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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):March 31, 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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Item 5. Other Events
On March 31, 1999, pursuant to a Formation Agreement (the
"Formation Agreement") dated December 8, 1998 and amended on March 31,
1999, among Cellco Partnership, a Delaware general partnership doing
business as Bell Atlantic Mobile ("BAM"), certain Transferring Partnerships
(as defined in the Formation Agreement), Crown Castle International Corp.
(the "Company") and CCA Investment Corp., a wholly owned subsidiary of the
Company ("Company Sub"), the Company and BAM formed a joint venture to own
and operate a significant majority of BAM's wireless communications towers.
The Company, through the Company Sub, owns approximately 61.5% of the joint
venture and BAM and the Transferring Partnerships own the remaining 38.5%
along with a 0.001% interest in the Joint Venture's operating subsidiary.
Pursuant to the Formation Agreement, Company Sub contributed
$250.0 million in cash and approximately 15.6 million shares of common
stock (valued at $197.0 million) of the Company to the joint venture. BAM
and the Transferring Partnerships transferred to the joint venture their
interests in 1,322 towers along with related assets and liabilities. In
addition, pursuant to an exclusive management agreement entered into
concurrently with the formation of the joint venture, the joint venture
will be responsible for managing, maintaining, marketing and leasing space
on an additional 136 towers along with related assets and liabilities. The
Company will have complete responsibility for such additional towers and
will receive the economic benefits of leasing available space on such
towers, although BAM will continue to own such towers. However, pursuant to
the exclusive management agreement, BAM and the Transferring Partnerships
are obligated to transfer from time to time such towers to the joint venture
upon the waiver or lapse of restrictions, the completion of filings and other
matters and the receipt of consents necessary for any such transfer. The
joint venture borrowed $180.0 million under a committed $250.0 million
revolving credit facility from Key Corporate Capital Inc., following which
the joint venture made a $380.0 million cash distribution to BAM.
Company Sub will determine the managers to manage and run the
day-to-day operations of the joint venture. Concurrently with the
formation of the joint venture, BAM and the joint venture entered into a
master-build-to suit agreement pursuant to which the joint venture will
build and own the next 500 towers for BAM's wireless communications
business. The joint venture has the right to build an additional 200 towers
for BAM thereafter. Pursuant to a global lease agreement, BAM will lease
antenna space on the towers transferred to the joint venture, as well as
the towers built pursuant to the build-to-suit agreement. The joint venture
will also actively seek to add additional tenants to its towers in order to
increase its revenues. In addition, the joint venture has a right of first
refusal on the Company's next 300 build-to-suit opportunities from customers
that are not affiliated with BAM within the regions where BAM has
contributed assets to the joint venture.
Item 7. Financial Statements and Exhibits
(a) Financial statements of business acquired.
The following financial statements of Bell Atlantic Mobile Tower
Operations, together with the independent auditors report on certain of
such financial statements, are incorporated by reference to the financial
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statements of Bell Atlantic Mobile Tower Operations contained in the Company's
Registration Statement on Form S-1, File No. 333-74553.
(1) Statement of Net Assets dated December 31, 1998
(2) Statements of Revenues and Direct Expenses for the years
ended December 31, 1997 and 1998
(3) Notes to Financial Statements
(b) Pro forma financial information
The following unaudited pro forma condensed consolidated
financial statements, together with the introductory language thereto, are
incorporated by reference to the Unaudited Pro Forma Condensed Consolidated
Financial Statements contained in the Company's Registration Statement on
Form S-1, File No. 333-74553.
(1) Unaudited Pro Forma Condensed Consolidated Statement of
Operations for the Year Ended December 31, 1998
(2) Notes to Unaudited Pro Forma Condensed Consolidated
Statement of Operations
(3) Unaudited Pro Forma Condensed Consolidated Balance Sheet as
of December 31, 1998
(4) Notes to Unaudited Pro Forma Condensed Consolidated Balance
Sheet
(c) Exhibits
Exhibit No. Description
2.1 Formation Agreement dated December 8,
1998 relating to the formation of Crown
Atlantic Company LLC, Crown Atlantic
Holding Sub LLC, and Crown Atlantic
Holding Company LLC (Incorporated by
reference to the exhibit previously filed
by the registrant on Form 8-K
(Registration No. 0-24737) dated
December 9, 1998)
2.2 Amendment Number 1 to Formation Agreement
dated March 31, 1999 among Crown Castle
International Corp., Cellco Partnership,
doing business as Bell Atlantic Mobile,
certain Transferring Partnerships and CCA
Investment Corp.
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Exhibit No. Description
23.1 Consent of KPMG LLP
99.1 Crown Atlantic Company LLC Operating
Agreement entered into as of March 31, 1999
by and between Cellco Partnership, doing
business as Bell Atlantic Mobile, and Crown
Atlantic Holding Sub LLC
99.2 Crown Atlantic Holding Sub LLC Operating
Agreement entered into as of March 31, 1999
by Crown Atlantic Holding Company LLC
99.3 Crown Atlantic Holding Company LLC Operating
Agreement entered into as of March 31, 1999
by Cellco Partnership, doing business as Bell
Atlantic Mobile, and CCA Investment Corp.
99.4 Amendment No. 1 to Rights Agreement dated
March 31, 1999 between Crown Castle
International Corp. and Chase Mellon
Shareholder Services L.L.C.
99.5 Exclusive Management Agreement dated March
31, 1999 by and among Cellco Partnership,
doing business as Bell Atlantic Mobile, the
Listed Partnerships (listed on the signature
pages thereof) and Crown Atlantic Company LLC
99.6 Global Lease Agreement dated March 31, 1999
between Crown Atlantic Company LLC and Cellco
Partnership, doing business as Bell Atlantic
Mobile
99.7 Master Build to Suit Agreement dated March
31, 1999 between Cellco Partnership, doing
business as Bell Atlantic Mobile, and Crown
Atlantic Company LLC
99.8 Loan Agreement dated as of March 31, 1999 by
and among Crown Atlantic HoldCo Sub LLC, as
the Borrower, Key Corporate Capital Inc., as
Agent, and the Financial Institutions listed
therein
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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: April 12, 1999
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EXHIBIT INDEX
Exhibit No. Description
2.1 Formation Agreement dated December 8, 1998
relating to the formation of Crown Atlantic
Company LLC, Crown Atlantic Holding Sub LLC,
and Crown Atlantic Holding Company LLC
(Incorporated by reference to the exhibit
previously filed by the registrant on Form
8-K (Registration No. 0-24737) dated December
9, 1998)
2.2 Amendment Number 1 to Formation Agreement
dated March 31, 1999 among Crown Castle
International Corp., Cellco Partnership,
doing business as Bell Atlantic Mobile,
certain Transferring Partnerships and CCA
Investment Corp.
23.1 Consent of KPMG LLP
99.1 Crown Atlantic Company LLC Operating
Agreement entered into as of March 31, 1999
by and between Cellco Partnership, doing
business as Bell Atlantic Mobile, and Crown
Atlantic Holding Sub LLC
99.2 Crown Atlantic Holding Sub LLC Operating
Agreement entered into as of March 31, 1999
by Crown Atlantic Holding Company LLC
99.3 Crown Atlantic Holding Company LLC Operating
Agreement entered into as of March 31, 1999
by Cellco Partnership, doing business as Bell
Atlantic Mobile, and CCA Investment Corp.
99.4 Amendment No. 1 to Rights Agreement dated
March 31, 1999 between Crown Castle
International Corp. and Chase Mellon
Shareholder Services L.L.C.
99.5 Exclusive Management Agreement dated March
31, 1999 by and among Cellco Partnership,
doing business as Bell Atlantic Mobile, the
Listed Partnerships (listed on the signature
pages thereof) and Crown Atlantic Company LLC
99.6 Global Lease Agreement dated March 31, 1999
between Crown Atlantic Company LLC and Cellco
Partnership, doing business as Bell Atlantic
Mobile
99.7 Master Build to Suit Agreement dated March
31, 1999 between Cellco Partnership, doing
business as Bell Atlantic Mobile, and Crown
Atlantic Company LLC
99.8 Loan Agreement dated as of March 31, 1999 by
and among Crown Atlantic HoldCo Sub LLC, as
the Borrower, Key Corporate Capital Inc., as
Agent, and the Financial Institutions listed
therein
EXHIBIT 2.2
AMENDMENT NUMBER 1 TO FORMATION AGREEMENT
AMENDMENT NUMBER 1 TO FORMATION AGREEMENT (the "Amendment") dated as
of March 31, 1999, by and among Cellco Partnership, a Delaware general
partnership doing business as Bell Atlantic Mobile ("BAM"), the
Transferring Partnerships listed on the signature pages hereto, Crown
Castle International Corp., a Delaware corporation ("Bidder"), and CCA
Investment Corp., a Delaware corporation ("Bidder Member").
BACKGROUND
A. BAM, Bidder, Bidder Member and the Transferring Partnerships are
parties to a Formation Agreement dated as of December 8, 1998. All
capitalized terms used herein and not otherwise defined herein shall have
the respective meanings ascribed thereto in the Formation Agreement.
B. BAM, Bidder, Bidder Member and the Transferring Partnerships desire
to make certain amendments to the Formation Agreement and are entering into
this Amendment for that purpose.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally
bound hereby, the parties hereto agree as follows:
1. Bidder Contributed Cash. Among other things, the Formation
Agreement provides that: (a) in connection with the formation of OpCo,
Bidder Member will contribute the Bidder Contributed Cash ($250,000,000 in
cash) in exchange for the Bidder OpCo Interest, (b) in connection with the
formation of HoldCo Sub, Bidder Member will contribute the Bidder OpCo
Interest to HoldCo Sub in exchange for the Bidder's interest in HoldCo Sub,
(c) immediately prior to the formation of HoldCo, OpCo will distribute
$200,000,000 of the Bidder Contributed Cash to HoldCo Sub and retain
$50,000,000 of the Bidder Contributed Cash for working capital and capital
expenditure purposes, (d) in connection with the formation of HoldCo,
Bidder Member will contribute the Bidder HoldCo Sub Interest and the Bidder
Contributed Shares to HoldCo in exchange for the Bidder HoldCo Interest,
and (e) immediately after Closing, HoldCo Sub will distribute $200,000,000
in cash to HoldCo and HoldCo will then immediately make the Contributed
Cash Distribution ($200,000,000 in cash) to BAM and the Transferring
Partnerships.
BAM, Bidder, Bidder Member and the Transferring Partnerships desire to
amend the relevant provisions of the Formation Agreement that cover the
foregoing formation steps to provide that: (i) in connection with the
formation of OpCo, Bidder Member will contribute $50,000,000 in cash (the
"Bidder Contributed Cash to OpCo") in exchange for the Bidder OpCo
Interest, (ii) in connection with the formation of HoldCo Sub, Bidder
Member will contribute the Bidder OpCo Interest in exchange for the Bidder
HoldCo Sub Interest, (iii) in connection with the formation of HoldCo,
Bidder Member will contribute the Bidder HoldCo Sub Interest, the Bidder
Contributed Shares and $200,000,000 in cash (the "Bidder Contributed Cash
to HoldCo"; and, together with the Bidder Contributed Cash to OpCo, the
"Bidder Contributed Cash") in exchange for the Bidder HoldCo Interest, and
(iv) immediately after Closing, HoldCo will make the Contributed Cash
Distribution ($200,000,000 in cash) to BAM and the Transferring
Partnerships.
Accordingly, the following amendments to the Formation Agreement are
hereby made to
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effectuate the foregoing:
(A) Clauses (ii), (vi) and (vii) of the third sentence of
the Preamble to the Formation Agreement are amended and restated as
follows:
"(ii) cause Bidder Member to contribute $50,000,000 in cash
(the "Bidder Contributed Cash to OpCo") to OpCo in exchange
for membership interests in OpCo;
(vi) [intentionally omitted];
(vii) thereafter, contribute their membership interests in
HoldCo Sub to a newly organized Delaware limited liability
company named Crown Atlantic Holding Company LLC ("HoldCo")
and, in addition, Bidder Member will contribute the Bidder
Contributed Shares (hereinafter defined) and $200,000,000 in
cash (the "Bidder Contributed Cash to HoldCo") to HoldCo in
exchange for membership interests in HoldCo;"
(B) The defined term "Bidder Contributed Cash" in Article
1 of the Formation Agreement is amended and restated as follows:
"'Bidder Contributed Cash' means the Bidder Contributed Cash
to OpCo and the Bidder Contributed Cash to HoldCo."
(C) The following defined terms are added to Article 1 of
the Formation Agreement, immediately after the defined term "Bidder
Contributed Cash" therein:
"'Bidder Contributed Cash to HoldCo' is defined above in the
preamble.
'Bidder Contributed Cash to OpCo' is defined above in the
preamble."
(D) The words "Bidder Contributed Cash" in clause (i) of
Section 2.1 of the Formation Agreement are deleted and the words "Bidder
Contributed Cash to OpCo" are inserted in their place.
(E) The words "Bidder Contributed Cash" in Section 2.4 of
the Formation Agreement are deleted and the words "Bidder Contributed Cash
to OpCo" are inserted in their place.
(F) Section 3.4 of the Formation Agreement is amended and
restated in its entirety as follows:
"3.4 Contributed Cash Distribution. At the Closing,
immediately after the formation of HoldCo pursuant to
Section 3.5 hereof, HoldCo shall distribute $200,000,000 in
cash to BAM and the Transferring Partnerships (such
distribution by HoldCo to BAM and the Transferring
Partnerships is referred to herein as the "Contributed Cash
Distribution", and, together with the Financing
Distribution, is referred to herein as the "BAM Capital
Distribution"), which
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Contributed Cash Distribution shall be apportioned between
BAM and the Transferring Partnerships and among the
Transferring Partnerships as set forth on Exhibit A-1."
(G) The third sentence of the first paragraph of Section
3.5 of the Formation Agreement is amended and restated in its entirety as
follows:
"Bidder Member shall contribute to HoldCo (a) the Bidder
HoldCo Sub Interest, free and clear of all Encumbrances, (b)
15,597,783 shares of validly issued, fully-paid and
non-assessable shares of Common Stock of Bidder, subject to
appropriate adjustment for stock splits, dividends,
reclassifications and similar changes in the capital stock
of Bidder occurring after the date of this Agreement but
prior to Closing (the "Bidder Contributed Shares"), free and
clear of all Encumbrances, and (c) the Bidder Contributed
Cash to HoldCo, in exchange for the issuance by HoldCo to
Bidder Member of a 62.3 Percentage Interest in HoldCo (the
"Bidder HoldCo Interest")."
