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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): November 7, 1999
Crown Castle International Corp.
(Exact Name of Registrant as Specified in its Charter)
Delaware 0-24737 76-0470458
(State or Other (Commission File (IRS Employer
Jurisdiction of Number) Identification
Incorporation) Number)
510 Bering Drive
Suite 500
Houston, TX 77057
(Address of Principal Executive Office)
Registrant's telephone number, including area code: (713) 570-3000
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<PAGE>
This document includes "forward-looking" statements within the meaning
of Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934. Other than statements of historical fact, all statements
regarding industry prospects, the completion of the transactions described in
this document and the expectations of the Company (as defined below) regarding
the future performance of its businesses and its financial position are
forward-looking statements. These forward looking statements are subject to
numerous risks and uncertainties.
Capitalized terms used but not defined herein shall have the meaning
assigned thereto in the Company's Registration Statement on Form S-3 (Reg. No.
333-83395), as amended and as supplemented by a prospectus supplement dated
August 5, 1999.
Item 5. Other Events
Crown Castle International Corp. ("CCIC" or the "Company") announced
that on November 7, 1999 it entered into an agreement (the "Formation
Agreement") with GTE Wireless Incorporated ("GTE Wireless") and certain
affiliates of GTE Wireless to form a joint venture (the "Joint Venture") to
own and operate a significant majority of the wireless communications towers
of GTE Wireless, valued at approximately $900 million. The Joint Venture will
be structured as three multi-tiered limited liability companies: (1) Crown
Castle GT Holding Company LLC ("Holdings"), (2) Crown Castle GT Holding Sub
Company LLC ("Holding Sub") and (3) Crown Castle GT Company LLC ("OpCo"). Upon
completion of the closings described below, it is expected that CCIC will own
approximately 75% of Holdings, and GTE Wireless and its affiliates will own
the remaining 25% . Holdings will in turn own 100% of Holding Sub, and Holding
Sub will own 99.999% of OpCo. The remaining 0.001% interest in OpCo will be
owned by GTE Wireless. The day-to-day operations of the Joint Venture will be
managed by CCIC. For financial reporting purposes, CCIC intends to consolidate
the Joint Venture's results of operations and financial condition with its
own.
The Formation Agreement contemplates multiple closings. At each
closing, affiliates of GTE Wireless will contribute to the Joint Venture
assets and liabilities relating to wireless communications towers, and CCIC
will contribute cash in exchange for interests in Holdings. The amount of
assets and liabilities contributed at a particular closing will depend on
whether GTE Wireless has obtained a sufficient amount of the requisite
consents for the transfer of towers grouped in geographic areas in accordance
with the Formation Agreement. The amount of cash to be contributed by CCIC at
a particular closing will in turn depend on the number of towers being
transferred at such closing. It is currently contemplated that up to 2,322
towers will be transferred . If all such towers are transferred, CCIC will
ultimately be required to contribute up to approximately $825 million to the
Joint Venture. Of this amount, $25 million will be retained by the Joint
Venture for working capital, all of which working capital contribution will be
made on the initial closing. The balance of CCIC's cash contribution will be
distributed to GTE Wireless. Following the contribution of 895 towers, up to
$100 million of CCIC's required contribution may be in the form of CCIC common
stock, valued at $18.655 per share. In addition, Holding Sub may borrow up to
$200 million of indebtedness, subject to certain limitations, which borrowing
will reduce CCIC's contribution requirement. Proceeds of any such borrowing
will be distributed to GTE Wireless. The initial closing is not expected to
occur prior to January 15, 2000, and the second closing is not expected to
occur prior to March 31, 2000. Additional towers above 2,322 will cause an
adjustment in GTE Wireless's and CCIC's interest in Holdings
<PAGE>
in accordance with the Formation Agreement; however, in no event will the
contribution of additional towers result in CCIC's interest in the Joint
Venture falling below 50.1%.
In connection with the execution of the Formation Agreement, CCIC and
GTE Wireless entered into an Escrow Agreement dated November 7, 1999 (the
"Escrow Agreement") with Citibank, N.A., as escrow agent (the "Escrow Agent").
Pursuant to the Escrow Agreement, CCIC deposited $50 million on November 8,
1999 in an account with the Escrow Agent. In the event that any closing does
not occur as a result of CCIC's failure to deliver sufficient funds for such
closing, GTE Wireless may unilaterally terminate the Formation Agreement
following a 30-day cure period. Upon such termination, GTE Wireless will be
entitled to instruct the Escrow Agent to deliver the entire amount of proceeds
held by the Escrow Agent to it as a termination fee.
In connection with its contribution of assets and liabilities to the
Joint Venture, GTE Wireless is making certain representations and warranties
concerning the contributed assets and liabilities, breaches of which will in
general be indemnifiable by GTE Wireless until June 30, 2001. However, GTE
Wireless's indemnification obligations are subject to a number of significant
limitations including a per occurrence deductible of $25,000, an aggregate
deductible of $12 million and an absolute cap of $310 million.
The formation of the Joint Venture and each closing is subject to a
number of significant conditions. These conditions include, but are not
limited to:
o accuracy of the representations and warranties of GTE Wireless
and the Company;
o compliance with the Formation Agreement;
o absence of threatened or pending litigation in connection with
the Formation Agreement;
o receipt of regulatory approvals and third party consents; and
o receipt of certain environmental studies.
The obtaining of financing is not a condition to any closing. Although
the Joint Venture is expected to be formed during the first quarter of 2000,
and all the closings are expected to occur during 2000, each of the closings
under the Formation Agreement is subject to a number of significant
conditions. There can be no assurance that any of the closings will occur.
Concurrently with the formation of the Joint Venture, GTE Wireless and
OpCo will enter into a master build-to-suit agreement (the "Build-to-Suit
Agreement"). Pursuant to the Build-to-Suit Agreement and subject to certain
conditions, GTE Wireless and OpCo have agreed that the next 500 towers to be
built for GTE Wireless's wireless communications business will be constructed
and owned by OpCo. GTE Wireless is required to submit these 500 site proposals
to OpCo during the five-year period following the formation of the Joint
Venture; however, the five-year period will be extended for additional
one-year periods, until 500 site proposals are submitted to OpCo. OpCo will be
required to build towers in the general vicinity of the locations proposed by
GTE Wireless. Upon completion of a tower, it will become subject to the Global
Lease as described below. Space not leased by GTE Wireless or its affiliates
on each tower is available for lease by OpCo to third parties. The obligations
with respect to the 500 tower sites under the Build-to-Suit can be satisfied
by CCIC in several ways, including
<PAGE>
by completing build-to-suit towers in excess of 700 for Bell Atlantic Mobil
and by leasing future CCIC towers to GTE Wireless.
In addition, concurrently with the formation of the Joint Venture, GTE
Wireless and OpCo will enter into a global lease (the "Global Lease"). All of
the approximately 2,322 towers to be acquired by the Joint Venture from GTE
Wireless and its affiliates pursuant to the Formation Agreement, and all
towers constructed by OpCo pursuant to the Build-to-Suit Agreement, will be
governed by the Global Lease. The average monthly rent on the 2,322 towers
contributed to the Joint Venture by GTE Wireless will be approximately $1,400,
subject to adjustments specified in the Global Lease, including a 4% per year
increase for the initial 10 year period. For all sites, the initial lease term
is 10 years. GTE Wireless has the right to extend any lease for four
additional five-year terms. Space not leased by GTE or its affiliates on each
tower is available for lease by OpCo to third parties. The parties may also
enter services agreements to ensure a smooth transition of the business to the
Joint Venture.
In connection with the formation of the Joint Venture, limited
liability company operating agreements will be established that govern the
limited liability companies comprising the Joint Venture. The business and
affairs of the Joint Venture will be managed by its managers under the
supervision of a board of representatives. Members of the board of
representatives will be selected by each of GTE Wireless and CCIC generally in
proportion to their ownership interests. The managers will operate the Joint
Venture on a day-to-day basis. In general, the managers will have the power
and authority to take all necessary or appropriate actions to conduct the
Joint Venture's business in accordance with its then current business plan.
Actions requiring the approval of the board of representatives generally will
be authorized upon the affirmative vote of a majority of the members of the
board of representatives. However, the following actions, among others, will
require the mutual consent of GTE Wireless and CCIC (or their respective
affiliates):
o entry into contracts that (1) restrict the business activities
of the Joint Venture in any geographic area, (2) contain
exclusivity provisions, (3) are inconsistent with any of the
agreements entered into in connection with the formation of
the Joint Venture or (4) provide for the purchase or sale of
goods or services involving an amount in excess of $10.0
million per year;
o engaging in any business, other than owning, acquiring,
constructing, leasing and operating communications towers, or
the making of any investment in, or the acquisition of any
equity securities of, any person;
o taking any voluntary action that would cause the Joint Venture
to be insolvent or voluntarily entering into a bankruptcy
proceeding;
o the Joint Venture directly or indirectly, remaining liable,
creating, incurring, assuming, guaranteeing or otherwise
becoming or remaining liable with respect to any indebtedness,
except for the indebtedness of Holding Sub described above;
<PAGE>
o incurring any liens, except for liens securing the
indebtedness of Holding Sub described above;
o issuing any additional equity interests in the Joint Venture;
o mergers or consolidations;
o sales of assets outside the ordinary course;
o entry into contracts with affiliates except in the ordinary
course and on an arm's-length basis; and
o approval of the business plan.
Except for transfers to affiliates in accordance with the Formation
Agreement, neither GTE Wireless nor CCIC may transfer its interest in Holdings
to a third party unless it first offers its interest to the other on terms and
conditions, including price, no less favorable than the terms and conditions
on which it proposes to sell its interest to the third party. In addition, if
GTE Wireless or CCIC wishes to transfer its interest in Holdings to a third
party, the other party will have the right to require the third party, as a
condition to the sale, to purchase a proportionate share of its interest in
Holdings on the same terms and conditions, including price.
GTE Wireless and CCIC have agreed that upon a dissolution of Holdings,
in satisfaction of their respective interests, CCIC will receive all the
assets and liabilities of Holdings, other than any shares of CCIC common stock
held by Holdings that were contributed by CCIC as part of its contribution
described above, all of which would be distributed to GTE Wireless. In
exchange, CCIC will pay to GTE Wireless the fair market value of GTE
Wireless's interests in Holdings transferred to CCIC. A dissolution of
Holdings may be triggered (1) by GTE Wireless at any time following the third
anniversary of the formation of Holdings and (2) by CCIC at any time following
the fourth anniversary of its formation. GTE Wireless would continue to retain
its 0.001% interest in OpCo. For so long as it retains such interest, the
operations of OpCo will remain subject to the operating restrictions described
above.
GTE Wireless and CCIC also entered into a letter agreement dated
November 7, 1999 (the "Future Towers Letter Agreement"), whereby GTE Wireless
(or its affiliates) has the right to contribute additional towers on terms
substantially similar to the Formation Agreement. These additional towers are
either (1) currently owned towers not contributed pursuant to the Formation
Agreement (the "Currently Owned Towers"), (2) towers subsequently acquired in
cellular or PCS markets east of the Mississippi River (the "Subsequently
Acquired Towers") or (3) towers acquired by GTE Wireless recently from
Ameritech Corp. (the "Ameritech Towers"). Conversely, OpCo also has the right
to require the Ameritech Towers to be contributed by GTE Wireless to OpCo in a
manner that is substantively identical to GTE Wireless's right to contribute
the Ameritech Towers described above.
Consideration paid for these additional towers will be in the form of
cash and additional ownership interests for GTE Wireless in Holdings in the
proportions specified under the Formation Agreement. The Ameritech Towers are
limited to no more than 600
<PAGE>
towers, and the consideration per tower is $390,000. The Currently Owned
Towers and the Subsequently Acquired Towers are limited to 100 towers in any
twelve month period, and the consideration is $275,000 per tower. The rights
of CCIC and GTE Wireless with respect to the Ameritech Towers must be
exercised no later than May 1, 2000 with a definitive agreement to be entered
into no later than June 30, 2000. The Future Towers Letter Agreement
terminates, with respect to the Currently Owned Towers and the Subsequently
Acquired Towers, 18 months after the final closing under the Formation
Agreement. All of these towers are subject to the Global Lease.
A copy of the press release issued by CCIC and GTE on November 8, 1999
with respect to the Joint Venture is attached hereto as Exhibit 99.1 and is
incorporated herein by reference. A copy of the Formation Agreement and the
Future Towers Letter Agreement are also attached hereto as Exhibit 99.2 and
99.3, respectively, and are incorporated herein by reference.
Item 7. Financial Statements and Exhibits
(a) Financial statements of business acquired.
- Not applicable
(b) Pro forma financial information
<PAGE>
- Not applicable
(c) Exhibits
Exhibit No. Description
99.1 Press Release dated November 8, 1999
99.2 Formation Agreement dated November 7,
1999 relating to the formation of
Crown Castle GT Company LLC, Crown
Castle GT Holding Sub LLC, and Crown
Castle GT Holding Company LLC.
99.3 Letter Agreement dated November 7,
1999 re: Future Tower Contributions.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Crown Castle International Corp.,
By: /s/ E. Blake Hawk
--------------------------
Name: E. Blake Hawk
Title: Executive Vice President and
General Counsel
Date: November 12, 1999
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
99.1 Press Release dated November 8, 1999
99.2 Formation Agreement dated November 7, 1999 relating to the
formation of Crown Castle GT Company LLC, Crown Castle GT
Holding Sub LLC, and Crown Castle GT Holding Company LLC.
99.3 Letter Agreement dated November 7, 1999 re: Future Tower
Contributions.
Exhitit 99.1
NEWS RELEASE
Contacts:
For: GTE Corporation
FOR IMMEDIATE RELEASE Nancy Bavec
972-507-6913/
[email protected]
For: Crown Castle
International Corp.
Ken Dennard, Easterly
Investor Relations
713-529-6600/
[email protected]
GTE AND CROWN CASTLE INTERNATIONAL PARTNER
IN WORLD'S LARGEST TOWER TRANSACTION
More than 2,300 Towers, $900 Million Involved
NOVEMBER 8, 1999 - IRVING & HOUSTON, TEXAS - GTE Corporation (NYSE:GTE) and
Crown Castle International Corp. (NASDAQ:TWRS) have agreed to form a joint
venture company which will be majority controlled and operated by Crown
Castle. The new company will own, operate, and actively advance the leasing of
space on GTE's existing network of communications towers. In addition, Crown
Castle and GTE have agreed to enter into a five year, 500 tower build-to-suit
agreement.
The transaction, in which GTE will contribute real estate and
associated integral equipment, including approximately 2,300 existing towers,
is valued at approximately $900 million. Crown Castle will own at least
approximately 75 percent and GTE will own up to approximately 25 percent of
the new joint venture company. Crown Castle
<PAGE>
will contribute cash and up to $100 million in Crown Castle common stock to
the joint venture.
While Crown Castle will have complete responsibility for leasing,
monitoring and maintaining the towers, GTE will continue to fully own its
communications components including switching equipment, shelters and cell
site facilities. GTE will pay a leasing fee of $1,400 per month per tower to
the joint venture for its services and space on existing and build-to-suit
towers.
Crown Castle and GTE have also agreed that the Ameritech Cellular
towers recently acquired by GTE could eventually become part of the joint
venture on substantially the same terms as the existing GTE towers. GTE can
also contribute to the joint venture up to 150 additional towers valued at
$275,000 per tower over 18 months from the final closing.
"The formation of this joint venture allows us to focus more of our
resources on customer service and adding new products, building upon the
success of our GTE Choice(sm) wireless calling plans," said Mark Feighner,
president of GTE Wireless. "Crown Castle is a premier independent wireless
infrastructure company and will manage our growing network of towers with the
same high standards we require of ourselves. Their leasing prowess is
evidenced by recently announced master lease agreements with Nextel and
Metricom, and offers us an opportunity to more economically increase coverage
and capacity in our markets."
"Integrating GTE's tower clusters into our extensive tower network
expands our market leadership position to
<PAGE>
include 32 of the top 50 US markets," stated Ted B. Miller, Jr., Crown Castle
Chairman and CEO. "With this transaction, we now have approximately 8,000
towers in the US and approximately 2,000 towers in the UK to deliver turnkey
wireless infrastructure service in some of the most desirable wireless markets
in the US and UK. The result is that wireless providers now have the
opportunity to deploy their networks on towers that were not heretofore
readily available to them. Co-location availability on these outsourced tower
networks enables rapid deployment and more efficient capital allocation for
wireless carriers. The result is more robust coverage and network capacity to
support increased subscriber demand."
With 1998 revenue of more than $25 billion, GTE is a leading
telecommunications provider with one of the industry's broadest arrays of
product and services. In the United States, GTE provides local service in 28
states and wireless service in 18 states, as well as nationwide long-distance,
directory, and internetworking services ranging from dial-up Internet access
for residential and small business consumers to Web-based applications for
Fortune 500 companies. Outside the United States, the company serves customers
on five continents. Additional information about GTE can be obtained on the
Web at: www:gte.com.
Crown Castle International Corp. is a leading provider of
communication sites and wireless network services and provides an array of
related infrastructure and network support services to the wireless
communications and radio and television broadcasting industries in the United
States and United Kingdom. Pro forma for all closed and previously announced
transactions, Crown Castle International owns, operates and manages
approximately 10,000 wireless communication towers internationally. For more
information on Crown Castle International, visit: www.crowncastle.com.
This press release contains various forward-looking statements and information
that are based on management's belief as well as assumption made by and
information currently available to management. Although management believes
that the expectations reflected in such forward-looking statements are
reasonable, it can give no assurance that such expectations will prove to have
been correct. Such statements are subject
<PAGE>
to certain risks, uncertainties and assumptions. Should one or more of these
risks materialize, or should underlying assumptions prove incorrect, actual
results may vary materially from these expected.
Exhibit 99.2
FORMATION AGREEMENT
relating to the formation of
CROWN CASTLE GT COMPANY LLC,
CROWN CASTLE GT HOLDING SUB LLC, and
CROWN CASTLE GT HOLDING COMPANY LLC
Dated: November 7, 1999
<PAGE>
FORMATION AGREEMENT
Table of Contents
Page
ARTICLE 1 - CERTAIN DEFINITIONS...........................................
ARTICLE 2 - FORMATION OF HOLDCO SUB AND HOLDCO, INCURRED DEBT.............
3.1 Purpose of HoldCo and HoldCo Sub..............................
2.2 Formation of HoldCo; Issuances of Membership Interests in
HoldCo........................................................
2.3 Formation of HoldCo Sub.......................................
2.4 Management Agreement..........................................
2.5 Contributions to HoldCo Sub; Issuances of Membership
Interests in HoldCo Sub.......................................
2.6 Contributed Cash Distributions................................
2.7 Financing.....................................................
ARTICLE 2A - CONTRIBUTIONS TO HOLDCO......................................
2A.1 Contribution of Thrasher Contributed Assets...................
2A.2 Excluded Assets...............................................
2A.3 Assumption of Thrasher Assumed Liabilities....................
2A.4 Limitations on Assumption of Liabilities......................
2A.5 Assignment or Subcontracting of Purchased Contracts...........
2A.6 Consent of Third Parties......................................
2A.7 Bulk Transfer Laws............................................
2A.8 Certain Apportionments........................................
2A.9 Contribution of Bidder Contributed Cash and Bidder
Contributed Shares............................................
2A.10 Adjustments Based Upon Transfer of More than 2,322 Tower
Structures....................................................
2A.11 Adjustments Based Upon Revenue Run Rate of
Towers in a Tranche...........................................
2A.12 Method of Contributing Thrasher Contributed
Assets and Thrasher Assumed Liabilities.......................
ARTICLE 3 - FORMATION OF OPCO.............................................
3.1 Purpose of OpCo...............................................
3.2 Formation of OpCo.............................................
3.3 Contributions to OpCo; Issuances of Membership
Interests in OpCo.............................................
3.4 Global Lease Agreement........................................
3.5 Build-to-Suit Agreement.......................................
3.6 Bidder Services Agreement.....................................
3.7 Transitional Services Agreement...............................
<PAGE>
Page
ARTICLE 4 - CLOSINGS......................................................
4.1 Closings......................................................
4.2 Items to Be Delivered and Actions to Be Taken
at each Closing...............................................
4.2 Additional Items to Be Delivered and Actions
to Be Taken at Initial Closing................................
4.4 Further Assurances............................................
ARTICLE 5 - REPRESENTATIONS AND WARRANTIES................................
5.1 Representations and Warranties of Thrasher....................
5.1.1 Corporate............................................
5.1.2 Authorization........................................
5.1.3 Consents and Approvals...............................
5.1.4 Title to and Condition of Assets and
Related Matters......................................
5.1.5 Real Property........................................
5.1.6 Legal Proceedings and Compliance with Law............
5.1.7 Governmental Permits.................................
5.1.8 Contracts............................................
5.1.9 Environmental Matters................................
5.1.10 Absence of Certain Changes or Events.................
5.1.11 Availability of Documents............................
5.1.12 Purchase for Investment..............................
5.1.13 Broker or Finder.....................................
5.1.14 No Other Warranties..................................
5.1A. Representations and Warranties of
Transferring Corporations............................
5.1A.1 Corporate............................................
5.1A.2 Authorization........................................
5.1A.3 Consents and Approvals...............................
5.2 Representations and Warranties of Transferring Partnerships...
5.2.1 Partnership..........................................
5.2.2 Authorization........................................
5.2.3 Consents and Approvals...............................
5.3 Representations and Warranties of Bidder and Bidder Member....
5.3.1 Corporate............................................
5.3.2 Authorization........................................
5.3.3 Consents and Approvals...............................
5.3.4 Broker or Finder.....................................
5.3.5 Capital Stock........................................
5.3.6 SEC Reports..........................................
5.3.7 Absence of Certain Changes...........................
5.3.8 Bidder Articles and Bylaws...........................
5.3.9 Threatened or Pending Litigation.....................
<PAGE>
Page
5.3.10 No Impact of Bidder Agreements on OpCo, HoldCo oN
HoldCo Sub...........................................
5.3.11 Bidder Contributed Shares............................
5.3.12 Share Ownership Limitations..........................
5.3.13 Funds Available to Consummate Closings...............
5.3.14 Purchase for Investment..............................
5.3.15 Rights Agreement Amendment...........................
5.3.16 No Other Representations or Warranties...............
ARTICLE 6 - AGREEMENTS PENDING CLOSINGS...................................
6.1 Agreements of Thrasher Pending the Closings...................
6.1.1 Business in the Ordinary Course......................
6.1.2 Updates to Disclosure Memoranda......................
6.1.3 Conduct of Business..................................
6.1.4 Sale and Exclusion of Assets; Negotiations...........
6.1.5 Access...............................................
6.1.6 Press Releases.......................................
6.1.7 Required Thrasher Phase I Environmental Reports......
6.1.8 Environmental Information............................
6.2 Agreements of Bidder and Bidder Member Pending the Closings...
6.2.1 Updates to Disclosure Memorandum.....................
6.2.2 Conduct of Business..................................
6.2.3 Access...............................................
6.2.4 Press Releases.......................................
6.2.5 Optional Bidder Phase I Environmental Reports........
6.2.6 Registration Rights..................................
6.3 Approvals and Consents and Regulatory Filings.................
ARTICLE 7 - CONDITIONS PRECEDENT TO THE CLOSINGS..........................
7.1 Conditions Precedent to Thrasher's Obligations................
7.1.1 Representations and Warranties.......................
7.1.2 Compliance with this Agreement.......................
7.1.3 Closing Certificate..................................
7.1.4 No Threatened or Pending Litigation..................
7.1.5 Consents and Approvals...............................
7.1.6 Optional Bidder Phase I Reports......................
7.1.7 Fundamental Transactions.............................
7.1.8 Bidder Services Agreement............................
7.1.9 Management Agreement.................................
7.1.10 Transitional Services Agreement......................
7.1.11 Registration Rights Agreement........................
7.2 Conditions Precedent to the Obligations of Bidder.............
<PAGE>
Page
7.2.1 Representations and Warranties.......................
7.2.2 Compliance with this Agreement.......................
7.2.3 Closing Certificate..................................
7.2.4 No Threatened or Pending Litigation..................
7.2.5 Consents and Approvals...............................
7.2.6 Required Thrasher Phase I Reports....................
7.2.7 Bidder Services Agreement............................
7.2.8 Management Agreement.................................
7.2.9 Transitional Services Agreement......................
ARTICLE 8 - CERTAIN POST-CLOSING COVENANTS OF THE PARTIES.................
8.1 Post-Closing Covenants Related to OpCo........................
8.1.1 Conduct of Business..................................
8.1.2 Solvency.............................................
8.1.3 Bankruptcy...........................................
8.1.4 Indebtedness.........................................
8.1.5 Liens................................................
8.1.6 Issuance of Interests................................
8.1.7 Contingent Obligations...............................
8.1.8 Preservation of Existence............................
8.1.9 Merger or Sale of Assets.............................
8.1.10 Dealings with Affiliates.............................
8.1.11 Dividends; Distributions.............................
8.2 Post-Closing Covenants Related to HoldCo, HoldCo Sub and
OpCo..........................................................
8.2.1 Conduct of Business..................................
8.2.2 Use of Proceeds......................................
8.2.3 Solvency.............................................
8.2.4 Bankruptcy...........................................
8.2.5 Indebtedness.........................................
8.2.6 Liens................................................
8.2.7 Contingent Obligations...............................
8.2.8 Issuance of Interests................................
8.2.9 Preservation of Existence............................
8.2.10 Merger or Sale of Assets.............................
8.2.11 Dealings with Affiliates.............................
8.2.12 Business Plan and Annual Budget......................
8.2.13 Certain Contracts....................................
8.2.14 Action as Members of HoldCo Sub......................
8.2.15 Excess Cash Distributions............................
8.2.16 Voting of Bidder Contributed Shares..................
8.2.17 Ownership in HoldCo..................................
<PAGE>
Page
8.3 Delivery of Financial Statements..............................
8.4 HoldCo, HoldCo Sub and OpCo Boards of Representatives.........
8.5 Covenants Are For Benefit of Members..........................
8.6 Revenues Receivable under Certain Third Party Leases..........
ARTICLE 9 - CERTAIN ANCILLARY ARRANGEMENTS OF THE PARTIES.................
9.1 Restriction on Sales by Bidder................................
9.2 Restriction on Sales by Thrasher Members......................
9.3 Thrasher Right of First Refusal...............................
9.4 Bidder Member's Right of First Refusal........................
9.5 Right of Participation in Sales...............................
9.6 Transfer of Thrasher Retained Interest........................
9.7 Specific Performance..........................................
ARTICLE 10 - INDEMNIFICATION..............................................
10.1 Indemnification by Thrasher...................................
10.2 Indemnification by Bidder.....................................
10.3 Indemnification by OpCo.......................................
10.4 Indemnification by Bidder Member..............................
10.5 Procedure for Claims..........................................
10.6 Certain Limitations...........................................
10.7 Non-Third Party Claims........................................
10.8 Claims Period.................................................
10.9 Third Party Claims............................................
10.10 Effect of Investigation or Knowledge..........................
10.11 Losses Net of Insurance, Etc..................................
10.12 Sole Remedies.................................................
ARTICLE 11 - MISCELLANEOUS................................................
11.1 Dispute Resolution...........................................
11.1.1 Submission to Arbitration............................
11.1.2 Authority of Arbitrators.............................
11.1.3 Confidentiality......................................
11.1.4 Cost of Arbitration..................................
11.2 Bidder's Reasonable Best Efforts Regarding Bidder Member's
Performance..................................................
11.3 Survival of Representations and Warranties...................
11.4 Transfer Taxes; Asset Transfers..............................
11.5 Termination..................................................
11.5A Termination Fee and Other Remedies...........................
11.6 Expenses.....................................................
11.7 Contents of Agreement; Parties in Interest; etc..............
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Page
11.8 Assignment and Binding Effect................................
11.9 Notices......................................................
11.10 Tax Reporting................................................
11.11 Delaware Law to Govern.......................................
11.12 No Benefit to Others.........................................
11.13 Table of Contents; Headings.................................
11.14 Exhibits and Annexes.........................................
11.15 Severability.................................................
11.16 Counterparts.................................................
11.17 Force Majeure................................................
11.18 Directly or Indirectly.......................................
11.19 Interpretation
<PAGE>
Page
CROWN CASTLE GT COMPANY LLC
CROWN CASTLE GT HOLDING SUB LLC
CROWN CASTLE GT HOLDING COMPANY LLC
FORMATION AGREEMENT
EXHIBITS:
Exhibit A Transferring Partnerships and Transferring Corporations
Exhibit A-1 Apportionments of Interests of Thrasher and Transferring
Entities
Exhibit B Form of Joinder - Transferring Corporations
Exhibit B-1 Form of Joinder - Transferring Partnerships
Exhibit C Sample Calculations
Exhibit 2.2 HoldCo Operating Agreement
Exhibit 2.3 HoldCo Sub Operating Agreement
Exhibit 2.4 Management Agreement
Exhibit 2.7 Parameters of Allowable HoldCo Sub Financing
Exhibit 3.2 OpCo Operating Agreement
Exhibit 3.4 Global Lease
Exhibit 3.5 Build-to-Suit Agreement
Exhibit 3.6 Bidder Services Agreement
Exhibit 3.7 Transitional Services Agreement
Exhibit 7.1.11 Registration Rights Agreement
ANNEXES:
Annex I Owned Sites and Leased Sites
Annex II Site Leases
Annex III Tower Leases
<PAGE>
CROWN CASTLE GT COMPANY LLC
CROWN CASTLE GT HOLDING SUB LLC
CROWN CASTLE GT HOLDING COMPANY LLC
FORMATION AGREEMENT
FORMATION AGREEMENT (the "Agreement") dated as of November 7, 1999, by
and among GTE Wireless Incorporated, a Delaware corporation ("Thrasher"), the
Transferring Partnerships (hereinafter defined), the Transferring Corporations
(hereinafter defined), Crown Castle International Corp., a Delaware
corporation ("Bidder"), and Crown Castle GT Corp., a Delaware corporation
("Bidder Member").
