
Name: X.X. Xxxxxx
Title: Vice President
Network Planning and
Administration
ORANGE COUNTY-POUGHKEEPSIE MSA
LIMITED PARTNERSHIP
By: NYNEX Mobile Limited Partnership 2,
its managing general partner
By: Cellco Partnership, its
managing general partner
By: Xxxx Atlantic Mobile, Inc.,
its managing general partner
By: /s/ X. X. Xxxxxx
------------------------
Name: X.X. Xxxxxx
Title: Vice President
Network Planning
and Administration
WASHINGTON, DC SMSA LIMITED PARTNERSHIP
By: Cellco Partnership, its managing
general partner
By: Xxxx Atlantic Mobile, Inc.,
its managing general partner
By: /s/ X.X. Xxxxxx
----------------------------
Name: X.X. Xxxxxx
Title: Vice President
Network Planning and
Administration