(H) The words "Bidder Contributed Cash" in Section 4.2(c)
of the Formation Agreement are deleted and the words "Bidder Contributed
Cash to OpCo" are inserted in their place.
(I) Sections 4.2(h) and (i) of the Formation Agreement
are amended and restated in their entirety as follows:
"(h) BAM, the Transferring Partnerships and Bidder Member
shall form HoldCo by executing and delivering the HoldCo
Operating Agreement and contributing to HoldCo all of their
respective interests in HoldCo Sub and by Bidder Member
contributing to HoldCo the Bidder Contributed Shares and the
Bidder Contributed Cash to HoldCo;
(i) HoldCo shall deliver to BAM and the Transferring
Partnerships the Contributed Cash Distribution by wire
transfer of immediately available funds to such accounts as
BAM shall specify in writing;"
(J) The words "Bidder Contributed Cash" in the first
sentence of Section 4.3 of the Formation Agreement are deleted and the
words "Bidder Contributed Cash to OpCo" are inserted in their place. The
words "and the Bidder Contributed Cash to HoldCo" are inserted at the end
of the first sentence of such Section 4.3.
(K) Section 8.2.2 of the Formation Agreement is amended
and restated in its entirety as follows:
"8.2.2 Use of Proceeds. HoldCo shall use the Bidder
Contributed Cash to HoldCo to make at Closing the
Contributed Cash Distribution. HoldCo Sub shall use the
proceeds of the Anticipated Financing to make at Closing the
Financing Cash Distribution. The Bidder Contributed Cash to
OpCo shall be retained in OpCo for working capital and
capital expenditure purposes."
<PAGE>
2. Identified Employees. BAM, Bidder, Bidder Member and the
Transferring Partnerships have agreed that identifying the employees of BAM
who may be hired by OpCo or HoldCo Sub, and the compensation and other
benefits to be offered by OpCo and HoldCo Sub, will be dealt with after
Closing, and that the Formation Agreement will not contain any
representations, warranties, covenants or conditions relating to those
issues. Accordingly, the following amendments to the Formation Agreement
are hereby made:
(A) The defined terms "Agreement Regarding
Identified Employees" and "Identified Employee" are deleted
from Article 1 of the Formation Agreement.
(B) The words "or the Identified Employees" at the end of
the defined term "Tower Related Assets" in Article 1 of the Formation
Agreement are deleted.
(C) Clause (iv) of Section 2.3.4 of the Formation
Agreement is amended and restated in its entirety as follows:
"(iv) except to the extent that such Liabilities are to be
assumed by OpCo, as may be set forth in a written agreement
between OpCo and BAM, any Liabilities arising prior to or as
a result of the Closing to or with respect to any employees,
agents or independent contractors of BAM or any of the
Transferring Partnerships, whether or not employed by OpCo
after the Closing and whether or not arising under any
applicable Law, Benefit Plan or other arrangement with
respect thereto;"
(D) The following provisions of the Formation Agreement
are deleted in their entirety and the words "[Intentionally Omitted]" are
inserted in their place: Sections 5.1.9, 5.1.10, 6.3.2 and 8.6, and clause
(c) of Section 6.1.2.
3. Tower Structures Under Construction. The following
amendments to the Formation Agreement are hereby made, each of which
relates to Tower Structures under construction on Tower Sites as of the
Closing:
(A) The following defined term is added to Article 1 of
the Formation Agreement, immediately after the defined term "Tower
Structures" therein:
"'Tower Structures Under Construction' shall mean the Tower
Structures identified in subsection (d) of Annex I."
(B) Clause (viii) of Section 2.3.4 of the Formation
Agreement is amended and restated in its entirety as follows:
"(vii) except to the extent specifically included in the
Assumed Liabilities, any and all costs, expenses, payment or
performance obligations associated with the completion of
construction of the Tower Structures located on Tower Sites
to be conveyed hereunder (including, without limitation, the
Tower Structures Under Construction), except to the extent
that Bidder and BAM have agreed to modifications to such
Tower Structures in which case the cost of such
<PAGE>
modifications shall be included in the Assumed Liabilities,
and;"
(C) Section 5.1.4 of the Formation Agreement is amended
by adding the following sentence at the end of such Section:
"As regards each of the Tower Structures Under Construction
(and Tower Sites related thereto), BAM has received all
Governmental Permits necessary to commence the construction
of such Tower Structures Under Construction."
(D) Article 8 of the Formation Agreement is amended to
include the following new Section 8.7:
"8.7 Completion of Tower Structures Under Construction. From
and after the Closing, BAM and the Transferring Partnerships
shall, at their sole cost and expense, complete construction
of all Tower Structures Under Construction. BAM and the
Transferring Partnerships shall perform and complete such
construction obligations in accordance with existing
Governmental Permits and BAM's existing practices, policies
and standards relating to the construction of communication
tower structures. Notwithstanding the foregoing, Tower
Structures Under Construction shall, as of the Closing Date,
be subject to the terms and provisions of the Global Lease,
and lease Supplements (as defined in the Global Lease) shall
be executed effective the Closing Date with respect to all
Tower Structures Under Construction."
4. Delaware Law to Govern. This Amendment 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.
5. Severability. Any provision of this Amendment which is invalid or
unenforceable in any jurisdiction shall be ineffective to the extent of such
invalidity or unenforceability without invalidating or rendering unenforceable
the remaining provisions hereof, and any such invalidity or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
6. Ratification. Except as specifically modified by this
Amendment, all of the provisions of the Formation Agreement are hereby
ratified and confirmed to be in full force and effect.
7. Binding Effect. This Amendment shall be binding upon,
and shall inure to the benefit of the parties and their respective
permitted successors and assigns.
8. Counterparts. This Amendment 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 Amendment 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 Amendment or any counterpart hereof to produce or account for
any of the other counterparts.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment on the
<PAGE>
date first written.
CROWN CASTLE INTERNATIONAL CORP.
By: /s/ David L. Ivy
-----------------------------
Name: David L. Ivy
Title: President
CCA INVESTMENT CORP.
By: /s/ David L. Ivy
-----------------------------
Name: David L. Ivy
Title: President
CELLCO PARTNERSHIP
By: Bell Atlantic Mobile, Inc., its
managing general partner
By: /s/ A. J. Melone
-----------------------------
Name: A. J. Melone
Title: Vice President
Network Planning and
Administration
TRANSFERRING PARTNERSHIPS:
ALLENTOWN SMSA LIMITED PARTNERSHIP
By: Bell Atlantic Mobile Systems of Allentown, Inc., its
managing general partner
By: Cellco Partnership, its
managing general partner
By: Bell Atlantic Mobile, Inc., its
managing general partner
By: /s/ A. J. Melone
--------------------------
Name: A. J. Melone
Title: Vice President
Network Planning and
Administration
<PAGE>
COLUMBIA CELLULAR TELEPHONE COMPANY
By: Cellco Partnership, its managing general partner
By: Bell Atlantic Mobile, Inc., its
managing general partner
By: /s/ A. J. Melone
---------------------------
Name: A. J. Melone
Title: Vice President
Network Planning and
Administration
NEW YORK SMSA LIMITED PARTNERSHIP
By: Cellco Partnership, its managing general partner
By: Bell Atlantic Mobile, Inc., its
managing general partner
By: /s/ A. J. Melone
---------------------------
Name: A. J. Melone
Title: Vice President
Network Planning and
Administration
ORANGE COUNTY-POUGHKEEPSIE MSA
LIMITED PARTNERSHIP
By: NYNEX Mobile Limited Partnership 2, its
managing general partner
By: Cellco Partnership, its
managing general partner
By: Bell Atlantic Mobile, Inc., its
managing general partner
By: /s/ A. J. Melone
------------------------
Name: A. J. Melone
Title: Vice President
Network Planning
and Administration
PENNSYLVANIA RSA NO. 6 (II) LIMITED PARTNERSHIP
By: Cellco Partnership, its managing general partner
By: Bell Atlantic Mobile, Inc., its
managing general partner
By: /s/ A. J. Melone
-------------------------
Name: A. J. Melone
Title: Vice President
Network Planning
and Administration
<PAGE>
PITTSBURGH SMSA LIMITED PARTNERSHIP
By: Cellco Partnership, its managing general partner
By: Bell Atlantic Mobile, Inc., its
managing general partner
By: /s/ A. J. Melone
-----------------------------
Name: A. J. Melone
Title: Vice President
Network Planning and
Administration
WASHINGTON, DC SMSA LIMITED PARTNERSHIP
By: Cellco Partnership, its managing general partner
By: Bell Atlantic Mobile, Inc., its
managing general partner
By: /s/ A. J. Melone
------------------------
Name: A. J. Melone
Title: Network Planning
and Administration
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Crown Castle International Corp.
We consent to the incorporation by reference to the previously
filed registration statement (No. 333-74553) on Form S-1 of Crown Castle
International Corp. of our report dated March 4, 1999, with respect to the
statement of net assets of Bell Atlantic Mobile Tower Operations as of
December 31, 1998, and the related statements of revenues and direct
expenses for each of the years in the two-year period ended December 31,
1998, which report is incorporated by reference in the Form 8-K of Crown
Castle International Corp. to which this consent is filed as an exhibit.
/s/ KPMG LLP
Houston, TX
April 9, 1999
Exhibit 99.1
CROWN ATLANTIC COMPANY LLC
OPERATING AGREEMENT
THIS OPERATING AGREEMENT (this "Operating Agreement") is made and
entered into as of March 31, 1999 (the "Effective Date") by and between
Cellco Partnership, a Delaware general partnership doing business as Bell
Atlantic Mobile ("BAM"), and CROWN ATLANTIC HOLDING SUB LLC, a Delaware
limited liability company ("HOLDCO SUB") (and such other persons who shall
be admitted in the future in accordance with the terms hereof and shall
have agreed to be bound hereby), being hereinafter sometimes referred to
individually as a "Member" and collectively as the "Members."
WHEREAS, BAM, Crown Castle International Corp., a Delaware
corporation ("CCIC"), CCA Investment Corp., a Delaware corporation ("CCIC
Member") and a wholly-owned indirect subsidiary of CCIC, and certain
transferring partnerships (the "Transferring Partnerships") have entered
into a Formation Agreement dated as of December 8, 1998, as amended by
Amendment Number One to such Formation Agreement dated as of March 31, 1999
and as further amended by the Schedule updates contemplated by Sections
6.1.2 and 6.2.1 of such Formation Agreement (as so amended, the "Formation
Agreement"), pursuant to which, among other things, BAM and the
Transferring Partnerships will (i) contribute the BAM Contributed Assets
and the BAM Assumed Liabilities (both as defined in the Formation
Agreement) to Crown Atlantic Company LLC, a Delaware limited liability
company ("OpCo" or the "Company") in exchange for membership interests in
OpCo; (ii) thereafter, contribute their membership interests in OpCo (other
than the BAM Retained Interest (as hereinafter defined)) to Crown Atlantic
Holding Sub LLC, a Delaware limited liability company ("HoldCo Sub") in
exchange for membership interests in HoldCo Sub; and (iii) thereafter,
contribute their membership interests in HoldCo Sub to Crown Atlantic
Holding Company LLC, a Delaware limited liability company ("HoldCo"), and,
in addition, CCIC Member will contribute the CCIC Contributed Shares (as
defined below) to HoldCo, in exchange for membership interests in HoldCo;
WHEREAS, in exchange for membership interests in HoldCo Sub, each
Transferring Partnership, BAM and CCIC Member will contribute their
membership interests in the Company (other than the BAM Retained Interest)
to HoldCo Sub immediately following the formation of the Company;
WHEREAS for federal income tax purposes it is intended that the
transaction qualify in part as a sale and in part as a contribution of the
BAM Contributed Assets (as defined below) situated in Pennsylvania to the
Company;
NOW, THEREFORE, the parties hereto agree as follows:
<PAGE>
ARTICLE I
GENERAL PROVISIONS
SECTION 1.1 Certain Definitions. As used in this Agreement, the
following terms have the respective meanings assigned to them below:
"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.
"Anticipated Financing" shall mean the proposed financing by
HoldCo Sub contemplated by Section 3.6 of the Formation Agreement of an
amount equal to not less than One Hundred Eighty Million Dollars
($180,000,000.00) (the "Closing Financing Amount"), except as adjusted
pursuant to its terms and conditions.
"BAM" is defined in the Preamble.
"BAM Assumed Liabilities" is defined in Section 2.3.3 of the
Formation Agreement.
"BAM Contributed Assets" is defined in Section 2.3.1 of the
Formation Agreement.
"BAM Retained Interest" shall mean the .001 Percentage Interest
in the Company held by BAM.
"Bidder Services Agreement" shall mean the Services Agreement
among CCIC, OpCo and HoldCo Sub, in form and substance reasonably
acceptable to BAM and CCIC and consistent with the terms set forth in the
letter agreement between BAM and CCIC set forth as Exhibit 2.7 to the
Formation Agreement, pursuant to which CCIC 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.
"Build-to-Suit Agreement" shall mean the Build-to-Suit Agreement
among OpCo, HoldCo Sub and BAM (for itself and on behalf of the
Transferring Partnerships) pursuant to which BAM and the Transferring
Partnerships shall offer to OpCo and HoldCo Sub from time to time the right
to build tower structures on the terms and conditions described therein.
"Business Plan" is defined in Section 10.3.
<PAGE>
"CCIC" is defined in the Preamble.
"CCIC Common Stock" shall mean the common stock, $.01 par value
of CCIC.
"CCIC Contributed Shares" shall mean those shares of CCIC Common
Stock contributed to HoldCo by CCIC Member pursuant to Section 3.5 of the
Formation Agreement.
"CCIC Member" is defined in the Preamble.
"Contingent Obligations" is defined in Section 3.8(h).
"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, BAM shall in good faith select a comparable index to replace the CPI
and the index selected by BAM shall be subject to CCIC Member's approval,
which approval shall not be unreasonably withheld or delayed.
"Effective Date" is defined in the Preamble.
"Encumbrance" 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.
"Exchange Act" is defined in Section 10.4(a).
"Financing Documents" is defined in Section 4.2 of the Formation
Agreement.
"Formation Agreement" is defined in the Preamble. All terms not
defined herein shall have the meaning given to them in the Formation
Agreement.
"GAAP" is defined in Section 3.8(e).
"Global Lease" shall mean the Global Lease Agreement among OpCo
and BAM (for itself and on behalf of the Transferring Partnerships)
pursuant to which OpCo shall lease to BAM and the Transferring Partnerships
space on certain communications towers.