PREAMBLE
The Transferring Entities (hereinafter defined) are the owners of
certain tower structures, interests in real property related thereto, and
related assets, property rights, liabilities and obligations (hereinafter
defined as Thrasher Contributed Assets and Thrasher Assumed Liabilities).
Bidder is engaged in the business of owning, managing and operating assets
similar to the Thrasher Contributed Assets. In a series of Closings
(hereinafter defined), subject to the terms and conditions of this Agreement
(including the receipt or waiver of all necessary approvals and consents),
Thrasher, the Transferring Entities, Bidder and Bidder Member desire to: (a)
cause the Transferring Entities to contribute Tranches (hereinafter defined)
of the Thrasher Contributed Assets and Thrasher Assumed Liabilities to a newly
organized Delaware limited liability company named Crown Castle GT Holding
Company LLC ("HoldCo") in exchange for membership interests in HoldCo, (b)
cause Bidder Member to contribute the Bidder Contributed Cash (hereinafter
defined) to HoldCo and the Bidder Contributed Shares (hereinafter defined), if
applicable, to HoldCo in exchange for membership interests in HoldCo; and (c)
cause HoldCo to contribute through HoldCo Sub (hereinafter defined) the
Thrasher Contributed Assets and the Thrasher Assumed Liabilities to a newly
organized Delaware limited liability company named Crown Castle GT Company LLC
("OpCo").
At the Initial Closing (hereinafter defined), Thrasher, the
Transferring Entities, Bidder and Bidder Member desire to: (i) cause the
Transferring Entities to contribute Thrasher Contributed Assets and Thrasher
Assumed Liabilities to HoldCo in exchange for HoldCo membership interests
determined in accordance with this Agreement, which Bidder Contributed Cash
will be immediately distributed to the Transferring Entities; (ii)
simultaneously with the contribution described in clause (i), cause Bidder
Member to contribute the Bidder Contributed Cash to HoldCo in exchange for
HoldCo membership interests determined in accordance with this Agreement;
(iii) immediately thereafter,
<PAGE>
HoldCo will contribute to a newly organized Delaware limited liability company
called Crown Castle GT Holding Sub LLC ("HoldCo Sub") all of the Thrasher
Contributed Assets and Thrasher Assumed Liabilities and the Working Capital
Contribution in exchange for a 100% membership interest in HoldCo Sub; (iv)
thereafter, HoldCo Sub will contribute to OpCo all of the Thrasher Contributed
Assets and Thrasher Assumed Liabilities and the Working Capital Contribution
in exchange for a 99.999% membership interest in OpCo; (v) simultaneously with
the contribution described in clause (iv), cause Thrasher Member to contribute
$9,300 in exchange for the Thrasher Retained Interest (hereinafter defined);
(vi) cause OpCo and Thrasher and each of the Transferring Entities to enter
into the Global Lease (hereinafter defined) pursuant to which Thrasher (or its
affiliates) will lease capacity on the tower structures transferred pursuant
to this Agreement; (vii) cause OpCo and Thrasher to enter into the
Build-to-Suit Agreement (hereinafter defined) for the construction and
operation of additional tower structures upon which Thrasher (or its
affiliates) will lease capacity; (viii) cause HoldCo Sub and OpCo to enter
into the Management Agreement (hereinafter defined) pursuant to which HoldCo
Sub will provide certain services to and on behalf of OpCo; (ix) cause OpCo,
HoldCo Sub and Thrasher to enter into a Transitional Services Agreement
(hereinafter defined), if Thrasher and Bidder determine that such an agreement
should be entered into, pursuant to which Thrasher will offer to OpCo certain
transitional services; and (x) cause Bidder, HoldCo Sub and OpCo to enter into
a Bidder Services Agreement (hereinafter defined) pursuant to which Bidder
will offer to OpCo and HoldCo Sub certain services with respect to the tower
structures owned by OpCo.
At each subsequent Closing, Thrasher, the Transferring Entities,
Bidder and Bidder Member desire to repeat, as applicable, the actions set
forth in clauses (i) through (iv) above to reflect the contributions by the
Transferring Entities and Bidder Member to HoldCo with respect to each Tranche
in the manner contemplated by this Agreement.
To the extent Bidder and Bidder Member elect to cause HoldCo Sub to
incur Incurred Debt (hereinafter defined) to fund, in whole or in part, one or
more Closings after the formation of OpCo, HoldCo Sub and HoldCo, then an
amount equal to such Incurred Debt shall be distributed to HoldCo at each such
Closing, which will then immediately distribute such amount to the
Transferring Entities.
The parties hereto desire to provide in this Agreement for the terms
and conditions under which Thrasher, the Transferring Entities and Bidder
Member will contribute the Thrasher Contributed Assets and the Thrasher
Assumed Liabilities and the Bidder Contributed Cash and, if applicable, the
Bidder Contributed Shares, respectively, and OpCo, HoldCo Sub and HoldCo will
be organized and operated. For convenience purposes, the transfer of Thrasher
Contributed Assets and Thrasher Assumed Liabilities shall be effected in each
instance as a transfer of legal title by the Transferring Entities directly to
OpCo.
<PAGE>
NOW, THEREFORE, in consideration of the Preamble and the terms,
conditions, representations, warranties, covenants, agreements and provisions
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
For convenience, certain terms used in this Agreement or any Exhibit
or Annex or Transaction Document are listed in alphabetical order and defined
or referred to below (such terms as well as any other terms defined elsewhere
in this Agreement shall be equally applicable to both the singular and plural
forms of the terms defined). The term 'either party' shall, unless the context
otherwise requires, refer to Thrasher and any of its Affiliates that are
parties to this Agreement, on the one hand, and Bidder and any of its
Affiliates that are parties to this Agreement, on the other hand.
"AAA" is defined in Section 11.1.1.
"Accounting Firm" is defined in Section 2A.8.
"Action" is defined in Section 10.9.
"Actual Third Party Rents" is defined in Section 2A.11(a).
"Additional Consideration" is defined in Section 2A.10(a).
"Additional Tower Structures" is defined in Section 2A.10(a).
"Adjusted Third Party Rent Commitment" is defined in Section 2A.11(b).
"Affiliates" means, with respect to any Person, any Persons
controlling, controlled by or under common control with that Person, as well
as any executive officers, directors and majority-owned entities of that
Person or its other Affiliates.
"Agreement" means this Agreement and the Exhibits and Annexes hereto,
as any of the foregoing may, from time to time, be amended, modified or
restated in accordance with the provisions hereof.
"Area" means those geographic areas set forth on Section 1 of the
Thrasher Disclosure Memorandum in which the Tower Sites are located.
"Bell Atlantic" means Bell Atlantic Corporation, a Delaware
corporation.
<PAGE>
"Bell Atlantic/Thrasher Merger" means the merger transaction
contemplated by that certain Agreement and Plan of Merger by and among Bell
Atlantic, Beta Gamma Corporation and GTE Corporation, dated as of July 27,
1998, as may be amended from time to time.
"Bell Atlantic/Vodafone Transaction" means those transactions
contemplated by an agreement, dated September 21, 1999, between Bell Atlantic
and Vodafone AirTouch Plc as may be amended from time to time.
"Bidder" is defined above in the preamble.
"Bidder Affiliate" means any Affiliate of Bidder.
"Bidder Common Stock" means the common stock, par value $.01 per
share, of Bidder.
"Bidder Contributed Cash" is defined in Section 2A.9(b).
"Bidder Contributed Shares" is defined in Section 2A.9(c).
"Bidder Contributed Shares Option" is defined in Section 2A.9(c).
"Bidder Disclosure Memorandum" shall mean the written information
entitled "Bidder Disclosure Memorandum" delivered prior to the date of this
Agreement to Thrasher describing in reasonable detail the matters contained
therein.
"Bidder HoldCo Interest" is defined in Section 2.2(b).
"Bidder HoldCo Interest Purchaser" is defined in Section 9.5(a).
"Bidder's knowledge" or "knowledge of Bidder" or words of similar
import means the actual knowledge of any of the following persons who are
employees of Bidder, or an Affiliate of Bidder, holding the position (as of
the date hereof) indicated after their name (and any person succeeding to any
such position prior to the applicable Closing but only to the extent they
acquired knowledge): Ted B. Miller, Jr., Chief Executive Officer and Chairman;
David L. Ivy, President; Charles C. Green, III, Executive Vice President and
Chief Financial Officer; E. Blake Hawk, General Counsel; and John Kelly, Chief
Operating Officer of Crown Communication Corp.
"Bidder Material Adverse Effect" means an Event which has had or is
reasonably likely to have a material adverse effect on (i) the business,
operations, assets, liabilities, condition (financial or otherwise) or
prospects of the Bidder and its subsidiaries taken as
<PAGE>
a whole, except any such effect resulting from or arising in connection with
(a) this Agreement or the transactions contemplated hereby, (b) changes or
conditions (including, without limitation, changes in technology, law, or
regulatory or market environment) affecting the industry in which the owners
or users of communications tower structures operate, or (c) changes in
economic, regulatory or political conditions generally, (ii) the validity or
enforceability of this Agreement or any of the Transaction Documents, or (iii)
the ability of Bidder to perform its obligations under this Agreement or any
of the Transaction Documents, but which shall not include the inability of
Bidder to obtain financing with respect to the Transactions.
"Bidder Member" is defined above in the preamble.
"Bidder Offer" is defined in Section 9.3(a).
"Bidder Preferred Stock" is defined in Section 5.3.5.
"Bidder Services Agreement" is defined in Section 3.6.
"Bidder's SEC Reports" is defined in Section 5.3.6.
"Board of Representatives" is defined in Section 8.4.
"Build-to-Suit Agreement" is defined in Section 3.5.
"Business Plan" is defined in Section 8.2.12.
"Charter Documents" means an entity's certificate or articles of
incorporation, certificate defining the rights and preferences of securities,
articles of organization, general or limited partnership agreement,
certificate of limited partnership, limited liability company agreement, joint
venture agreement or similar document governing the entity.
"Claim Notice" is defined in Section 10.5(a).
"Claim Response" is defined in Section 10.5(a).
"Closing" (and "Closings") is defined in Section 4.1(a).
"Closing Date" is defined in Section 4.1.
"Code" means the Internal Revenue Code of 1986, as amended, and all
regulations promulgated thereunder, as in effect from time to time, and any
reference to
<PAGE>
any such statutory or regulatory provision shall be deemed to be a reference
to any successor statutory or regulatory provision.
"Consent Decree" means the Final Judgment (whether pending before or
entered by the court) in United States v. Bell Atlantic Corp., Civil Number
1:99CV01119 in the United States District Court for the District of Columbia,
as may be amended, modified or replaced after the date hereof (including,
without limitation, any amendment, modification or replacement occurring as a
result of the Bell Atlantic/Vodafone Transaction).
"Contingent Obligations" is defined in Section 8.1.7.
"Contract" means any written contract, agreement, lease, instrument or
other commitment that is binding on any Person or its property under
applicable Law.
"Contributed Cash Distribution" is defined in Section 2.6.
"Contributed Tower Value" is defined in Section 2A.9(b).
"Conveyed Tower Structures" is defined in Section 2A.11(a).
"Court Order" means any judgment, decree, injunction, order or ruling
of any federal, state, local or foreign court, Governmental Authority or any
arbitrator that is binding on any Person or its property under applicable Law.
"CPI" means the Consumer Price Index for All Urban Consumers, U.S.
City Average, for All Items (1982-1984 = 100), as published by the Bureau of
Labor Statistics of the U.S. Department of Labor, and any successor index. If
the CPI is discontinued and there is no successor index, Thrasher shall in
good faith select a comparable index to replace the CPI and the index selected
by Thrasher shall be subject to Bidder's approval, which approval shall not be
unreasonably withheld or delayed.
"Deductible Amount" is defined in Section 10.6.
"Default" means (a) a breach, default or violation, (b) the occurrence
of an event that with or without the passage of time or the giving of notice,
or both, would constitute a breach, default or violation or (c) with respect
to any Contract, the occurrence of an event that with or without the passage
of time or the giving of notice, or both, would give rise to a right of
termination, renegotiation or acceleration or a right to receive damages or a
payment of penalties.
"Dispute" is defined in Section 11.1.
<PAGE>
"DOJ" means the United States Department of Justice, or any successor
Governmental Authority.
"Encumbrances" means any lien, mortgage, security interest, pledge,
restriction on transferability, defect of title, option or other claim, charge
or encumbrance of any nature whatsoever on any property or property interest.
"Entity" means any corporation, firm, unincorporated organization,
association, partnership, limited liability company, trust (inter vivos or
testamentary), estate of a deceased, insane or incompetent individual,
business trust, joint stock company, joint venture or other organization,
entity or business, whether acting in an individual, fiduciary or other
capacity, or any Governmental Authority.
"Environmental Condition" means any condition or circumstance,
including the presence of Hazardous Substances, created by Thrasher or the
Transferring Entities at any Tower Site that did or does (a) require abatement
or correction under an Environmental Law, (b) give rise to any civil or
criminal Liability on the part of Thrasher under any Environmental Law
relating to the use or occupancy of the Tower Sites or (c) constitute a public
or private nuisance (it being understood that the mere presence of a Tower
Structure shall not constitute a private or public nuisance).
"Environmental Law" means all Laws, Court Orders and principles of
common law relating to Hazardous Substances, pollution, protection of the
environment or human health and safety.
"Escrow Agent" means Citibank, N.A.
"Escrow Fund" means the escrow fund in the principal amount of
$50,000,000 established by Bidder on the date hereof with the Escrow Agent to
secure Bidder's obligation to pay the Threshold Remedy to Thrasher and the
Transferring Entities as set forth in Section 11.5A hereof.
"Event" means the existence or occurrence of any act, action,
activity, circumstance, condition, event, fact, failure to act, omission,
incident or practice, or any set or combination of any of the foregoing.
"Excess Cash Distribution" is defined in Section 8.1.11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expiration Date(s)" is defined in Section 10.8.
<PAGE>
"FAA" means the Federal Aviation Administration, or any successor
Governmental Authority.
"FCC" means the Federal Communications Commission, or any successor
Governmental Authority.
"Final Closing" means the final Closing to occur under this Agreement.
"Final Closing Date" means the date of the Final Closing.
"Financing Distribution" is defined in Section 2.7.
"Financing Documents" is defined in Section 2.7.
"GAAP" is defined in Section 5.3.6.
"Global Lease" is defined in Section 3.4.
"Governmental Authority" 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 DOJ, FCC and the FAA.
"Governmental Permits" means all governmental approvals, permits,
licenses, registrations, certificates of occupancy, approvals and other
governmental authorizations.
"Hazardous Substances" means any toxic, radioactive or hazardous
gaseous, liquid or solid material or waste that may or could pose a hazard to
the environment or human health or safety, including (a) any 'hazardous
substances' as defined under the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. ss.ss. 9601 et seq., (b) any
'extremely hazardous substance,' 'hazardous chemical' or 'toxic chemical' each
as defined under the Emergency Planning and Community Right-to-Know Act, 42
U.S.C. ss.ss. 11001 et seq., (c) any 'hazardous waste' as defined under the
Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery
Act, 42 U.S.C. ss.ss. 6901 et seq., (d) any 'pollutant' as defined under the
Clean Water Act, 33 U.S.C. ss.ss. 1251 et seq. and (e) any regulated substance
or waste under any Laws or Court Orders that have been enacted, promulgated or
issued by any Governmental Authority concerning pollution, protection of the
environment or human health and safety.
"HoldCo" is defined above in the preamble.
<PAGE>
"HoldCo Operating Agreement" is defined in Section 2.2.
"HoldCo Sub" is defined above in the preamble.
"HoldCo Sub Capital Contribution" is defined in Section 2.5.
"HoldCo Sub Operating Agreement" is defined in Section 2.3.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended, and all regulations promulgated thereunder, as in effect
from time to time, and any reference to any such statutory or regulatory
provision shall be deemed to be a reference to any successor statutory or
regulatory provision.
"Included Additional Tower Structure" is defined in Section 2A.10(c).
"Incurred Debt" is defined in Section 2A.9(b).
"Indebtedness" is defined in Section 8.1.4.
"Indemnified Party" is defined in Section 10.5(a).
"Indemnified Thrasher Party" is defined in Section 10.2(a).
"Indemnified OpCo Party" is defined in Section 10.1(a).
"Indemnitor" is defined in Section 10.5(a).
"Initial Closing" means the first Closing to occur under this
Agreement.
"Initial Closing Date" means the date of the Initial Closing.
"Initial Closing Tranche" is defined in Section 4.1.
"Initial Contributed Towers" is defined in Section 2A.9(b).
"Initial Transferring Entities" means those Transferring Entities
participating in the Initial Closing.
"Intellectual Property" means any patents, patent applications,
reissue patents, patents of addition, divisions, renewals, continuations,
continuations-in-part, substitutions, additions and extensions of any of the
foregoing, fictional business names, trade names, logos, registered and
unregistered copyrights, copyright applications,
<PAGE>
registered and unregistered trademarks, trademark applications, registered and
unregistered service marks, service mark applications, technology rights and
licenses, trade secrets, franchises, know-how, inventions and other
intellectual property.
"Later Contributed Tower" is defined in Section 2A.9(b).
"Law" means any administrative, judicial, legislative or other
statute, law, ordinance, regulation, rule, order, decree, writ award or
decision (including, without limitation, the common law), including those
covering environmental, energy, safety, health, transportation, bribery,
recordkeeping, zoning, antidiscrimination, antitrust, wage and hour, and price
and wage control matters.
"Leased Sites" is defined in the definition of "Tower Sites" in
Article 1.
"Lender" means collectively the financial institutions from whom
HoldCo Sub borrows the Incurred Debt.
"Liability" means any direct or indirect liability, indebtedness,
obligation, cost, expense, claim, loss, damage, deficiency, guaranty or
endorsement of (other than endorsements for collection or deposit in the
ordinary course of business) or by any Person.
"Liquidated Claim Notice" is defined in Section 10.5(a).
"Litigation" means any lawsuit, action, arbitration, administrative or
other proceeding, criminal prosecution or formal governmental investigation or
inquiry, counterclaim, whether at law or in equity.
"Losses" is defined in Section 10.1(a).
"Management Agreement" is defined in Section 2.4.
"Maximum Indemnification" is defined in Section 10.6.
"Minor Contract" is defined in Section 5.1.8.
"Monthly Third Party Rent Shortfall" is defined in Section 2A.11(c).
"Non-Assignable Contract" is defined in Section 2A.6.
"OpCo" is defined above in the preamble.
<PAGE>
"OpCo Capital Contribution" is defined in Section 3.3(a).
"OpCo Operating Agreement" is defined in Section 3.2.
"OpCo Towers" is defined in Section 8.2.12(a).
"Optional Bidder Phase I Report(s)" is defined in Section 6.2.5.
"Ordinary course" or "ordinary course of business" means the ordinary
course of conducting the ownership, operation, use and leasing of the Tower
Structures by the Transferring Entities consistent with past practice.
"Owned Sites" is defined in the definition of "Tower Sites" in Article
1.
"Permitted Encumbrances" means (i) liens for current real or personal
property taxes not yet due and payable, (ii) liens or other rights of third
parties disclosed in the Schedules to Section 5.1, (iii) worker's, carrier's
and materialman's liens not yet due and payable, (iv) with respect to Leased
Sites (as defined below in the definition of Tower Sites), any liens placed
upon such real property other than in connection with obligations or
liabilities of the Transferring Entities, (v) easements, rights of way or
similar grants of rights to a third party for access to or across any real
property, including, without limitation, rights of way or similar rights
granted to any utility or similar entity in connection with the provision of
electric, water, sewage, telephone, gas or similar services, (vi) the Tower
Leases (as defined in the definition of Tower Related Assets), (vii) all oil,
gas and mineral leases and other rights to the extent such leases and rights
shall not unreasonably interfere with the operation of the applicable Tower
Site and (viii) liens that are immaterial in character, amount, and extent,
and that do not detract from the value or interfere in any material respect
with the present use of the properties they affect.
"Permitted HoldCo Capital Contribution" is defined in Section 2.2(c).
"Permitted HoldCo Sub Capital Contribution" is defined in Section
2.5(b).
"Permitted Shares Value" is defined in Section 2A.9(b).
"Permitted Updates" is defined in Section 6.1.2.
"Prepaid Expenses" is defined in the definition of "Tower Related
Assets" in Article 1.
"Person" means any natural person or Entity.
<PAGE>
"Prime Rate" means the "Prime Rate" of interest, as published in the
"Money Rates" table of The Wall Street Journal, Eastern Edition, from time to
time.
"Ready" is defined in Section 4.1(a).
"Registration Rights Agreement" is defined in Section 7.1.1.
"Required Thrasher Phase I Report(s)" is defined in Section 6.1.7.
"Response Period" is defined in Section 10.5(a).
"Rights Agreement" is defined in Section 5.3.15.
"SEC" means the United States Securities and Exchange Commission or
any successor Governmental Authority.
"Securities Act" means the Securities Act of 1933, as amended.
"Site Leases" is defined in the definition of "Tower Sites" in Article
1.
"Solvent" is defined in Section 8.1.2.
"Swap Lease Agreement(s)" is defined in Section 8.6.
"Taxes" (and "Taxable", which shall mean subject to Tax) 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 property, real
estate, sale, use, ad valorem, license, lease, service, severance, stamp,
transfer, payroll, employment, customs, duties, alternative, add-on minimum,
estimated and franchise taxes (including any interest, levies, charges,
penalties or additions attributable to or imposed on or with respect to any
such assessment).
"Termination Fee" is defined in Section 11.5A.
"Thrasher" is defined above in the preamble.
"Thrasher Affiliate" means any Affiliate of Thrasher.
"Thrasher Affiliate Member" has the meaning assigned to such term in
the OpCo Operating Agreement.
<PAGE>
"Thrasher Assets" means (a) all Tower Structures; (b) all of
Thrasher's and the Thrasher Affiliates' rights to all Tower Sites; (c) all
Tower Related Assets; (d) 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 and not used or useful by the respective
Thrasher Affiliate in any other part of its business and operations, to the
extent such Governmental Permits are transferable to OpCo.
"Thrasher Asset Holders" means collectively those Thrasher Affiliates
that own the Thrasher Assets and the Thrasher Liabilities.
"Thrasher Assumed Liabilities" is defined in Section 2A.3.
"Thrasher Contracts" is defined in Section 5.1.8.
"Thrasher Contributed Assets" is defined in Section 2A.1.
"Thrasher Contributed Interest" is defined in Section 2A.9(b).
"Thrasher Disclosure Memorandum" shall mean the written information
entitled "GTE Wireless Incorporated Disclosure Memorandum" delivered prior to
the date of this Agreement to Bidder describing in reasonable detail the
matters contained therein.
"Thrasher Entities" means collectively Thrasher and the Transferring
Corporations.
"Thrasher Excluded Assets" is defined in Section 2A.2.
"Thrasher HoldCo Interest" is defined in Section 2.2(a).
"Thrasher HoldCo Interest Purchaser" is defined in Section 9.5(b).
"Thrasher Interest Value" is defined in Section 2.2(a).
"Thrasher's knowledge" or "knowledge of Thrasher" or words of similar
import means the actual knowledge, of any of the following persons who are
employees of Thrasher, or an Affiliate of Thrasher, holding the position (as
of the date hereof) indicated after their name (and any person succeeding to
any such position prior to a Closing but only to the extent they acquired
knowledge): Mark Feighner, President; Dan Mead, Vice President-Technology and
Operations Support; Jack Reagan, Assistant Treasurer/Capital Markets, Thrasher
Parent; Laura Binion, Vice President and General Counsel; and Jody Ruth, Vice
President Finance and Planning.
<PAGE>
"Thrasher Liabilities" means (a) all Liabilities (other than any
Thrasher Retained Liability) of Thrasher or the Transferring Entities under
all Contracts and purchase orders included within the Thrasher Contributed
Assets; (b) all Liabilities (other than any Thrasher Retained Liability) of
Thrasher or the Transferring Entities in respect of the Thrasher Contributed
Assets existing as of the applicable Closing Date; and (c) the rents,
revenues, Taxes, charges and payments that are apportioned for the account of
OpCo pursuant to Section 2A.8 hereof.
"Thrasher Material Adverse Effect" means an Event which has had or is
reasonably likely to have a material adverse effect on (i) the Thrasher Assets
or which would materially increase the Thrasher Liabilities, in each case
taken as a whole, except any such effect resulting from or arising in
connection with (a) this Agreement or the transactions contemplated hereby,
(b) changes or conditions (including, without limitation, changes in
technology, law, or regulatory or market environment) affecting the industry
in which the owners or users of communications tower structures operate, or
(c) changes in economic, regulatory or political conditions generally, (ii)
the validity or enforceability of this Agreement or any of the Transaction
Documents, or (iii) the ability of Thrasher or any Transferring Entity to
perform its obligations under this Agreement or any of the Transaction
Documents.
"Thrasher Members" means all Thrasher Affiliates owning interests in
HoldCo.
"Thrasher Offer" is defined in Section 9.4.
"Thrasher Parent" means Thrasher Corporation, a Delaware corporation,
including any successor thereto.
"Thrasher Retained Interest" is defined in Section 3.3.
"Thrasher Retained Liability" is defined in Section 2A.4.
"Total Entity Value" is defined in Section 2.2(a).
"Total Third Party Rent Commitment" is defined in Section 2A.11(a).
"Tower Equipment Leases" is defined in the definition of "Tower
Related Assets" in Article 1.
"Tower Leases" is defined in the definition of "Tower Related Assets"
in Article 1.
<PAGE>
"Tower Related Assets" shall mean (a) the leases of rights to use
spaces on the Tower Structures that are identified in Annex III hereto and
located on Tower Sites (hereinafter defined) (the "Tower Leases") and security
deposits (if any) from tenants under the Tower Leases, (b) the Site Leases,
(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 Thrasher or the Thrasher Asset Holders 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 Closing Date ("Prepaid Expenses"),
(f) all rights to any warranties held by Thrasher or the Thrasher Asset
Holders 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 Thrasher or the Thrasher Asset Holders with respect to
claims made after the applicable Closing Date with respect to such unassigned
rights to any warranties, and (g) copies of, or extracts from, all current
files and records of Thrasher or the Thrasher Asset Holders 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 Thrasher Contributed Assets.
"Tower Service Contracts" is defined in the definition of "Tower
Related Assets" in Article 1.
"Tower Sites" shall mean (i) the sites of the Tower Structures that
are owned or leased by the Thrasher Asset Holders, including all fee, ground
leasehold interests and easements pertaining to such tower sites owned by the
Thrasher Asset Holders and shall include a fee ownership in the real property
associated with the Tower Structures designated as "Owned Sites" in Annex I
hereto but will specifically exclude any oil and mineral rights associated
with any Owned Site, which rights will be retained by the Thrasher Asset
Holders (provided that the exercise of those rights shall not interfere with
the operation of any Tower Structure on the applicable real property) and, if
the size of any such Owned Site exceeds the size reasonably required for the
operation of the Tower already located thereon by OpCo (generally 100 feet by
100 feet), the portion of that Owned Site not necessary to such operation may,
at the option of Thrasher, be retained by the Thrasher Asset Holders together
with an adequate, lawful and permitted means of ingress and egress to and from
such retained properties, and (ii) the leasehold interest in and to the real
property associated with the Tower Structures designed as "Leased Sites" in
Annex I hereto pursuant to the terms of the ground leases related thereto
identified in Annex II (the "Site Leases").
<PAGE>
"Tower Structures" shall mean collectively (a) the communications
tower structures situated at the locations that are identified on Annex I and
owned or leased by the Thrasher Asset Holders, and (b) the communications
tower structures (which, together with the communication tower structures
specified in clause (a) above, shall not exceed 2,322) situated in the Areas
and owned or leased by the Thrasher Asset Holders that may be added, at
Thrasher's election, to Annex I (along with appropriate additions to Annex II
and Annex III) after the date hereof (it being understood (x) that all
representations, warranties, agreements and covenants relating to the
communications tower structures specified in this clause (b) shall not apply
to such communications tower structures until such time as they may be added
to Annex I by Thrasher and (y) that if any matters are identified in any
proposed addition to the Thrasher Disclosure Memorandum with respect to such
communications tower structures Bidder may, at its sole discretion, exclude
the addition of such communications tower structures to Annex I), in each case
including the Thrasher Asset Holders' 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 Thrasher Excluded Assets.
"Tranche" is defined in Section 4.1(a).
"Transaction Documents" means, collectively, this Agreement, the
Global Lease, the Build-to-Suit Agreement, the Bidder Services Agreement, the
Management Agreement, and each of the other documents and agreements listed in
Sections 4.2 and 4.3.
"Transactions" means collectively the transactions contemplated by the
Transaction Documents.
"Transferring Corporations" means those corporations listed on Exhibit
A hereto and which have joined in the execution and delivery of this Agreement
by executing and delivering to Thrasher, the Transferring Partnerships, Bidder
and Bidder Member, after the date hereto but prior to a Closing, a Joinder to
Formation Agreement in the form attached hereto as Exhibit B (each, a
"Joinder"). The Transferring Corporations are referred to individually herein
as a "Transferring Corporation." Exhibit A is not attached to this Agreement
as of the date hereof. Exhibit A shall be prepared by Thrasher at each
Closing.