"HoldCo" is defined in the Preamble.
"HoldCo Operating Agreement" shall mean the Operating Agreement
of HoldCo entered into as of March 31, 1999 by BAM and CCIC Member.
<PAGE>
"HoldCo Sub" is defined in the Preamble.
"Indebtedness" is defined in Section 3.8(e).
"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.
"Lender" shall mean Key Corporate Capital Inc.
"Liability" shall mean any direct or indirect liability,
indebtedness, obligation, 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.
"Management Agreement" shall mean the Management Agreement, in
form and substance reasonably acceptable to BAM and CCIC and consistent
with the terms set forth in the letter agreement between BAM and CCIC as
set forth on Exhibit 2.7 to the Formation Agreement, between HoldCo Sub and
OpCo pursuant to which HoldCo Sub shall manage and lease OpCo's assets.
"Managers" is defined in Section 1.2.
"Members" is defined in the Preamble.
"OpCo Towers" is defined in Section 10.3.
"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 of the Formation
Agreement, (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 BAM, (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, and (vii) 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.
"Person" means any natural person or entity.
<PAGE>
"Solvent" is defined in Section 3.8(c).
"Taxes" means all taxes, duties, charges, fees, levies or other
assessments imposed by any taxing authority, whether domestic or foreign,
including, without limitation, income (net, gross or other including
recapture of any tax items such as investment tax credits), alternative or
add-on minimum tax, capital gains, gross receipts, value-added, excise,
withholding, personal 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).
"Tower Leases" are the leases of rights to use spaces on the
Tower Structures as identified in Annex III to the Formation Agreement.
"Tower Sites" shall mean the sites of the Tower Structures that
are owned or leased by BAM or the Transferring Partnerships, including all
fee, ground leasehold interests and easements pertaining to such tower
sites owned by BAM or the Transferring Partnerships and shall include a fee
ownership in the real property associated with the Tower Structures
designated as "Owned Sites" in Annex I of the Formation Agreement, and the
leasehold interest in and to the real property associated with the Tower
Structures designed as "Leased Sites" in Annex I of the Formation Agreement
pursuant to the terms of the ground leases related thereto identified in
Annex II of the Formation Agreement (the "Site Leases").
"Tower Structures" shall mean the communications tower structures
situated at the locations identified in Annex I of the Formation Agreement,
and owned or leased by BAM or the Transferring Partnerships, and BAM's and
the Transferring Partnerships' rights to all attached tower lighting
equipment, grounding systems and physical improvements on each Tower Site,
including fencing, along with any tenant leases, easement rights necessary
for access to the Tower Structure and for location of the Tower Structure
and guy wires, if any, associated therewith; provided, however, such term
does not include any equipment, property or other assets placed upon the
Tower Structures or Tower Sites by third parties pursuant to Tower Leases
or other Contracts or any Excluded Asset as defined in Section 2.3.2 of the
Formation Agreement. This definition shall include any Tower Structures
constructed pursuant to the terms of the Build-to-Suit Agreement.
"Transaction Documents" means, collectively, the Formation
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 Section 4.2 of the Formation Agreement.
"Transferring Partnership" is defined in the Preamble.
SECTION 1.2 Formation. Upon the filing of the Certificate of
Formation (the "Certificate") with the Secretary of State of the State of
Delaware, BAM, CCIC Member and the
<PAGE>
Transferring Partnerships have formed Crown Atlantic Company LLC, a limited
liability company, pursuant to the Delaware Limited Liability Company Act
of 1992, as amended from time to time (the "Act"), for the purposes
hereinafter set forth. BAM, CCIC Member and the Transferring Partnerships,
after the filing of the Certificate and prior to the execution and delivery
of this Agreement, transferred all of their respective interests in the
Company (other than the BAM Retained Interest) to HoldCo Sub. The Company
was formed as a limited liability company managed by its managers (the
"Managers") under the supervision of the Board of Representatives (as
defined in Section 1.10) and the laws of the State of Delaware, upon the
terms and conditions hereinafter set forth. The Members intend that the
Company shall be taxed as a partnership. Promptly following the execution
hereof, the Members shall execute or cause to be executed all other
necessary certificates and documents, and shall make all other such filings
and recordings, and shall do all other acts as may be necessary or
appropriate from time to time to comply with all requirements for the
formation, continued existence and operation of a limited liability company
in the State of Delaware. This Operating Agreement is intended to serve as
a "limited liability company agreement" as such term is defined in ss.
18-101(7) of the Act.
SECTION 1.3 Company Name and Address. The Company shall do
business under the name Crown Atlantic Company LLC or such other name as
the Board of Representatives (as defined in Section 1.10) may determine
from time to time. The Board of Representatives shall promptly notify the
Members of any change of name of the Company. The initial registered agent
for the Company shall be CT Corporation System. The initial registered
office of the Company in the State of Delaware shall be 1209 Orange Street,
Wilmington, Delaware 19801. The registered office and the registered agent
may be changed from time to time by action of the Board of Representatives
by filing notice of such change with the Secretary of State of the State of
Delaware. The Board of Representatives will promptly notify the Members of
any change of the registered office or registered agent. The Company may
also have offices at such other places within or outside of the State of
Delaware as the Board of Representatives may from time to time
determine.
SECTION 1.4 Term. The Company shall commence operating as of the
date the Certificate is filed with the Secretary of the State of Delaware,
and shall have perpetual existence unless terminated or dissolved pursuant
to Section 9.1 of this Operating Agreement.
SECTION 1.5 Business of the Company. Subject to the limitations
set forth in this Operating Agreement, the purpose of the Company is the
ownership, operation and maintenance of the Tower Structures, 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, the Global Lease, the
other Transaction Documents 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). The Company
shall not engage in any line of business or activity except those set forth
in the preceding sentence. The Company shall possess and may exercise all
the powers and privileges
<PAGE>
granted by the Act or by any other law, together with any powers incidental
thereto, so far as such powers and privileges are necessary or convenient to
the conduct, promotion or attainment of the business, purposes or activities
of the Company.
SECTION 1.6 Names and Addresses of the Members. The names and
addresses of the Members are set forth in Schedule A.
SECTION 1.7 Partition. No Member, nor any successor-in-interest
to any Member, shall have the right, while this Operating Agreement remains
in effect, to have the property of the Company partitioned, or to file a
complaint or institute any proceeding at law or in equity to have the
property of the Company partitioned, and each of the Members, on behalf of
itself and its successors, representatives and assigns, hereby irrevocably
waives any such right.
SECTION 1.8 Fiscal Year. The fiscal year of the Company shall
begin on January 1 and end on December 31 of each calendar year.
SECTION 1.9 Title to Company Property. All property owned by the
Company, whether real or personal, tangible or intangible, shall be deemed
to be owned by the Company, and no Member individually shall have any
interest in such property. Title to all such property may be held in the
name of the Company or a designee, which designee may be a Member or an
entity affiliated with a Member.
SECTION 1.10 Board of Representatives.
(a) General. A Board of Representatives (the "Board of
Representatives") shall be established to oversee the Managers and review
the Business Plan (as defined in Section 10.3). There shall be no less than
five (5) Representatives, nor more than fifteen (15) Representatives, as
may be determined from time to time by the Board of Representatives.
Initially, there shall be six (6) Representatives. Each Member shall
designate that number of Representatives determined by multiplying the
total number of Representatives by that Member's Percentage Interest in the
Company (excluding, however, the BAM Retained Interest) and rounding to the
nearest whole number. If such calculation shall result in a greater number
of Representatives than the total to be designated, then the Board of
Representatives shall be expanded to the extent permitted by the second
sentence of this Section 1.10(a) or if, despite such expansion, there would
still be a greater number of Representatives than the total to be
designated, the Members shall by vote determine a proportionate
readjustment with each Member entitled to a number of votes equal to its
Percentage Interest. Notwithstanding the foregoing, for so long as BAM has
the right to designate at least one (1) Representative to the Board of
Representatives of HoldCo, the Representatives and Alternates of HoldCo
shall also serve as the Representatives and Alternates of the Company and
HoldCo Sub, and such Representatives and Alternates shall be selected in
accordance with the provisions of Section 1.10 of the HoldCo Operating
Agreement.
<PAGE>
(b) Representatives and Alternates. Each Member shall also
be entitled to designate one (1) alternate to each such Representative
(each, an "Alternate"). In the event a Representative is unable to attend a
meeting of the Board of Representatives or otherwise participate in any
action to be taken by the Board of Representatives, the Alternate
associated with such Representative shall take such Representative's place
for all purposes on the Board of Representatives. Each Member shall
designate its Representatives and the associated Alternates by written
notice to the Company and each other Member. The initial Representatives
and Alternates of each Member are set forth on Schedule B. The
Representatives and Alternates shall at all times be executive officers or
other full-time employees of either such Member or any affiliate of such
Member.
(c) Resignation. A Representative or Alternate of the
Company may resign at any time by giving written notice to the Company or
to the Member who designated such Representative or Alternate.
(d) Removal. Each Member may, at any time, replace any of
its Representatives or Alternates with a new Representative or Alternate
and, upon such change or upon the death or resignation of any
Representative or Alternate, a successor shall be designated in writing by
the Member that appointed the Representative or Alternate being replaced.
(e) Vacancies. Any vacancy with respect to any
Representative or Alternate occurring for any reason may be filled by the
Member who designated the Representative or Alternate who vacated or was
removed from his or her position.
(f) Compensation. Without the approval of the Members, the
Representatives or Alternates will not be entitled to compensation for
their services as Representatives or Alternates. The Company shall,
however, reimburse the Representatives and Alternates for their reasonable
expenses incurred in connection with their services to the Company.
SECTION 1.11 Membership Interests Uncertificated. The interests
of the Members in the Company shall not be certificated.
ARTICLE II
MEETINGS GENERALLY
SECTION 2.1 Manner of Giving Notice.
(a) A notice of meeting shall specify the place, day and
hour of the meeting and any other information required by any provision of
the Act, the Certificate or this Operating Agreement.
<PAGE>
(b) When a meeting at which there is a duly constituted
quorum is adjourned, it shall not be necessary to give any notice of the
adjourned meeting or of the business to be transacted at an adjourned
meeting, other than by announcement at the meeting at which the adjournment
is taken, unless the adjournment is for more than sixty (60) days in which
event notice shall be given in accordance with Section 2.2 or Section 2.3,
as applicable.
SECTION 2.2 Notice of Meetings of the Board of Representatives.
Notice of every meeting of the Board of Representatives shall be given to
each Representative by telephone or in writing at least 24 hours (in the
case of notice by telephone, telex or facsimile transmission) or 48 hours
(in the case of notice by telegraph, courier service or express mail) or
five days (in the case of notice by first class mail) before the time at
which the meeting is to be held. Every such notice shall state the time and
place of the meeting. Subject to the provisions of Sections 3.3 and 4.5,
neither the business to be transacted at, nor the purpose of, any meeting
of the Board of Representatives need be specified in a notice of the
meeting.
SECTION 2.3 Notice of Meetings of Members. Written notice of
every meeting of the Members shall be given to each Member of record
entitled to vote at the meeting at least five (5) days prior to the day
named for the meeting. If the Managers neglect or refuse to give notice of
a meeting, the person or persons calling the meeting may do so.
SECTION 2.4 Waiver of Notice.
(a) Whenever any written notice is required to be given
under the provisions of the Act, the Certificate or this Operating
Agreement, a waiver thereof in writing, signed by the person or persons
entitled to the notice, whether before or after the time stated therein,
shall be deemed equivalent to the giving of the notice. Neither the
business to be transacted at, nor the purpose of, a meeting need be
specified in the waiver of notice of the meeting.
(b) Attendance of a person at any meeting shall constitute a
waiver of notice of the meeting except where a person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting was not lawfully called or
convened.
SECTION 2.5 Use of Conference Telephone and Similar Equipment.
Any Representative may participate in any meeting of the Board of
Representatives, and any Member may participate in any meeting of the
Members, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can
hear each other. Participation in a meeting pursuant to this Section shall
constitute presence in person at the meeting.
SECTION 2.6 Consent in Lieu of Meeting. Any action required or
permitted to be taken at a meeting of the Board of Representatives or
Members may be taken without a meeting
<PAGE>
if, prior or subsequent to the action, written consents describing the
action to be taken are signed by the minimum number of Representatives or
Members that would be necessary to authorize the action at a meeting at
which all Representatives or Members entitled to vote thereon were present
and voting; provided that, prior to any such written consent becoming
effective, such written consent has been provided to all Representatives or
Members entitled to vote, and the Representatives or Members shall have ten
(10) days to review such consent prior to such written consent becoming
effective (unless otherwise agreed to by all Representatives or their
respective Alternates or each Member, respectively). The consents shall be
filed with the Managers. Prompt notice of the taking of Company action
without a meeting by less than unanimous written consent shall be given to
those Members who have not consented in writing.
ARTICLE III
MANAGEMENT
SECTION 3.1 Management of the Company Generally. The business
and affairs of the Company shall be managed by its Managers under the
supervision of the Board of Representatives (a) in accordance with the
provisions of this Operating Agreement and the Business Plans and the other
resolutions and directives of the Board of Representatives adopted by the
Board of Representatives and in effect from time to time, and (b) subject
to the provisions of the Act, the Certificate and this Operating Agreement
including, without limitation, the provisions of Section 3.8 hereof. Unless
authorized to do so by this Operating Agreement or by Board of
Representatives or the Managers of the Company (provided that the Managers
are authorized to grant such authority), no attorney-in-fact, employee,
officer or agent of the Company other than the Managers shall have any
power or authority to bind the Company in any way, to pledge its credit or
to render it liable pecuniarily for any purpose. No Member shall have any
power or authority to bind the Company unless the Member has been expressly
authorized by the Board of Representatives to act as an agent of the
Company. All Managers of the Company, as between themselves and the
Company, shall have such authority and perform such duties in the
management of the Company as may be provided by or pursuant to resolutions
or orders of the Board of Representatives or in the Business Plan or, in
the absence of controlling provisions in the resolutions or orders of the
Board of Representatives, as may be determined by or pursuant to this
Operating Agreement. The Board of Representatives may confer upon any
Manager such titles as the Board deems appropriate, including, but not
limited to, President, Vice President, Secretary or Treasurer, and subject
to the limitations set forth in Section 3.8 of this Operating Agreement,
delegate specifically defined duties to the Managers. Notwithstanding the
foregoing or any other provision of this Operating Agreement or of the Act
to the contrary, no Manager of the Company shall have the power or
authority to do or perform any act with respect to any of the matters set
forth in Section 3.8 of this Operating Agreement unless such matter has
been approved by the mutual consent of BAM and CCIC Member in accordance
with the provisions of this Operating Agreement.
<PAGE>
SECTION 3.2 Meetings of the Board of Representatives. Meetings
of the Board of Representatives shall be held at such time and place within
or without the State of Delaware as shall be designated from time to time
by resolution of the Board of Representatives or by written notice of any
Manager or by written notice of any Member; provided that meetings of the
Board of Representatives shall be held no less than quarterly, on a date to
be determined by the mutual consent of BAM and CCIC Member. At each meeting
of the Board of Representatives, the Managers shall (i) provide the Board
of Representatives with a report on the financial condition and operations
of the Company, including, without limitation, a report on the results of
operations compared to the then applicable Business Plan, (ii) disclose to
the Board of Representatives any material event or contingency occurring
since the previous meeting and (iii) disclose to the Board of
Representatives all matters which would require disclosure to, or the
approval of, the board of directors of a Delaware corporation. For so long
as BAM is entitled to designate at least one (1) Representative to the
Board of Representatives of HoldCo, any meeting of the Board of
Representatives of HoldCo shall also be deemed to be a meeting of the
Boards of Representatives of the Company and HoldCo Sub.
SECTION 3.3 Quorum. The presence of at least one of the
Representatives or Alternates designated by each of BAM and CCIC Member
shall be necessary to constitute a quorum for the transaction of business
at a meeting of the Board of Representatives and the acts of a majority of
the Representatives or Alternates present and voting at a meeting at which
a quorum is present shall be the acts of the Representatives or Alternates;
provided, however, that if notice of a meeting is provided to the
Representatives and Alternates, and such notice describes the business to
be considered, the actions to be taken and the matters to be voted on at
the meeting in reasonable detail, and insufficient Representatives or
Alternates attend the meeting to constitute a quorum, the meeting may be
adjourned by those Representatives or Alternates attending such meeting for
a period not to exceed twenty (20) days. Such meeting may be reconvened by
providing notice of the reconvened meeting to the Representatives and
Alternates no less than ten (10) days prior to the date of the meeting
specifying that the business to be considered, the actions to be taken and
the matters to be voted upon are those set forth in the notice of the
original adjourned meeting. If, at the reconvened meeting, a quorum of
Representatives or Alternates is not present, a majority of the
Representatives and Alternates present and voting will constitute a quorum
for purposes of the reconvened meeting; provided, however that such
Representatives and Alternates may only consider the business, take the
actions or vote upon the matters set forth in the notice of the original
meeting. Notwithstanding the foregoing, or any other provision in this
Agreement, no Representative, Alternate or Manager shall have any power or
authority to do or perform any act with respect to any of the matters set
forth in Section 3.8 of this Operating Agreement unless such matter has been
approved by the mutual consent of BAM and CCIC Member in accordance with the
provisions of this Operating Agreement.
SECTION 3.4 Manner of Acting. Other than any action contemplated
by Section 3.8, which shall require the mutual consent of CCIC Member and
BAM, whenever any Company action is to be taken by a vote of the Board of
Representatives, it shall be authorized
<PAGE>
upon receiving the affirmative vote of a majority of the Representatives
and Alternates present and voting at a duly constituted meeting at which a
quorum is present.
SECTION 3.5 Designation of Managers. CCIC Member shall designate
all Managers. The initial Managers are set forth on Schedule C. CCIC Member
shall promptly give each Member notice of the designation of any new
Manager.
SECTION 3.6 Qualifications. Each Manager of the Company shall be
a natural person of full age who need not be a resident of the State of
Delaware.
SECTION 3.7 Number, Selection and Term of Office.
(a) There shall be no less than 2 Managers, nor more than
11, as may be determined from time to time by the Board of Representatives.
Initially, there shall be 11 Managers.
(b) Each Manager shall hold office until a successor has
been selected and qualified or until his or her earlier death, resignation
or removal.
SECTION 3.8 Approval of Certain Matters by the Members.
Notwithstanding any provision of this Operating Agreement or the Act to the
contrary, for so long as BAM or any permitted transferee under Section 8.3
holds the BAM Retained Interest, the following matters require the mutual
consent of BAM and CCIC Member, given by their respective Representatives
(acting as a group) at a meeting of the Board of Representatives or by
written consent, or if BAM has no Representatives, such consent shall be
given by BAM in its capacity as a Member, and the Managers shall have no
power or authority to do or perform any act with respect to any of the
following matters without the mutual consent of BAM and CCIC Member, given
in accordance with the provisions of this Operating Agreement:
(a) Certain Contracts. The entering into any contract,
agreement or arrangement (whether written or oral) by the Company, other
than agreements and contracts in force as of the date hereof and renewals
thereof, which (i) contains provisions restricting the Company or any
member thereof from competing in any business activity in any geographic
area, (ii) contains provisions requiring the Company 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, (iii) contains provisions which are inconsistent
with the obligations of the Company under any of the Transaction Documents,
or (iv) 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.
(b) Conduct of Business. The engagement by the Company in
any line of business other than the ownership, operation and maintenance of
the Tower Structures, the performance of its obligations under the ground
leases, easements and rights-of-way and the
<PAGE>
performance of its rights and obligations under the Build-to-Suit
Agreement, the Management Agreement the Global Lease, the other Transaction
Documents 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). The making by the Company of any
investment in, or the acquisition by the Company of any equity securities
of, any Person.
(c) Solvency. The voluntary taking of any action by the
Company that would cause it to cease to be Solvent. As used herein, the
term "Solvent" means that the aggregate present fair saleable value of the
Company'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,
the Company has not incurred debts beyond its foreseeable ability to pay
such debts as they mature, and the Company has capital adequate to conduct
the business in which it is presently employed.
(d) Bankruptcy. The voluntary dissolution or liquidation of
the Company, the making by the Company of a voluntary assignment for the
benefit of creditors, the filing of a petition in bankruptcy by the
Company, the Company petitioning or applying to any tribunal for any
receiver or trustee, the Company commencing any proceeding relating to
itself under any bankruptcy, reorganization, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction, the Company
indicating its consent to, approval of or acquiescence in any such
proceeding and failing to use its best efforts to have discharged the
appointment of any receiver of or trustee for the Company or any
substantial part of their respective properties.
(e) Indebtedness. The Company directly or indirectly,
remaining liable, creating, incurring, assuming, guaranteeing, or otherwise
becoming or remaining directly or indirectly liable with respect to any
Indebtedness. As used herein, "Indebtedness" means, at any time, (i)
liabilities for borrowed money, (ii) liabilities for the deferred purchase
price of property acquired by the Company (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); (iii) all liabilities
appearing on its balance sheet in accordance with generally accepted
accounting principles consistently applied throughout the periods involved
("GAAP") in respect of capital leases; (iv) all liabilities for borrowed
money secured by any Encumbrance with respect to any property owned by the
Company (whether or not it has assumed or otherwise become liable for such
liabilities); (v) 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); and (vi) any guaranty of the Company with
respect to liabilities of a type described in any of clauses (i) through
(v) hereof.
(f) Liens. The Company, directly or indirectly, maintaining,
creating, incurring, assuming or permitting to exist any Encumbrance (other
than Permitted Encumbrances) on or with respect to any property or asset
(including any document or instrument in respect of goods or accounts
receivable) of the Company, whether now owned or hereafter acquired, or any
income or profits therefrom.
<PAGE>
(g) Issuance of Interests. The authorization or issuance of
any interests in, or the admission of any members to, the Company, other
than BAM and HoldCo Sub, including, without limitation, the authorization
or issuance of any additional interests in the Company to BAM or HoldCo Sub
beyond those interests authorized and issued in connection with the
formation of the Company.
(h) Contingent Obligations. The Company, directly or
indirectly, creating or becoming or being liable with respect to any
Contingent Obligation except:
(1) Contingent Obligations of the Company arising under
the BAM Assumed Liabilities and successor liabilities thereto;
(2) Contingent Obligations resulting from endorsement
of negotiable instruments for collection in the ordinary course of
business;
(3) Contingent Obligations under the Management
Agreement, the Build-to-Suit Agreement and the Global Lease;
As used herein, the term "Contingent Obligations" means any direct or
indirect liability, contingent or otherwise (i) with respect to any
indebtedness, lease, dividend or other obligation of another if the primary
purpose or intent thereof is to 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 (ii) with respect to any letter
of credit. Contingent Obligations shall include with respect to the
Company, 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
the Company, 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 the Company 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.
(i) Preservation of Existence. Any action contrary to the
preservation and maintenance of the Company's existence, rights, franchises
and privileges as a limited liability company under the laws of the State
of Delaware. Any action which would prevent the Company from qualifying and
remaining qualified as a foreign limited liability company in each
<PAGE>
jurisdiction in which such qualification is necessary or desirable in view
of its business and operations or the ownership or lease of its properties.
(j) Merger or Sale of Assets. Any merger or consolidation by
the Company with any Person. Any sale, assignment, lease or other
disposition by the Company of (whether in one transaction or in a series of
transactions), or any voluntarily parting with the control of (whether in
one transaction or in a series of transactions), a material portion of the
Company's assets (whether now owned or hereinafter acquired), except in
accordance with the provisions of any of the Transaction Documents, and
except for sales or other dispositions of assets in the ordinary course of
business. Any sale, assignment or other disposition of (whether in one
transaction or in a series of transactions) any of the Company's 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.
(k) Dealings with Affiliates. Except pursuant to the
Transaction Documents, the entering into by the Company of any transaction,
including, without limitation, any loans or extensions of credit or royalty
agreements with any Representative, Manager, officer or member of the
Company or HoldCo or any officer, director of CCIC or CCIC Member or holder
of more than five percent (5%) of the outstanding CCIC 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 except in
the ordinary course of business and on terms not less favorable to the
Company than it would reasonably expect to obtain in a transaction between
unrelated parties.
(l) Dividends; Distributions. The declaration or payment by
the Company of any dividend, or making by the Company of any distribution
or return of capital, or the redemption by the Company of any equity
interest, or the making by the Company of 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 BAM shall not be required as a condition to OpCo taking any
of the aforesaid actions under this Section 3.8(1) if (1) BAM has disposed
of all of its percentage interest in HoldCo and (2) (x) there are no
further loans or other obligations outstanding under the Financing
Documents, (y) all commitments in connection with the Financing Documents
have been terminated and (z) no letters of credit issued under the
Financing Documents are outstanding.
(m) Method of Certain Calculations. The determination of any
method to be used in calculating any of the payments to be made under the
Management Agreement or the Bidder Services Agreement.
<PAGE>
(n) Business Plan. The approval of the Business Plan as set
forth in Section 10.3.
SECTION 3.9 Exculpation. No Member, Manager, Representative,
Alternate or officer shall be liable to the Company or to any Member for
any losses, claims, damages or liabilities arising from, related to, or in
connection with, this Operating Agreement or the business or affairs of the
Company, except for any losses, claims, damages or liabilities as are
determined by final judgment of a court of competent jurisdiction to have
resulted from such Member, Manager, Representative, Alternate or officer's
gross negligence or willful misconduct. To the extent that, at law or in
equity, any Member, Manager, Representative, Alternate or officer has duties
(including fiduciary duties) and liabilities relating thereto to the
Company or to any Member, such Member, Manager, Representative, Alternate
or officer acting in connection with this Operating Agreement or the
business or affairs of the Company shall not be liable to the Company or to
any Member, Manager, Representative, Alternate or officer for its good
faith conduct in accordance with the provisions of this Agreement or any
approval or authorization granted by the Company or any Member, Manager,
Representative, Alternate or officer. The provisions of this Operating
Agreement, to the extent that they restrict the duties and liabilities of
any Member, Manager, Representative, Alternate or officer otherwise
existing at law or in equity, are agreed by the Members to replace such
other duties and liabilities of such Member, Manager, Representative,
Alternate or officer.
SECTION 3.10 Reliance on Reports and Information by Member,
Representative, Alternate or Manager. A Member, Representative, Alternate
or Manager of the Company shall be fully protected in relying in good faith
upon the records of the Company and upon such information, opinions,
reports or statements presented to the Company by any of its other
Managers, Members, Representatives, Alternates, officers, employees or
committees of the Company, or by any other person, as to matters the
Member, Representative, Alternate or Manager reasonably believes are within
such other person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Company, including
information, opinions, reports or statements as to the value and amount of
the assets, liabilities, profits or losses of the Company or any other facts
pertinent to the existence and amount of assets from which distributions to
Members might properly be paid.
SECTION 3.11 Bank Accounts. The Managers may from time to time
open bank accounts in the name of the Company, and the Managers, or any of
them, shall be the sole signatory or signatories thereon, unless the
Managers determine otherwise.
SECTION 3.12 Resignation. A Manager of the Company may resign at
any time by giving written notice to the Company. The resignation of a
Manager shall be effective upon receipt of such notice or at such later
time as shall be specified in the notice. Unless otherwise specified in the
notice, the acceptance of the resignation shall not be necessary to make
such resignation effective.
<PAGE>
SECTION 3.13 Removal. Any individual Manager may be removed from
office at any time, without assigning any cause, by CCIC Member.
SECTION 3.14 Vacancies. Any vacancy with respect to a Manager
occurring for any reason may be filled by CCIC Member.
SECTION 3.15 Salaries. The salaries of the Managers shall be
fixed from time to time by the Board of Representatives in accordance with
the Business Plan or by such Manager as may be designated by resolution of
the Board of Representatives. The salaries or other compensation of any
other employees and other agents shall be fixed from time to time by the
Board of Representatives or by such Manager as may be designated by
resolution of the Board of Representatives.
ARTICLE IV
MEMBERS
SECTION 4.1 Admission of Members.
(a) A person acquiring an interest in the Company in
connection with its formation shall be admitted as a Member of the Company
upon the later to occur of the formation of the Company or when the
admission of the person is reflected in the records of the Company.
(b) After the formation of the Company, a person acquiring
an interest in the Company from the Company, is admitted as a Member upon
the satisfaction of all requirements in Section 9.1 and Section 9.2 of this
Operating Agreement.
SECTION 4.2 Meetings. Meetings of the Members, for any purpose
or purposes, unless otherwise prescribed by statute, may be called by any
Manager or by any Member.
SECTION 4.3 Place of Meeting. The Managers or Members calling a
meeting pursuant to Section 4.2 may designate any place as the place for
any meeting of the Members. If no designation is made, the place of meeting
shall be the principal office of the Company.