<PAGE>
"Transferring Entities" means collectively the Transferring
Corporations and the Transferring Partnerships. The Transferring Entities are
referred to individually herein as a "Transferring Entity."
"Transferring Partnerships" means those partnerships that are listed
on Exhibit A hereto and which have joined in the execution and delivery of
this Agreement by executing and delivering to Thrasher, the Transferring
Corporations, Bidder and Bidder Member, after the date hereof but prior to a
Closing, a Joinder to Formation Agreement in the form attached hereto as
Exhibit B-1 (each, a "Joinder"). The Transferring Partnerships are referred to
individually herein as a "Transferring Partnership" Exhibit A is not attached
to this Agreement as of the date hereof. Exhibit A shall be prepared by
Thrasher at each Closing.
"Transitional Services Agreement" is defined in Section 3.7.
"Unliquidated Claim" is defined in Section 10.5(a).
"Working Capital Contribution" is defined in Section 2A.9(b).
ARTICLE 2
FORMATION OF HOLDCO SUB AND HOLDCO, INCURRED DEBT
2.1 Purpose of HoldCo and HoldCo Sub. The purpose of HoldCo Sub is to
own 99.999% of the percentage interests in OpCo, to perform its duties under
the Management Agreement, to make the distributions that it is obligated to
make under this Agreement, to incur the Incurred Debt, if applicable, and to
conduct all business activities related thereto. The purpose of HoldCo is to
own 100% of the percentage interests in HoldCo Sub and the Bidder Contributed
Shares, if applicable.
2.2 Formation of HoldCo; Issuances of Membership Interests in HoldCo.
Subject to the terms and conditions of this Agreement and in reliance upon the
representations and warranties and covenants contained herein, at the Initial
Closing, (i) Thrasher, the Initial Transferring Entities and Bidder Member
shall form HoldCo by filing an appropriate certificate of formation with the
Secretary of State of the State of Delaware, and (ii) certain Thrasher
Affiliates and Bidder Member shall execute and deliver the HoldCo Operating
Agreement in the form attached hereto as Exhibit 2.2 (the "HoldCo Operating
Agreement"). In exchange for the Transferring Entities' contributions of the
Thrasher Contributed Assets and the Thrasher Assumed Liabilities and the
Bidder Member's contributions of the Bidder Contributed Cash and the Bidder
Contributed Shares, if applicable as set forth in Article 2A:
(a) At each Closing, HoldCo shall issue to the Transferring Entities
an ownership interest in HoldCo, which ownership interest shall be apportioned
among the Transferring Entities as set forth on Exhibit A-1 (which shall be
delivered by Thrasher after the date hereof at each Closing), such that the
aggregate percentage interests of the Thrasher Members shall be equal to the
Thrasher Interest Value divided by Total Entity
<PAGE>
Value. "Thrasher Interest Value," as of any Closing, shall be equal to the sum
of (i) the product of (A) $80,402.23 and (B) the number of Initial Contributed
Towers actually contributed on or prior to the date of such Closing, plus (ii)
the product of (A) $23,559.02 and (B) the number of Later Contributed Towers
actually contributed on or prior to the date of such Closing, plus (iii) the
Permitted Shares Value computed for all Bidder Contributed Shares actually
contributed (and not previously distributed to any Thrasher Member) on or
prior to the date of such Closing. "Total Entity Value" means an amount equal
to (A) the aggregate Working Capital Contribution (including any Permitted
HoldCo Capital Contribution), plus (B) the aggregate Contributed Tower Value,
plus (C) the Permitted Shares Value computed for all Bidder Contributed Shares
actually contributed (and not previously distributed to any Thrasher Member)
on or prior to the date of such Closing, minus (D) the aggregate amount of
Incurred Debt. In the event that any Bidder Contributed Shares are distributed
to any Thrasher Member, the Thrasher HoldCo Interest shall be adjusted in
accordance with the HoldCo Operating Agreement. The Transferring Entities'
total percentage interest in HoldCo, as may be adjusted, is herein referred to
as the "Thrasher HoldCo Interest." Exhibit A-1 is not attached to this
Agreement as of the date hereof. Exhibit A-1 shall be prepared by Thrasher
based upon the entities that become Transferring Entities. Thrasher shall
deliver Exhibit A-1, as may be amended at each Closing, to Bidder and the
Transferring Entities at each Closing.
(b) At each Closing, HoldCo shall issue to Bidder Member ownership
interests equal to the difference between (A) 100% and (B) the Thrasher HoldCo
Interest, as adjusted to give effect to such Closing, expressed as a
percentage. Bidder Member's percentage interest in HoldCo, as may be adjusted,
is herein referred to as the "Bidder HoldCo Interest."
(c) At any time after the Initial Closing, Bidder Member shall have
the right (but not the obligation) to contribute additional cash to HoldCo in
exchange for membership interests in HoldCo (a "Permitted HoldCo Capital
Contribution"); provided, however, Bidder Member may not make a Permitted
HoldCo Capital Contribution to the extent such Permitted HoldCo Capital
Contribution (assuming for purposes of such documentation that no Bidder
Contributed Shares are held by HoldCo) would result in the Thrasher HoldCo
Interest being decreased to a percentage interest less than 10.0% as a result
of any such Permitted HoldCo Capital Contribution or Permitted HoldCo Capital
Contributions (assuming that no Bidder Contributed Shares have been
contributed to or are held by HoldCo). For purposes of determining adjustments
to the respective percentage interests of the parties, such Permitted HoldCo
Capital Contribution shall be treated in the same manner as a Working Capital
Contribution.
2.3 Formation of HoldCo Sub. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and warranties and
covenants contained herein, at the Initial Closing (a) Thrasher, the Initial
Transferring Entities and
<PAGE>
Bidder Member shall cause HoldCo to form HoldCo Sub by filing an appropriate
certificate of formation with the Secretary of State of the State of Delaware,
and (b) HoldCo shall execute and deliver the HoldCo Sub Operating Agreement in
the form attached hereto as Exhibit 2.3 (the "HoldCo Sub Operating
Agreement").
2.4 Management Agreement. At the Initial Closing, OpCo and HoldCo Sub
shall execute and deliver a Management Services Agreement, in the form
attached hereto as Exhibit 2.4, pursuant to which HoldCo Sub shall manage and
lease OpCo's assets (the "Management Agreement").
2.5 Contributions to HoldCo Sub; Issuances of Membership Interests in
HoldCo Sub.
(a) At each Closing, HoldCo shall contribute the Thrasher Contributed
Assets and the Thrasher Assumed Liabilities and the Working Capital
Contribution conveyed at such Closing to HoldCo Sub (each a "HoldCo Sub
Capital Contribution") in exchange for membership interests as follows. At the
Initial Closing, HoldCo Sub shall issue to HoldCo a 100% percentage interest
in HoldCo Sub. At each Subsequent Closing, HoldCo's percentage interest in
HoldCo Sub in the aggregate shall remain unchanged.
(b) At any time after the Final Closing, in the event that Bidder
Member elects to make a Permitted HoldCo Capital Contribution, immediately
after such Permitted HoldCo Capital Contribution is made to HoldCo, HoldCo
shall contribute an amount in cash equal to the Permitted HoldCo Capital
Contribution to HoldCo Sub (a "Permitted HoldCo Sub Capital Contribution").
2.6 Contributed Cash Distributions. At each Closing, HoldCo shall
immediately make a cash distribution to the Transferring Entities equal to the
Bidder Contributed Cash (excluding the Working Capital Contribution)
contributed at such Closing by Bidder Member, which distribution shall be
apportioned among the Transferring Entities as set forth on Exhibit A-1 (which
shall be delivered by Thrasher after the date hereof at each Closing). Each of
such distributions shall be referred to herein as a "Contributed Cash
Distribution".
2.7 Financing. Bidder shall have the right (but not the obligation) to
cause HoldCo Sub to consummate a financing in an amount not to exceed the
aggregate Incurred Debt for the sole purpose of funding, in whole or in part,
one or more Closings after the formation of OpCo, HoldCo Sub and HoldCo. The
proceeds of the Incurred Debt shall be used to make a distribution of an
amount in cash equal to the principal amount of such Incurred Debt to HoldCo
immediately after such Closing, which will then immediately distribute such
cash to the Transferring Entities (the "Financing Distribution"), which
Financing Distribution shall be apportioned among the Transferring
<PAGE>
Entities as set forth on Exhibit A-1 (which shall be delivered by Thrasher
after the date hereof at each Closing). The terms and conditions of the
documents evidencing any Incurred Debt (the "Financing Documents") shall
include those set forth on Exhibit 2.7 attached hereto, and the inclusion of
such terms and conditions shall be a condition precedent to HoldCo Sub
incurring any Incurred Debt. The direct or indirect modification, amendment or
prepayment of any Incurred Debt shall be subject to the provisions of Section
3.8(e) of the HoldCo Sub Operating Agreement.
ARTICLE 2A
CONTRIBUTIONS TO HOLDCO
2A.1 Contribution of Thrasher Contributed Assets . Subject to the
terms and conditions of this Agreement, at each Closing, each of the
Transferring Entities shall grant, contribute, convey, assign, transfer and
deliver to HoldCo, and HoldCo shall acquire and accept the contribution from
each of the Transferring Entities, all right, title and interest of the
respective Transferring Entity in and to all of the assets, properties and
rights of the respective Transferring Entity specifically set forth below in
this Section 2A.1 (collectively, the "Thrasher Contributed Assets"), free and
clear of all Encumbrances (other than Permitted Encumbrances), as the same
shall exist on the applicable Closing Date:
(a) all Tower Structures to be conveyed at such Closing;
(b) all of Thrasher's rights to all Tower Sites to be conveyed at such
Closing;
(c) all Tower Related Assets to be conveyed at such Closing; and
(d) 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 and not used or useful by the respective Transferring Entity in
any other part of its business and operations, to the extent such Governmental
Permits are transferable to HoldCo.
The provisions of this Section 2A.1 are subject to the provisions of
Sections 2A.8, 2A.10 and 6.1.7.
<PAGE>
2A.2 Excluded Assets. Notwithstanding anything to the contrary in
Section 2A.1, the Thrasher Contributed Assets relating to such Closing shall
not include any of the following (collectively, the "Thrasher Excluded
Assets"):
(a) 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 such Tower Structures and Tower Sites;
(b) The applicable Transferring Entities' rights to the real estate on
which switch equipment of Thrasher or its Affiliates is located;
(c) corporate seals, Charter Documents, minute books, stock books, tax
returns, property tax records (provided, however, that copies of the property
tax records relating to the Thrasher Contributed Assets are provided to
Bidder), books of account and other financial records of Thrasher or the
respective Transferring Entity, sales and marketing catalogs, brochures and
advertising material, the names "Thrasher," and all other names under which
Thrasher, any Transferring Entity, or any of their respective Affiliates
conducts business;
(d) all Intellectual Property of Thrasher or any Affiliate of Thrasher
or any Transferring Entity, 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;
(e) any equipment or transmissions systems used by Thrasher or the
Transferring Entities for the remote monitoring of the Tower Structures;
(f) any assets, properties or rights which are not exclusively
Thrasher Contributed Assets;
(g) the rights that accrue or will accrue to Thrasher and the
Transferring Entities under this Agreement or any of the other Transaction
Documents, including the consideration paid or to be paid to Thrasher and the
Transferring Entities hereunder;
(h) any claims or rights against third parties except solely to the
extent such claims or rights relate to the Thrasher Assumed Liabilities or the
Thrasher Contributed Assets;
(i) any and all rights retained by and/or granted to Thrasher or any
Thrasher Affiliate pursuant to the Global Lease;
<PAGE>
(j) the assets specified in Section 2A.2 of the Thrasher Disclosure
Memorandum;
(k) all rights under FCC licenses;
(l) any of the assets specified in any of the Annexes that are owned
or leased by any entity that does not become a Transferring Entity; and
(m) any Tower Sites (and all Tower Structures, Tower Related Assets
and other Thrasher Contributed Assets associated with such Tower Sites)
excluded from the Thrasher Contributed Assets pursuant to Sections 2A.5, 2A.6
and 6.1.7 below.
The provisions of this Section 2A.2 are subject to the provisions of Section
2A.8.
2A.3 Assumption of Thrasher Assumed Liabilities. Subject to Section
2A.4, as of each Closing, HoldCo shall acquire the Thrasher Contributed Assets
to be conveyed at such Closing subject only to, and shall undertake, assume,
perform and otherwise pay, satisfy and discharge, and on the terms set forth
in Article 10 hold Thrasher (and the Transferring Entities, as applicable)
harmless from, the following Liabilities (collectively, the "Thrasher Assumed
Liabilities"):
(a) all Liabilities (other than any Thrasher Retained Liability) of
Thrasher or the Transferring Entities under all Contracts and
purchase orders included within the Thrasher Contributed Assets to
be conveyed at such Closing;
(b) all Liabilities (other than any Thrasher Retained Liability) of
Thrasher or the Transferring Entities in respect of the Thrasher
Contributed Assets to be conveyed at such Closing; and
(c) the rents, revenues, Taxes, charges and payments that are
apportioned for the account of HoldCo pursuant to Section 2A.8
hereof.
2A.4 Limitations on Assumption of Liabilities. Notwithstanding Section
2A.3, HoldCo is not assuming under this Agreement any Liabilities that are not
specifically described in Section 2A.3 or any of the following (each, a
"Thrasher Retained Liability"): (i) any Liabilities arising out of any breach
by Thrasher or any of the Transferring Entities prior to the applicable
Closing of any provision of any Contract; (ii) any product liability or
similar claim for injury to any Person or property, regardless of when made or
asserted, that arises out of or is based upon any express or implied
representation, warranty, agreement or guarantee made by Thrasher or any of
the Transferring Entities, or alleged to have been made by Thrasher or any of
the Transferring Entities, or which is imposed or asserted to be imposed by
operation of Law in connection with any service
<PAGE>
performed or product sold or leased by or on behalf of Thrasher or any of the
Transferring Entities prior to the applicable Closing; (iii) any federal,
state, local or foreign income or other Tax payable with respect to the
Thrasher Contributed Assets or other properties or operations of Thrasher or
any member of any affiliated group of which Thrasher is a member for any
period prior to the applicable Closing; (iv) any Liabilities arising prior to
or as a result of the applicable Closing to or with respect to any agents or
independent contractors of Thrasher or any of the Transferring Entities; (v)
any Liabilities of Thrasher or any of the Transferring Entities arising from
or incurred in connection with the preparation, negotiation, execution and
performance of this Agreement, the other Transaction Documents and the
Transactions except as otherwise specifically provided herein and therein;
(vi) any Liabilities, whether known or unknown, arising from or related to (A)
any violation prior to the applicable Closing of Environmental Laws by
Thrasher or any of the Transferring Entities relating to the ownership, use or
occupancy of the Thrasher Contributed Assets by Thrasher or any of the
Transferring Entities, or any Environmental Condition caused by Thrasher or
any of the Transferring Entities existing prior to the applicable Closing, or
(B) any Environmental Condition (which for purposes of this Section
2A.4(vi)(B) shall have the meaning set forth in Article 1 except that the
phrase "created by Thrasher or the Transferring Entities" shall be treated as
deleted from such definition) at any of the Tower Sites included in the
Thrasher Contributed Assets and which is revealed by any of the Required
Thrasher Phase I Reports, (vii) Events occurring on or after the date hereof
but prior to the applicable Closing Date in connection with the ownership,
possession, occupancy, use and operation of the Thrasher Contributed Assets,
(viii) except to the extent specifically included in the Assumed Liabilities,
any and all costs, expenses or payments associated with the completion of
construction of Tower Structures located on Tower Sites to be conveyed
hereunder, except to the extent that Bidder and Thrasher have agreed to
modifications to such Tower Structures in which case the cost of such
modifications shall be included in the Thrasher Assumed Liabilities, and (ix)
the rents, revenues, Taxes, charges and payments that are apportioned for the
account of Thrasher pursuant to Section 2A.8 hereof.
2A.5 Assignment or Subcontracting of Purchased Contracts. Thrasher
will use commercially reasonable efforts to obtain any required consents to
the assignment to HoldCo of Contracts or any other assets included in the
Thrasher Contributed Assets. To the extent that any such required consent to
the assignment of any such Contract or asset is not obtained prior to the
Closing relating to such Contracts or other assets, Thrasher will subcontract
to HoldCo the performance of all obligations and the right to receive prior to
the Closing relating to such Contracts or other assets all benefits
thereunder. To the extent the consent of the counterparty to such
subcontracting is required under the terms of any such Contract or asset,
Thrasher will use commercially reasonable efforts to obtain such consent; and
Thrasher will not subcontract as described in the immediately preceding
sentence in those cases, if any, in which subcontracting is expressly
prohibited. If Thrasher is precluded from subcontracting in accordance with
the foregoing or entering
<PAGE>
into a substantially similar relationship, the subject Contract or asset shall
not be included in the Thrasher Contributed Assets, and the Liabilities under
such Contract shall not be included in the Thrasher Assumed Liabilities.
2A.6 Consent of Third Parties. Nothing in this Agreement shall be
construed as an attempt by Thrasher or the Transferring Entities to assign to
HoldCo pursuant to this Agreement any Contract, Governmental Permit,
franchise, claim or asset included in the Thrasher Contributed Assets that is
by its terms or by Law nonassignable without the consent of any other party or
parties, unless such consent or approval shall have been given, or as to which
all the remedies for the enforcement thereof available to Thrasher or the
Transferring Entities would not by Law pass to HoldCo as an incident of the
assignments provided for by this Agreement (a "Non-Assignable Contract"). To
the extent that any consent in respect of, or a novation of, a Non-Assignable
Contract has not been obtained, Thrasher shall continue to use commercially
reasonable efforts to obtain any such consent or novation until such time as
it shall have been obtained, and Thrasher shall use commercially reasonable
efforts to cooperate with HoldCo to provide that HoldCo shall receive the
interest of Thrasher or the Transferring Entities in the benefits under such
Non-Assignable Contract including performance by Thrasher or the Transferring
Entities as agent if commercially reasonable, provided that HoldCo shall
undertake to pay or satisfy the corresponding Liabilities under the terms of
such Non-Assignable Contract to the extent that HoldCo would have been
responsible therefor if such consent or approval had been obtained. If,
despite such efforts, Thrasher or the Transferring Entities are unable to
provide HoldCo with the interest of Thrasher or the Transferring Entities in
the benefits under any such Non-Assignable Contract, such Non-Assignable
Contract shall not be included in the Thrasher Contributed Assets, and the
Liabilities under such Non-Assignable Contract shall not be included in the
Thrasher Assumed Liabilities, in each case until such time as Thrasher or the
Transferring Entities are able to provide HoldCo with the interest of Thrasher
or the Transferring Entities in such benefits or Thrasher or the Transferring
Entities obtain the aforesaid consent or novation with respect to the
Non-Assignable Contract.
2A.7 Bulk Transfer Laws. Bidder, Bidder Member and HoldCo each hereby
waive compliance by Thrasher and the Transferring Entities with the provisions
of any and all Laws relating to bulk transfer in connection with the sale of
the Thrasher Contributed Assets. Thrasher shall indemnify HoldCo from and
against any and all Liabilities (including reasonable attorneys' fees) arising
out of noncompliance with such bulk transfer Laws.
2A.8 Certain Apportionments. Notwithstanding any provision to the
contrary in this Article 2A or elsewhere in this Agreement, at the Final
Closing the following items shall be apportioned between Thrasher and the
Transferring Entities, on the one hand, and HoldCo, on the other hand, with
such adjustments to be made as of each Closing Date by
<PAGE>
the party that on a net basis owes money to the other party under this Section
2A.8 by wire transfer of immediately available funds to such accounts as such
other party shall relating to such Closing specify in writing: (a) rents and
revenues under all Contracts included in the Thrasher Contributed Assets
relating to such Closing; (b) Prepaid Expenses relating to such Closing; (c)
federal, state, local or foreign Taxes (other than income taxes or transfer
taxes, which are covered under Section 11.4 hereof) payable with respect to
the Thrasher Contributed Assets relating to such Closing; and (d) charges and
payments under all Contracts included in the Thrasher Contributed Assets
relating to such Closing. Such apportionments shall be made pro rata on a per
diem basis as of the applicable Closing Date so that all such rents, revenues,
Taxes, charges and payments attributable to the period prior to such Closing
Date are for the account of Thrasher; and all such rents, revenues, Taxes,
charges and payments attributable to the period from and after such Closing
Date are for the account of HoldCo. If any of the aforesaid apportionments
cannot be calculated accurately on the Final Closing Date, then the same shall
be calculated and adjusted once by Thrasher and HoldCo after the Final Closing
Date in accordance with the following procedures. Within five business days
after the last day of the third full calendar month following the Final
Closing Date, Thrasher and HoldCo shall exchange their respective post-Closing
calculations of such apportionments. Thrasher and HoldCo shall in good faith
agree upon the post-Closing apportionments on or before the last day of the
fourth full calendar month following the Final Closing Date. If at the end of
such period, Thrasher and HoldCo cannot agree on the post-Closing
apportionments, Thrasher and HoldCo shall submit to an independent accounting
firm (the "Accounting Firm") for review and resolution any and all matters
which remain in dispute. The Accounting Firm shall be PriceWaterhouseCoopers
LLP or, if such firm is unable or unwilling to act, such other nationally
recognized independent public accounting firm as shall be agreed upon by
Thrasher and HoldCo in writing. The Accounting Firm shall be instructed to,
within thirty (30) days after the submission of any disputed matters, review
and resolve all such disputed matters and to report its resolution thereof to
Thrasher and HoldCo, and such report shall be final, binding and conclusive on
Thrasher and HoldCo with respect to all such disputed matters. The fees and
expenses of the Accounting Firm incurred pursuant to this Section 2A.8 shall
be borne fifty percent (50%) by Thrasher and fifty percent (50%) by HoldCo. No
other post-Closing apportionments shall be made by the parties. Either party
owing the other party a sum of money based on the agreed-upon post-Closing
apportionments shall pay said sum to the other party on or before the last day
of the fifth full calendar month following the Final Closing Date. If payment
of any such amount is not paid when due, interest shall accrue on the past due
amount at a rate equal to the Prime Rate plus two percent (2%) per annum from
the due date to the date of payment. The aforesaid post-Closing adjustment
shall be the only post-Closing adjustment of the items to be apportioned under
this Section 2A.8. The provisions of this Article 2A shall not affect the
obligations of Thrasher and HoldCo under this Agreement with respect to the
Thrasher Retained Liabilities and the Thrasher Assumed Liabilities,
respectively.
<PAGE>
2A.9 Contribution of Bidder Contributed Cash and Bidder Contributed
Shares.
(a) Subject to the prorations set forth in Section 2A.8, at each
Closing, Bidder shall contribute to HoldCo in exchange for membership
interests specified in Section 2.3 an amount equal to the Bidder Contributed
Cash applicable to such Closing.
(b) For purposes of this Agreement, the following terms shall have the
meanings indicated:
(i) "Bidder Contributed Cash" means the amount equal to (A) the
Contributed Tower Value for such Closing, plus, (B) the
Working Capital Contribution for such Closing, minus (C) the
Thrasher Contributed Interest for such Closing, minus (D)
the Permitted Shares Value for such Closing, minus (E) the
Incurred Debt for such Closing.
(ii) "Thrasher Contributed Interest" means (A) $80,402.23 for
each Initial Contributed Tower and (B) $23,559.02 for each
Later Contributed Tower.
(iii) "Incurred Debt" means the debt actually incurred by HoldCo
Sub and ultimately distributed to the Transferring Entities
at a Closing pursuant to the terms of this Agreement, which
debt, together with all previously incurred Incurred Debt,
shall not exceed the product of (A) the aggregate number of
Tower Sites conveyed to HoldCo on or prior to such Closing,
and (B) $86,132.64.
(iv) "Working Capital Contribution" means $25,000,000 with
respect to the Initial Closing and $0 at each subsequent
Closing.
(v) "Contributed Tower Value" means the product of (A) $390,000
and (B) the number of Tower Sites conveyed to HoldCo at such
Closing.
(vi) "Permitted Shares Value" means the product of (A) $18.655
(subject to appropriate adjustment for stock splits,
dividends, reclassification and similar changes in the
capital stock of Bidder occurring after the date hereof but
prior to the Final Closing) and (B) the number of Bidder
Contributed Shares contributed at such Closing, if any,
pursuant to Section 2A.9(c) below.
<PAGE>
(vii) "Initial Contributed Tower" means any of the first 895 Tower
Sites contributed to HoldCo.
(viii) "Later Contributed Tower" means any of the Tower Sites, up
to a total of 1,427 Tower Sites, contributed to HoldCo after
the contribution to HoldCo of 895 Tower Sites.
(c) At any Closing at which Later Contributed Towers are being
contributed, Bidder Member shall have the right (but not the obligation) (the
"Bidder Contributed Shares Option") to contribute such number of shares of
Bidder Common Stock (the "Bidder Contributed Shares") to HoldCo as it shall
determine in its discretion; provided, however, that the number of Bidder
Contributed Shares being contributed at any Closing, together with the number
of all previously contributed Bidder Contributed Shares, shall not exceed (i)
the product of (A) the aggregate number of Later Contributed Towers conveyed
on or prior to such Closing and (B) $70,077.08, divided by (ii) $18.655
(subject to appropriate adjustment for stock splits, dividends,
reclassifications and similar changes in the capital stock of Bidder occurring
after the date hereof but prior to the Final Closing). Bidder shall pay all
expenses, taxes and other charges payable in connection with the preparation,
issuance and delivery of share certificates evidencing any Bidder Contributed
Shares. Bidder shall at its expense promptly file all necessary listing
applications and other filings necessary to cause the Bidder Contributed
Shares to be listed on The NASDAQ Stock Market. Bidder shall at its expense
make all required state "Blue Sky" filings in connection with the issuance of
the Bidder Contributed Shares and the contribution thereof to HoldCo in
connection with the provisions of this Agreement. Each certificate for any
Bidder Contributed Shares or successor securities shall bear the following
legend:
THESE SECURITIES (I) HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO OR FOR RESALE IN CONNECTION WITH THE DISTRIBUTION
HEREOF, AND (II) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY
STATE AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED
OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (A) AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (B) TO THE EXTENT
APPLICABLE, RULE 144 OR ANY OTHER EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT (OR ANY SIMILAR RULE UNDER THE SECURITIES ACT
RELATING TO THE DISPOSITION OF SECURITIES), OR (C) AN OPINION OF
COUNSEL, IF SUCH OPINION SHALL BE REASONABLY SATISFACTORY TO COUNSEL
TO THE ISSUER, THAT REGISTRATION UNDER THE SECURITIES ACT IS NOT
REQUIRED.
<PAGE>
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend (except a new certificate issued upon
completion of a public distribution pursuant to a registration statement under
the Securities Act) shall also bear such legend unless, in the opinion of
counsel selected by the holder of such certificate and reasonably acceptable
to Bidder, the securities represented thereby need no longer be subject to
restrictions on resale under the Securities Act.
2A.10 Adjustments Based Upon Transfer of More than 2,322 Tower
Structures.
(a) Thrasher and the Transferring Entities may transfer to Bidder
assets and liabilities or economic benefits relating to more than 2,322 Tower
Structures ("Additional Tower Structures"). The consideration to be paid,
distributed and issued to Thrasher and the Transferring Entities under this
Agreement with respect to such Additional Tower Structures shall be increased
by an amount (the "Additional Consideration") equal to the product determined
by multiplying (i) $390,000 by (ii) the number of Additional Tower Structures
in excess of 2,322. Such Additional Consideration shall be provided by
increasing the Thrasher HoldCo Interest provided, however, that such adjusted
interest must be less than 50%. If the amount of the Additional Consideration
is such that the Thrasher HoldCo Interest, as adjusted pursuant to this
Section 2A.10, would be greater than or equal to 50%, the Thrasher HoldCo
Interest shall be adjusted to 49.9% and Bidder and Thrasher shall agree upon
the form of additional consideration to be provided by Bidder, which may
include an increase of the Bidder Contributed Cash and an increase in the
number of Bidder Contributed Shares. The Thrasher HoldCo Interest thereafter
shall be equal to (i) the sum of (A) the product of (1) the number of
Additional Tower Structures and (2) $390,000 (adjusted downward to account for
any additional consideration as appropriate provided by Bidder in accordance
with the prior sentence) and (B) Thrasher Interest Value, divided by (ii) the
Total Entity Value (giving effect to value attributable to the contribution of
the Additional Tower Structures). The Bidder HoldCo Interest shall be adjusted
downward such that the Bidder HoldCo Interest equals (a) 100%, minus (ii) the
Thrasher HoldCo Interest, as calculated in the preceding sentence, expressed
as a percentage.
(b) Notwithstanding anything to the contrary in this Agreement, OpCo
shall not be obligated to acquire any Additional Tower Structures pursuant to
this Agreement if such Additional Tower Structures are not Included Additional
Tower Structures.
(c) As used in this Agreement, the term "Included Additional Tower
Structures" shall mean all Additional Tower Structures that meet any of the
following criteria: (i) any Tower Structure that is substantially complete and
for which all Governmental Permits that are required for the construction
<PAGE>
thereof have been secured, (ii) any Tower Structure that is planned, but not
yet constructed, and for which a Tower Site has been secured and all
Governmental Permits that are required for the construction thereof have been
secured and (iii) any Tower Structure for which Thrasher has not secured a
required consent or approval to the assignment of the related Site Lease to
HoldCo at the Closing, but for which Thrasher or a Transferring Entity is
nonetheless able to deliver to HoldCo the interest of Thrasher or the
applicable Transferring Entity in the economic benefits of the Tower Structure
pursuant to Section 4.1.
2A.11 Adjustments Based Upon Revenue Run Rate of Towers in a Tranche.
(a) For purposes of this Agreement, the total annualized monthly rents
receivable from third party tenants for all of the 2,322 Tower Structures to
be conveyed by the Transferring Entities to HoldCo hereunder is $6,100,000
(the "Total Third Party Rent Commitment"). At the Final Closing, Thrasher and
Bidder shall determine the annualized aggregate rents (the "Actual Third Party
Rents") for all of the Tower Structures conveyed by the Transferring Entities
at the Final Closing and all prior Closings calculated as of the Closing Date
that each Tower Structure was conveyed by the Transferring Entities to HoldCo
hereunder (the "Conveyed Tower Structures").
(b) If at the Final Closing, the Actual Third Party Rents equal or
exceed the product of (i) the quotient of the number of Conveyed Tower
Structures, divided by 2,322 and (ii) Total Third Party Rent Commitment (the
"Adjusted Third Party Rent Commitment"), there shall be no amounts owing by
Thrasher to HoldCo, or by HoldCo to Thrasher, on account of the amount of
rents receivable from third party tenants for the Conveyed Tower Structures.
(c) If at the Final Closing, the Actual Third Party Rents are less
than the Adjusted Third Party Rent Commitment, then the following provisions
of this subsection (c) shall apply from and after the Final Closing Date until
such time that the Actual Third Party Rents equal or exceed the Adjusted Third
Party Rent Commitment. On the first day of each calendar month, HoldCo shall
calculate the difference between the monthly Actual Third Party Rents
(expressed in a monthly amount, determined by dividing the Actual Third Party
Rents by 12) and the monthly Adjusted Third Party Rent Commitment (expressed
in a monthly amount, determined by dividing the Adjusted Third Party Rent
Commitment by 12) as of such date. On or before the tenth day of such month,
HoldCo shall deliver to Thrasher an invoice for the difference so calculated
(the "Monthly Third Party Rent Shortfall"), which shall be accompanied by
reasonable evidence supporting HoldCo's calculation of the Monthly Third Party
Rent Shortfall. Thrasher shall pay each such invoice within 30 days after
Thrasher's receipt of the invoice.
(d) Amounts payable by Thrasher under Section 8.6 below shall be
counted as rents receivable from third party tenants for the Tranche Towers
for purposes of
<PAGE>
determining the Actual Third Party Rents for the Tranche Towers under this
Section 2A.11.
2A.12. Method of Contributing Thrasher Contributed Assets and Thrasher
Assumed Liabilities. In light of the fact that the contributions of the
Thrasher Contributed Assets and the Thrasher Assumed Liabilities shall be
immediately contributed by HoldCo to HoldCo Sub, as capital contributions by
HoldCo to HoldCo Sub, which in turn will immediately contribute such Thrasher
Contributed Assets and Thrasher Assumed Liabilities to OpCo as capital
contributions by HoldCo Sub to OpCo, the parties hereby agree that each of the
contributions by the Transferring Entities to HoldCo pursuant to this Article
2A shall be effected, for convenience purposes, as a transfer by such
Transferring Entities of legal title to the Thrasher Contributed Assets and
the Thrasher Assumed Liabilities directly to OpCo.
ARTICLE 3
FORMATION OF OPCO
3.1 Purpose of OpCo. The purpose of OpCo is (a) to acquire and retain
ownership of, and maintain and operate, the Thrasher Contributed Assets and
the Working Capital Contribution, (b) to assume, perform and discharge the
Thrasher Assumed Liabilities, (c) to perform all obligations under the Global
Lease, (d) to perform all obligations under the Build-to-Suit Agreement and
(e) to make space on the communications towers owned by OpCo from time to time
available for lease by HoldCo Sub to third parties on behalf of OpCo pursuant
to a Management Agreement.
3.2 Formation of OpCo. Subject to the terms and conditions of this
Agreement and in reliance upon the representations and warranties and
covenants contained herein, at the Initial Closing (a) Thrasher Affiliate
Member and Bidder Member shall cause HoldCo Sub to form OpCo by filing an
appropriate certificate of formation with the Secretary of State of the State
of Delaware, and (b) the Thrasher Affiliate Member Bidder Member shall execute
and deliver the OpCo Operating Agreement in the form attached hereto as
Exhibit 3.2 (the "OpCo Operating Agreement").
3.3 Contributions to OpCo; Issuances of Membership Interests in OpCo.
(a) At each Closing, HoldCo Sub shall contribute the Thrasher
Contributed Assets and the Thrasher Assumed Liabilities and the Working
Capital Contribution conveyed at such Closing to OpCo (each an "OpCo Capital
Contribution") in exchange for membership interests as follows. At the Initial
Closing, OpCo shall issue to HoldCo Sub a 99.999% percentage interest in OpCo
and the remaining .001% percentage interest
<PAGE>
in OpCo shall be issued to the Thrasher Affiliate Member (the "Thrasher
Retained Interest") in exchange for the contribution of $9,300 by the Thrasher
Affiliate Member to OpCo. At each subsequent Closing, notwithstanding HoldCo
Sub's additional contributions to OpCo, HoldCo Sub's percentage interest in
OpCo in the aggregate, and the Thrasher Retained Interest shall remain
unchanged. The Thrasher Retained Interest shall be held at all times directly
by a single Thrasher Member (subject to a pledge arrangement in favor of the
Lender in connection with Incurred Debt, if any).
(b) At any time after the Final Closing, in the event that Bidder
Member elects to make a Permitted HoldCo Capital Contribution, immediately
after the resulting Permitted HoldCo Sub Capital Contribution, HoldCo Sub
shall contribute an amount in cash equal to the Permitted HoldCo Sub Capital
Contribution to OpCo in exchange for additional membership interests in OpCo.
In such circumstance, the HoldCo percentage interest in OpCo and the Thrasher
Retained Interest shall each remain unchanged.
3.4 Global Lease Agreement. At the Initial Closing, OpCo, Thrasher
(for itself and on behalf of the Transferring Partnerships) and certain
Thrasher Affiliates shall execute and deliver the Global Lease Agreement in
the form attached hereto as Exhibit 3.4 (the "Global Lease") pursuant to which
OpCo shall lease to Thrasher, the Transferring Partnerships and certain
Thrasher Affiliates space on certain communications towers.
3.5 Build-to-Suit Agreement. At the Initial Closing, OpCo, Thrasher
(for itself and on behalf of the Transferring Partnerships) and certain
Thrasher Affiliates shall execute and deliver the Build-to-Suit Agreement in
the form attached hereto as Exhibit 3.5 (the "Build-to-Suit Agreement")
pursuant to which Thrasher, the Transferring Entities and certain Thrasher
Affiliates shall offer to OpCo and HoldCo Sub from time to time the right to
build tower structures on the terms and conditions described therein.
3.6 Bidder Services Agreement. At the Initial Closing, Bidder,
HoldCo Sub and OpCo shall execute and deliver a Services Agreement in the form
attached hereto as Exhibit 3.6, pursuant to which Bidder shall offer to OpCo
and HoldCo Sub certain services with respect to the tower structures owned by
OpCo and HoldCo Sub on the terms and conditions described therein (the "Bidder
Services Agreement").
3.7 Transitional Services Agreement. At the Initial Closing, if
Thrasher and Bidder determine that such an agreement should be entered into,
Thrasher, OpCo and HoldCo Sub shall execute and deliver the Transitional
Services Agreement in the form attached hereto as Exhibit 3.7, pursuant to
which Thrasher shall offer to OpCo and HoldCo Sub certain services with
respect to the transition of the Thrasher Contributed
<PAGE>
Assets to OpCo on the terms and conditions described therein (the
"Transitional Services Agreement").
ARTICLE 4
CLOSINGS
4.1 Closings.
(a) Subject to prior termination of this Agreement pursuant to Section
11.5, the contribution of the Thrasher Contributed Assets and the Thrasher
Assumed Liabilities and the contribution of the Bidder Contributed Cash to
HoldCo and the consummation of the 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 Alston & Bird LLP, One Atlantic Center, 1201 West Peachtree Street,
Atlanta, Georgia 30309-3424, at such times and on such dates (each, the
"Closing Date"), as specified below:
(i) Subject to the provisions of Section 2A.12, the contribution
of the Thrasher Contributed Assets and the Thrasher Assumed
Liabilities to HoldCo shall be accomplished in multiple tranches (each
a "Tranche"), with each Tranche to be determined as follows. Thrasher
shall be obligated to contribute to HoldCo a Tranche of Thrasher
Contributed Assets and Thrasher Assumed Liabilities consisting of all
of the Tower Sites in a particular Area, within ten (10) business days
after the date on which such Tranche becomes Ready (as defined below).
(ii) For purposes of this Agreement, a Tranche shall be deemed
"Ready" if (A) all consents and approvals required for the
contribution of the Thrasher Contributed Assets and the Thrasher
Assumed Liabilities relating to at least eighty-six percent (86%) of
the Tower Sites in that Tranche (or, at the election of Thrasher, in
the case of Tranches after the first Tranche, eight-six percent (86%)
of the sum of (x) the number of Tower Sites conveyed to HoldCo at all
prior Closings and (y) the number of Tower Sites to be conveyed to
HoldCo at the Closing for the Tranche in question) shall have been
obtained by Thrasher (other than consents and approvals which if not
obtained are not reasonably likely to have, individually or in the
aggregate, a Thrasher Material Adverse Effect) and (B) at least
eighty-six percent (86%) of the Tower Sites in that Tranche (or, at
the election of Thrasher, in the case of Tranches after the first
Tranche, eighty-six percent (86%) of the sum of (x) the number of
Tower Sites conveyed to HoldCo at all prior Closings and (y) the
number of Tower Sites to be conveyed to HoldCo at the Closing for the
Tranche in question) shall not be subject to continuing
<PAGE>
environmental remediation work by Thrasher pursuant to the provisions
of Section 6.1.7; provided, however, if as to any Area, Thrasher is
unable to obtain consents and approvals required for the contribution
of a portion of the Thrasher Contributed Assets in such Area, for
purposes hereof such Tower Sites will be excluded from the Thrasher
Contributed Assets if such exclusion does not constitute a Thrasher
Material Adverse Effect (it being understood that for purposes of this
Section 4.1(a) the term "Thrasher Material Adverse Effect" shall apply
only as to the Thrasher Contributed Assets and Thrasher Assumed
Liabilities being contributed in such Tranche) and the remainder of
the Tower Sites in such Area as to which consent and approval have
been obtained shall constitute a Tranche that is Ready.
(iii) Notwithstanding the foregoing, (A) the Initial Closing shall
not occur before January 15, 2000, (B) the second Closing shall not
occur before March 31, 2000, (C) the Tranche of Thrasher Contributed
Assets and Thrasher Assumed Liabilities to be transferred at the
Initial Closing (the "Initial Closing Tranche") shall not relate to
more than 895 Tower Sites and (D) Thrasher shall use commercially
reasonable efforts to cause at least 50% of the Tower Sites in the
Initial Closing Tranche to be from the markets listed on Section
4.1(a) of the Thrasher Disclosure Memorandum (it being understood that
Thrasher may dispose of Tower Sites in such markets pursuant to the
provisions of Section 6.1.4 of this Agreement and it being further
understood that it is not a condition to the Initial Closing that such
percentage be achieved).
(b) Notwithstanding anything to the contrary contained herein, but
subject to Section 4(a)(iii) above, the parties acknowledge and agree that
each Closing shall be subject to the provisions of Article 7 of this Agreement
and shall take place after all the conditions set forth in such Article 7 have
been satisfied or waived.
(c) The parties shall use commercially reasonable efforts to include
in each Closing (i) any Tower Sites previously conveyed to HoldCo subject to
the economic benefits arrangement set forth in Section 2A.6 for which all
necessary consents or approvals have subsequently been received and (ii) any
Tower Sites excluded from a Closing pursuant to the proviso in Section
4.1(a)(ii) for which the necessary consents or approvals have subsequently
been received.
4.2 Items to Be Delivered and Actions to Be Taken at each Closing. At
each Closing:
(a) Bidder shall contribute to HoldCo the applicable amount of the
Bidder Contributed Cash calculated in accordance with Section 2A.9 in respect
of all of the
<PAGE>
Tower Sites being contributed by Thrasher and the Transferring Entities to
HoldCo at such Closing;
(b) Subject to the provisions of Section 2A.12, Thrasher and the
Transferring Entities shall deliver to HoldCo such deeds, assignments, bills
of sale and other good and sufficient instruments and documents of conveyance
and transfer as shall be necessary and effective (in the reasonable opinion of
counsel to Bidder Member, consistent with the provisions of this Agreement) to
transfer and assign to, and vest in, HoldCo all of the right, title and
interest of Thrasher and the Transferring Entities in and to the Thrasher
Contributed Assets to the extent and as provided in this Agreement, and HoldCo
shall deliver to Thrasher and the Transferring Entities an undertaking whereby
HoldCo will assume and agree to pay, discharge or perform, as appropriate, the
Thrasher Assumed Liabilities to the extent and as provided in this Agreement;
(c) The parties hereto shall also deliver to each other the applicable
agreements, certificates and other documents and instruments referred to in
Article 7 hereof;
(d) Pursuant to the provisions of Section 2.5, HoldCo shall
immediately deliver to the Transferring Entities the applicable Contributed
Cash Distribution by wire transfer of immediately available funds to such
accounts as Thrasher shall specify in writing;
(e) Pursuant to the provisions of Section 2.7, HoldCo Sub shall
deliver to HoldCo cash in an amount equal to the Financing Distribution, if
any, and HoldCo shall then immediately deliver to the Transferring Entities
the Financing Distribution by wire transfer of immediately available funds to
such accounts as Thrasher shall specify in writing;
(f) The Transferring Entities and Bidder Member shall take the actions
specified in Sections 2.3, 3.2 and 3.5 relating to the issuances of membership
interests in OpCo, HoldCo Sub and HoldCo; and
(g) Pursuant to the provisions of Sections 2.5 and 3.3, HoldCo shall
make the HoldCo Sub Capital Contribution and HoldCo Sub shall make the OpCo
Capital Contribution.
4.3 Additional Items to Be Delivered and Actions to Be Taken at the
Initial Closing. At the Initial Closing and subject to the terms and
conditions herein contained:
(a) The Transferring Entities and Bidder Member shall form HoldCo by
executing and delivering the HoldCo Operating Agreement;
<PAGE>
(b) The Transferring Entities and Bidder Member shall cause HoldCo to
form HoldCo Sub by executing and delivering the HoldCo Sub Operating
Agreement;
(c) Thrasher and Bidder Member shall cause HoldCo Sub to form OpCo by
executing and delivering the OpCo Operating Agreement;
(d) OpCo, Thrasher and each of the Transferring Entities shall execute
and deliver the Global Lease;
(e) OpCo and Thrasher (for itself and on behalf of the Transferring
Partnerships) shall execute and deliver the Build-to-Suit Agreement;
(f) HoldCo Sub and OpCo shall execute and deliver the Management
Agreement;
(g) Bidder, HoldCo Sub and OpCo shall execute and deliver the Bidder
Services Agreement; and
(h) If Thrasher and Bidder determine that such an agreement should be
entered into, Thrasher, HoldCo Sub and OpCo shall execute and deliver the
Transitional Services Agreement.
4.4 Further Assurances. Each of Thrasher, the Transferring Entities,
Bidder and Bidder Member, from time to time after each Closing, at OpCo's
request will execute, acknowledge and deliver to OpCo such other instruments
of conveyance and transfer and will take such other actions and execute and
deliver such other documents, certifications and further assurances as OpCo
may reasonably require in order to vest more effectively in OpCo or to put
OpCo more fully in possession of, any of the Thrasher Contributed Assets, the
Bidder Contributed Cash or the Financing Distribution, or to better enable
OpCo to complete, perform or discharge any of the liabilities or obligations
assumed by OpCo at the Closing pursuant hereto, or to vest more effectively in
HoldCo or to put HoldCo more fully in possession of the Bidder Contributed
Shares, if any. 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.
<PAGE>
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties of Thrasher. Except as disclosed to
OpCo in the Thrasher Disclosure Memorandum to this Agreement (with each
disclosure made in the Thrasher Disclosure Memorandum in response to any
Section of these representations and warranties being deemed to be disclosed
in response to, and to qualify, each other Section of these representations
and warranties), Thrasher hereby represents and warrants to OpCo as follows:
5.1.1 Corporate. Thrasher is a corporation duly organized and validly
existing under the laws of the State of Delaware. Thrasher is qualified to do
business in any jurisdiction where the ownership, use or occupancy of its
assets would require it to be so qualified, except where the failure so to
qualify would not have a Thrasher Material Adverse Effect. Thrasher has the
requisite corporate power and authority to own, lease, use and occupy the
assets owned by it as they are now being owned, leased, used and occupied.
5.1.2 Authorization. Thrasher has the requisite corporate power and
authority to execute and deliver the Transaction Documents to which it is a
party and to perform the transactions performed or to be performed by it
thereunder. Such execution, delivery and performance by Thrasher have been
duly authorized by all necessary corporate action. Each Transaction Document
executed and delivered by Thrasher has been duly executed and delivered by
Thrasher and constitutes a valid and binding obligation of Thrasher,
enforceable against Thrasher in accordance with its terms.
5.1.3 Consents and Approvals. Except for compliance with (w) the DOJ's
approval of the Transactions pursuant to the Consent Decree, (x) to the extent
required, notice, consent and approval requirements of Law, or requirements
otherwise imposed by Governmental Authorities, including any requirements
relating to zoning and land use Laws, Environmental Law or any other
applicable Law, (y) landlord notice, consent and approval requirements under
Site Leases and Tower Leases and (z) the consent requirements specified in
Section 5.1.3 of the Thrasher Disclosure Memorandum, neither the execution and
delivery by Thrasher of the Transaction Documents to which it is a party, nor
the performance of the Transactions performed or to be performed by Thrasher,
will (i) require any filing, consent or approval or constitute a Default under
(A) any Law or Court Order to which Thrasher or any of the Thrasher Assets is
subject, (B) the Charter Documents or bylaws of Thrasher or (C) any Contract,
Governmental Permit or other document to which Thrasher is a party or by which
any of the Thrasher Assets is bound, except with respect to clauses (A) and
(C), such Defaults that, individually or in the aggregate, would not have a
Thrasher Material Adverse Effect, or (ii) result in the
<PAGE>
creation or imposition of any Encumbrance upon any of the Thrasher Assets,
other than Permitted Encumbrances. No filing is required under the HSR Act for
the consummation of the Transactions.
5.1.4 Title to and Condition of Assets and Related Matters. To
Thrasher's knowledge, the Thrasher Asset Holders own and the Transferring
Entities will transfer to OpCo at each Closing good and marketable title to,
or, with respect to leased assets, a valid leasehold interest in, all of the
Thrasher Assets being conveyed at such Closing, free from any Encumbrances
except Permitted Encumbrances. To Thrasher's knowledge, the use of the
Thrasher Assets is not subject to any Encumbrances, other than Permitted
Encumbrances, and such use does not materially encroach on the property or
rights of any other Person. All of the Thrasher Assets which are personal
property or fixtures are in good operating condition and repair, subject to
normal wear and maintenance, are useable to support the antennae structures of
Thrasher and the other tenants on the existing Tower Structures as of the date
hereof, except for such defects as would not cost more than $25,000 to correct
with respect to each such Tower Structure or more than $8,100,000 for all such
Tower Structures. To Thrasher's knowledge, except as disclosed in Section
5.1.4 of the Thrasher Disclosure Memorandum, all of the transmitting towers,
ground radials, guy anchors, transmitting buildings and related improvements,
if any, located on the real property owned or leased by Thrasher or a Thrasher
Asset Holder are located entirely on such real property.
5.1.5 Real Property.
(a) Zoning. To Thrasher's knowledge, the Thrasher Asset Holders'
ownership, lease or use of the real property included in the Thrasher Assets
or subject to Site Leases is in compliance with all applicable zoning and
other land use requirements where the failure to so comply would materially
limit Thrasher's or the Thrasher Asset Holders' ability to use such real
property in the ordinary course of business as it is currently being used by
the Thrasher Asset Holders as of the date of this Agreement.
(b) Utility Services. The water, electric, gas and sewer utility
services and the septic tank and storm drainage facilities currently available
to the Tower Sites are adequate for the present use of such Tower Sites by the
Thrasher Asset Holders, are not being appropriated by the Thrasher Asset
Holders but rather are being supplied to the Thrasher Asset Holders by utility
companies or municipalities pursuant to valid and enforceable contracts or
tariffs, and there is no condition which will result in the termination of the
present access from the Tower Sites to such utility services and other
facilities.
(c) Access. To Thrasher's knowledge, except as disclosed in Section
5.1.5 of the Thrasher Disclosure Memorandum, the Thrasher Asset Holders have
obtained all
<PAGE>
Governmental Permits (where required), easements and rights-of-way which are
reasonably necessary to provide vehicular and pedestrian ingress and egress to
and from the Tower Sites for the purposes used by the Thrasher Asset Holders
in the ordinary course. To Thrasher's knowledge, no action is pending or
threatened which would have the effect of terminating or limiting such access.
(d) Eminent Domain. Neither Thrasher nor any of the Thrasher Asset
Holders has received written notice that any governmental body having the
power of eminent domain over any of the real property included in the Thrasher
Assets has commenced or intends to exercise the power of eminent domain or a
similar power with respect to all or any part of such real property.
(e) Public Improvements. To Thrasher's knowledge, no work for
municipal improvements has been commenced on or in connection with the 'Owned
Sites' included in the Thrasher Assets. Neither Thrasher nor any of the
Thrasher Asset Holders has received written notice that any assessment for
public improvements has been made against any such real property which remains
unpaid.
5.1.6 Legal Proceedings and Compliance with Law. There is no
Litigation that is pending or, to Thrasher's knowledge, threatened against
Thrasher with respect to, or involving, any of the Thrasher Assets. To
Thrasher's knowledge, there has been no Default under any Laws applicable to
the ownership, occupancy or use by the Thrasher Asset Holders of the Thrasher
Assets, including Environmental Laws, except for such Defaults that would not
have a Thrasher Material Adverse Effect, individually or in the aggregate.
Thrasher has not received any notices from any Governmental Authority
regarding any alleged Defaults relating to the ownership, use or occupancy by
the Transferring Entities of the Thrasher Assets under any applicable Laws,
including Environmental Laws. Neither Thrasher nor the Thrasher Asset Holders,
with respect to the Thrasher Assets, is presently subject to the provisions of
any Court Order and there has been no Default with respect to any Court Order
applicable to either Thrasher or the Thrasher Asset Holders with respect to
the Thrasher Assets, except for such Defaults that would not have a Thrasher
Material Adverse Effect, individually or in the aggregate.
5.1.7 Governmental Permits. Except as set forth on Section 5.1.7 of
the Thrasher Disclosure Memorandum, the Thrasher Asset Holders have obtained
all Governmental Permits that are required for the ownership, use or occupancy
of the Thrasher Assets as now being conducted, 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 Thrasher Material Adverse Effect, individually or in the aggregate. The
Transferred Entities have complied with all such Governmental Permits, except
where the failure so to comply would not have a Thrasher Material Adverse
Effect, individually or in the aggregate.
<PAGE>
5.1.8 Contracts. Section 5.1.8 of the Thrasher Disclosure Memorandum
identifies all Contracts of the following types to which any of the Thrasher
Asset Holders is a party, or by which it is bound, with respect to the
Thrasher Assets (other than any Contract that is terminable by a party on not
more than sixty (60) days' notice without any Liability or any Contract under
which the obligation of a party (fulfilled and to be fulfilled) involves an
amount of less than $50,000 (a "Minor Contract")):
(a) Contracts which are Site Leases, disclosing for each the location
of the related Tower Site, the identity of the lessor, the expiration date of
the initial term under the lease, and the amount of the rental paid to the
lessor by such Thrasher Asset Holder thereunder for the month ended not more
than forty-five (45) days prior to the date of this Agreement;
(b) Contracts which are Tower Leases, disclosing for each the location
of the related Tower Site, the identity of the lessee, the expiration date of
the initial term under the lease, and the amount of the rental paid by the
lessee to such Thrasher Asset Holder thereunder for the month ended not more
than forty-five (45) days prior to the date of this Agreement;
(c) Contracts which are Tower Equipment Leases, disclosing for each
the location of the related Tower Site, the type of equipment leased, the
identity of the lessor, the expiration date of the initial term under the
lease and the amount of the rental paid to the lessor by such Thrasher Asset
Holder thereunder for the month ended not more than forty-five (45) days prior
to the date of this Agreement;
(d) Contracts which are Tower Service Contracts, disclosing for each
the location of the related Tower Site, the identity of the service provider,
the type of service provided, the expiration date of the initial term under
the Contract and the amount of the fees paid by such Thrasher Asset Holder to
the service provider thereunder for the month ended not more than forty-five
(45) days prior to the date of this Agreement;
(e) Contracts under which any Encumbrances, other than Permitted
Encumbrances, exist with respect to the Thrasher Assets; and
(f) Contracts (other than Minor Contracts and those described in any
of (a) through (e) above) (i) which relate to the Tower Structures or Tower
Sites which were entered into after December 31, 1997 and which were not made
in the ordinary course of the business of Thrasher or (ii) which were made in
the ordinary course of business and involve remaining payments under any such
Contract of more than $500,000.
The Contracts listed in Section 5.1.8 of the Thrasher Disclosure
Memorandum are referred to herein as the "Thrasher Contracts." Except as
identified in Section 5.1.8 of the
<PAGE>
Thrasher Disclosure Memorandum, none of the Thrasher Asset Holders or Thrasher
is in Default under any Thrasher Contract in any material respect. Neither
Thrasher nor any of the Thrasher Asset Holders has received any written
communication from, or given any written communication to, any other party
indicating that a Thrasher Asset Holder or such other party, as the case may
be, is in Default under any Thrasher Contract, which Default has not been
cured. To Thrasher's knowledge, (i) except as identified in Section 5.1.8 of
the Thrasher Disclosure Memorandum, none of the other parties to any such
Thrasher Contract is in Default thereunder in any material respect and (ii)
each such Thrasher Contract is in full force and effect and is enforceable
against the other parties thereto in accordance with its terms, except to the
extent that such enforcement may be limited by applicable bankruptcy,
reorganization, insolvency and other Laws of general application affecting
enforcement of creditors' rights generally.
5.1.9 Environmental Matters. Except as set forth on Section 5.1.9 of
the Thrasher Disclosure Memorandum, to Thrasher's knowledge, no Environmental
Condition exists at any of the Tower Sites which would have a Thrasher
Material Adverse Effect, individually or in the aggregate.
5.1.10 Absence of Certain Changes or Events. Since September 30, 1999,
Thrasher and the Thrasher Asset Holders have made reasonable efforts
consistent with past practice to preserve relationships with customers,
suppliers, employees, lessors, licensors, tenants, licensees, distributors and
others with whom Thrasher and the Thrasher Asset Holders have a business or
financial relationship with respect to the Thrasher Assets. Except as set
forth on Section 5.1.10 of the Thrasher Disclosure Memorandum, Thrasher
conducted their operations regarding the Thrasher Assets in the ordinary
course of business consistent with past practice (including with respect to
the collection-of receivables, payment of payables and other liabilities and
capital expenditures).
5.1.11 Availability of Documents. Thrasher has made available to
Bidder and Bidder Member copies of all documents, including, without
limitation, all Contracts identified in the Sections of the Thrasher
Disclosure Memorandum relating to this Section 5.1. Such copies are true and
complete in all material respects and include all material amendments,
supplements and modifications thereto or waivers currently in effect
thereunder.
5.1.12 Purchase for Investment. Thrasher and the Transferring Entities
are acquiring the Thrasher OpCo Interest and the Thrasher HoldCo Interest for
their own respective accounts and not with a view to the distribution thereof,
except in the case of the Transferring Entities. Thrasher and the Transferring
Entities understand that the Thrasher OpCo Interest and the Thrasher HoldCo
Interest have not been registered under the Securities Act and may be resold
only if registered pursuant to the provisions of the
<PAGE>
Securities Act or if an exemption from registration is available, except under
circumstances where neither such registration nor such an exemption is
required by law.
5.1.13 Broker or Finder. No Person assisted in or brought about the
negotiation of this Agreement or the Transactions in the capacity of
investment banker, broker, agent or finder or "in any similar capacity on
behalf of Thrasher or any of its Affiliates, other than Salomon Smith Barney
Inc., whose fees will be borne by Thrasher.
5.1.14 No Other Warranties. Except for the representations and
warranties expressly set forth in this Section 5.1 and Section 5.2, the
Thrasher Contributed Assets are being sold by Thrasher and the Transferring
Entities as is, where is, and with all faults, and there are no other
warranties being made by Thrasher or the Transferring Entities (INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF HABITABILITY, MERCHANTABILITY OR WARRANTY
FOR A PARTICULAR PURPOSE), express or implied, in connection with the sale of
the Thrasher Contributed Assets or the other transactions contemplated by the
Transaction Documents.
5.1A Representations and Warranties of Transferring Corporations.