SECTION 4.4 Record Date. For the purpose of determining Members
entitled to notice of, or to vote at, any meeting of Members or any
adjournment of the meeting, or Members entitled to receive payment of any
distribution, or to make a determination of Members for any other purpose,
the date on which notice of the meeting is mailed or the date on which the
resolution declaring the distribution or relating to such other purpose is
adopted, as the case may be, shall be the record date for the determination
of Members. Only Members of record on the date fixed shall be so entitled
notwithstanding any permitted transfer of a Member's Membership
<PAGE>
Interest after any record date fixed as provided in this Section. When a
determination of Members entitled to vote at any meeting of Members has
been made as provided in this section, the determination shall apply to any
adjournment of the meeting.
SECTION 4.5 Quorum. A meeting of Members of the Company duly
called shall not be organized for the transaction of business unless a
quorum is present. The presence of each Member, represented in person or by
proxy, shall constitute a quorum at any meeting of Members; provided,
however, that if notice of a meeting is provided to the Members, and such
notice describes the business to be considered, the actions to be taken and
the matters to be voted on at the meeting in reasonable detail, and
insufficient Members attend the meeting to constitute a quorum, the meeting
may be adjourned by those Members attending such meeting for a period not
to exceed twenty (20) days. Such meeting may be reconvened by providing
notice of the reconvened meeting to the Members no less than ten (10) days
prior to the date of the meeting specifying that the business to be
considered, the actions to be taken and the matters to be voted upon are
those set forth in the notice of the original adjourned meeting. If, at the
reconvened meeting, a quorum of Members is not present, a majority of the
Members present and voting will constitute a quorum for purposes of the
reconvened meeting; provided, however that such Members may only consider
the business, take the actions or vote upon the matters set forth in the
notice of the original meeting. At an adjourned meeting at which a quorum
shall be present or represented, any business may be transacted which might
have been transacted at the meeting as originally noticed. The Members
present at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal during the meeting of Members
whose absence would cause less than a quorum.
Notwithstanding the foregoing or any other provision in this Agreement, no
Member shall have any power or authority to do or perform any act with respect
to any of the matters set forth in Section 3.8 of this Operating Agreement
unless such matter has been approved by the mutual consent of BAM and CCIC
Member in accordance with the provisions of this Operating Agreement.
SECTION 4.6 Manner of Acting. Except as otherwise provided in
the Act or the Certificate or this Operating Agreement, including, without
limitation, Section 3.8 hereof, whenever any Company action is to be taken
by vote of the Members of the Company, it shall be authorized upon
receiving the affirmative vote of Members entitled to vote who own a
majority of the Percentage Interests then held by Members.
SECTION 4.7 Voting Rights of Members. Unless otherwise provided
in the Certificate, every Member of the Company shall be entitled to a
percentage of the total votes equal to that Member's then current
Percentage Interest (as defined in Section 6.1).
SECTION 4.8 Relationship of Members. Except as otherwise
expressly and specifically provided in or as authorized pursuant to the
Certificate or this Operating Agreement, (a) in the event that any Member
(or any of such Member's shareholders, partners, members,
<PAGE>
owners, or Affiliates (collectively, the "Liable Member")) has incurred any
indebtedness or obligation prior to the date of this Agreement that relates
to or otherwise affects the Company, neither the Company nor any other
Member shall have any liability or responsibility for or with respect to
such indebtedness or obligation unless such indebtedness or obligation is
assumed by the Company pursuant to this Operating Agreement, the Formation
Agreement or any of the other Transaction Documents, or a written
instrument signed by all Members; (b) neither the Company nor any Member
shall be responsible or liable for any indebtedness or obligation that is
incurred after the date of this Agreement by any Liable Member, and in the
event that a Liable Member, whether prior to or after the date hereof,
incurs (or has incurred) any debt or obligation that neither the Company
nor any of the other Members is to have any responsibility or liability
for, the Liable Member shall indemnify and hold harmless the Company and
the other Members from any liability or obligation they may incur in
respect thereof; (c) nothing contained herein shall render any Member
personally liable for any debts, obligations or liabilities incurred by the
other Members or the Company whether arising in contract, tort or otherwise
or for the acts or omissions of any other Member, Manager, agent or
employee of the Company; (d) no Member shall be constituted an agent of the
other Members or the Company; (e) nothing contained herein shall create any
interest on the part of any Member in the business or other assets of the
other Members; (f) nothing contained herein shall be deemed to restrict or
limit in any way the carrying on (directly or indirectly) of separate
businesses or activities by any Member now or in the future, even if such
businesses or activities are competitive with the Company; and (g) no
Member shall have any authority to act for, or to assume any obligation on
behalf of, the other Members or the Company. No Member or any of its
Affiliates or any of their respective officers, directors, employees or
former employees shall have any obligation, or be liable, to the Company or
any other Member pursuant to this Agreement for or arising out of the
conduct described in the preceding clause (f), for exercising, performing
or observing or failing to exercise, perform or observe, any of its rights
or obligations under the Formation Agreement or any other Transaction
Document, for exercising or failing to exercise its rights as a Member or,
solely by reason of such conduct, for breach of any fiduciary or other duty
to the Company or any Member. In the event that a Member, any of its
Affiliates or any of their respective officers, directors, employees or
former employees acquires knowledge of a potential transaction, agreement,
arrangement or other matter which may be a corporate opportunity for both
the Member and the Company, neither the Member nor such Affiliate,
officers, directors, employees or former employees shall have any duty to
communicate or offer such corporate opportunity to the Company, and neither
the Member nor such Affiliate, officers, directors, employees or former
employees shall be liable to the Company for breach of any fiduciary or
other duty, as a member or otherwise, by reason of the fact that the Member
or such Affiliate, officers, directors, employees or former employees
pursue or acquire such corporate opportunity for the Member, direct such
corporate opportunity to another person or entity or fail to communicate
such corporate opportunity or information regarding such corporate
opportunity to the Company.
SECTION 4.9 Business Transactions of Member, Representative or
Alternate with the Company. A Member, Representative or Alternate may lend
money to, borrow money from, act as a surety, guarantor or endorser for,
guarantee or assume one or more obligations of,
<PAGE>
provide collateral for, and transact any and all other business with the
Company and, subject to other applicable law, has the same rights and
obligations with respect to any such matter as a person who is not a Member,
Representative or Alternate.
ARTICLE V
INDEMNIFICATION
SECTION 5.1 Indemnification by the Company.
(a) The Company shall indemnify an indemnified
representative against any liability incurred in connection with any
proceeding in which the indemnified representative may be involved as a
party or otherwise, as and when incurred, by reason of the fact that such
person is or was serving in an indemnified capacity, including, without
limitation, liabilities resulting from any actual or alleged breach or
neglect of duty, error, misstatement or misleading statement, negligence,
gross negligence or act giving rise to liability, except:
(1) where such indemnification is expressly prohibited
by applicable law;
(2) where the conduct of the indemnified representative
has been finally determined:
(i) to constitute willful misconduct or
recklessness sufficient in the circumstances to bar indemnification against
liabilities arising from the conduct; or
(ii) to be based upon or attributable to the
receipt by the indemnified representative from the Company of a personal
benefit to which the indemnified representative is not legally entitled; or
(3) to the extent such indemnification has been finally
determined in a final adjudication to be otherwise unlawful.
(b) If an indemnified representative is entitled to
indemnification in respect of a portion, but not all, of any liabilities to
which such person may be subject, the Company shall indemnify such
indemnified representative to the maximum extent for such portion of the
liabilities.
(c) The termination of a proceeding by judgment, order,
settlement or conviction or upon a plea of nolo contendere or its
equivalent shall not of itself create a presumption that the indemnified
representative is not entitled to indemnification.
<PAGE>
(d) Definitions. For purposes of this Article:
(1) "indemnified capacity" means any and all past,
present and future service by an indemnified representative in one or more
capacities as a Member, Manager, Representative, Alternate or authorized
agent of the Company;
(2) "indemnified representative" means any and all
Members, Managers, Representatives, Alternates and authorized agents of the
Company and any other person designated as an indemnified representative by
the mutual consent of BAM and CCIC Member, given in accordance with the
provisions of this Operating Agreement;
(3) "liability" means any damage, judgment, amount paid
in settlement, fine, penalty, punitive damages, excise tax assessed with
respect to an employee benefit plan, or cost or expense of any nature
(including, without limitation, attorneys' fees and disbursements); and
(4) "proceeding" means any threatened, pending or
completed action, suit, appeal or other proceeding of any nature, whether
civil, criminal, administrative or investigative, whether formal or
informal, and whether brought by or in the right of the Company, a class of
its Members or security holders or otherwise.
SECTION 5.2 Proceedings Initiated by Indemnified Representatives.
Notwithstanding any other provision of this Article, the Company shall not
indemnify under this Article an indemnified representative for any
liability incurred in a proceeding initiated (which shall not be deemed to
include counterclaims or affirmative defenses) or participated in as an
intervenor or amicus curiae by the person seeking indemnification unless
such initiation of or participation in the proceeding is authorized, either
before or after its commencement, by the unanimous consent of the Board of
Representatives. This Section does not apply to reimbursement of expenses
incurred in successfully prosecuting or defending the rights of an
indemnified representative granted by or pursuant to this Article.
SECTION 5.3 Advancing Expenses. The Company shall pay the
expenses (including attorneys' fees and disbursements) incurred in good
faith by an indemnified representative in advance of the final disposition
of a proceeding described in Section 5.1 or the initiation of or
participation in which is authorized pursuant to Section 5.2 upon receipt
of an undertaking by or on behalf of the indemnified representative to
repay the amount if it is ultimately determined that such person is not
entitled to be indemnified by the Company pursuant to this Article. The
financial ability of an indemnified representative to repay an advance
shall not be a prerequisite to the making of such advance.
<PAGE>
SECTION 5.4 Payment of Indemnification. An indemnified
representative shall be entitled to indemnification within thirty (30) days
after a written request for indemnification has been delivered to the
secretary of the Company.
SECTION 5.5 Arbitration.
(a) Any dispute related to the right to indemnification,
contribution or advancement of expenses as provided under this Article,
except with respect to indemnification for liabilities arising under the
Securities Act of 1933, as amended, that the Company has undertaken to
submit to a court for adjudication, shall be decided only by arbitration in
the metropolitan area in which the principal executive offices of the
Company are located at the time, in accordance with the commercial
arbitration rules then in effect of the American Arbitration Association
("AAA"), before a panel of three arbitrators, one of whom shall be selected
by the Company, the second of whom shall be selected by the Indemnified
Representative and the third of whom shall be selected by the other two
arbitrators. In the absence of the AAA, or if for any reason arbitration
under the arbitration rules of the AAA cannot be initiated, and if one of
the parties fails or refuses to select an arbitrator or the arbitrators
selected by the Company and the Indemnified Representative cannot agree on
the selection of the third arbitrator within thirty (30) days after such
time as the Company and the Indemnified Representative have each been
notified of the selection of the other's arbitrator, the necessary
arbitrator or arbitrators shall be selected by the presiding judge of the
court of general jurisdiction in such metropolitan area.
(b) Each arbitrator selected as provided in this Section is
required to be or have been a manager, director or executive officer of a
limited liability company, corporation or other entity whose equity
securities were listed during at least one (1) year of such service on the
New York Stock Exchange or the American Stock Exchange or quoted on the
National Association of Securities Dealers Automated Quotations System.
(c) The party or parties challenging the right of an
Indemnified Representative to the benefits of this Article shall have the
burden of proof.
(d) The Company shall reimburse an Indemnified
Representative for the expenses (including attorneys' fees and
disbursements) incurred in successfully prosecuting or defending such
arbitration.
(e) Any award entered by the arbitrators shall be final,
binding and nonappealable and judgment may be entered thereon by any party
in accordance with applicable law in any court of competent jurisdiction,
except that the Company shall be entitled to interpose as a defense in any
such judicial enforcement proceeding any prior final judicial determination
adverse to the indemnified representative under Section 5.1 in a proceeding
not directly involving indemnification under this Article. This arbitration
provision shall be specifically enforceable.
<PAGE>
SECTION 5.6 Contribution. If the indemnification provided for in
this Article or otherwise is unavailable for any reason in respect of any
liability or portion thereof, the Company shall contribute to the
liabilities to which the indemnified representative may be subject in such
proportion as is appropriate to reflect the intent of this Article or
otherwise.
SECTION 5.7 Mandatory Indemnification of Members and Managers.
To the extent that an indemnified representative of the Company has been
successful on the merits or otherwise in defense of any proceeding or in
defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees and disbursements)
actually and reasonably incurred by such person in connection therewith.
SECTION 5.8 Contract Rights; Amendment or Repeal. All rights
under this Article shall be deemed a contract between the Company and the
indemnified representative pursuant to which the Company and each
indemnified representative intend to be legally bound. Any repeal,
amendment or modification hereof shall be prospective only and shall not
affect any rights or obligations then existing.
SECTION 5.9 Scope of Article. The rights granted by this Article
shall not be deemed exclusive of any other rights to which those seeking
indemnification, contribution or advancement of expenses may be entitled
under any statute, agreement, vote of disinterested Members or
disinterested Representatives, Alternates, Managers, or otherwise, both as
to action in an indemnified capacity and as to action in any other
capacity. The indemnification, contribution and advancement of expenses
provided by or granted pursuant to this Article shall continue as to a
person who has ceased to be an indemnified representative in respect of
matters arising prior to such time, and shall inure to the benefit of the
heirs, executors, administrators, personal representatives, successors and
permitted assigns of such a person.
SECTION 5.10 Reliance on Provisions. Each person who shall act
as an indemnified representative of the Company shall be deemed to be doing
so in reliance upon the rights of indemnification, contribution and
advancement of expenses provided by this Article.
ARTICLE VI
CAPITAL ACCOUNTS
SECTION 6.1 Definitions. For the purposes of this Operating
Agreement, unless the context otherwise requires:
(a) "Adjusted Capital Account" shall mean, for any Member,
its Capital Account balance maintained and adjusted as required by Treasury
Regulation Section 1.704-1(b)(2)(iv).
<PAGE>
(b) "Capital Account" shall mean, with respect to a Member,
such Member's capital account established and maintained in accordance with
the provisions of Section 6.5.
(c) "Capital Contribution" means any contribution to the
capital of the Company in cash, property or expertise by a Member whenever
made. A loan by a Member of the Company shall not be considered a Capital
Contribution.
(d) "IRC" shall mean the Internal Revenue Code of 1986, as
amended.
(e) "Membership Interest" means a Member's interest in the
Company.
(f) "Percentage Interest" means, with respect to any Member,
the Percentage Interest set forth opposite such Member's name on Schedule A
attached hereto, as amended from time to time to reflect transfers of
Membership Interests in accordance with this Operating Agreement.
(g) "Profits" and "Losses" mean, for each fiscal year, an
amount equal to the Company's taxable income or loss for such fiscal year,
determined in accordance with IRC ss.703(a). For the purpose of this
definition, all items of income, gain, loss or deduction required to be
stated separately pursuant to IRC ss.703(a)(1) shall be included in taxable
income or loss with the following adjustments:
(1) Any income of the Company that is exempt from
federal income tax and not otherwise taken into account in
computing Profits or Losses pursuant to this Section shall
be added to such taxable income or loss;
(2) Any expenditures of the Company described in IRC
ss.705(a)(2)(B) or treated as IRC ss.705(a)(2)(B)
expenditures pursuant to Treasury Regulation
ss.1.704-1(b)(2)(iv)(i), and not otherwise taken into
account in computing Profits or Losses pursuant to this
Section shall be subtracted from such taxable income or
loss.
(h) "Treasury Regulations" include proposed, temporary and
final regulations promulgated under the IRC in effect as of the date of
this Operating Agreement and the corresponding sections of any regulations
subsequently issued that amend or supersede such regulations.
SECTION 6.2 Determination of Tax Book Value of Company Assets.
(a) Except as set forth below, the "Tax Book Value" of any
Company asset is its adjusted basis for federal income tax purposes.
<PAGE>
(b) The initial Tax Book Value of any assets contributed by
a Member to the Company shall be the agreed fair market value of such
assets, increased by the amount of liabilities of the contributing Member
assumed by the Company in connection with the contribution of such assets
plus the amount of any other liabilities to which such assets are subject.
(c) The Tax Book Values of all Company assets may be
adjusted by the Managers to equal their respective gross fair market values
as of the following times: (i) the admission of an additional Member to the
Company or the acquisition by an existing Member of an additional
Membership Interest; (ii) the distribution by the Company of money or
property to a withdrawing, retiring or continuing Member in consideration
for the retirement of all or a portion of such Member's Membership
Interest; and (iii) the termination of the Company for Federal income tax
purposes pursuant to Section 708(b)(1)(B) of the IRC.
SECTION 6.3 Capital Contributions.
(a) The initial capital contributions to be made by the
Members shall be contributed in cash, property, services rendered, as a
credit for expenses incurred by such Member for the benefit of the Company
or a promissory note or other obligation to contribute cash or property or
perform services. The initial capital contribution of each Member is set
forth on the books and records of the Company.
(b) No Member shall be obligated to make any capital
contributions to the Company in excess of its initial capital contribution.
(c) No Member shall be permitted to make any capital
contributions to the Company unless mutually agreed by BAM and CCIC Member.
SECTION 6.4 Liability for Contribution.
(a) A Member of the Company is obligated to the Company to
perform any promise to contribute cash or property or to perform services,
even if the Member is unable to perform because of death, disability or any
other reason. If a Member does not make the required contribution of
property or services, the Member is obligated at the option of the Company
to contribute cash equal to that portion of the agreed value (as stated in
the records of the Company) of the contribution that has not been made. The
foregoing option shall be in addition to, and not in lieu of, any other
rights, including the right to specific performance, that the Company may
have against such Member under applicable law.
(b) The obligation of a Member of the Company to make a
contribution or return money or other property paid or distributed in
violation of the Act may be compromised only by consent of all the Members.
Notwithstanding the compromise, a creditor of the
<PAGE>
Company who extends credit, after entering into this Operating Agreement or
an amendment hereof which, in either case, reflects the obligation, and
before the amendment hereof to reflect the compromise, may enforce the
original obligation to the extent that, in extending credit, the creditor
reasonably relied on the obligation of a Member to make a contribution or
return. A conditional obligation of a Member to make a contribution or
return money or other property to the Company may not be enforced unless
the conditions of the obligation have been satisfied or waived as to or by
such Member. Conditional obligations include contributions payable upon a
discretionary call of the Company prior to the time the call occurs.
SECTION 6.5 Capital Accounts. A separate Capital Account will be
maintained for each Member. The initial Capital Accounts shall consist
solely of the initial capital contributed by the Members pursuant to
Section 6.3. Notwithstanding any other provision hereof, the Company shall
determine and adjust the Capital Accounts in accordance with the rules of
Treasury Regulation Section 1.704-1(b)(2)(iv). Except as otherwise required
in the Act, no Member shall have any liability to restore all or any
portion of a deficit balance in the Member's Capital Account.
SECTION 6.6 No Interest on or Return of Capital. No Member shall
be entitled to interest on any Capital Contribution or Capital Account. No
Member shall have the right to demand or receive the return of all or any
part of any Capital Contribution or Capital Account except as may be
expressly provided herein, and no Member shall be personally liable for the
return of the Capital Contributions of any other Member.
SECTION 6.7 Percentage Interest. The Percentage Interests of the
Members are as set forth on Schedule A. The Percentage Interests shall be
updated by the Managers to reflect any transfers of Membership Interests,
set forth on a revised Schedule A and filed with the records of the
Company. The sum of the Percentage Interests for all Members shall equal
100 percent.
SECTION 6.8 Allocations of Profits and Losses Generally. After
the allocations in Section 6.9, at the end of each year (or shorter period
if necessary or longer period if agreed by all of the Partners), Profits
and Losses shall be allocated as follows:
(a) Profits. Profits shall be allocated to the Members in
proportion to their respective Percentage Interests.
(b) Losses. Losses shall be allocated to the Members in
proportion to their respective Percentage Interests.
<PAGE>
SECTION 6.9 Allocations Under Regulations.
(a) Company Nonrecourse Deductions. Loss attributable (under
Treasury Regulation Section 1.704-2(c)) to "partnership nonrecourse
liabilities" (within the meaning of Treasury Regulation Section
1.704-2(b)(1)) shall be allocated among the Members in the same proportion
as their respective Percentage Interests.
(b) Member Nonrecourse Deductions. Loss attributable (under
Treasury Regulation Section 1.704-2(i)(2)) to "partner nonrecourse debt"
(within the meaning of Treasury Regulation Section 1.704-2(b)(4)) shall be
allocated, in accordance with Treasury Regulation Section 1.704- 2(i)(1),
to the Member who bears the economic risk of loss with respect to the debt
to which the Loss is attributable. The Members acknowledge that the
Anticipated Financing shall be treated as "partner nonrecourse debt."
(c) Minimum Gain Chargeback. Each Member will be allocated
Profits at such times and in such amounts as necessary to satisfy the
minimum gain chargeback requirements of Treasury Regulation Sections
1.704-2(f) and 1.704-2(i)(4).
(d) Qualified Income Offset. Losses and items of income and
gain shall be specially allocated when and to the extent required to
satisfy the "qualified income offset" requirement within the meaning of
Treasury Regulation Section 1.704-1(b)(2)(ii)(d).
SECTION 6.10 Other Allocations.
(a) Allocations when Tax Book Value Differs from Tax Basis.
When the Tax Book Value of a Company asset is different from its adjusted
tax basis for income tax purposes, then, solely for federal, state and
local income tax purposes and not for purposes of computing Capital
Accounts, income, gain, loss, deduction and credit with respect to such
assets ("Section 704(c) Assets") shall be allocated among the Members to
take this difference into account in accordance with the principles of IRC
Section 704(c), as set forth herein and in the Treasury Regulations
thereunder and under IRC Section 704(b). Except to the extent otherwise
required by final Treasury Regulations, the calculation and allocations
eliminating the differences between Tax Book Value and adjusted tax basis
of the Section 704(c) Assets shall be made on an asset-by-asset basis
without curative or remedial allocations to overcome the "ceiling rule" of
Treasury Regulation Section l.704-1(c)(2) and Treasury Regulation Section
1.704-3(b)(1).
(b) Change in Member's Interest.
(1) If during any fiscal year of the Company there is a
change in any Member's Membership Interest, then for
purposes of complying with IRC Section 706(d), the
determination of Company items allocable to any period
<PAGE>
shall be made by using any method permissible under IRC Section 706(d) and
the Regulations thereunder as may be determined by the Managers.
(2) The Members agree to be bound by the provisions of
this Section 6.10(b) in reporting their shares of Company
income, gain, loss, and deduction for tax purposes.
(c) Allocations on Liquidation. Notwithstanding any other
provision of this Article VI to the contrary, in the taxable year in which
there is a liquidation of the Company, after the allocations in Sections
6.8 and 6.9 hereof, the Capital Accounts of the Members will, to the extent
possible, be brought to the amount of the liquidating distributions to be
made to them under Section 9.5 hereof by allocations of items of profit and
loss and, if necessary, by guaranteed payments (within the meaning of Code
Section 707(c)) credited to the Capital Account of a Member whose Capital
Account is less than the amount to be distributed to it and debited from
the Capital Account of the Member whose Capital Account is greater than the
amount to be distributed to it.
SECTION 6.11 Limitations Upon Liability of Members. Except as
otherwise expressly and specifically provided in or required by the
Certificate or this Operating Agreement, the personal liability of each
Member to the Company, to the other Members, to the creditors of the
Company or any third party for the losses, debts or liabilities of the
Company shall be limited to the amount of its Capital Contribution which
has not theretofore been returned to it as a distribution (including a
distribution upon liquidation). For purposes of the foregoing sentence,
distributions to a Member shall first be deemed a return of its Capital
Contribution. No Member shall at any time be liable or held accountable to
the Company, to the other Members, to the creditors of the Company or to
any other third party for or on account of any negative balance in its
Capital Account.
ARTICLE VII
DISTRIBUTIONS
SECTION 7.1 Net Cash From Operations and Distributions.
(a) Except as otherwise provided in this Operating Agreement
including, without limitation, in Section 3.8 hereof, and subject to any
restrictions contained in any credit or other agreements to which the
Company is a party, Net Cash From Operations, if any, shall be determined
annually by the Managers and distributed for each fiscal year to the
Members in accordance with their Percentage Interests.
(b) For purposes of this Operating Agreement, "Net Cash From
Operations" means the gross cash proceeds from Company operations less the
portion thereof
<PAGE>
used to, or expected to be used to, pay expenses, debt payments, capital
improvements, replacements and increases to reserves therefor. "Net Cash
From Operations" shall not be reduced by depreciation, amortization, cost
recovery deductions or similar allowances, but shall be increased by any
reductions to reserves previously established.
SECTION 7.2 Limitations on Distributions.
(a) The Company shall not make a distribution to a Member to
the extent that at the time of the distribution, after giving effect to the
distribution, all liabilities of the Company, other than liabilities to
Members on account of their interests in the Company and liabilities for
which the recourse of creditors is limited to specified property of the
Company, exceed the fair value of the assets of the Company, except that
the fair value of property that is subject to a liability for which the
recourse of creditors is limited shall be included in the assets of the
Company only to the extent that the fair value of that property exceeds
that liability.
(b) A Member who receives a distribution in violation of
subsection (a), and who knew at the time of the distribution that the
distribution violated this section, shall be liable to the Company for the
amount of the distribution. A Member who receives a distribution in
violation of this section, and who did not know at the time of the
distribution that the distribution violated this section, shall not be
liable for the amount of the distribution. Subject to subsection (c), this
subsection shall not affect any obligation or liability of a Member under
other applicable law for the amount of a distribution.
(c) A Member who receives a distribution from the Company
shall have no liability under this Section, the Act or other applicable law
for the amount of the distribution after the expiration of three (3) years
from the date of the distribution unless an action to recover the
distribution from such Member is commenced prior to the expiration of the
said three(3)-year period and an adjudication of liability against such
Member is made in the action.
SECTION 7.3 Amounts of Tax Paid or Withheld. All amounts paid or
withheld pursuant to the IRC or any provision of any state or local tax law
with respect to any Member shall be treated as amounts distributed to the
Member pursuant to this Article for all purposes under this Operating
Agreement.
SECTION 7.4 Distribution in Kind. The Company shall not
distribute any assets in kind, except pursuant to a dissolution in
accordance with Article IX.
ARTICLE VIII
TRANSFERABILITY
SECTION 8.1 Effect of Transfer.
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(a) In addition to satisfaction of Section 4.1 above, no
assignee or transferee of all or part of a Membership Interest in the
Company shall have the right to become admitted as a Member, unless and
until:
(1) the assignee or transferee has executed an
instrument reasonably satisfactory to the Managers accepting
and adopting the provisions of this Operating Agreement;
(2) the assignee or transferee has paid all reasonable
expenses of the Company requested to be paid by the Managers
in connection with the admission of such assignee or
transferee as a Member; and
(3) such assignment or transfer shall be reflected in a
revised Schedule A to this Operating Agreement.
(b) A person who is a permitted assignee of an interest in
the Company transferred in compliance with the provisions of this Article
VIII shall be admitted to the Company as a Member and shall receive an
interest in the Company without making a contribution or being obligated to
make a contribution to the Company.
SECTION 8.2 No Resignation of Members. A Member may not withdraw
or resign from the Company prior to dissolution or winding up of the
Company. If a Member is a corporation, trust or other entity and is
dissolved or terminated, the powers of that Member may be exercised by its
legal representative or successor.
SECTION 8.3 Transfer of BAM Retained Interest. Without the prior
written consent of CCIC, BAM shall not, directly or indirectly, sell,
assign, transfer, pledge (except the pledge of the BAM Retained Interest to
the Lender to secure the Anticipated Financing), hypothecate, mortgage or
dispose of, by gift or otherwise, or in any way encumber, the BAM Retained
Interest unless either (a) the transfer is made to an entity of which
either BAM or Bell Atlantic Corporation 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 BAM
or Bell Atlantic Corporation is a party.
ARTICLE IX
DISSOLUTION AND TERMINATION
SECTION 9.1 Dissolution. The Company shall be dissolved upon the
occurrence of any of the following events:
<PAGE>
(a) By the written consent of both BAM and CCIC Member; or
(b) Upon the entry of a decree of judicial dissolution under
ss. 18-802 of the Act.
SECTION 9.2 Events of Bankruptcy of Member. The occurrence of
any of the events set forth in this Section 9.2, with respect to any
Member, shall not result in the dissolution of the Company. Such Member
shall cease to be a Member of the Company, but shall, however, retain its
interest in allocations and distributions, upon the happening of any of the
following bankruptcy events:
(a) A Member takes any of the following actions:
(1) Makes an assignment for the benefit of creditors.