Except as disclosed to OpCo in the Thrasher Disclosure Memorandum to this
Agreement, each of the Transferring Corporations, severally and not jointly
and each solely with respect to itself and the Thrasher Contributed Assets
owned by it, and Thrasher, jointly with each Transferring Corporation, hereby
represents and warrants to OpCo as follows:
5.1A.1 Corporate. Such Transferring Corporation is a corporation duly
organized and validly existing under the laws of the state of its
incorporation. Such Transferring Corporation is qualified to do business in
any jurisdiction where the ownership, use or occupancy of the Thrasher
Contributed Assets would require it to be so qualified, except where the
failure so to qualify would not have a Thrasher Material Adverse Effect. Such
Transferring Corporation has the requisite corporate power and authority to
own, lease, use and occupy the Thrasher Contributed Assets owned by it as they
are now being owned, leased, used and occupied.
5.1A.2 Authorization. Such Transferring Corporation has the requisite
corporate power and authority to execute and deliver the Transaction Documents
to which it is a party and to perform the transactions performed or to be
performed by it thereunder. Such execution, delivery and performance by such
Transferring Corporation have been duly authorized by all necessary corporate
action. Each Transaction Document executed and delivered by such Transferring
Corporation has been duly executed and delivered by such Transferring
Corporation and constitutes a valid and binding obligation of such
Transferring Corporation, enforceable against such Transferring Corporation in
accordance with its terms.
<PAGE>
5.1A.3 Consents and Approvals. Except for the notices, consents and
approvals referenced in Section 5.1.3 and or specified in Section 5.1.3 of the
Thrasher Disclosure Memorandum, neither the execution and delivery by such
Transferring Corporation of the Transaction Documents to which it is a party,
nor the performance of the Transactions performed or to be performed by such
Transferring Corporation, will (i) require any filing, consent or approval or
constitute a Default under (A) any Law or Court Order to which such
Transferring Corporation or any of the Thrasher Contributed Assets is subject,
(B) the Charter Documents or bylaws of such Transferring Corporation or (C)
any Contract, Governmental Permit or other document to which such Transferring
Corporation is a party or by which any of the Thrasher Contributed Assets is
bound, except with respect to clauses (A) and (C), such Defaults that,
individually or in the aggregate, would not have a Thrasher Material Adverse
Effect, or (ii) result in the creation or imposition of any Encumbrance upon
any of the Thrasher Contributed Assets, other than Permitted Encumbrances.
5.2 Representations and Warranties of Transferring Partnerships.
Except as disclosed to OpCo in the Thrasher Disclosure Memorandum, each of the
Transferring Partnerships, severally and not jointly and each solely with
respect to itself and the Thrasher Contributed Assets owned by it, and
Thrasher, jointly with each Transferring Partnership, hereby represents and
warrants to OpCo as follows:
5.2.1 Partnership. Such Transferring Partnership is a partnership,
duly formed and validly existing under the state laws pursuant to which it was
formed. Such Transferring Partnership has the requisite partnership power and
authority to own, lease, use and occupy the Thrasher Contributed Assets owned
by it as they are now being owned, leased, used and occupied.
5.2.2 Authorization. Such Transferring Partnership has the requisite
partnership power and authority to execute and deliver the Transaction
Documents to which it is a party and to perform the transactions performed or
to be performed by it thereunder. Such execution, delivery and performance by
such Transferring Partnership have been duly authorized by all necessary
partnership action. Each Transaction Document executed and delivered by such
Transferring Partnership has been duly executed and delivered by such
Transferring Partnership and constitutes a valid and binding obligation of
such Transferring Partnership, enforceable against such Transferring
Partnership in accordance with its terms, except to the extent that such
enforcement may be limited by applicable bankruptcy, reorganization,
insolvency and other Laws of general application affecting enforcement of
creditors' rights generally.
5.2.3 Consents and Approvals. Except for the notices, consents and
approvals referenced in Section 5.1.3 or specified in Section 5.2.3 of the
Thrasher Disclosure Memorandum, neither the execution and delivery by such
Transferring Partnership of the
<PAGE>
Transaction Documents to which it is a party, nor the performance of the
Transactions performed or to be performed by such Transferring Partnership,
will (i) require any filing, consent or approval or constitute a Default under
(A) any Law or Court Order to which such Transferring Partnership or any of
the Thrasher Contributed Assets owned by it is subject, (B) the partnership
agreement or other governing documents of such Transferring Partnership or (C)
any Contract, Governmental Permit or other document to which such Transferring
Partnership is a party or by which any of the Thrasher Contributed Assets
owned by such Transferring Partnership is bound, except with respect to
clauses (A) and (C), such Defaults that, individually or in the aggregate,
would not have a Thrasher Material Adverse Effect, or (ii) result in the
creation or imposition of any Encumbrance upon the Thrasher Contributed Assets
owned by such Transferring Partnership, other than Permitted Encumbrances.
5.3 Representations and Warranties of Bidder and Bidder Member. Each
of Bidder and Bidder Member, jointly and severally, hereby represents and
warrants to OpCo, Thrasher and each of the Transferring Entities as follows:
5.3.1 Corporate. Each of Bidder and Bidder Member is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware. Each of Bidder and Bidder Member has all requisite
corporate power and authority to carry on its business as it has been and is
now being conducted and to own, lease and operate the properties and assets
used in connection therewith.
5.3.2 Authorization. Each of Bidder and Bidder Member has the
requisite corporate power and authority to execute and deliver the Transaction
Documents to which it is a party and to perform the transactions performed or
to be performed by it thereunder. Such execution, delivery and performance by
Bidder and Bidder Member have been duly authorized by all necessary corporate
action. Each Transaction Document executed and delivered by Bidder and Bidder
Member has been duly executed and delivered by such corporation and
constitutes a valid and binding obligation of such corporation, enforceable
against the corporation in accordance with its terms.
5.3.3 Consents and Approvals. Except for the consents specified in
Section 5.3.3 of the Bidder Disclosure Memorandum, neither the execution and
delivery by each of Bidder and Bidder Member of the Transaction Documents to
which it is a party, nor the performance of the Transactions performed or to
be performed by it, will (i) require any filing, consent or approval or
constitute a Default under (A) any Law or Court Order to which it or its
properties and assets are subject, (B) its Charter Documents or bylaws, or (C)
any Contract, Governmental Permit or other document to which it is a party or
by which any of its properties and assets are bound, except with respect to
clauses (A) and (C), such Defaults that, individually or in the aggregate,
would not have a Bidder Material Adverse Effect, or (ii) result in the
creation or imposition of any
<PAGE>
Encumbrance upon its properties and assets, other than Permitted Encumbrances.
No filing is required under the HSR Act for the consummation of the
Transactions.
5.3.4 Broker or Finder. No Person assisted in or brought about the
negotiation of this Agreement or the Transactions in the capacity of
investment banker, broker, agent or finder or in any similar capacity on
behalf of Bidder or any of its Affiliates, other than Goldman, Sachs & Co.,
whose fees will be borne by Bidder.
5.3.5 Capital Stock. As of the date hereof, Bidder has authorized
capitalstock consisting solely of 690,000,000 shares of Bidder Common Stock,
par value $0.01 per share (including 90,000,000 shares of Bidder Class A
Common Stock, par value $0.01 per share), and 10,000,000 shares of Bidder
Preferred Stock, par value $0.01 per share ("Bidder Preferred Stock"). As of
September 30, 1999: (a) 144,887,446 shares of Bidder Common Stock were issued
and outstanding, (b) 11,340,000 shares of Bidder Class A Common Stock were
issued and outstanding, (c) 219,741 shares of Bidder Preferred Stock were
issued and outstanding, (d) no shares of Bidder Common Stock, Bidder Class A
Common Stock or Bidder Preferred Stock were held as treasury shares, and (e)
31,326,809 shares of Bidder Common Stock were reserved for issuance under
Bidder's employee stock option plans and warrants (19,113,385 shares of which
were subject to outstanding options, 1,194,990 shares of which were subject to
outstanding warrants and 11,749,713 shares of which were reserved for future
option grants). Since September 30, 1999, to the date of this Agreement no
additional shares of capital stock have been reserved for issuance by Bidder
and the only issuances of shares of capital stock of Bidder have been
issuances of Bidder Common Stock upon the exercise of outstanding Bidder stock
options as listed in Section 5.3.5 of the Bidder Disclosure Memorandum. As of
the date of this Agreement, there are no existing subscriptions, options,
warrants, convertible securities, calls, commitments, agreements, conversion
rights or other rights of any character (contingent or otherwise) calling for
or requiring the issuance, transfer, sale or other disposition of any shares
of the capital stock of Bidder, or calling for or requiring the issuance of
any securities or rights convertible into or exchangeable for shares of
capital stock of Bidder, in any case except as set forth in Section 5.3.5 of
the Bidder Disclosure Memorandum. Bidder Member is an indirect wholly-owned
subsidiary of Bidder.
5.3.6 SEC Reports. Bidder has filed all required forms, reports and
documents with the SEC since January 1, 1998 (collectively, the "Bidder's SEC
Reports"). Bidder's SEC Reports complied, as of their respective dates, in all
material respects with all applicable requirements of the Securities Act and
the Exchange Act. As of their respective dates, none of Bidder's SEC Reports,
including, without limitation, any financial statements or schedules included
or incorporated by reference therein, contained any untrue statement of a
material fact or omitted to state a material fact required to be stated or
incorporated by reference therein or necessary in order to make the statements
<PAGE>
therein, in light of the circumstances under which they were made, not
misleading. There have been filed as exhibits to, or incorporated by reference
in, Bidder's Annual Report on Form 10-K for the year ended December 31, 1998
as filed with the SEC on March 17, 1999, Bidder's Quarterly Report on Form
10-Q for the quarter ended June 30, 1999 as filed with the SEC on August 13,
1999 and Bidder's Current Reports on Form 8- K as filed with the SEC on March
9, 1999, March 16, 1999, April 12, 1999, June 9, 1999, July 13, 1999, July 22,
1999, July 23, 1999 and October 12, 1999, all contracts which, as of the date
hereof, are material as described in Item 601(b)(10) of Regulation S-K. Bidder
has heretofore delivered to Thrasher, in the form filed with the SEC, all of
Bidder's SEC Reports. The audited consolidated financial statements and the
unaudited interim financial statements of Bidder, including in each case the
notes thereto, included in the Bidder's SEC Reports have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved (except as may be indicated therein or in the
notes thereto) ("GAAP"), and such balance sheets, including the related notes,
fairly present the consolidated financial position, assets and liabilities
(whether accrued, absolute, contingent or otherwise) of Bidder and its
subsidiaries at the dates indicated and such consolidated statements of
income, changes in stockholders' equity and statements of cash flow fairly
present the consolidated results of operations, changes in stockholders'
equity and cash flow of Bidder for the periods indicated, subject, in the case
of the unaudited interim financial statements, to normal, recurring audit
adjustments. The unaudited financial statements included in the Bidder's SEC
Reports contain all adjustments, which are solely of a normal recurring
nature, necessary to present fairly the results of operations and changes in
stockholders' equity and financial position for the periods then ended.
5.3.7 Absence of Certain Changes. Except as described in Section 5.3.7
of the Bidder Disclosure Memorandum, since December 31, 1998, Bidder has
conducted its business solely in the ordinary course consistent with past
practice and has not been subject to any other events or conditions of any
character that would have a Bidder Material Adverse Effect.
5.3.8 Bidder Articles and Bylaws. True and complete copies of the
Bidder's charter documents and bylaws as in effect on the date of this
Agreement are included in the Bidder's SEC Reports. Prior to the date hereof,
Bidder Member has provided Thrasher with true and complete copies of the
Bidder Member's Charter Documents and bylaws in effect on the date of this
Agreement.
5.3.9 Threatened or Pending Litigation. There are no disputes, claims,
actions, suits or proceedings, arbitrations or investigations pending or, to
the knowledge of Bidder or Bidder Member, threatened against or affecting
Bidder, Bidder Member or their respective properties, assets or operations
that would have a Bidder Material Adverse Effect.
<PAGE>
5.3.10 No Impact of Bidder Agreements on OpCo, HoldCo or HoldCo Sub.
Neither Bidder nor Bidder Member is a party to, nor is Bidder, Bidder Member
or any of their respective properties or assets subject to or bound by, any
agreement, contract or commitment which would restrict the ability of OpCo,
HoldCo or HoldCo Sub to conduct any kind of business, or own or operate any
kind of assets, anywhere in the United States or otherwise have any impact on
the ability of the parties to perform their obligations (including, without
limitation, the transfer of cash from OpCo and HoldCo Sub and HoldCo under the
Transaction Documents).
5.3.11 Bidder Contributed Shares. The issuance of any Bidder
Contributed Shares has been duly and validly authorized by all necessary
corporate action. No further approval or authorization of the stockholders or
the directors of Bidder, of any Governmental Authority or of any other Person
is required for the issuance by Bidder of any Bidder Contributed Shares and
the contribution thereof to HoldCo in accordance with the terms of this
Agreement. When and if issued and contributed to HoldCo, the Bidder
Contributed Shares shall be duly and validly issued, fully paid and
nonassessable, and free and clear of any Encumbrances and preemptive or
similar rights and restrictions of any nature including, without limitation,
any restrictions on the right to vote, sell or otherwise dispose of the Bidder
Contributed Shares (other than any restrictions imposed under the Securities
Act or Section 160(c) of the Delaware General Corporation Law). The issuance
and contribution of any Bidder Contributed Shares to HoldCo shall not be made
in violation of the terms of any preemptive right or agreement of Bidder and
shall be made in compliance with all applicable charter documents and bylaws
of Bidder and all Laws. When distributed to the Thrasher Members, as provided
in the HoldCo Operating Agreement, the Bidder Contributed Shares shall be duly
and validly issued, fully paid and nonassessable, and free and clear of any
Encumbrances and preemptive or similar rights and restrictions of any nature
(other than any Encumbrance created by Thrasher) including, without
limitation, any restrictions on the right to vote, sell or otherwise dispose
of the Bidder Contributed Shares (other than any restrictions imposed under
the Securities Act). Such distribution to the Thrasher Members shall not
violate the terms of any preemptive right or agreement of Bidder or the
charter documents or bylaws of Bidder or any applicable Law.
5.3.12 Share Ownership Limitations. No "fair price," "moratorium,"
"control share acquisition" or other form of anti-takeover statute or
regulation as in effect on the date hereof or any anti-takeover provision in
the Certificate of Incorporation or By-laws of Bidder or Bidder Member or any
shareholder rights plan or similar arrangement or material change of control
provision is applicable to any of the transactions contemplated by this
Agreement or the other Transaction Documents.
5.3.13 Funds Available to Consummate Closings.. Bidder either has or
will have available prior to each Closing sufficient cash or unconditional
commitments by third
<PAGE>
parties to pay such cash, copies of which commitments have been made available
to Thrasher, to enable Bidder to contribute to HoldCo the maximum amount of
cash (including cash for the Working Capital Contribution) required to be paid
at each Closing pursuant to the terms of this Agreement.
5.3.14 Purchase for Investment. Bidder Member is acquiring the Bidder
HoldCo Interest for its own account and not with a view to the distribution
thereof. Bidder understands that the Bidder HoldCo Interest has not been
registered under the Securities Act and may be resold only if registered
pursuant to the provisions of the Securities Act or if an exemption from
registration is available, except under circumstances where neither such
registration nor such an exemption is required by law.
5.3.15 Rights Agreement Amendment. Bidder has caused the Rights
Agreement between Bidder and ChaseMellon Shareholder Services, L.L.C., as
Rights Agent (the "Rights Agreement"), to be amended so that, subject to the
condition that neither Thrasher nor Bell Atlantic acquires any other "Voting
Securities" (as defined in the Rights Agreement) beyond those described in the
following clauses (i), (ii) (iii) and (iv), neither Thrasher nor Bell Atlantic
will become an "Acquiring Person" under the Rights Agreement upon (i) the
issuance of any Bidder Contributed Shares by Bidder and the contribution
thereof by Bidder Member to HoldCo at a Closing, or (ii) the distribution or
transfer of the Bidder Contributed Shares (including all changes in the Bidder
Contributed Shares by reason of dividends payable in stock of Bidder,
distributions, issuance of stock, stock splits, recapitalizations,
reorganizations, mergers, consolidations, combinations, exchanges or other
similar changes with regard to Bidder Common Stock occurring following the
applicable Closing Date, and together with all cash, securities (and rights
and interests therein) and other property received or receivable with respect
to the Bidder Contributed Shares) to the Thrasher Members in connection with
the dissolution of HoldCo or otherwise, or (iii) the payment by Bidder Member
to the Thrasher Members, made in Bidder Common Stock in connection with the
dissolution of HoldCo pursuant to Section 9.5 of the HoldCo Operating
Agreement, of an amount equal to the Allocated Share (as defined in the HoldCo
Operating Agreement) of the Fair Market Value (as defined in the HoldCo
Operating Agreement) of the HoldCo Sub membership interest or (iv) the
distribution of Bidder Contributed Shares pursuant to the provisions of
Section 7.6 of the HoldCo Operating Agreement.
5.3.16 No Other Representations or Warranties. Except for the
representations and warranties expressly set forth in this Section 5.3 neither
the Bidder nor its Affiliates (including Bidder Member) has made or is making
any representations or warranties to Thrasher, the Transferring Entities or
OpCo, express or implied, in connection with the transactions contemplated by
the Transaction Documents.
<PAGE>
ARTICLE 6
AGREEMENTS PENDING CLOSINGS
6.1 Agreements of Thrasher Pending the Closings. Thrasher covenants
and agrees that, pending each Closing, except as otherwise agreed to in
writing by Bidder, and except in connection with the performance of the
Transactions:
6.1.1 Business in the Ordinary Course. Subject to the provisions of
Section 6.1.4, Thrasher shall cause the Thrasher Asset Holders to operate,
maintain and service the Thrasher Assets and the Thrasher Liabilities in the
ordinary course consistent with past practice and in compliance in all
material respects with all applicable Laws and, to the extent consistent
therewith, use all reasonable efforts to preserve intact the current business
organization of the business of the Thrasher Assets, preserve the goodwill and
relationships with customers, suppliers and others having business dealings
with the business of the Thrasher Assets, provided that Thrasher and the
Thrasher Asset Holders may enter into Tower Leases with respect to the Tower
Structures in the ordinary course consistent with past practice.
6.1.2 Updates to Disclosure Memoranda. Thrasher shall promptly
disclose to Bidder any information contained in its representations and
warranties or in the Thrasher Disclosure Memorandum, 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 applicable Closing Date;
provided, however, that none of such disclosures shall be deemed to modify,
amend or supplement the representations and warranties of Thrasher or the
Thrasher Disclosure Memorandum for the purposes of Article 7 hereof, unless
Bidder shall have consented thereto in writing, except (a) to the extent that
a disclosure memorandum update relates to the addition to the Thrasher
Disclosure Memorandum of tower structures or tower sites acquired or
constructed after the date of this Agreement in the ordinary course consistent
with past practice or the execution and delivery of tower leases or site
leases entered into after the date of this Agreement in the ordinary course
consistent with past practice and matters related thereto or to the
disposition or removal of Tower Structures or Tower Sites and the assets
related thereto from the Thrasher Assets by Thrasher in each case, in
accordance with the terms of this Agreement and (b) for the information
contained in the Required Thrasher Phase I Reports (as defined in Section
6.1.7) and the Optional Bidder Phase I Reports (as defined in Section 6.2.5)
("Permitted Updates").
6.1.3 Conduct of Business. Thrasher shall use its reasonable efforts
to conduct its business in such a manner that on each Closing Date the
representations and warranties of Thrasher contained in this Agreement shall
be true as though such representations and warranties were made on and as of
such date except that on a Closing
<PAGE>
Date the representations and warranties (other than those contained in
Sections 5.1.1, 5.1.2, 5.1.12 and 5.1.13) shall only be made with respect to
the Thrasher Contributed Assets and the Transferring Entities (and
accordingly, not with respect to the Thrasher Assets and Thrasher Assets
Holders) contributing such Thrasher Contributed Assets on the particular
Closing Date (it being understood that for purposes of this Section 6.1.3, the
term "Thrasher Material Adverse Effect" shall apply only as to such Thrasher
Contributed Assets and Thrasher Assumed Liabilities). Furthermore, Thrasher
shall cooperate with Bidder and Bidder Member and use its reasonable efforts
to cause all of the conditions to the obligations of Bidder, Bidder Member and
Thrasher under this Agreement to be satisfied on or prior to each Closing
Date.
6.1.4 Sale and Exclusion of Assets; Negotiations. Subject to the
following paragraph and without limiting the generality of Section 6.1.3, and
except for conveyances to OpCo contemplated hereby, Thrasher and the
Transferring Entities shall not, directly or indirectly, sell or encumber all
or any part of the Thrasher Assets, other than in the ordinary course of its
business consistent with past practice, or initiate or participate in any
discussions or negotiations or enter into any agreement to do any of the
foregoing; provided, however, that the total number of Tower Structures that
Thrasher and the Transferring Entities may sell pursuant to the foregoing
shall not exceed 400. In addition, at its election, Thrasher may remove from
the Thrasher Assets up to an aggregate of 175 Tower Structures, including
related Tower Sites and all assets and liabilities relating thereto, from the
markets listed in Section 6.1.4 of the Thrasher Disclosure Memorandum.
It is Thrasher's current intention to pursue the sale or divestiture
of certain wireless systems owned by Thrasher or the Transferring Entities in
order to comply with the Consent Decree and thereby enable the closing of the
Bell Atlantic/Thrasher Merger. The sale of such wireless systems may include,
in Thrasher's sole discretion, Tower Sites and all related assets included in
such wireless systems. Consequently, and notwithstanding any provision of this
Agreement to the contrary (including the preceding paragraph which shall not
be applicable to the circumstances contemplated hereby), Thrasher shall have
the right to remove from the Thrasher Assets any Tower Site and all assets and
liabilities relating to such Tower Site (including Tower Structures) which is
sold in connection with any such sale or divestiture.
6.1.5 Access. Thrasher shall give to Bidder'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 the
Thrasher Contributed Assets or the Thrasher Assumed Liabilities, including for
purposes of performing an audit, and shall permit them to consult with the
officers, employees, accountants, counsel and agents of Thrasher for the
purpose of making such investigation of the Thrasher Contributed Assets or the
<PAGE>
Thrasher Assumed Liabilities, as Bidder shall desire to make, provided that
such investigation shall not unreasonably interfere with the business
operations of Thrasher. Furthermore, Thrasher shall furnish to Bidder all such
documents and copies of documents and records and information with respect to
the Thrasher Contributed Assets or the Thrasher Assumed Liabilities and copies
of any working papers relating thereto as Bidder shall from time to time
reasonably request and shall permit Bidder and its agents to make such
physical inventories and inspections of the Thrasher Contributed Assets or the
Thrasher Assumed Liabilities as Bidder may reasonably request from time to
time. Notwithstanding the foregoing provisions of this Section 6.1.5, Thrasher
shall not be required to provide any such information to Bidder if, in the
reasonable determination of the general counsel of Thrasher, access to such
information by Bidder is prohibited by the provisions of any confidentiality
agreements binding upon Thrasher or any of the Transferring Entities or by
applicable Law.
6.1.6 Press Releases. Except as required by applicable Law or in
connection with communications with the other partners of the Transferring
Partnerships or the process of obtaining consents contemplated by Sections
2A.5 and 2A.6 hereof, Thrasher shall not give notice to third parties or
otherwise make any public statement or releases concerning this Agreement or
the transactions contemplated hereby except for such written information as
shall have been approved in writing as to form and content by Bidder, which
approval shall not be unreasonably withheld or delayed and except in
connection with obtaining a required consent to or approval of the
transactions contemplated by the Agreement from the third party so notified.
6.1.7 Required Thrasher Phase I Environmental Reports. At its sole
cost and expense, Thrasher shall have Phase I Environmental Reports performed
for each of the Tower Sites that was put in service or acquired as a wireless
tower by Thrasher, any of the Transferring Entities or any of their
predecessors since January 1, 1996 and for which no such report exists on the
date of this Agreement which Tower Sites are listed on Section 6.1.7 of the
Thrasher Disclosure Memorandum. Such reports (any such report is referred to
herein as a "Required Thrasher Phase I Report" and such reports are referred
to collectively herein as the "Required Thrasher Phase I Reports") shall be
performed in accordance with Thrasher's standard methods and procedures for
performing Phase I Environmental Reports for its cellular tower sites.
Notwithstanding any provision of this Agreement to the contrary, Thrasher
shall have the right, subject to the following provisions of this Section
6.1.7, to exclude from the Thrasher Contributed Assets any Tower Site which is
the subject of a Required Thrasher Phase I Report that reveals an
Environmental Condition. In order to exercise such right, Thrasher shall give
written notice to Bidder of the Tower Sites to be excluded from the Thrasher
Contributed Assets because of Environmental Conditions revealed by a Required
Thrasher Phase I Report. Within ten (10) business days after Bidder's receipt
of any such notice from Thrasher, Bidder shall have the right to request that
Thrasher obtain an estimate of the costs and
<PAGE>
expenses required to remediate the Environmental Conditions affecting any of
the Tower Sites identified in Thrasher's notice. Within fifteen (15) business
days after Thrasher's receipt of any such request from Bidder, Thrasher shall
secure, from a reputable third party environmental consultant or remediation
company, a written estimate of the costs and expenses required to remediate
the Environmental Conditions affecting the subject Tower Sites. Thrasher shall
provide Bidder with a copy of such estimate promptly upon Thrasher's receipt
thereof. If the third party estimate is that the total costs and expenses
required to remediate the Environmental Conditions affecting any Tower Site
are $150,000 or more, Thrasher shall have the right to exclude the Tower Site
from the Thrasher Contributed Assets notwithstanding Bidder's previous request
that the Tower Site be included in the Thrasher Contributed Assets. If the
third party estimate is that the total costs and expenses required to
remediate the Environmental Conditions affecting any Tower Site are less than
$150,000, Thrasher shall promptly commence the work required to remediate the
Environmental Conditions affecting the Tower Site and shall continue to
perform such work with reasonable diligence until such work is completed, all
at Thrasher's sole cost and expense. If such work is not completed prior to
the applicable Closing Date for the Tranche in which the Tower Site is
located, Thrasher shall continue to perform such work after such Closing Date
until such work is completed, all at Thrasher's sole cost and expense; and
such Tower Site shall not be granted, conveyed, assigned, transferred or
delivered to OpCo until such work is completed. With respect to each such
Tower Site that is not granted, conveyed, assigned, transferred or delivered
to OpCo at the applicable Closing, from and after the applicable Closing Date,
until such time that the remediation work is completed by Thrasher and the
Tower Site is granted, conveyed, assigned, transferred and delivered to OpCo,
Thrasher or the applicable Transferring Entity shall deliver to OpCo the
interest of Thrasher or such Transferring Entity in the economic benefits of
the Tower Site and related Thrasher Contributed Assets. Thrasher shall provide
Bidder with true and complete copies of the Required Thrasher Phase I Reports,
except any such report that relates to a Tower Site that is excluded from the
Thrasher Contributed Assets pursuant to the provisions of this Section 6.1.7.
The Required Thrasher Phase I Reports and any third party estimate of
remediation costs and expenses obtained by Thrasher pursuant to this Section
6.1.7 shall be used by Bidder solely in connection with its internal
consideration of the transactions contemplated by this Agreement and not in
any way adverse to Thrasher, and all Required Thrasher Phase I Reports and
such third party estimates at all times shall be kept strictly confidential by
Bidder unless otherwise required by Law; provided that Bidder may provide the
Lender with copies of the Required Thrasher Phase I Reports and such third
party estimates subject to the conditions that the Lender (a) use such reports
and estimates solely in connection with its internal consideration of the
transactions contemplated by this Agreement and the Financing Documents and
not in any way adverse to Thrasher and (b) keep all such reports and estimates
strictly confidential at all times.
<PAGE>
6.1.8 Environmental Information. After the date hereof but prior to
the date that is 30 days prior to Initial Closing Date, Thrasher shall deliver
to Bidder a list of (i) any polychlorinated byphenyls in any container or
equipment on, about, under or within any Tower Sites, (ii) any asbestos at,
on, about, under or within any Tower Sites, and (iii) any underground storage
tanks, whether in service or closed in place, under any Tower Sites.
6.2 Agreements of Bidder and Bidder Member Pending the Closings. Each
of Bidder and Bidder Member covenants and agrees that, pending each Closing
and except as otherwise agreed to in writing by Thrasher:
6.2.1 Updates to Disclosure Memorandum. Bidder and Bidder Member shall
promptly disclose to Thrasher any information contained in its representations
and warranties or Bidder Disclosure Memorandum 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 Final Closing Date; provided,
however, that none of such disclosures shall be deemed to modify, amend or
supplement the representations and warranties of Bidder and Bidder Member or
the schedules hereto for the purposes of Article 7 hereof, unless Thrasher
shall have consented thereto in writing.
6.2.2 Conduct of Business. Each of Bidder and Bidder Member shall use
its reasonable efforts to conduct its business in such a manner that on each
Closing Date the representations and warranties of Bidder and Bidder Member
contained in this Agreement shall be true as though such representations and
warranties were made on and as of such date. Furthermore, each of Bidder and
Bidder Member shall cooperate with Thrasher and use its reasonable efforts to
cause all of the conditions to the obligations of Thrasher, the Transferring
Entities, Bidder and Bidder Member under this Agreement to be satisfied on or
prior to each Closing Date.
6.2.3 Access. Bidder shall give to Thrasher'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 Bidder for the purpose of making such
investigation of its business and the properties and assets used in connection
therewith, as Thrasher shall desire to make, provided that such investigation
shall not unreasonably interfere with the business operations of Bidder.
Furthermore, Bidder shall furnish to Thrasher 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 Thrasher shall
from time to time reasonably request and shall permit Thrasher and its agents
to make such physical inventories and inspections of the properties and assets
used in connection with its business as Thrasher may reasonably request from
time to time. Notwithstanding the foregoing provisions of this
<PAGE>
Section 6.1.5, Bidder shall not be required to provide any such information to
Thrasher if, in the reasonable determination of the general counsel of Bidder,
access to such information by Thrasher is prohibited by the provisions of any
confidentiality agreement binding upon Bidder or by applicable Law.
6.2.4 Press Releases. Except as required by applicable Law or in
connection with communications with the partners of the Transferring
Partnerships or the process of obtaining consents contemplated by Sections
2.3.5 and 2.3.6 hereof, neither Bidder nor Bidder Member shall give notice to
third parties or otherwise make any public statement or releases concerning
this Agreement or the transactions contemplated hereby except for such written
information as shall have been approved in writing as to form and content by
Thrasher, which approval shall not be unreasonably withheld or delayed.
6.2.5 Optional Bidder Phase I Environmental Reports. At its sole cost
and expense, Bidder shall have the right, but not the obligation, to perform
desk-top/NEPA Phase I Environmental Reports for any of the Tower Sites (any
such report is referred to herein as an "Optional Bidder Phase I Report" and
such reports are referred to collectively herein as the "Optional Bidder Phase
I Reports"). Bidder shall provide Thrasher with true and complete copies of
the Optional Bidder Phase I Reports. The Optional Bidder Phase I Reports shall
be used by Bidder solely in connection with its internal consideration of the
transactions contemplated by this Agreement and not in any way adverse to
Thrasher, and all Optional Bidder Phase I Reports at all times shall be kept
strictly confidential by Bidder unless otherwise required by Law; provided
that Bidder may provide the Lender with copies of the Optional Bidder Phase I
Reports subject to the conditions that the Lender (a) use such reports solely
in connection with its internal consideration of the transactions contemplated
by this Agreement and the Financing Documents and not in any way adverse to
Thrasher and (b) keep all such reports strictly confidential at all times.
6.2.6 Registration Rights. Prior to the execution of the Registration
Rights Agreement, Bidder shall not provide to any Person registration rights
that are pari passu or superior to (in terms of priority or otherwise) the
rights of Thrasher Members contained in the Registration Rights Agreement.
6.3 Approvals and Consents and Regulatory Filings.
(a) 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
use commercially reasonable efforts to obtain all consents, orders and
approvals of Governmental Entities (including, without limitation, DOJ's
approval of the Transactions pursuant to the Consent Decree) and
non-governmental third parties that may be or become necessary for
<PAGE>
(i) the consummation of the Transactions and (ii) the ownership of OpCo,
HoldCo Sub and HoldCo by Bidder Member, the Transferring Entities (including,
without limitation, DOJ's approval of the Transactions pursuant to the Consent
Decree) and Thrasher, and each party will cooperate fully with the other
parties in promptly seeking to obtain all such authorizations, consents,
orders and approvals.
(b) Each of Thrasher and Bidder agrees to use commercially reasonable
efforts to oppose, challenge or appeal any suit, action or proceeding by any
Governmental Entity before any court or governmental authority, agency or
tribunal, domestic or foreign or any order or ruling by any such body (i)
seeking to restrain or prohibit or restraining or prohibiting the consummation
of the Transactions, (ii) seeking to prohibit or limit or prohibiting or
limiting the ownership, operation or control by Bidder Member or Thrasher of
HoldCo, HoldCo Sub or OpCo or (iii) seeking to compel or compelling Bidder or
Thrasher any of their respective Affiliates to dispose of, grant rights in
respect of, or hold separate any portion of the business or assets of Bidder,
Thrasher, the Transferring Entities or any of their respective Affiliates.
Notwithstanding the foregoing, nothing in this Agreement shall require any
party hereto to divest any of its businesses or assets in order to (i) avoid
the entry of, or to effect the dissolution of, any injunction, temporary
restraining order or other order that has the effect of preventing the
consummation of the Transactions or (ii) obtain any consents, orders or
approvals necessary to effect any Closing.
ARTICLE 7
CONDITIONS PRECEDENT TO THE CLOSINGS
7.1 Conditions Precedent to Thrasher's Obligations. All obligations of
Thrasher and the Transferring Entities under this Agreement are subject to the
fulfillment, satisfaction or waiver, prior to or at the each Closing (unless a
particular Closing Date is specified below), of each of the following
conditions precedent:
7.1.1 Representations and Warranties. The representations and
warranties of Bidder and Bidder Member contained in this Agreement or in any
certificate or document delivered by Bidder or Bidder Member to Thrasher and
the Transferring Entities pursuant to the provisions hereof shall have been
true in all material respects on the date hereof and shall be true in all
material respects on such Closing Date with the same effect as though such
representations and warranties were made as of such date, in each case without
regard to any disclosure memorandum updates furnished by Bidder or Bidder
Member after the date hereof.
<PAGE>
7.1.2 Compliance with this Agreement. Each of Bidder and Bidder Member
shall have performed and complied, in all material respects, with all
agreements and conditions required by this Agreement to be performed or
complied with by it prior to or at the applicable Closing.
7.1.3 Closing Certificate. Thrasher and the Transferring Entities
shall have received a certificate from each of Bidder and Bidder Member, dated
the date of each Closing, certifying in such detail as Thrasher may reasonably
request that the conditions specified in Sections 7.1.1 and 7.1.2 hereof have
been fulfilled.
7.1.4 No Threatened or Pending Litigation. On the date of each
Closing, no suit, action or other proceeding, or injunction or final judgment
relating thereto, shall be threatened in writing or be pending before any
court or governmental or regulatory official, body or authority in which it is
sought to restrain or prohibit or to obtain damages or other relief in
connection with this Agreement or the consummation of the transactions
contemplated hereby, and no investigation that might result in any such suit,
action or proceeding shall be pending or threatened.
7.1.5 Consents and Approvals. All consents and approvals of, filings
and registrations with, and notifications to, all Governmental Authorities
(including to the extent necessary the DOJ's approval of the Transactions
pursuant to the Consent Decree) required for the consummation of the
transactions contemplated by the applicable Closing (other than consents and
approvals and filing, registration and notice requirements which if not
obtained, made or complied with are not reasonably likely to have,
individually or in the aggregate, a Thrasher Material Adverse Effect) shall
have been obtained or made and shall be in full force and effect.
7.1.6 Optional Bidder Phase I Reports. At least five (5) business days
prior to the Closing for a Tranche in which Bidder has received Optional
Bidder Phase I Reports, Thrasher shall have received from Bidder true and
complete copies of the Optional Bidder Phase I Reports with respect to Tower
Sites in such Tranche.
7.1.7 Fundamental Transactions. Bidder shall not have (a) been a party
to any merger, consolidation or business combination in which Bidder was not
the surviving corporation (and not a subsidiary of any other Person), (b) been
liquidated, wound-up or dissolved, (c) sold, transferred or disposed of all or
a substantial part of its assets, (d) declared any dividend or (e) issued any
capital stock having voting rights that are disproportional to the voting
rights of the Bidder Common Stock.
7.1.8 Bidder Services Agreement. On or prior to the Initial Closing
Date, Bidder, HoldCo Sub and OpCo shall have executed and delivered the Bidder
Services Agreement, in the form attached hereto as Exhibit 3.6.
<PAGE>
7.1.9 Management Agreement. On or prior to the Initial Closing Date,
HoldCo Sub and OpCo shall have executed and delivered the Management
Agreement, in the form attached hereto as Exhibit 2.4.
7.1.10 Transitional Services Agreement. On or prior to the Initial
Closing Date, if Bidder and Thrasher determine that such agreement should be
entered into, HoldCo Sub and OpCo shall have executed and delivered the
Transitional Services Agreement, in the form attached hereto as Exhibit 3.7.
7.1.11 Registration Rights Agreement. On or prior to the first Closing
at which the Bidder Contributed Shares Option is exercised, Thrasher and
Bidder shall have executed and delivered the Registration Rights Agreement in
the form attached hereto as Exhibit 7.1.11 (the "Registration Rights
Agreement").
7.2 Conditions Precedent to the Obligations of Bidder. All obligations
of Bidder and Bidder Member under this Agreement are subject to the
fulfillment or satisfaction, prior to or at each Closing (unless a particular
Closing Date is specified below), of each of the following conditions
precedent:
7.2.1 Representations and Warranties. The representations and
warranties of Thrasher contained in this Agreement or in any certificate or
document delivered by Thrasher to Bidder or Bidder Member pursuant to the
provisions hereof shall have been true in all material respects on the date
hereof and shall be true in all material respects on the Closing Date with the
same effect as though such representations and warranties were made as of such
date, in each case without regard to any disclosure memorandum updates
furnished by Thrasher after the date hereof other than Permitted Updates and
except that on a Closing Date the representations and warranties (other than
those contained in Sections 5.1.1, 5.1.2, 5.1.12 and 5.1.13) shall only be
made with respect to the Thrasher Contributed Assets and the Transferring
Entities (and accordingly, not with respect to the Thrasher Assets and the
Thrasher Asset Holders) contributing such Thrasher Contributed Assets on the
particular Closing Date (it being understood that for purposes of this Section
7.2.1 the term "Thrasher Material Adverse Effect" shall apply only as to such
Thrasher Contributed Assets and Thrasher Assumed Liabilities).
7.2.2 Compliance with this Agreement. Thrasher shall have performed
and complied, in all material respects, with all agreements and conditions
required by this Agreement to be performed or complied with by it prior to or
at the applicable Closing.
7.2.3 Closing Certificate. Bidder and Bidder Member shall have
received a certificate from Thrasher, dated the date of each Closing,
certifying in such detail as Bidder may reasonably request that the conditions
specified in Sections 7.2.1 and 7.2.2 hereof have been fulfilled.
<PAGE>
7.2.4 No Threatened or Pending Litigation. On the date of each
Closing, no suit, action or other proceeding, or injunction or final judgment
relating thereto, shall be threatened in writing or be pending before any
court or governmental or regulatory official, body or authority in which it is
sought to restrain or prohibit or to obtain damages or other relief in
connection with this Agreement or the consummation of the Transactions, and no
investigation that might result in any such suit, action or proceeding shall
be pending or threatened.
7.2.5 Consents and Approvals. All consents and approvals of,
filings and registrations with, and notifications to, all Governmental
Authorities (including to the extent necessary the DOJ's approval of the
Transactions pursuant to the Consent Decree) required for the consummation of
the transactions contemplated by the applicable Closing (other than consents
and approvals and filing, registration and notice requirements which if not
obtained, made or complied with are not reasonably likely to have,
individually or in the aggregate, a Thrasher Material Adverse Effect) shall
have been obtained or made and shall be in full force and effect.
7.2.6 Required Thrasher Phase I Reports. At least five (5) business
days prior to the Closing for a Tranche in which Thrasher is obligated to
provide true and complete copies of Required Thrasher Phase I Reports to
Bidder pursuant to the provision of Section 6.1.7 hereof, Bidder shall have
received from Thrasher true and complete copies of the Required Thrasher Phase
I Reports with respect to Tower sites in such Tranche.
7.2.7 Bidder Services Agreement. On or prior to the Initial Closing
Date, Bidder, HoldCo Sub and OpCo shall have executed and delivered the Bidder
Services Agreement, in the form attached hereto as Exhibit 3.6. If at the
Initial Closing Thrasher waives the condition set forth in Section 7.1.8, at
the Initial Closing Bidder shall waive the condition set forth in this Section
7.2.7.
7.2.8 Management Agreement. On or prior to the Initial Closing Date,
HoldCo Sub and OpCo shall have executed and delivered the Management
Agreement, in the form attached hereto as Exhibit 2.4. If at the Initial
Closing Thrasher waives the condition set forth in Section 7.1.9, at the
Initial Closing Bidder shall waive the condition set forth in this Section
7.2.8.
7.2.9 Transitional Services Agreement. On or prior to the Initial
Closing Date, if Bidder and Thrasher determine that such an agreement should
be entered into, Thrasher shall have executed and delivered the Transitional
Services Agreement, in the form attached hereto as Exhibit 3.7. If at the
Initial Closing Thrasher waives the condition set forth in Section 7.1.10, at
the Initial Closing Bidder shall waive the condition set forth in this Section
7.2.9.
<PAGE>
ARTICLE 8
CERTAIN POST-CLOSING COVENANTS OF THE PARTIES
8.1 Post-Closing Covenants Related to OpCo. From and after the Initial
Closing, OpCo shall, and HoldCo, HoldCo Sub and Bidder Member will cause OpCo
to, comply with each of the following covenants, except as otherwise
determined by the mutual consent of Thrasher and Bidder Member:
8.1.1 Conduct of Business. OpCo shall not engage in any line of
business except for the ownership, operation and maintenance of the Tower
Structures acquired in any Closing, the performance of its obligations under
the ground leases, easements and rights-of-way and the performance of its
rights and obligations under the Build-to-Suit Agreement, the Management
Agreement and the Global Lease and any leases or subleases of tower capacity
with respect to the Tower Structures (including, without limitation, Tower
Structures developed pursuant to the Build-to-Suit Agreement). OpCo shall not
make any investment in, or acquire any equity securities of, any Person.
Notwithstanding the fact that Bidder and Bidder Member operate other
businesses which may compete with OpCo, HoldCo Sub and HoldCo, Bidder and
Bidder Member agree to cause the operations of the Tower Sites held by or
managed by OpCo to be conducted in a manner no less favorable and no less
competitive than the manner in which Bidder and Bidder Member conduct the
tower operations of their other businesses.
8.1.2 Solvency. OpCo shall not voluntarily take any action that would
cause it to cease to be Solvent. "Solvent" means that the aggregate present
fair saleable value of the applicable Person's assets is in excess of the
total cost of its probable liability on its existing debts to third parties as
they become absolute and matured, such Person has not incurred debts beyond
its foreseeable ability to pay such debts as they mature, and such Person has
capital adequate to conduct the business in which it is presently employed. In
addition to the foregoing, OpCo shall not take any action (including, without
limitation, the entering into any Contract) that would inhibit, prevent or
give rise to any claim with respect to any Contributed Cash Distribution.
8.1.3 Bankruptcy. OpCo shall not voluntarily dissolve or liquidate,
shall not make a voluntary assignment for the benefit of creditors, shall not
file a petition in bankruptcy, shall not petition or apply to any tribunal for
any receiver or trustee, shall not commence any proceeding relating to itself
under any bankruptcy, reorganization, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, shall not indicate its consent
to, approval of or acquiescence in any such proceeding and shall use its best
efforts to have discharged the appointment of any receiver of or trustee for
OpCo or any substantial part of its property.
<PAGE>
8.1.4 Indebtedness. OpCo shall not, directly or indirectly, remain
liable, create, incur, assume, guaranty, or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness. "Indebtedness"
means, at any time, (a) liabilities for borrowed money, (b) liabilities for
the deferred purchase price of property acquired by the applicable Person
(excluding accounts payable arising in the ordinary course of business but
including all liabilities created or arising under any conditional sale or
other title retention agreement with respect to any such property); (c) all
liabilities appearing on its balance sheet in accordance with GAAP in respect
of capital leases; (d) all liabilities for borrowed money secured by any
Encumbrance with respect to any property owned by such Person (whether or not
it has assumed or otherwise become liable for such liabilities); (e) all
liabilities in respect of letters of credit or instruments serving a similar
function issued or accepted for its account by banks and other financial
institutions (whether or not representing obligations for borrowed money); (g)
any guaranty of such Person with respect to liabilities of a type described in
any of clauses (a) through (e) hereof.
8.1.5 Liens. OpCo shall not, directly or indirectly, maintain, create,
incur, assume or permit to exist any Encumbrance (other than Permitted
Encumbrances and Encumbrances granted to a lender to secure any Incurred Debt)
on or with respect to any property or asset (including any document or
instrument in respect of goods or accounts receivable) of OpCo, whether now
owned or hereafter acquired, or any income or profits therefrom.
8.1.6 Issuance of Interests. Except as provided in Section 3.3, OpCo
shall not authorize or issue any interests in, or admit any members to, OpCo,
other than Thrasher (or its designee) and HoldCo Sub.
8.1.7 Contingent Obligations. OpCo shall not, directly or indirectly,
create or become or be liable with respect to any Contingent Obligation
except:
(a) Contingent Obligations of OpCo arising under the Thrasher Assumed
Liabilities and successor liabilities thereto;
(b) Contingent Obligations resulting from endorsement of negotiable
instruments for collection in the ordinary course of business;
(c) Contingent Obligations under the Management Agreement,
Build-to-Suit Agreement, Global Lease or the other Transaction Documents to
which OpCo is a party;
For purposes of this Agreement, the term "Contingent Obligations" shall mean
any direct or indirect liability, contingent or otherwise (1) with respect to
any indebtedness, lease, dividend or other obligation of another if the
primary purpose or intent thereof is to
<PAGE>
provide assurance to the obligee of such obligation of another that
such obligation of another will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of such
obligations will be protected (in whole or in part) against loss in respect
thereof and (2) with respect to any letter of credit. Contingent Obligations
shall include with respect to OpCo, without limitation, the direct or indirect
guaranty, endorsement (otherwise than for the collection or deposit in the
ordinary course of business), co-making, discounting with recourse or sale
with recourse by OpCo, the obligation to make take-or-pay or similar payments
if required regardless of non-performance by any other party or parties to an
agreement, and any liability of OpCo for the obligations of another through
any agreement (contingent or otherwise) (x) to purchase, repurchase or
otherwise acquire such obligation or any security therefor, or to provide
funds for the payment or discharge of such obligation (whether in the form of
loans, advances, stock purchases, capital contributions or otherwise), and (y)
to maintain the solvency or any balance sheet item, level of income or
financial condition of another, if in the case of any agreement described
under subclause (x) or (y) of this sentence, the primary purpose or intent
thereof is as described in the preceding sentence.
8.1.8 Preservation of Existence. OpCo shall preserve and maintain its
existence, rights, franchises and privileges as a limited liability company
under the laws of the State of Delaware and qualify and remain qualified as a
foreign limited liability company in each jurisdiction in which such
qualification is necessary or desirable in view of its business and operations
or the ownership or lease of its properties.
8.1.9 Merger or Sale of Assets. OpCo shall not merge or consolidate
with, or sell, assign, lease or otherwise dispose of or voluntarily part with
the control of (whether in one transaction or in a series of transactions) a
material portion of its assets to any person (whether now owned or hereinafter
acquired) or sell, assign or otherwise dispose of (whether in one transaction
or in a series of transactions) any of its accounts receivable (whether now in
existence or hereinafter created) at a discount or with recourse, to any
person, except for sales or other dispositions of assets in the ordinary
course of business, or except as permitted under the terms of the Global Lease
Agreement.
8.1.10 Dealings with Affiliates. OpCo shall not enter into any
transaction with any officer, director or member of OpCo, HoldCo Sub or HoldCo
or any officer, director or member of Bidder or Bidder Member or holder of
more than five percent (5%) of the outstanding Bidder Common Stock, or any
member of their respective immediate families or any corporation or other
entity directly or indirectly controlled by one or more of such officers,
directors or stockholders or members of their immediate families or any
corporation or other entity directly or indirectly controlled by Bidder or
Bidder Member, except in the ordinary course of business and on terms not less
favorable to OpCo than it would reasonably expect to obtain in a transaction
between unrelated parties.
<PAGE>
8.1.11 Dividends; Distributions. Except as described in the following
sentence, OpCo shall not declare or pay any dividend, or make any distribution
or return of capital, or redeem any equity interest or make any similar
payments or transfer of property to its members (excluding payments for goods
or services) in amounts in excess of those amounts which would otherwise be
payable under the Management Agreement and then only to the extent that such
amounts had not been paid pursuant to the Management Agreement; provided,
however, that the consent of Thrasher shall not be required as a condition to
OpCo taking any of the aforesaid actions under this Section 8.1.11 if (a)
Thrasher has disposed of all of its percentage interest in HoldCo and (b)(i)
there are no further loans or other obligations outstanding under any
Financing Documents, (ii) all commitments in connection with any Financing
Documents have been terminated and (iii) no letters of credit issued under any
Financing Documents are outstanding. Within ninety (90) days after the end of
each fiscal year of OpCo, OpCo shall distribute to HoldCo Sub the amount of
net cash provided by OpCo's operating activities as determined in the OpCo
Operating Agreement (the "Excess Cash Distribution") to the extent permitted
under any applicable Contracts, including the Financing Documents.
8.2 Post-Closing Covenants Related to HoldCo, HoldCo Sub and OpCo.
From and after the Initial Closing, HoldCo and HoldCo Sub shall, and Bidder
Member will cause each of HoldCo, HoldCo Sub and OpCo to, comply with each of
the following covenants, except as otherwise determined by the mutual consent
of Thrasher and Bidder Member.
8.2.1 Conduct of Business. HoldCo shall not engage in any line of
business except for the ownership of the membership interests in HoldCo Sub
and any Bidder Contributed Shares and the making of the Contributed Cash
Distributions. HoldCo Sub shall not engage in any line of business except for
the ownership of the membership interests in OpCo and the making of the
Contributed Cash Distributions. HoldCo Sub shall not make any investment in,
or acquire any equity securities of, any Person other than OpCo.
Notwithstanding the fact that Bidder and Bidder Member operate other
businesses which may compete with OpCo, HoldCo Sub and HoldCo, Bidder and
Bidder Member agree to cause the operations of the Tower Sites indirectly held
by or managed by HoldCo Sub and HoldCo to be conducted in a manner no less
favorable and no less competitive than the manner in which Bidder and Bidder
Member conduct the tower operations of their other businesses.
8.2.2 Use of Proceeds. HoldCo Sub shall use the proceeds of the Bidder
Contributed Cash as follows: (i) to make at Initial Closing the initial
Contributed Cash Distribution; and (ii) to make at each subsequent Closing the
applicable Contributed Cash Distributions. The Working Capital Contribution
shall be retained in OpCo for working capital and capital expenditure
purposes.
<PAGE>
8.2.3 Solvency. Each of HoldCo and HoldCo Sub shall not voluntarily
take any action that would cause it or OpCo to cease to be Solvent.
8.2.4 Bankruptcy. HoldCo and HoldCo Sub shall not voluntarily dissolve
or liquidate, shall not make a voluntary assignment for the benefit of
creditors, shall not file a petition in bankruptcy, shall not petition or
apply to any tribunal for any receiver or trustee, shall not commence any
proceeding relating to itself under any bankruptcy, reorganization,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, shall not indicate its consent to, approval of or acquiescence
in any such proceeding and shall use its best efforts to have discharged the
appointment of any receiver of or trustee for HoldCo or HoldCo Sub or any
substantial part of their respective properties.
8.2.5 Indebtedness. Except for any Incurred Debt, HoldCo Sub shall
not, directly or indirectly, remain liable, create, incur, assume, guarantee,
or otherwise become or remain directly or indirectly liable with respect to
any Indebtedness. HoldCo shall not, directly or indirectly, remain liable,
create, incur, assume, guaranty, or otherwise become or remain directly or
indirectly liable with respect to any Indebtedness.
8.2.6 Liens. HoldCo shall not, directly or indirectly, maintain,
create, incur, assume or permit to exist any Encumbrance (other than Permitted
Encumbrances and Encumbrances on the membership interests in HoldCo Sub
granted to the Lender to secure any Incurred Debt) on or with respect to any
property or asset (including any document or instrument in respect of goods or
accounts receivable) of HoldCo, whether now owned or hereafter acquired, or
any income or profits therefrom.
8.2.7 Contingent Obligations. HoldCo shall not, directly or
indirectly, create or become or be liable with respect to any Contingent
Obligation. Contingent Obligations shall include with respect to HoldCo,
without limitation, the direct or indirect guaranty, endorsement (otherwise
than for the collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by HoldCo, the
obligation to make take-or-pay or similar payments if required regardless of
non-performance by any other party or parties to an agreement, and any
liability of HoldCo for the obligations of another through any agreement
(contingent or otherwise) (x) to purchase, repurchase or otherwise acquire
such obligation or any security therefor, or to provide funds for the payment
or discharge of such obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise), and (y) to maintain the
solvency or any balance sheet item, level of income or financial condition of
another, if in the case of any agreement described under subclause (x) or (y)
of this sentence, the primary purpose or intent thereof is as described in the
preceding sentence.
<PAGE>
8.2.8 Issuance of Interests. Except as provided in Section 2.2 or
pursuant to a transfer permitted by Section 9.1 or Section 9.2, HoldCo shall
not authorize or issue any interests in, or admit any members to, HoldCo,
other than Thrasher (or its designee) and Bidder Member. Except as provided in
Section 2.5, HoldCo Sub shall not authorize or issue any interests in, or
admit any members to, HoldCo Sub, other than HoldCo.
8.2.9 Preservation of Existence. Each of HoldCo and HoldCo Sub shall
preserve and maintain its existence, rights, franchises and privileges as a
limited liability company under the laws of the State of Delaware and qualify
and remain qualified as a foreign limited liability company in each
jurisdiction in which such qualification is necessary or desirable in view of
its business and operations or the ownership or lease of its properties.
8.2.10 Merger or Sale of Assets. Neither HoldCo nor HoldCo Sub shall
merge or consolidate with, or sell, assign, lease or otherwise dispose of or
voluntarily part with the control of (whether in one transaction or in a
series of transactions) a material portion of its assets to any person
(whether now owned or hereinafter acquired) or sell, assign or otherwise
dispose of (whether in one transaction or in a series of transactions) any of
its accounts receivable (whether now in existence or hereinafter created) at a
discount or with recourse, to any person, except for sales or other
dispositions of assets in the ordinary course of business.
8.2.11 Dealings with Affiliates. Neither HoldCo nor HoldCo Sub shall
enter into any transaction with any officer, director or member of HoldCo or
HoldCo Sub or any officer, director or member of Bidder or Bidder Member or
holder of more than five percent (5%) of the outstanding Bidder Common Stock,
or any member of their respective immediate families or any corporation or
other entity directly or indirectly controlled by one or more of such
officers, directors or stockholders or members of their immediate families or
any corporation or other entity directly or indirectly controlled by Bidder or
Bidder Member, except in the ordinary course of business and on terms not less
favorable to HoldCo or HoldCo Sub than it would reasonably expect to obtain in
a transaction between unrelated parties.
8.2.12 Business Plan and Annual Budget. On or before November 30 of
each year, the managers of HoldCo shall, in consultation with Thrasher,
develop a business plan and budget for HoldCo (including HoldCo Sub and OpCo)
("Business Plan") for the following calendar year of HoldCo (and HoldCo Sub
and OpCo). The Business Plan for the period between the Initial Closing Date
and December 31, 2000 shall be mutually agreed upon by Thrasher and Bidder
prior to the Initial Closing. Each subsequent Business Plan shall be submitted
to the members for review and, subject to the second following sentence,
comment and shall be adopted only with the mutual consent of Thrasher and
Bidder Member. HoldCo shall use commercially reasonable efforts to, and
cause each of HoldCo Sub and OpCo to, conduct their respective businesses in
accordance with the then current Business Plan.
If by the first date of any year the proposed Business Plan for that
year has not been adopted, the Business Plan for such year shall be deemed to
be the expense portion of the Business Plan in effect for the preceding year
increased, at the discretion of Bidder Member, to an amount not to exceed the
sum of:
(a) the average operating cost per communications tower owned by OpCo
(or of which it has the economic benefit) (the "OpCo Towers") based on the
most recent quarterly financial statements available as of the first day of
the current year multiplied by 50% of the sum of (i) the aggregate number of
OpCo Towers constructed, completed or otherwise acquired in the course of the
prior year and (ii) the aggregate number of OpCo Towers projected to be
constructed, completed or otherwise acquired in the current year in the
Business Plan for the prior year; and
(b) the sum of (x) with respect to all contractual price increases
with respect to contracts and agreements to which OpCo is a party and all
increases in Taxes with respect to OpCo Towers, the amount of such increase
and (y) with respect to all other expense items in the previous year's budget,
(A) the amount of such expenses multiplied by (B) the sum of 1 plus an amount
equal to the percentage increase in the CPI during the previous year.
If Thrasher and Bidder Member are unable to mutually agree on the
Business Plan for the year commencing January 1, 2001, the Business Plan for
such year shall be deemed to be the quotient of (a) the expense portion of the
initial Business Plan for the period ending December 31, 2000, increased as
contemplated by the foregoing sentence, multiplied by 365 (b) divided by the
number of days elapsed between the Initial Closing Date and December 31, 2000
(including both the Initial Closing Date and December 31, 2000).
Notwithstanding the foregoing, each Business Plan that is implemented
pursuant to the foregoing two paragraphs of this Section 8.2.12 because
Thrasher and Bidder Member are unable to mutually agree on the Business Plan
must provide for the payment by OpCo, prior to the allocation of revenues
pursuant to such two paragraphs, of : (i) any and all costs, expenses or
payments reasonably necessary to fulfill OpCo's obligations under the Global
Lease Agreement; (ii) any and all costs, expenses or payments reasonably
necessary to fulfill OpCo's obligations under the Build-to-Suit Agreement;
(iii) any and all taxes of any kind due and owing by OpCo; (iv) any payments
or expenditures required under any lease of real estate, grant of easement,
right of way or similar agreement to which OpCo is a party; (v) any and all
costs, expenses or payments reasonably necessary to fulfill OpCo's obligations
under any lease or sublease of tower
<PAGE>
space or real estate to any third party; (vi) insurance premiums (including
without limitation, any payments pursuant to premium financing) and/or
deductibles of OpCo; (vii) payments to third parties for equipment or any
other goods and services required to perform OpCo's obligations under existing
agreements including, without limitation, payments required to satisfy any
mechanics' liens; (viii) salaries, commissions, compensation, benefits, and
payments or obligations of a similar nature; and (ix) any and all costs,
expenses and payments required to comply with, or payable pursuant to any
applicable laws, rule, regulations, ordinances, permits or licenses.