(2) Files a voluntary petition in bankruptcy.
(3) Is adjudged a bankrupt or insolvent, or has entered
against the Member an order for relief, in any bankruptcy or
insolvency proceeding.
(4) Files a petition or answer seeking for the Member
any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any
statute, law or regulation.
(5) Files an answer or other pleading admitting or
failing to contest the material allegations of a petition
filed against the Member in any proceeding of this nature.
(6) Seeks, consents to or acquiesces in the appointment
of a trustee, receiver or liquidator of the Member or of all
or any substantial part of the properties of the Member.
(b) one hundred twenty (120) days after the commencement of
any proceeding against the Member seeking reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
any statute, law or regulation, if the proceeding has not been dismissed,
or if within ninety (90) days after the appointment without the consent or
acquiescence of the Member, of a trustee, receiver or liquidator of the
Member or of all or any substantial part of the properties of the Member,
the appointment is not vacated or stayed, or within ninety (90) days after
the expiration of any such stay, the appointment is not vacated.
SECTION 9.3 Judicial Dissolution. On application by or for a
Member or a Manager, a court may decree dissolution of the Company whenever
it is not reasonably practicable to carry on the business in conformity
with this Operating Agreement.
<PAGE>
SECTION 9.4 Winding Up.
(a) The Managers shall wind up the affairs of the Company or
may appoint any person or entity, including a Member, who has not
wrongfully dissolved the Company, to do so (the "Liquidating Trustee").
(b) Upon dissolution of the Company and until the filing of
a certificate of cancellation as provided in Section 9.6, the persons
winding up the affairs of the Company may, in the name of, and for and on
behalf of, the Company, prosecute and defend suits, whether civil, criminal
or administrative, gradually settle and close the business of the Company,
dispose of and convey the property of the Company, discharge or make
reasonable provision for the liabilities of the Company, and distribute to
the Members any remaining assets of the Company, all without affecting the
liability of Members and Managers and without imposing liability on a
Liquidating Trustee.
SECTION 9.5 Distribution of Assets.
(a) In the event of a dissolution of the Company, upon the
winding up of the Company, its assets shall be distributed as follows:
(1) First, to creditors, including Members and Managers
who are creditors, to the extent otherwise permitted by law,
in satisfaction of liabilities of the Company (whether by
payment or the making of reasonable provision for payment
thereof) other than liabilities for which reasonable
provision for payment has been made; and
(2) Then, to the Members in proportion to their
Percentage Interests.
Notwithstanding the foregoing, the foregoing distribution procedures shall be
subject to, and carried out in a manner consistent with, the provisions of the
Transaction Documents.
(b) Notwithstanding the provisions of the previous
subsection (a), BAM shall have the right of first offer with respect to any
assets of the Company to be distributed in connection with any dissolution
and winding up of the Company in accordance with the provisions of this
subsection (b).
(1) Upon a determination by the Company to distribute
any of its assets in connection with any dissolution and
winding up of the Company, the Company shall give written
notice thereof to BAM at the address for BAM set forth on
Schedule A. During the thirty (30) day period commencing on
the date that BAM receives such notice, BAM shall have the
<PAGE>
right of first offer with respect to the subject asset.
BAM's right of first offer shall be exercised by BAM
providing to the Company (at the address for the Company set
forth on Schedule A) a written, reasonably detailed offer
(the "BAM Offer") for the subject asset prior to the
expiration of such thirty (30) day period. The Company shall
have ten (10) days from the date of its receipt of the BAM
Offer to give written notice to BAM (at the address for BAM
set forth on Schedule A) that the Company either accepts or
rejects the BAM Offer.
(2) If the Company accepts the BAM Offer, the Company's
written notice of acceptance shall, when taken in
conjunction with the BAM Offer, be deemed to constitute a
valid, legally binding and enforceable agreement for the
sale and purchase of the subject asset.
(3) If the Company rejects the BAM Offer and thereafter
the Company wishes to sell or distribute the subject asset,
the Company shall submit a written offer to sell the asset
to BAM (at the address for BAM set forth on Schedule A) on
terms and conditions, including price, not less favorable to
BAM than those on which the Company proposes to sell the
asset to any other purchaser or transferee (the "Company
Offer"). The Company Offer shall disclose the identity of
the proposed purchaser or transferee, the asset to be sold
or distributed, the terms of the sale or distribution, and
any other material facts relating to the sale or
distribution. BAM shall act upon the Company Offer as soon
as practicable after receipt thereof, and in all events
within 30 days after receipt thereof. If BAM elects on a
timely basis to purchase the asset covered by the Company
Offer, BAM shall give written notice thereof to the Company
(at the address for the Company set forth on Schedule A),
which notice shall, when taken in conjunction with the
Company Offer, be deemed to constitute a valid, legally
binding and enforceable agreement for the sale and purchase
of the subject asset.
(4) If BAM does not elect on a timely basis to purchase
the asset covered by the Company Offer, the subject asset
may be sold or distributed by the Company at any time within
ninety (90) days after the expiration of the Company Offer.
Any such sale or distribution 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 or transferee than those specified in the
Company Offer. If the asset is not sold or distributed
within such ninety (90) day period, the asset shall continue
to be subject to the requirements of a prior offer pursuant
to the preceding clause (iii) of this subsection (b).
<PAGE>
(c) The Company following dissolution shall pay or make
reasonable provision to pay all claims and obligations, including all
contingent, conditional or unmatured claims and obligations, known to the
Company and all claims and obligations which are known to the Company but
for which the identity of the claimant is unknown. If there are sufficient
assets, such claims and obligations shall be paid in full and any such
provision for payment made shall be made in full. If there are insufficient
assets, such claims and obligations shall be paid or provided for according
to their priority and, among claims and obligations of equal priority,
ratably to the extent of assets available therefor. Any remaining assets
shall be distributed as provided in Subsection (a). Any Liquidating Trustee
winding up the affairs of the Company who has complied with this Section
shall not be personally liable to the claimants of the dissolved Company by
reason of such person's actions in winding up the Company.
SECTION 9.6 Cancellation of Certificate. The Certificate of the
Company shall be canceled upon the dissolution and the completion of
winding up of the Company.
ARTICLE X
BOOKS; REPORTS TO MEMBERS; TAX ELECTIONS
SECTION 10.1 Books and Records.
(a) The Managers shall maintain separate books of account
for the Company which shall show a true and accurate record of all costs
and expenses incurred, all charges made, all credits made and received and
all income derived in connection with the conduct of the Company and the
operation of its business, and, to the extent inconsistent therewith, in
accordance with this Operating Agreement.
(b) Except as and until otherwise required by the IRC, the
books of the Company shall be kept in accordance with the accrual method of
accounting.
(c) Each Member of the Company has the right to obtain from
the Company from time to time upon demand for any purpose reasonably
related to the Member's interest as a Member of the Company:
(1) True and full information regarding the status of
the business and financial condition of the Company.
(2) Promptly after they become available, a copy of the
federal, state and local income tax returns for each year of
the Company.
(3) A current list of the name and last known business,
residence or mailing address of each Member and Manager.
<PAGE>
(4) A copy of this Operating Agreement, the Certificate
and all amendments thereto.
(5) Any information or report deemed necessary by
either BAM or CCIC Member in order to prepare Securities and
Exchange Commission filing documents, financial statements
or tax returns.
(6) Other information regarding the affairs of the
Company as is just and reasonable.
(d) Each Manager shall have the right to examine all of the
information described in subsection (c) of this Section for a purpose
reasonably related to its position as a Manager.
SECTION 10.2 Tax Information. Within ninety (90) days after the
end of each fiscal year, the Company shall supply to each Member all
information necessary and appropriate to be included in each Member's
income tax returns for that year.
SECTION 10.3 Business Plans. On or before November 30 of each
year, the Managers of the Company shall, in consultation with BAM, develop
a business plan and budget for the Company (including HoldCo and HoldCo
Sub) (the "Business Plan") for the following calendar year of HoldCo (and
HoldCo Sub and OpCo). The Business Plan for the period between the
Effective Date and December 31, 1999 is attached hereto as Schedule D. 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 BAM and CCIC Member. The Company shall use
commercially reasonable efforts, and cause each of HoldCo and HoldCo Sub
to, 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 CCIC 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 fifty percent (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
<PAGE>
(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 one (1) plus an
amount equal to the percentage increase in the CPI during the
previous year.
If BAM and CCIC Member are unable to mutually agree on the Business Plan for
the year commencing January 1, 2000, 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, 1999, increased as contemplated by the
foregoing sentence, multiplied by three hundred and sixty-five (365) (b)
divided by the number of days elapsed between the Effective Date and
December 31, 1999 (including both the Effective Date and December 31, 1999).
Notwithstanding the foregoing, each Business Plan that is implemented
pursuant to the foregoing two paragraphs of this Section 10.3 because BAM
and CCIC 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; (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 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's 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.
Further, any such Business Plan may have the effect of reducing amounts
payable under the Management Agreement so long as the Anticipated Financing
remains outstanding.
SECTION 10.4 Reports. The Company shall cause to be prepared,
and each Member furnished with, financial statements accompanied by a
report thereon of the Company's accountants stating that such statements
are prepared and fairly stated in all material respects in accordance with
generally accepted accounting principles, and, to the extent inconsistent
therewith, in accordance with this Operating Agreement, including the
following:
(a) within thirty (30) days of the end of each month, the
Company shall deliver to BAM and CCIC Member an unaudited income statement
and schedule as to the
<PAGE>
sources and application of funds for such month and an unaudited balance
sheet of the Company 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 Securities Exchange Act of 1934, as amended (the "Exchange Act")),
together with an analysis by management of the Company'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 the Company, a consolidated
income statement for such fiscal year, a consolidated balance sheet of the
Company as of the end of such year, a schedule as to the cash flow and a
statement of the Members' Capital Accounts, changes thereto for such fiscal
year and Percentage Interests at the end of such year, such year-end
financial reports to be in reasonable detail, prepared in accordance with
GAAP, and audited and certified by the Company'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 the Company, 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 the Company 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 limited liability company affairs of the
Company as any Member may from time to time reasonably request.
SECTION 10.5 Tax Matters Partner.
(a) BAM is hereby appointed and shall serve as the tax
matters partner of the Company (the "Tax Matters Partner") within the
meaning of IRC ss.6231(a)(7) for so long as it is not the subject of a
bankruptcy event as defined in Section 9.2 and otherwise is entitled to act
as the Tax Matters Partner. The Tax Matters Partner may file a designation
of itself as such with the Internal Revenue Service. The Tax Matters
Partner shall (i) furnish to each Member affected by an audit of the
Company income tax returns a copy of each notice or other communication
received from the IRS or applicable state authority, (ii) keep such Member
informed of any administrative or judicial proceeding, as required by
Section 6223(g) of the Code, and (iii) allow such Member an opportunity to
participate in all such administrative and judicial proceedings. The Tax
Matters Partner shall take such action as may be reasonably necessary to
constitute the other Member a "notice partner" within the meaning of
Section 6231(a)(8) of the Code, provided that the other Member provides the
Tax Matters Partner with the information that is necessary to take such
action.
<PAGE>
(b) The Company shall not be obligated to pay any fees or
other compensation to the Tax Matters Partner in its capacity as such.
However, the Company shall reimburse the expenses (including reasonable
attorneys' and other professional fees) incurred by the Tax Matters Partner
in such capacity. Each Member who elects to participate in Company
administrative tax proceedings shall be responsible for its own expenses
incurred in connection with such participation. In addition, the cost of
any adjustments to a Member and the cost of any resulting audits or
adjustments of a Member's tax return shall be borne solely by the affected
Member.
(c) The Company shall indemnify and hold harmless the Tax
Matters Partner from and against any loss, liability, damage, cost or
expense (including reasonable attorneys' fees) sustained or incurred as a
result of any act or decision concerning Company tax matters and within the
scope of such Member's responsibilities as Tax Matters Partner, so long as
such act or decision was not the result of gross negligence, fraud, bad
faith or willful misconduct by the Tax Matters Partner. The Tax Matters
Partner shall be entitled to rely on the advice of legal counsel as to the
nature and scope of its responsibilities and authority as Tax Matters
Partner, and any act or omission of the Tax Matters Partner pursuant to
such advice shall in no event subject the Tax Matters Partner to liability
to the Company or any Member.
SECTION 10.6 Tax Audits/Special Assessments. If the federal tax
return of either the Company or an individual Member with respect to an
item or items of Company income, loss, deduction, etc., potentially
affecting the tax liability of the Members generally is subject to an audit
by the Internal Revenue Service, the Managers may, in the exercise of their
business judgment, determine that it is necessary to contest proposed
adjustments to such return or items. If such a determination is made, the
Managers will finance the contest of the proposed adjustments out of the
Net Cash From Operations.
SECTION 10.7 Tax Elections. The Company will elect to amortize
organizational costs. Upon the death of a Member, or in the event of the
distribution of property, the Company may file an election, in accordance
with applicable Treasury Regulations, to cause the basis of the Company's
property to be adjusted for federal income tax purposes as provided by IRC
ss.734, IRC ss.743 and IRC ss.754. The determination whether to make and
file any such election shall be made by the Managers in their sole
discretion.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Binding Effect. This Operating Agreement shall be
binding upon any person who executes this Operating Agreement or any
permitted transferee or permitted assignee of an interest in the Company.
<PAGE>
SECTION 11.2 Entire Agreement. This Operating Agreement, the
Certificate, the Formation Agreement and the other Transaction Documents
contain the entire agreement of the parties hereto with respect to the
subject matter hereof and supersede all prior understandings and agreements
of the parties with respect thereto.
SECTION 11.3 Amendments. The Certificate and this Operating
Agreement may not be amended except by the written agreement of all of the
Members.
SECTION 11.4 Choice of Law. Notwithstanding the place where this
Operating Agreement may be executed by any of the parties hereto, the
parties expressly agree that all the terms and provisions hereof shall be
construed under the laws of Delaware (without regard to any conflicts of
law principles).
SECTION 11.5 Notices. Except as otherwise provided in this
Operating Agreement, any notice, demand or communication required or
permitted to be given by any provision of this Operating Agreement shall be
deemed to have been sufficiently given or served for all purposes if
delivered personally or sent by facsimile transmission or overnight express
to the party or to an executive officer of the party to whom the same is
directed or, if sent by registered or certified mail, postage and charges
prepaid, addressed to the Member's or Company's address, as appropriate,
which is set forth in this Operating Agreement or Schedule A hereto.