8.2.13 Certain Contracts. Neither HoldCo, HoldCo Sub, or OpCo shall
enter into any contract, agreement or arrangement (whether written or oral),
other than agreements and contracts in force as of the date hereof and
renewals thereof, which (a) contains provisions restricting HoldCo, HoldCo Sub
or OpCo or any member thereof from competing in any business activity in any
geographic area, (b) contains provisions requiring HoldCo, HoldCo Sub, or OpCo
or any member thereof to deal exclusively with any third party with respect to
providing any goods, services or rights to or acquiring any goods or services
or rights from such third party, (c) contains provisions which are
inconsistent with the obligations of HoldCo, HoldCo Sub or OpCo under any
Transaction Document, or (d) provides for the purchase or sale of goods,
services or rights involving an amount in excess of $ 10,000,000 per year in
any transaction or series of similar transactions.
8.2.14 Action as Members of HoldCo Sub. HoldCo shall not give any
consent, in its capacity as a member of HoldCo Sub, under Section 3.8 of the
HoldCo Sub Operating Agreement.
8.2.15 Excess Cash Distributions. Upon receipt of the Excess Cash
Distribution each fiscal year, HoldCo Sub shall distribute to HoldCo the
amount of Excess Cash Distribution to HoldCo to the extent permitted under any
applicable Contracts, including the Financing Documents, which in turn shall
distribute such Excess Cash Distribution to Bidder Member and the Thrasher
Members to the extent permitted under any applicable Contracts, including the
Financing Documents, in accordance with their respective membership interests.
8.2.16 Voting of Bidder Contributed Shares. HoldCo shall not exercise
any voting rights with respect to any Bidder Contributed Shares; and in the
absence of the mutual agreement of Thrasher and Bidder Member as to the
exercise of such voting rights, any Bidder Contributed Shares shall be voted
on each matter submitted to a vote of the shareholders of Bidder for and
against such matter in the same proportion as the vote of all other shares
entitled to vote thereon are voted (whether by proxy or otherwise) for and
against such matter.
<PAGE>
8.2.17 Ownership in HoldCo. Subject to the provisions of the HoldCo
Operating Agreement, Bidder and Bidder Member agree that under no
circumstances shall the Thrasher HoldCo Interest decrease below 10.0% without
Thrasher's prior written consent.
8.3 Delivery of Financial Statements. HoldCo shall, and Bidder Member
covenants and agrees that it shall cause HoldCo to, deliver to Thrasher:
(a) within thirty (30) days of the end of each month, HoldCo shall
deliver to Bidder Member and Thrasher an unaudited income statement and
schedule as to the sources and application of funds for such month and an
unaudited balance sheet as of the end of such month, in reasonable detail and
prepared in accordance with GAAP (except as permitted by Form 10-Q under the
Exchange Act), with respect to each of HoldCo, HoldCo Sub and OpCo, together
with an analysis by management of HoldCo's financial condition and results of
operations during such period and explanation by management of any differences
between such condition or results and the budget and business plan for such
period.
(b) as soon as practicable, but in any event within ninety (90) days
after the end of each fiscal year of HoldCo, a consolidated income statement
for such fiscal year, a consolidated balance sheet of HoldCo, HoldCo Sub and
OpCo as of the end of such year, and a schedule as to the cash flow and
changes in members' equity for such year, such year-end financial reports to
be in reasonable detail, prepared in accordance with GAAP, and audited and
certified by HoldCo's independent public accountants;
(c) as soon as practicable, but in any event within thirty (30) days
after the end of each of the first three (3) quarters of each fiscal year of
HoldCo, an unaudited consolidated profit or loss statement and schedule as to
consolidated cash flow for such fiscal quarter and an unaudited consolidated
balance sheet of HoldCo, HoldCo Sub and OpCo as of the end of such fiscal
quarter, in reasonable detail and prepared-in accordance with GAAP (except as
permitted by Form 10-Q under the Exchange Act); and
(d) such other information relating to the financial condition,
business, prospects or corporate affairs of HoldCo, HoldCo Sub and OpCo as
Thrasher may from time to time reasonably request.
8.4 HoldCo, HoldCo Sub and OpCo Boards of Representatives. Subject to
the terms and provisions of this Agreement, the Management Agreement, the
HoldCo Operating Agreement, the HoldCo-Sub Operating Agreement, the OpCo
Operating Agreement and the Global Lease, the policies, business and
operations of each of HoldCo, HoldCo Sub and OpCo shall be subject to the
direction of a "Board of Representatives" for each of HoldCo, HoldCo Sub and
OpCo which shall meet not less
<PAGE>
than once per calendar quarter. For so long as Thrasher Affiliates maintain
ownership of at least a five percent (5%) percentage interest in HoldCo,
Thrasher shall have the right to designate from time to time a number of
members of the Board of Representatives that is equal to the greater of (i)
one member or (ii) the number of members (rounded to the nearest whole number)
which is equal to the same percentage of all members of the Board of
Representatives as the percentage interest held by Thrasher. Thrasher shall
also have the right to designate one member of each committee of the Board of
Representatives that is created pursuant to the provisions of the HoldCo
Operating Agreement, the HoldCo Sub Operating Agreement or the OpCo Operating
Agreement, which designee may or may not be a member of the Board of
Representatives. HoldCo, HoldCo Sub or OpCo, as appropriate, shall promptly
reimburse such Thrasher designees for any expenses incurred by them in
connection with their activities as members of the Board of Representatives.
8.5 Covenants Are For Benefit of Members. The provisions of Sections
8.1, 8.2, 8.3 and 8.4 are for the benefit of (a) Thrasher, the applicable
Transferring Entities and Bidder Member (and their respective permitted
transferees), in their respective capacities as members of HoldCo, (b) HoldCo,
in its capacity as member of HoldCo Sub, and (c) Thrasher (and its permitted
transferees) and HoldCo Sub, in their respective capacities as members of
OpCo.
8.6 Revenues Receivable under Certain Third Party Leases. Prior to
each Closing, Thrasher shall deliver to Bidder, a description of certain third
party leases covering the Tower Structures conveyed at such Closing, which
were entered into by Thrasher or a Transferring Entity (as lessor) pursuant to
a swap or other arrangement (collectively, the "Swap Lease Agreements" and
each, individually, a "Swap Lease Agreement"). With respect to each Swap Lease
Agreement covering any of the Tower Structures conveyed to OpCo at such
Closing, on or before the tenth day of each calendar month from and after the
applicable Closing Date until the time specified in the following sentence,
Thrasher or the applicable Transferring Entity shall pay to OpCo an amount
equal to the difference, if any, between (a) the monthly rent that OpCo would
have received under the Swap Lease Agreement if the rents payable by the third
party lessee thereunder were set at the rental rates payable to OpCo under the
Global Lease, and (b) the monthly rent receivable by OpCo under the Swap Lease
Agreement. The payment obligation of Thrasher or the applicable Transferring
Entity under the preceding sentence with respect to a particular Swap Lease
Agreement shall terminate on the date that the third party lessee no longer
has lease rights under the Swap Lease Agreement with respect to the subject
Tower Structure.
<PAGE>
ARTICLE 9
CERTAIN ANCILLARY ARRANGEMENTS OF THE PARTIES
9.1 Restriction on Sales by Bidder. Without the prior written consent
of Thrasher, Bidder Member shall not, directly or indirectly, sell, assign,
transfer, pledge, hypothecate, mortgage or dispose of, by gift or otherwise,
or in any way encumber, the Bidder HoldCo Interest unless either (a) the
transfer is made to an entity of which Bidder or Bidder Member owns directly
or indirectly all of the voting power of the outstanding capital stock
(provided that (x) such entity executes an instrument reasonably satisfactory
in form and substance to Thrasher pursuant to which it agrees to be bound
hereby and (y) Bidder (or its successor by merger) shall not thereafter at any
time cease to own directly or indirectly less than all of the voting power of
the outstanding capital stock of such entity) or (b) Bidder Member has
complied with the procedures described in this Article 9 and (i) the transfer
is made subject to the right of first refusal described in Section 9.3 hereof
and (ii) to the extent Thrasher does not exercise its right of first refusal
described in Section 9.3 hereof, the transfer is made subject to the right of
participation in sales described in Section 9.5(a) hereof. For purposes of the
foregoing, Bidder Member shall not be deemed to have indirectly transferred
any of the Bidder HoldCo Interest if Bidder or any other parent corporation of
Bidder Member is a party to any merger or consolidation transaction, whether
or not such parent corporation is the surviving entity in such merger. Any
purported transfer of the Bidder HoldCo Interest in violation of this Section
9.1 shall be void.
9.2 Restriction on Sales by Thrasher Members. Without the prior
written consent of Bidder Member, the Thrasher Members shall not, directly or
indirectly, sell, assign, transfer, pledge, hypothecate, mortgage or dispose
of, by gift or otherwise, or in any way encumber, their respective Thrasher
HoldCo Interests unless either (a) the transfer is made to any entity of which
either Thrasher Parent, Thrasher or Bell Atlantic (after the Bell
Atlantic/Thrasher Merger is consummated) owns directly or indirectly a
majority of the voting power of the outstanding capital stock (provided that
(x) such entity executes an instrument reasonably satisfactory in form and
substance to Bidder Member pursuant to which it agrees to be bound hereby and
(y) Thrasher Parent or Thrasher (or the successor by merger to either) shall
not thereafter at any time cease to own directly or indirectly less than a
majority of the voting power of the outstanding capital stock of such entity),
or (b) Thrasher has complied with the procedures described in this Article 9
and (i) the transfer is made subject to the right of first refusal described
in Section 9.4 hereof or (ii) to the extent Bidder Member does not exercise
its right of first refusal described in Section 9.4 hereof, the transfer is
made subject to the right of participation in sales described in Section
9.5(b) hereof. For purposes of the foregoing, Thrasher shall not be deemed to
have indirectly transferred any of the Thrasher HoldCo Interest if Thrasher
Parent or any other parent corporation of Thrasher is a party to any
<PAGE>
merger or consolidation transaction, whether or not such parent corporation is
the surviving entity in such merger, including without limitation, the Bell
Atlantic/Thrasher Merger and the Bell Atlantic/Vodaphone Transaction. Any
purported transfer of the Thrasher HoldCo Interest in violation of this
Section 9.2 shall be void.
9.3 Thrasher Right of First Refusal.
(a) Subject to the provisions of Section 9.1, if at any time Bidder
Member wishes to sell all or any part of the Bidder HoldCo Interest, Bidder
Member shall submit a written offer to sell such Bidder HoldCo Interest to
Thrasher (on behalf of the Thrasher Members) on terms and conditions,
including price, not less favorable to Thrasher than those on which the Bidder
Member proposes to sell the Bidder HoldCo Interest to any other purchaser (the
"Bidder Offer"). The Bidder Offer shall disclose the identity of the proposed
purchaser or transferee, the percentage of the Bidder HoldCo Interest to be
sold, the terms of the sale, any amounts owed to Bidder Member with respect to
the Bidder HoldCo Interest and any other material facts relating to the sale.
Thrasher shall respond to the Bidder Offer as soon as practicable after
receipt thereof, and in all events within thirty (30) days after receipt
thereof. The Bidder Offer may be revoked at any time. Thrasher shall have the
right to accept the Bidder Offer as to all (but not less than all) of the
Bidder HoldCo Interest offered thereby. In the event that Thrasher shall elect
on a timely basis to purchase all (but not less than all) of the Bidder HoldCo
Interest covered by the Bidder Offer, Thrasher shall communicate in writing
such election to purchase to Bidder Member, which communication shall be
delivered by hand or mailed to Bidder Member at the address set forth in
Section 11.9 below and shall, when taken in conjunction with the Bidder Offer,
be deemed to constitute a valid, legally binding and enforceable agreement for
the sale and purchase of the Bidder HoldCo Interest covered thereby; provided,
however, that Bidder Member may elect in its sole discretion to terminate such
agreement at any time prior to the closing of such sale and purchase, in which
case such Bidder HoldCo Interest shall again become subject to the
requirements of a prior offer pursuant to this Section. In the event Bidder
Member terminates any such agreement prior to closing, Bidder Member shall be
prohibited from consummating a transaction for the sale and purchase of the
Bidder HoldCo Interest with the proposed purchaser or transferee for two (2)
years from the date of such termination, and shall be prohibited from
consummating a transaction for the sale and purchase of the Bidder HoldCo
Interest with any other party for six (6) months from the date of such
termination. In the event that any Bidder Offer includes any non-cash
consideration, Thrasher may in its sole discretion elect to pay a cash amount
equal to the fair market value of such non-cash consideration in lieu of such
non-cash consideration. The closing of the sale and purchase contemplated by
any agreement for the sale and purchase of any portion of the Bidder HoldCo
Interest entered into between Thrasher and Bidder Member pursuant to this
Section 9.3 shall be consummated within sixty (60) days after the date that
such agreement becomes valid, legally binding and enforceable as aforesaid,
subject
<PAGE>
to extension to the extent necessary to secure required approvals or consents
from Governmental Authorities. Each of Thrasher and Bidder Member shall use
its reasonable best efforts to obtain such required approvals or consents from
Governmental Authorities.
(b) In the event that Thrasher does not purchase the Bidder HoldCo
Interest offered by Bidder Member pursuant to the Bidder Offer, such Bidder
HoldCo Interest not so purchased may be sold by the Bidder Member at any time
within ninety (90) days after the expiration of the Bidder Offer, subject to
the provisions of Section 9.5 below. Any such sale shall be to the same
proposed purchaser or transferee, at not less than the price and upon other
terms and conditions, if any, not more favorable to the purchaser than those
specified in the Bidder Offer. If such Bidder HoldCo Interest is not sold
within such ninety (90)-day period, it shall again become subject to the
requirements of a prior offer pursuant to this Section. In the event that such
Bidder HoldCo Interest is sold pursuant to this Section to any purchaser other
than Thrasher, such Bidder HoldCo Interest shall continue to be subject to the
restrictions imposed by this Section 9.3 with the same effect as though such
purchaser were Bidder Member for purposes of this Section.
9.4 Bidder Member's Right of First Refusal.
(a) Subject to the provisions of Section 9.2, if at any time any
Thrasher Member wishes to sell all or any part of the Thrasher HoldCo Interest
held by such Thrasher Member, such Thrasher Member shall submit a written
offer to sell such Thrasher HoldCo Interest to Bidder Member on terms and
conditions, including price, not less favorable to Bidder Member than those on
which Thrasher proposes to sell the Thrasher HoldCo Interest, as the case may
be, to any other purchaser (the "Thrasher Offer"). The Thrasher Offer shall
disclose the identity of the proposed purchaser or transferee, the percentage
of the Thrasher HoldCo Interest to be sold, the terms of the sale, any amounts
owed to such Thrasher Member with respect to the Thrasher HoldCo Interest and
any other material facts relating to the sale. Bidder Member shall respond to
the Thrasher Offer as soon as practicable after receipt thereof, and in all
events within thirty (30) days after receipt thereof. The Thrasher Offer may
be revoked at any time. Bidder Member shall have the right to accept the
Thrasher Offer as to all (but not less than all) of the Thrasher HoldCo
Interest offered thereby. In the event that Bidder Member elects on a timely
basis to purchase all (but not less than all) of the Thrasher HoldCo Interest
covered by the Thrasher Offer, Bidder Member shall communicate in writing such
election to purchase to such Thrasher Member which communication shall be
delivered by hand or mailed to such Thrasher Member at the address set forth
in Section 11.9 below and shall, when taken in conjunction with the Thrasher
Offer, be deemed to constitute a valid, legally binding and enforceable
agreement for the sale and purchase of the Thrasher HoldCo Interest covered
thereby; provided, however, that such Thrasher Member may elect in its sole
discretion to terminate such agreement at any time
<PAGE>
prior to the closing of such sale and purchase, in which case such Thrasher
HoldCo Interest shall again become subject to the requirements of a prior
offer pursuant to this Section. In the event such Thrasher Member terminates
any such agreement prior to closing, such Thrasher Member shall be prohibited
from consummating a transaction for the sale and purchase of the Thrasher
HoldCo Interest with the proposed purchaser or transferee for two (2) years
from the date of such termination, and shall be prohibited from consummating a
transaction for the sale and purchase of the Thrasher HoldCo Interest with any
other party for six (6) months from the date of such termination. In the event
that any Thrasher Offer includes any non-cash consideration, Bidder Member may
in its sole discretion elect to pay a cash amount equal to the fair market
value of such non-cash consideration in lieu of such non-cash consideration.
The closing of the sale and purchase contemplated by any agreement for the
sale and purchase of any portion of the Thrasher HoldCo Interest entered into
between such Thrasher Member and Bidder Member pursuant to this Section 9.4
shall be consummated within sixty (60) days after the date that such agreement
becomes valid, legally binding and enforceable as aforesaid, subject to
extension to the extent necessary to secure required approvals or consents
from Governmental Authorities. Each of Thrasher and Bidder Member shall use
its reasonable best efforts to obtain such required approvals or consents from
Governmental Authorities.
(b) In the event that Bidder Member does not purchase the Thrasher
HoldCo Interest offered by the Thrasher Member pursuant to the Thrasher Offer,
such Thrasher HoldCo Interest not so purchased may be sold by such Thrasher
Member at any time within ninety (90) days after the expiration of the
Thrasher Offer. Any such sale shall be to the same proposed purchaser or
transferee, at not less than the price and upon other terms and conditions, if
any, not more favorable to the purchaser than those specified in the Thrasher
Offer. If such Thrasher HoldCo Interest is not sold within such ninety (90)-
day period, such Thrasher HoldCo Interest shall continue to be subject to the
requirements of a prior offer pursuant to this Section. In the event that such
Thrasher HoldCo Interest is sold pursuant to this Section to any purchaser
other than Bidder Member, such portion of the Thrasher HoldCo Interest shall
continue to be subject to the restrictions imposed by this Section 9.4 with
the same effect as though such purchaser were Thrasher for purposes of this
Section.
9.5 Right of Participation in Sales.
(a) If at any time Bidder Member wishes to sell all or any portion of
the Bidder HoldCo Interest to any person or entity other than Thrasher (the
"Bidder HoldCo Interest Purchaser"), Thrasher (on behalf of the Thrasher
Members) shall have the right to offer for sale to the Bidder HoldCo Interest
Purchaser, as a condition of such sale by Bidder Member, at the same price and
on the same terms and conditions as involved in such sale by Bidder Member,
the same proportion of the Thrasher HoldCo Interest as the proposed sale
represents with respect to the Bidder HoldCo Interest. Thrasher shall
<PAGE>
notify Bidder Member of such intention as soon as practicable after receipt of
the Bidder Offer made pursuant to Section 9.3, and in all events within thirty
(30) days after receipt thereof. In the event that Thrasher elects to
participate in such sale by Bidder Member, Thrasher shall communicate such
election to Bidder Member, which communication shall be delivered by hand or
mailed to the Bidder Member at the address set forth in Section 11.9 below.
Bidder Member and Thrasher shall sell to the Bidder HoldCo Interest Purchaser
the Bidder HoldCo Interest proposed to be sold by Bidder Member and the
Thrasher HoldCo Interest proposed to be sold by Thrasher, at not less than the
price and upon other terms and conditions, if any, not more favorable to the
Bidder HoldCo Interest Purchaser than those in the Bidder Offer provided by
Bidder Member under Section 9.3 above; provided, however, that any purchase of
less than all of the Bidder HoldCo Interest and the Thrasher HoldCo Interest
by the Bidder HoldCo Interest Purchaser shall be made from Bidder Member and
Thrasher pro rata based upon the amount offered to be sold by each. Any
portion of the Bidder HoldCo Interest and the Thrasher HoldCo Interest sold
pursuant to this Section 9.5 shall no longer be subject to the restrictions
imposed by Sections 9.3 or 9.4 or entitled to the benefit of this Section
9.5(a).
(b) If at any time any Thrasher Member wishes to sell all or any
portion of the Thrasher HoldCo interest held by such Thrasher Member to any
person or entity other than Bidder Member or Thrasher Parent or any other
Affiliate of Thrasher (the "Thrasher HoldCo Interest Purchaser"), Bidder
Member shall have the right to offer for sale to the Thrasher HoldCo Interest
Purchaser, as a condition of such sale by such Thrasher Member, at the same
price and on the same terms and conditions as involved in such sale by such
Thrasher Member, the same proportion of the Bidder HoldCo Interest as the
proposed sale represents with respect to the Thrasher HoldCo Interest. Bidder
Member shall notify such Thrasher Member of such intention as soon as
practicable after receipt of the Thrasher Offer made pursuant to Section 9.4,
and in all events within thirty (30) days after receipt thereof. In the event
that Bidder Member elects to participate in such sale by such Thrasher Member,
Bidder Member shall communicate such election to such Thrasher Member, which
communication shall be delivered by hand or mailed to such Thrasher Member at
the address set forth in Section 11.9 below. Such Thrasher Member and Bidder
Member shall sell to the Thrasher HoldCo Interest Purchaser the Thrasher
HoldCo Interest proposed to be sold by such Thrasher Member and the Bidder
HoldCo Interest proposed to be sold by Bidder Member, at not less than the
price and upon other terms and conditions, if any, not more favorable to the
Thrasher HoldCo Interest Purchaser than those in the Thrasher Offer provided
by such Thrasher Member under Section 9.4 above; provided, however, that any
purchase of less than all of the Thrasher HoldCo Interest and the Bidder
HoldCo Interest by the Thrasher HoldCo Interest Purchaser shall be made from
Thrasher and Bidder Member pro rata based upon the amount offered to be sold
by each. Any portion of the Thrasher HoldCo Interest and the
<PAGE>
Bidder HoldCo Interest sold pursuant to this Section 9.5 shall no longer be
subject to the restrictions imposed by Sections 9.3 or 9.4 or entitled to the
benefit of this Section 9.5(b).
9.6 Transfer of Thrasher Retained Interest. Without the prior written
consent of Bidder, Thrasher shall not, directly or indirectly, sell, assign,
transfer, pledge, hypothecate, mortgage or dispose of, by gift or otherwise,
or in any way encumber, the Thrasher Retained Interest unless either (a) the
transfer is made to an entity of which either Thrasher or Thrasher Parent owns
directly or indirectly all of the voting power of the outstanding capital
stock, or (b) the transfer is made in connection with a merger or
consolidation transaction to which Thrasher or Thrasher is a party.
9.7 Specific Performance. Each of the parties specifically
acknowledges and agrees that the remedy at law for any breach of the covenants
contained in this Article 9 will be inadequate and that any other party, in
addition to any other relief available to them, shall be entitled to temporary
and permanent injunctive relief without the necessity of proving actual
damages.
ARTICLE 10
INDEMNIFICATION
10.1 Indemnification by Thrasher.
(a) From and after each applicable Closing, Thrasher shall indemnify
and hold harmless OpCo, 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 (each, an "Indemnified OpCo Party")
from and against any liabilities, claims, causes of action, demands,
judgments, losses, costs, damages or expenses whatsoever (including reasonable
attorneys', consultants' and other professional fees and disbursements of
every kind, nature and description incurred by such Indemnified OpCo Party in
connection therewith) (collectively, "Losses") that such Indemnified OpCo
Party 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 Thrasher contained in this Agreement or (ii) any Thrasher
Retained Liability.
(b) OpCo acknowledges and agrees that Thrasher shall not have any
Liability under any provision of this Agreement for any Loss to the extent
that such Loss relates to the failure to act or any action taken by OpCo or
any other Person (other than Thrasher or any of its Affiliates in breach of
this Agreement) or pursuant to any Transaction Document after the applicable
Closing Date.
<PAGE>
(c) OpCo shall take and shall cause its Affiliates to take all
reasonable steps to mitigate any Loss 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 Loss.
(d) Nothing herein shall be deemed to limit or restrict in any manner
any rights or remedies which OpCo has or may have, at law, in equity or
otherwise, against Thrasher based on a willful misrepresentation or willful
breach of any warranty, covenant or agreement by Thrasher hereunder.
10.2 Indemnification by Bidder.
(a) From and after the Initial Closing, Bidder shall indemnify and
hold harmless Thrasher, the Transferring Entities, their respective successors
and assigns and their respective 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 Thrasher Party")
from and against any Losses that such Indemnified Thrasher Party 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 Bidder
contained in this Agreement.
(b) Thrasher and the Transferring Entities shall take and cause their
respective Affiliates to take all reasonable steps to mitigate any Loss 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 Loss.
(c) Nothing herein shall be deemed to limit or restrict in any manner
any rights or remedies which Thrasher has or may have, at law, in equity or
otherwise, against Bidder and Bidder Member based on a willful
misrepresentation or willful breach of any covenant or agreement of warranty
by Bidder and Bidder Member hereunder.
10.3 Indemnification by OpCo.
(a) From and after each applicable Closing, OpCo shall indemnify and
hold harmless each Indemnified Thrasher Party from and against any Losses that
such Indemnified Thrasher Party may sustain, suffer or incur and that result
from, arise out of or relate to (i) any Thrasher Assumed Liability or (ii)
events occurring after the Closing Date in connection with OpCo's business,
including, without limitation, the use, ownership, possession or operation of
the Thrasher Contributed Assets from and after the Closing Date.
<PAGE>
(b) Thrasher shall take and cause its Affiliates to take all
reasonable steps to mitigate any Loss 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 Loss.
(c) Nothing herein shall be deemed to limit or restrict in any manner
any rights or remedies which Thrasher has or may have, at law, in equity or
otherwise, against OpCo based on a willful breach of any covenant or agreement
hereunder.
10.4 Indemnification by Bidder Member.
(a) From and after the Initial Closing, Bidder Member shall indemnify
and hold harmless each Indemnified Thrasher Party from and against any Losses
that such Indemnified Thrasher Party 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 Bidder Member
contained in this Agreement.
(b) Thrasher shall take and cause its Affiliates to take all
reasonable steps to mitigate any Loss 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 Loss.
(c) Nothing herein shall be deemed to limit or restrict in any manner
any rights or remedies which Thrasher has or may have, at law, in equity or
otherwise, against Bidder and Bidder Member based on a willful
misrepresentation or willful breach of any, covenant or agreement of warranty
by Bidder and Bidder Member hereunder.
10.5 Procedure for Claims.
(a) Any Person that desires to seek indemnification under any
provision of this Section 10 or any other provision of this Agreement
providing for indemnification (each, an "Indemnified Party") shall give notice
(a "Claim Notice") to each party responsible or alleged to be responsible for
indemnification hereunder (an "Indemnitor") prior to any applicable Expiration
Date specified below. 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
<PAGE>
failure to give a Claim Notice in a timely manner pursuant to this Section
10.5(a) shall not limit the obligation of the Indemnitor under this Article
10, except to the extent such Indemnitor is prejudiced thereby and except as
otherwise provided in Section 10.8. 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 (a) the date that the Claim Notice is given or (b) 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 11.1 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 10.5(a) shall be paid by the Indemnitor to the Indemnified Party
within thirty (30) days after (a) the last day of the Claim Response Period or
(b) the date on which such settlement, compromise or arbitration described in
the last sentence of Section 10.5(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.
10.6 Certain Limitations. Notwithstanding anything to the contrary in
this Agreement, except as provided below in this Section 10.6, (i) OpCo shall
be entitled to indemnification hereunder with respect to the breach of a
representation, warranty, covenant or agreement by Thrasher only when the
aggregate of all Losses to such Indemnified OpCo Parties from all such
breaches exceeds on a cumulative basis $12,000,000 (the "Deductible Amount"),
and then only to the extent of such excess amount, and (ii) Thrasher shall not
be liable under this Agreement for an aggregate
<PAGE>
amount in excess of $310,000,000 (the "Maximum Indemnification"). Until the
aggregate amount of Bidder Contributed Cash exceeds $310,000,000, the amount
of the Maximum Indemnification shall equal the aggregate amount of such Bidder
Contributed Cash. The foregoing limitations with respect to the Maximum
Indemnification shall not apply, however, to any willful misrepresentation or
willful breach of warranty by Thrasher. Notwithstanding the other provisions
of this Article 10, no Indemnified OpCo Party shall be entitled to seek
indemnification under this Article 10 for any individual fact, circumstance,
condition or occurrence that results in a breach of a representation or
warranty that involves Losses of less than $25,000. Notwithstanding the
foregoing provisions of this Section 10.6, the indemnification of OpCo by
Thrasher for Thrasher Retained Liabilities pursuant to Section 10.1(a)(ii)
shall not be subject to the Deductible Amount or any other deductible, the
Maximum Indemnification limitation, or the limitation under the immediately
preceding sentence.
10.7 Non-Third Party Claims. In no event shall Thrasher and its
Affiliates, Bidder and its Affiliates, or Bidder Member 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 or the other Transaction Documents.
10.8 Claims Period. Any claim for indemnification under this Section
10 shall be made by giving a Claim Notice under Section 10.5 on or before the
applicable "Expiration Date" specified below in this Section 10.8, if any, or
the claim under this Article 10 shall be invalid. The following claims shall
have the following respective "Expiration Dates": (i) June 30, 2001, with
respect to any claims that are not specified in the succeeding clause (ii); or
(ii) the date on which the applicable statute of limitations expires with
respect to any claim for Losses related to a (x) breach of any covenant or (y)
a breach of warranty or misrepresentation under Sections 5.1.1, 5.1.2, 5.1A.1,
5.1A.2, 5.2.1, 5.2.2, 5.3.1, 5.3.2 and 5.3.11. Notwithstanding the foregoing
or any other provision of this Agreement to the contrary, there shall be no
Expiration Date with respect to (A) any claim by an Indemnified OpCo Party for
Losses related to any Thrasher Retained Liability, or (B) any claim by an
Indemnified Thrasher Party for Losses related to any Thrasher Assumed
Liability. So long as an Indemnified Party gives a Claim Notice for an
Unliquidated Claim on or before the applicable Expiration Date, if any, such
Indemnified Party shall be entitled to pursue its rights to indemnification
regardless of the date on which such Indemnified Party gives the related
Liquidated Claim Notice.
10.9 Third Party Claims. An Indemnified Party that desires to seek
indemnification under any part of this Section 10 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
<PAGE>
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 10.9 shall not bar
an Indemnified Party's right to claim indemnification under this Article 10,
except to the extent that an Indemnitor shall have been harmed by such
failure.
10.10 Effect of Investigation or Knowledge. Except as otherwise
provided herein, all covenants, agreements, representations and warranties
made herein or in any agreement, instrument or certificate delivered pursuant
to this Agreement shall not be deemed to be waived or otherwise affected by
any investigation at any time made by or on behalf of any party hereto. No
claim for a breach of representation or warranty shall be made by any
Indemnified OpCo Party under Section 10.1(a) or any Indemnified Thrasher Party
under Sections 10.2(a), 10.3(a) or 10.4(a) if (i) such claim is based on an
event occurring prior to the applicable Closing (whether or not also occurring
prior to the date of this Agreement), (ii) either (a) such event was disclosed
by Thrasher, Bidder or Bidder Member, as the case may be, prior to the
applicable Closing in a writing which describes such event in reasonable
detail or (b) Bidder, Bidder Member or Thrasher, as the case may be, had
actual knowledge of such event or such misrepresentation or breach of warranty
prior to the applicable Closing, and (iii) the applicable Closing occurs.
10.11 Losses Net of Insurance, Etc. The amount of any Loss for
which indemnification is provided under this Agreement shall be net of (i) any
tax benefit (such as a deduction, credit or deferral) actually realized from
any Loss, (ii) any amounts recovered by the Indemnified Party pursuant to any
indemnification by or indemnification agreement with any third party, and
(iii) any insurance proceeds or other cash receipts or sources of
reimbursement received as an offset against such Loss. Each of OpCo and
Thrasher shall make any claims for indemnification from a third party or
insurance proceeds available to offset against such Loss and for which it will
seek indemnification hereunder, and to pursue such claims in good faith. If
the amount to be netted hereunder from any Loss is determined after payment by
the Indemnitor of any amount otherwise required to be paid to an Indemnified
Party pursuant to this
<PAGE>
Section 10.11, the Indemnified Party shall repay to the Indemnitor, promptly
after such determination, any amount that the Indemnitor would not have had to
pay pursuant to this Section 10.11 had such determination been made at the
time of such payment.
10.12 Sole Remedies. Subject to the provisions of Sections 10.1(c),
10.2(c), 10.3(c), 10.4(c) and 11.5A, the indemnification provisions set forth
in this Section 10 constitute the sole and exclusive post-Closing remedies of
the parties hereto with respect to Losses arising out of or relating to this
Agreement and shall preclude the assertion after the applicable Closing by any
party of any other rights, or the seeking of any other remedies against any
other party for claims arising out of or relating to this Agreement.
ARTICLE 11
MISCELLANEOUS
11.1 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 remedies of specific
performance, an injunction or a restraining order (a "Dispute"), the parties
will use the procedures set forth in this Section 11.1, in lieu of any party
pursuing other available remedies and as the sole remedy, to resolve the
Dispute.
11.1.1 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 11.1 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 Thrasher and
Bidder Member. 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.
11.1.2 Authority of Arbitrators. The arbitrators will have no
authority to award punitive damages or any other damages not measured by the
prevailing party's actual damages (other than subject to the provisions of
Section 11.5A, where the parties have
<PAGE>
agreed as to the circumstances under which the Termination Fee (as defined
below) will be paid and other rights may be asserted), and may not, in any
event, make any ruling, finding or award that does not conform to the terms
and conditions of this Agreement.
11.1.3 Confidentiality. Except as may be required by applicable Law,
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.
11.1.4 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 11.1, 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.
11.2 Bidder's Reasonable Best Efforts Regarding Bidder Member's
Performance. For so long as Bidder Member is a direct or indirect subsidiary
of Bidder, Bidder will use its reasonable best efforts to cause Bidder Member
to timely and completely observe and perform all of its agreements, covenants
and obligations under this Agreement and all of the other Transaction
Documents and all renewals, modifications, amendments and extensions thereof,
provided, however, that in no event shall this Section 11.2 obligate Bidder to
make any capital contributions or loan or otherwise provide any financial
assistance to, or on behalf of, Bidder Member.
11.3 Survival of Representations and Warranties. All representations
and warranties made by the parties in this Agreement or pursuant hereto shall
survive the Closings until the Expiration Date.
11.4 Transfer Taxes; Asset Transfers. Thrasher and Bidder Member shall
each pay one-half of all state and local sales, documentary and other transfer
Taxes, if any, due as a result of the contribution, purchase, sale or transfer
of the Thrasher Contributed Assets from their current ownership to their
ownership by OpCo. Thrasher and the Transferring Entities shall, at their
option and after consultation with Bidder Member, enter into one or more
transactions to facilitate transfer of the Thrasher Contributed Assets and
Thrasher Assumed Liabilities directly or indirectly through one or more single
purpose entities to facilitate such transfer and minimize taxes.
<PAGE>
11.5 Termination.
(a) Anything herein or elsewhere to the contrary notwithstanding, but
subject to Section 11.5A, this Agreement may be terminated by written notice
of termination at any time before the Final Closing Date only as follows:
(i) by mutual consent of Bidder and Thrasher;
(ii) by Thrasher, upon written notice to Bidder given at any time
after December 31, 2000 (or such later date as shall have been
specified in a writing authorized on behalf of Bidder and Thrasher)
if, with respect to Thrasher Assets and Thrasher Liabilities that have
not already been the subject of a Closing, all of the conditions
precedent set forth in Article 7 hereof have not been met;
(iii) by Bidder, upon written notice to Thrasher given at any time
after December 31, 2000 (or such later date as shall have been
specified in a writing authorized on behalf of Bidder and Thrasher)
if, with respect to Thrasher Assets and Thrasher Liabilities that have
not already been the subject of a Closing, all of the conditions
precedent set forth in Article 7 hereof have not been met;
(iv) by Bidder at any time prior to the Final Closing if Thrasher
shall have breached any of its representations, warranties or other
obligations under this Agreement in any respect which would have a
material and adverse effect on either (A) the Thrasher Assets and
Thrasher Liabilities taken as a whole (and not taking into account the
transfer of any Thrasher Assets and Thrasher Liabilities at any
previous Closings), or (B) on the ability of Thrasher to consummate
the transactions contemplated hereby, with respect to Thrasher Assets
and Thrasher Liabilities that have not already been the subject of a
Closing, and such breach shall not have been cured within thirty (30)
days after notice of such breach; or
(v) by Thrasher at any time prior to the Final Closing if OpCo
(after the Initial Closing), Bidder or Bidder Member shall have
breached any of its representations, warranties or other obligations
under this Agreement in any material respect and such breach shall not
have been cured within thirty (30) days after notice of such breach.
(b) Subject to the provisions of Section 11.5A, in the event of the
termination and abandonment hereof pursuant to the provisions of this Section
11.5, this Agreement (except for Sections 5.1.13, 5.3.4, 6.1.6, the last
sentence of 6.1.7, 6.2.4, the last sentence of 6.2.5, and 11.6 which shall
continue) shall become void and have no effect, without any liability on the
part of any of the parties or their directors, officers, stockholders,
partners or representatives in respect of this Agreement, unless the
termination is prior to
<PAGE>
the Initial Closing and was the result of the representations and warranties
of a party being materially incorrect when made or the material breach by such
party of a covenant hereunder in which event the party whose representations
and warranties were incorrect or who breached such covenant shall be liable to
the other party for all costs and expenses of the other party in connection
with the preparation, negotiation, execution and performance of this
Agreement. Notwithstanding anything to the contrary in this Agreement, if this
Agreement is terminated after the Initial Closing, this Agreement and the
other Transaction Documents, as applicable, shall remain in full force and
effect, as if no termination had occurred with respect to the Thrasher
Contributed Assets and Assumed Thrasher Liabilities that were the subject of
the Initial Closing and any subsequent Closing occurring prior to such
termination.
11.5A Termination Fee and Other Remedies. Notwithstanding any other
provision of this Agreement (including, without limitation, Section 11.17),
but subject to the last sentence of Section 11.5(b) above, if the parties fail
to consummate any one of the Closings contemplated herein due to Bidder's or
Bidder Member's failure to have sufficient cash to contribute the applicable
amount of Bidder Contributed Cash due and payable at such Closing, in addition
to any other remedies Thrasher may have at law or in equity and
notwithstanding any other breach of this Agreement by Bidder or Bidder Member,
upon termination of this Agreement by Thrasher pursuant to Section 11.5 above,
Thrasher shall have the right to require Bidder to pay Thrasher and the
Transferring Entities an amount equal to $50,000,000 in cash (the "Termination
Fee"). The Termination Fee is not intended to serve as a limitation on any
actual damages recoverable by Thrasher and the Thrasher Entities in addition
to the Termination Fee, nor as liquidated damages. Payment of the Termination
Fee shall be made by delivery of a certified check or by wire transfer of
immediately available funds to an account designated by Thrasher. Upon receipt
of a certificate requesting the delivery of all or any portion of the
Termination Fee signed by the chief executive officer and chief financial
officer of Thrasher stating that it is entitled to such amount pursuant to
this Section 11.5A, the Escrow Agent shall deliver the amounts specified in
such certificate as directed in such certificate. Thrasher shall not permit or
cause such certificate to be delivered unless it is entitled to the
Termination Fee pursuant to this Section 11.5A. Upon receipt of a certificate
requesting the delivery of all or any portion of the Termination Fee signed by
the chief executive officers and the chief financial officers on behalf of
each of the Bidder and Thrasher stating either (i) that the Final Closing has
occurred, (ii) that such amount is to be used in connection with the Final
Closing, or (iii) that this Agreement has been terminated other than under
circumstances where the Termination Fee is payable, the Escrow Agent shall
deliver the amounts specified in such certificate to an account of the Bidder
as directed in such certificate. If (i) the Final Closing has occurred, (ii)
this Agreement has been terminated, other than under circumstances where the
Termination Fee is payable, or (iii) the parties have agreed that the
Termination Fee is to be used in connection with the Final Closing, each of
Thrasher
<PAGE>
and Bidder shall be obligated to execute such a certificate when requested to
do so by the other.
11.6 Expenses. Except as otherwise provided in this Agreement each
party hereto shall pay its own expenses incidental to the preparation of this
Agreement, the carrying out of the provisions of this Agreement and the
consummation of the transactions contemplated hereby.
11.7 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.
11.8 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 (i) Thrasher and any Transferring Entity may assign its rights
hereunder to any entity of which either Thrasher Parent, Thrasher or Bell
Atlantic (after the Bell Atlantic/Thrasher Merger is consummated) owns
directly or indirectly a majority of the voting power of the outstanding
capital stock or to any transferee of its entire remaining Thrasher HoldCo
Interest, in each case, in compliance with Section 9.2, and (ii) each of
Bidder and Bidder Member may assign any of its rights hereunder to any
wholly-owned (direct or indirect) subsidiary of Bidder Member or Bidder or to
any transferee of its entire remaining Bidder HoldCo Interest, in each case,
in compliance with Section 9.1. No such assignment shall relieve Thrasher, a
Transferring Entity, Bidder or Bidder Member of their respective obligations
hereunder except that in connection with a transfer by either Bidder Member or
Thrasher or a Transferring Entity of its entire remaining Bidder HoldCo
Interest or Thrasher HoldCo Interest, respectively, made in accordance with
the provisions of Article 9, the transferring party shall be relieved only of
its obligations under Articles 8 and 9 of this Agreement. For purposes of the
foregoing, a transfer by merger by Bidder, Thrasher or a Transferring Entity
(whether or not Bidder, Thrasher or the Transferring Entity is the surviving
corporation), or any direct or indirect parent corporation of Bidder or
Thrasher or the Transferring Entity, shall not be deemed to be an assignment
for purposes of this Section 11.8. 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
<PAGE>
the permitted successors and assigns of Thrasher, a Transferring Entity,
Bidder and Bidder Member. All references herein to any party shall be deemed
to include any successor to such party, including any corporate successor.
11.9 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. Thrasher shall also be
furnished copies of any written notices exchanged hereunder by Bidder or
Bidder Member with either HoldCo, HoldCo Sub or OpCo. 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
11.9, except that any notice of such change of address shall not be effective
unless and until received.
(a) If to Thrasher or any Transferring Entity:
GTE Wireless Incorporated
One GTE Place
MCGA1B3VFP
Alpharetta, Georgia 30004
Attention: Jody Ruth, Vice President Financing and
Planning
Fax. No.: (678) 339-8641
with required copies to:
GTE Wireless Incorporated
One GTE Place
MCGA1B3LGL
Alpharetta, Georgia 30004
Attention: Laura E. Binion, Vice President and General
Counsel
Fax No.: (678) 339-8642
<PAGE>
and
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, Georgia 30309
Attention: Bryan E. Davis
Fax No.: (404) 881-7777
(b) If to Bidder or Bidder Member:
Crown Castle International Corp
510 Bering Drive, Suite 500
Houston, Texas 77057
Attention: David L. Ivy, President and
E. Blake Hawk, General Counsel
Fax No.: (713) 570-3150
with required copies to:
Cravath, Swaine & Moore
825 Eighth Avenue
New York, New York 10019
Attention: Stephen L. Burns
Fax. No.: (212) 474-3700
11.10 Tax Reporting. Thrasher, the Transferring Entities, Bidder,
Bidder Member, HoldCo, HoldCo Sub and OpCo shall report the transactions
contemplated by this Agreement in the manner set forth in the following
sentences for purposes of filing U.S. federal, state and local income and
other Tax and information returns, and shall take and defend positions
consistent therewith in all dealings with the Internal Revenue
<PAGE>
Service and relevant state tax authorities. Such parties shall report (i) the
transfer of the Thrasher Contributed Assets to HoldCo in exchange for
membership interests in HoldCo in part as a sale and in part as a contribution
to which Section 721(a) of the Code applies, with the respective asset values
for each such part to be determined in good faith by Thrasher and Bidder at
the Closing in a manner consistent with Articles 2 and 3 of this Agreement,
(ii) the contribution of assets to HoldCo Sub as disregarded, and (iii) the
distribution of the proceeds of any Incurred Debt that is guaranteed by
Thrasher or an entity that is related to the Thrasher Members within the
meaning of Treas. Reg. Section 1.752-4(b) to HoldCo and subsequently to the
Transferring Entities as a distribution of money that does not result in any
gain pursuant to Section 707 of the Code or Section 731(a)(1) of the Code on
account of Section 752 or any other Section of the
<PAGE>
Code. Further, such parties shall treat HoldCo Sub as a disregarded entity and
OpCo as a partnership for federal income tax purposes. Such parties shall file
all U.S. federal, state and local income and other Tax returns consistently
with the provisions of this Section 11.10.
11.11 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.
11.12 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 OpCo and they
shall not be construed as conferring any rights on any other persons.
11.13 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.
11.14 Exhibits and Annexes. All Exhibits and Annexes referred to
herein are intended to be and hereby are specifically made a part of this
Agreement.
11.15 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.
11.16 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.
11.17 Force Majeure. Should any circumstance beyond the reasonable
control of any party occur which delays or renders impossible the performance
of its obligations under this Agreement on the date herein provided for, such
obligation shall be postponed for such time as such performance necessarily
has had to be suspended or delayed on account thereof. In either such event,
all parties shall promptly meet to determine an equitable solution to the
effects of such event, provided that any party who fails because
<PAGE>
of force majeure to perform its obligations hereunder will upon the cessation
of the force majeure take all reasonable steps within its power to resume with
the least possible delay compliance with its obligations. Events of force
majeure shall include, without limitation, war, revolution, invasion,
insurrection, riots, mob violence, sabotage or other civil disorders, acts of
God, strikes or other labor disputes, acts, laws, regulations or rules of any
government or governmental agency and any other circumstances beyond the
reasonable control of the party, the obligations of whom are affected thereby.
11.18 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.
11.19 Interpretation.
(a) 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.
(b) For illustrative purposes and to demonstrate the application of
certain provisions of this Agreement, the parties have attached hereto as
Exhibit C a worksheet entitled "Sample Calculations," which the parties
acknowledge and agree represents the intended results of the foregoing
provisions in the hypothetical cases set forth therein.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first written.
CROWN CASTLE INTERNATIONAL CORP.
By:______________________________________
Name:
Title:
CROWN CASTLE GT CORP.
By:______________________________________
Name:
Title:
GTE WIRELESS INCORPORATED
By:______________________________________
Name:
Title:
Exhibit 99.3
Crown Castle Crown Castle International Corp. Tel 713-570.3000
International 510 Bering Drive, Suite 500 Fax 713-570.3100
Houston, TX 77057 www.crown.castle.com
November 7, 1999
GTE Wireless Incorporated
One GTE Place
MCGA1B3LGL
Alpharetta, Georgia 30004
Re: Future Tower Contributions
Ladies and Gentlemen:
GTE Wireless Incorporated ("Thrasher"), Crown Castle International Corp.
("Bidder") and certain other entities have entered into a Formation Agreement
dated as of even date herewith (the "Formation Agreement") providing for,
among other things: (i) the formation of three limited liability companies
(collectively, the "Joint Venture") which will acquire, own, operate and
manage communications towers and related assets; (ii) the contribution by
Thrasher (and others) to the Joint Venture of communications towers and
related assets and liabilities; and (iii) the execution by Thrasher (on behalf
of itself and others) and the Joint Venture of a Master Build to Suit
Agreement (the "MBSA") providing for the construction and operation by the
Joint Venture of communications towers upon which Thrasher will locate
communications facilities and pay rents to the Joint Venture (pursuant to the
"Global Lease" (as defined below)); and (iv) the lease of space on certain
towers and related real estate of the Joint Venture pursuant to the terms and
conditions of a Global Lease Agreement to be entered into by Thrasher (on
behalf of itself and others) and the Joint Venture (the "Global Lease") (all
of the foregoing, together with other matters referred to in the Formation
Agreement, collectively herein referred to as the "Transaction" and all of
such documents as the "Transaction Documents"). Capitalized terms used but not
defined herein shall have the meaning assigned to such terms in the Formation
Agreement.
1. Future Tower Contributions. (a) The parties acknowledge that (i) the
communications towers and related assets and liabilities to be conveyed
to the Joint Venture pursuant to the Formation Agreement do not represent
all of the tower assets currently owned by Thrasher and its affiliates
(the communications towers and related assets owned by Thrasher (or its
Affiliates) and not included in the Thrasher Contributed Assets are
herein referred to as the "Currently Owned Towers"), (ii) Thrasher or its
affiliates may, in future, acquire additional tower properties in MSA or
RSA cellular service markets and/or MTA or BTA PCS markets in that
portion of the United States of America located east of the Mississippi
river for use in the operation of its cellular system (herein the
"Subsequently Acquired Towers") and (iii) that an Affiliate of Thrasher,
GTE Services Incorporated, has acquired approximately 600 additional
towers and related assets from Ameritech in the Chicago MTA, St. Louis
MTA and other locations as the result of the SBC- Ameritech merger
(herein the "Ameritech Towers"). The Ameritech Towers shall not be
included in the Currently Owned Towers or the Subsequently Acquired
Towers. Bidder agrees that, notwithstanding anything to the contrary in
the Transaction Documents, Thrasher (or its Affiliates) shall have the
right, but not the obligation, to convey (or in the case of the Ameritech
Towers, to use its
<PAGE>
commercially reasonable efforts to cause to be conveyed) all or any part
of the Currently Owned Towers, the Subsequently Acquired Towers and the
Ameritech Towers to the Joint Venture as herein provided or as otherwise
agreed to by the parties.
In the event that Thrasher desires to exercise the right to convey (or in
the case of the Ameritech Towers, to use its commercially reasonable
efforts to cause to be conveyed) to Bidder any Currently Owned Towers,
Subsequently Acquired Towers or the Ameritech Towers, Thrasher shall
provide written notice to Bidder and the Joint Venture. The written
notice will include a description of such communications towers and
related assets and liabilities as Thrasher desires to convey (or in the
case of the Ameritech Towers, to use its commercially reasonable efforts
to cause to be conveyed) consistent with the information provided by
Thrasher pursuant to Annexes I, II and III and Section 5.1 of the
Formation Agreement. Unless otherwise agreed to by the parties, the
consideration to be received by Thrasher shall be the product of (i) the
number of such communications towers to be conveyed, multiplied by (ii)
(x) as to the Currently Owned Towers and the Subsequently Acquired
Towers, two hundred seventy-five thousand dollars ($275,000) or (y) as to
the Ameritech Towers, three hundred ninety thousand dollars ($390,000).
(b) Unless otherwise agreed to by Thrasher, the consideration will take
the form of cash (including Incurred Debt) and additional ownership
interest in HoldCo in the same proportions received by Thrasher under the
Formation Agreement.
(c) Thrasher's rights hereunder to contribute Currently Owned Towers and
Subsequently Acquired Towers will expire eighteen (18) months after the
Final Closing. As to the Ameritech Towers, the written notice provided
for in item (a) above shall apply to all of the Ameritech Towers
(excluding tower sites with switches or office buildings, if any) and
must be given by Thrasher not later than May 1, 2000 and the parties
shall enter into a definitive agreement for the contribution of such
towers (the "Definitive Agreement") not later than June 30, 2000;
provided however, Thrasher shall be obligated to cause to be contributed
to the Joint Venture only such of the Ameritech Towers as to which it has
obtained all required consents or approvals or is not prohibited from
making such contribution by the DOJ or otherwise. The time and date for
the closing of the contribution of the Ameritech Towers shall be
established by the Definitive Agreement, but in no event shall such
closing be sooner than June 1, 2000. Upon conveyance of the properties,
Thrasher (or its Affiliates) will execute Supplements (as defined in the
Global Lease) for each property conveyed. Any Currently Owned Towers or
Subsequently Acquired Towers conveyed hereunder will be conveyed subject
to the same representations and warranties provided for under Section 5.1
of the Formation Agreement (given as of the date of conveyance) and
Thrasher, the Joint Venture and the parties to the Formation Agreement
shall be subject to, and enjoy the benefit of, the indemnification
provisions set forth in Article 10 of the Formation Agreement; provided,
however that any time periods provided for in such Article will be deemed
to commence as of the date of conveyance with respect to the properties
conveyed pursuant to this letter agreement.
(d) Notwithstanding the foregoing, the Joint Venture will not be
obligated to accept the contribution of more than one hundred (100)
Currently Owned Towers and Subsequently Acquired Towers, in the
aggregate, in any twelve (12) month period; provided, however, that if
the Joint Venture declines to accept at least one hundred (100) of such
towers in any twelve month period, Thrasher's rights to
<PAGE>
contribute such towers shall be extended until such time as it would be
able to cause the Joint Venture to accept the contribution of all of such
towers offered in the eighteen (18) month period following the Final
Closing. Notwithstanding anything contained herein to the contrary, the
Joint Venture will be obligated to accept the contribution of no more
than 600 Ameritech Towers..
(e) The provisions of this letter agreement do not apply to the
conveyance of towers (and related assets and liabilities) by Thrasher
which were identified on any Annex or Schedule to the Formation
Agreement, but which were not conveyed at a Closing ("Contemplated
Towers"). With respect to such Contemplated Towers, the parties agree
that Thrasher (or the Transferring Entities) will convey such properties
when and as it is able to and shall receive the consideration in the
amounts and forms provided for in the Formation Agreement, to the extent
that such consideration has not already been received by Thrasher.
(f) Notwithstanding the foregoing, with regard to the Ameritech Towers,
in addition to the right of Thrasher to cause the contribution of those
towers to the Joint Venture, the Joint Venture shall have the right to
require that all, but not less than all, of those towers (excluding tower
sites with switches or office buildings, if any) be contributed to the
Joint Venture which right shall be exercised by written notice from the
Joint Venture to Thrasher not later than May 1, 2000 and the parties
shall enter into the Definitive Agreement not later than June 30, 2000;
provided however, Thrasher shall be obligated to cause to be contributed
to the Joint Venture only such of the Ameritech Towers as to which it has
obtained all required consents or approvals or is not prohibited from
making such contribution by the DOJ or otherwise., The time and date for
the closing of the contribution of the Ameritech Towers will be
established by the Definitive Agreement, but in no event shall such
closing be sooner than June 1, 2000. Upon receipt of such notice Thrasher
will prepare a description of such communications towers and related
assets and liabilities consistent with the information provided by
Thrasher pursuant to Annexes I, II and III and Section 5.1 of the
Formation Agreement and the consideration to be received by Thrasher
shall be the product of (i) the number of such communications towers to
be conveyed, multiplied by (ii) three hundred ninety thousand dollars
($390,000)
(g) All towers contributed by Thrasher or its Affiliates to the Joint
Venture under this letter agreement shall be included as a part of the
buildings, towers, and facilities of the Joint Venture that are subject
to the Global Lease and, as such, will be subject to the terms and
conditions of the Global Lease; as to each contributed tower, Thrasher
and Bidder will execute and deliver, each to the other, a Supplement (as
defined in the Global Lease). Unless otherwise agreed to by Thrasher, the
consideration will take the form of cash and additional ownership
interest in HoldCo in the same proportions received by Thrasher under the
Formation Agreement.
(h) The Definitive Agreement shall (i) include, without limitation, the
terms of Article 7 of the Formation Agreement (as modified to accommodate
the time and circumstances applicable to the closing of the Currently
Owned Towers, the Subsequently Acquired Towers and the Ameritech Towers)
and (ii) provide that any obligation of Thrasher to obtain the Required
Thrasher Phase I Reports with regard to the Subsequently Acquired Towers
and the Ameritech Towers shall be determined by the date of the
acquisition of those towers by the party from which Thrasher or its
Affiliate obtained them and not by the date such towers were acquired by
Thrasher or its Affiliate.
<PAGE>
2. Miscellaneous.
(a) All notices hereunder must be in writing and shall be deemed validly
given if sent in accordance with the provisions of Section 11.9 of the
Formation Agreement.
(b) This letter 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.
(c) This letter agreement may be executed in multiple 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 letter agreement shall become binding when one or more
counterparts taken together shall have been executed and delivered by the
parties.
(d) Any dispute hereunder shall be resolved in the manner set forth in
Section 11.1 of the Formation Agreement.
(e) This letter agreement may not be assigned by any party hereto without
the prior written consent of the other party, provided that (i) Thrasher
may assign its rights hereunder to any entity of which either Thrasher
Parent, Thrasher or Bell Atlantic (after the Bell Atlantic/Thrasher
Merger is consummated) owns directly or indirectly a majority of the
voting power of the outstanding capital stock or to any transferee of its
entire remaining Thrasher HoldCo Interest, in each case, in compliance
with Section 9.2 of the Formation Agreement, and (ii) Bidder may assign
any of its rights hereunder to any wholly-owned (direct or indirect)
subsidiary of Bidder or to any transferee of its entire remaining Bidder
HoldCo Interest, in each case, in compliance with Section 9.1 of the
Formation Agreement. No such assignment shall relieve Thrasher or Bidder
of their respective obligations hereunder except that in connection with
a transfer by Thrasher of its entire remaining Thrasher HoldCo Interest,
respectively, made in accordance with the provisions of Article 9 of the
Formation Agreement, the transferring party shall be relieved only of its
obligations under Articles 8 and 9 of the Formation Agreement. For
purposes of the foregoing, a transfer by merger by Bidder or Thrasher
(whether or not Bidder or Thrasher is the surviving corporation), or any
direct or indirect parent corporation of Bidder or Thrasher, shall not be
deemed to be an assignment for purposes of this letter agreement. 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 Thrasher and Bidder. All references
herein to any party shall be deemed to include any successor to such
party, including any corporate successor.
(f) This letter agreement shall automatically terminate upon the
termination of the Formation Agreement, including the circumstance where
one or more Closings have occurred and the Formation Agreement and the
other Transaction Documents remain in effect for the limited purpose of
governing the parties' relationship with respect to the assets and
liabilities transferred and assumed at such Closings.
(g) The parties understand and agree that in no event may the Thrasher
HoldCo Interest be decreased to a percentage less than 10.0% (assuming
that no Bidder Contributed Shares have been contributed to or are held by
HoldCo) as a result of
<PAGE>
adjustments in the percentage interests of the members of HoldCo and,
accordingly, to the extent that any of the transactions contemplated
hereby would cause such decrease to occur the parties will revise the
terms of the transactions contemplated in order to prevent such decrease.
The foregoing represents the entire agreement of the parties with
respect to the matters expressly provided for herein, and except as expressly
provided for herein, shall not be deemed to amend, alter, modify or waive any
of the rights or obligations of the parties under the Formation Agreement or
any other Transaction Documents.
<PAGE>
Please execute the enclosed copy of this letter and return it to the
address set forth above, evidencing Thrasher's agreement to the terms and
conditions of this letter. Execution of the letter by each of us shall
constitute each parties agreement to the foregoing and each party agrees to
use its best efforts to cause the Joint Venture to comply with any of its
obligations hereunder.
CROWN CASTLE INTERNATIONAL
CORP.
By: __________________________
Name: ________________________
Title__________________________
GTE WIRELESS INCORPORATED
By: __________________________
Name: ________________________
Title__________________________