SECTION 11.6 Headings. The titles of the Articles and the
headings of the Sections of this Operating Agreement are for convenience of
reference only and are not to be considered in construing the terms and
provisions of this Operating Agreement.
SECTION 11.7 Pronouns. All pronouns shall be deemed to refer to
the masculine, feminine, neuter, singular or plural, as the identity of the
person or persons, firm or corporation may require in the context thereof.
SECTION 11.8 Waivers. The failure of any party to seek redress
for violation of or to insist upon the strict performance of any covenant
or condition of this Operating Agreement shall not prevent a subsequent
act, that would have originally constituted a violation, from having the
effect of an original violation.
SECTION 11.9 Severability. If any provision of this Operating
Agreement or its application to any person or circumstance shall be
invalid, illegal or unenforceable to any extent, the remainder of this
Operating Agreement and its application shall not be affected and shall be
enforceable to the fullest extent permitted by law.
SECTION 11.10 No Third Party Beneficiaries. None of the
provisions of this Operating Agreement shall be for the benefit of or
enforceable by any person other than the parties to this Agreement and
their respective permitted successors and permitted transferees and
assigns.
<PAGE>
SECTION 11.11 Interpretation. It is the intention of the Members
that, during the term of this Operating Agreement, the rights of the
Members and their successors-in-interest shall be governed by the terms of
this Agreement, and that the right of any Member or successor-in-interest
to assign, transfer, sell or otherwise dispose of any interest in the
Company shall be subject to limitations and restrictions of this Operating
Agreement.
SECTION 11.12 Further Assurances. Each Member shall execute all
such certificates and other documents and shall do all such other acts as
the Managers deem appropriate to comply with the requirements of law for
the formation of the Company and to comply with any laws, rules,
regulations and third-party requests relating to the acquisition, operation
or holding of the property of the Company.
SECTION 11.13 Counterparts. This Operating Agreement may be
executed in counterparts, each of which shall be deemed an original, but
all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned Members, intending to be
legally bound, have executed this Operating Agreement as of the date first
above written.
CELLCO PARTNERSHIP
By BELL ATLANTIC MOBILE INC., its managing
general partner
By: /s/ A.J. Melone
------------------------------------
Name: A.J. Melone
Title: Vice President
Network Planning and
Administration
CROWN ATLANTIC HOLDING SUB LLC
By: /s/ Brian D. Jacks
------------------------------------
Name: Brian D. Jacks
Title: President
Exhibit 99.2
CROWN ATLANTIC HOLDING SUB LLC
OPERATING AGREEMENT
THIS OPERATING AGREEMENT (this "Operating Agreement") is made and
entered into as of March 31, 1999 (the "Effective Date") by CROWN ATLANTIC
HOLDING COMPANY LLC, a Delaware limited liability corporation ("HOLDCO")
(and such other persons who shall be admitted in the future in accordance
with the terms hereof and shall have agreed to be bound hereby), being
hereinafter sometimes referred to individually as a "Member" and
collectively as the "Members."
WHEREAS, Cellco Partnership, a Delaware general partnership doing
business as Bell Atlantic Mobile ("BAM"), Crown Castle International Corp.
("CCIC"), CCA Investment Corp., a Delaware corporation ("CCIC Member") and
a wholly-owned indirect subsidiary of CCIC, and certain transferring
partnerships (the "Transferring Partnerships") have entered into a
Formation Agreement dated as of December 8, 1998, as amended by Amendment
Number One to such Formation Agreement dated as of March 31, 1999 as as
further amended by the Schedule updates contemplated by Sections 6.1.2 and
6.2.1 of the such Formation Agreement (as so amended, the "Formation
Agreement"), pursuant to which, among other things, BAM and the
Transferring Partnerships will (i) contribute the BAM Contributed Assets
and the BAM Assumed Liabilities (both as defined in the Formation
Agreement) to Crown Atlantic Company LLC, a Delaware limited liability
company ("OpCo"), in exchange for membership interests in OpCo; (ii)
thereafter, contribute their membership interests in OpCo (other than the
BAM Retained Interest (as hereinafter defined)) to Crown Atlantic Holding
Sub LLC, a Delaware limited liability company ("HoldCo Sub" or the
"Company") in exchange for membership interests in HoldCo Sub; and (iii)
thereafter, contribute their membership interests in HoldCo Sub to Crown
Atlantic Holding Company LLC, a Delaware limited liability company
("HoldCo"), and, in addition, CCIC Member will contribute the CCIC
Contributed Shares (as defined below) to HoldCo, in exchange for membership
interests in HoldCo;
WHEREAS, in exchange for membership interests in HoldCo, each
Transferring Partnership, BAM and CCIC Member will contribute their
membership interests in the Company to HoldCo immediately following the
formation of the Company.
NOW, THEREFORE, the parties hereto agree as follows:
<PAGE>
ARTICLE I
GENERAL PROVISIONS
Section 1.1. Certain Definitions. As used in this Agreement, the
following terms have the respective meanings assigned to them below:
"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.
"Anticipated Financing" shall mean the proposed financing by
HoldCo Sub contemplated by Section 3.6 of the Formation Agreement of an
amount equal to not less than One Hundred Eighty Million Dollars
($180,000,000.00) (the "Closing Financing Amount"), except as adjusted
pursuant to its terms and conditions.
"BAM" is defined in the Preamble.
"BAM Capital Distribution" shall mean the Contributed Cash
Distribution plus the Financing Distribution.
"BAM Retained Interest" shall mean the .001 Percentage Interest
in OpCo held by BAM.
"Bidder Services Agreement" shall mean the Services Agreement
among CCIC, OpCo and HoldCo Sub, in form and substance reasonably
acceptable to BAM and CCIC and consistent with the terms set forth in the
letter agreement between BAM and CCIC set forth as Exhibit 2.7 to the
Formation Agreement, pursuant to which CCIC 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.
"Build-to-Suit Agreement" shall mean the Build-to- Suit Agreement
among OpCo, HoldCo Sub and BAM (for itself and on behalf of the
Transferring Partnerships) pursuant to which BAM and the Transferring
Partnerships shall offer to OpCo and HoldCo Sub from time to time the right
to build tower structures on the terms and conditions described therein.
"Business Plan" is defined in Section 10.3.
"CCIC" is defined in the Preamble.
"CCIC Common Stock" shall mean the common stock, $.01 par value
of CCIC.
<PAGE>
"CCIC Contributed Shares" shall mean those shares of CCIC Common
Stock contributed to HoldCo by CCIC Member pursuant to Section 3.5 of the
Formation Agreement.
"CCIC Member" is defined in the Preamble.
"Contributed Cash Distribution" is defined in Section 3.4 of the
Formation Agreement.
"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, BAM shall in good faith select a comparable index to replace the CPI
and the index selected by BAM shall be subject to CCIC Member's approval,
which approval shall not be unreasonably withheld or delayed.
"Effective Date" is defined in the Preamble.
"Exchange Act" is defined in Section 10.4(a).
"Financing Distribution" shall mean the distribution to BAM and
the Transferring Partnerships immediately after the closing of the
transactions contemplated by the Formation Agreement of cash in the amount
of $180,000,000, as contemplated by Section 3.6 of the Formation Agreement,
as such amount may be adjusted pursuant to the Formation Agreement.
"Formation Agreement" is defined in the Preamble. All terms not
defined herein shall have the meaning given to them in the Formation
Agreement.
"GAAP" is defined in Section 10.4(a).
"Global Lease" shall mean the Global Lease Agreement among OpCo
and BAM (for itself and on behalf of the Transferring Partnerships)
pursuant to which OpCo shall lease to BAM and the Transferring Partnerships
space on certain communications towers.
"HoldCo" is defined in the Preamble.
"HoldCo Operating Agreement" shall mean the Operating Agreement
of HoldCo entered into as of March 31, 1999 by BAM and CCIC Member.
<PAGE>
"Management Agreement" shall mean the Management Agreement
between HoldCo Sub and OpCo, in form and substance reasonably acceptable to
BAM and CCIC and consistent with the terms set forth in the letter
agreement between BAM and CCIC as set forth on Exhibit 2.7 to the Formation
Agreement, pursuant to which HoldCo Sub shall manage and lease OpCo's
assets.
"Managers" is defined in Section 1.2.
"Members" is defined in the Preamble.
"OpCo" is defined in the Preamble.
"OpCo Towers" is defined in Section 10.3.
"Person" means any natural person or entity.
"Solvent" is defined in Section 3.8(c).
"Taxes" means all taxes, duties, charges, fees, levies or other
assessments imposed by any taxing authority, whether domestic or foreign,
including, without limitation, income (net, gross or other including
recapture of any tax items such as investment tax credits), alternative or
add-on minimum tax, capital gains, gross receipts, value-added, excise,
withholding, personal 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).
"Transaction Documents" means, collectively, the Formation
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 Section 4.2 of the Formation Agreement.
"Transferring Partnership" is defined in the Preamble.
Section 1.2 Formation. Upon the filing of the Certificate of
Formation (the "Certificate") with the Secretary of State of the State of
Delaware, BAM, CCIC Member and the Transferring Partnerships have formed
Crown Atlantic Holding Sub LLC, a limited liability company, pursuant to
the Delaware Limited Liability Company Act of 1992, as amended from time to
time (the "Act"), for the purposes hereinafter set forth. BAM, CCIC Member
and the Transferring Partnerships, after the filing of the Certificate and
prior to the execution and delivery of this Agreement, transferred all of
their respective interests in the Company to HoldCo. The Company was formed
as a limited liability company managed by its managers (the "Managers")
under the supervision of the Board of Representatives (as defined in
Section 1.10)
<PAGE>
and the laws of the State of Delaware, upon the terms and conditions
hereinafter set forth. The Members intend that the Company shall be taxed
as a partnership. Promptly following the execution hereof, the Member shall
execute or cause to be executed all other necessary certificates and
documents, and shall make all other such filings and recordings, and shall
do all other acts as may be necessary or appropriate from time to time to
comply with all requirements for the formation, continued existence and
operation of a limited liability company in the State of Delaware. This
Operating Agreement is intended to serve as a "limited liability company
agreement" as such term is defined in ss 18-101(7) of the Act.
Section 1.3. Company Name and Address. The Company shall do
business under the name Crown Atlantic Holding Sub LLC or such other name
as the Board of Representatives may determine from time to time. The Board
of Representatives shall promptly notify the Member of any change of name
of the Company. The initial registered agent for the Company shall be CT
Corporation System. The initial registered office of the Company in the
State of Delaware shall be 1209 Orange Street, Wilmington, Delaware 19801.
The registered office and the registered agent may be changed from time to
time by action of the Board of Representatives by filing notice of such
change with the Secretary of State of the State of Delaware. The Board of
Representatives will promptly notify the Member of any change of the
registered office or registered agent. The Company may also have offices at
such other places within or outside of the State of Delaware as the Board
of Representatives may from time to time determine.
Section 1.4. Term. The Company shall commence operating as of the
date the Certificate is filed with the Secretary of the State of Delaware
and shall have perpetual existence, unless terminated or dissolved pursuant
to Section 9.1 of this Operating Agreement.
Section 1.5. Business of the Company. The purpose of the Company
is to own 99.999% of the percentage interests in OpCo, to perform its
duties and obligations under the Management Agreement, to borrow the
Anticipated Financing, to make the Financing Distribution, to engage in the
business of acquiring or constructing, owning or leasing, and maintaining
and operating communications towers in the United States and to perform all
business activities related thereto. The Company shall not engage in any
line of business or activity except those set forth in the preceding
sentence. The Company shall possess and may exercise all the powers and
privileges granted by the Act or by any other law, together with any powers
incidental thereto, so far as such powers and privileges are necessary or
convenient to the conduct, promotion or attainment of the business,
purposes or activities of the Company.
Section 1.6. Names and Addresses of the Members. The names and
addresses of the Members are set forth in Schedule A.
Section 1.7. Partition. No Member, nor any successor-in-interest
to any Member, shall have the right, while this Operating Agreement remains
in effect, to have the property of the Company partitioned, or to file a
complaint or institute any proceeding at law or in equity to have
<PAGE>
the property of the Company partitioned, and each of the Members, on behalf
of itself and its successors, representatives and assigns, hereby
irrevocably waives any such right.
Section 1.8. Fiscal Year. The fiscal year of the Company shall
begin on January 1 and end on December 31 of each calendar year.
Section 1.9. Title to Company Property. All property owned by the
Company, whether real or personal, tangible or intangible, shall be deemed
to be owned by the Company, and no Member individually shall have any
interest in such property. Title to all such property may be held in the
name of the Company or a designee, which designee may be a Member or an
entity affiliated with a Member.
Section 1.10. Board of Representatives.
(a) General. A Board of Representatives (the "Board of
Representatives") shall be established to oversee the Managers and review
the Business Plan (as defined in Section 10.3). There shall be no less than
five (5) Representatives, nor more than fifteen (15) Representatives, as
may be determined from time to time by the Board of Representatives.
Initially, there shall be six (6) Representatives. Each Member shall
designate that number of Representatives determined by multiplying the
total number of Representatives by that Member's Percentage Interest in the
Company and rounding to the nearest whole number. If such calculation shall
result in a greater number of Representatives than the total to be
designated, then the Board of Representatives shall be expanded to the
extent permitted by the second sentence of this Section 1.10(a) or if,
despite such expansion, there would still be a greater number of
Representatives than the total to be designated, the Members shall by vote
determine a proportionate readjustment with each Member entitled to a
number of votes equal to its Percentage Interest. Notwithstanding the
foregoing, for so long as BAM has the right to designate at least one (1)
Representative to the Board of Representatives of HoldCo, the
Representatives and Alternates of HoldCo shall also serve as
Representatives and Alternates of the Company and OpCo, and such
Representatives and Alternates shall be selected in accordance with the
provisions of Section 1.10 of the HoldCo Operating Agreement.
(b) Representatives and Alternates. Each Member shall also
be entitled to designate one (1) alternate to each such Representative
(each an "Alternate"). In the event a Representative is unable to attend a
meeting of the Board of Representatives or otherwise participate in any
action to be taken by the Board of Representatives, the Alternate
associated with such Representative shall take such Representative's place
for all purposes on the Board of Representatives. Each Member shall
designate its Representatives and the associated Alternates by written
notice to the Company and each other Member. The initial Representatives
and Alternates of each Member are set forth on Schedule B. The
Representatives and Alternates shall at all times be executive officers or
other full-time employees of either such Member or any affiliate of such
Member.
<PAGE>
(c) Resignation. A Representative or Alternate of the
Company may resign at any time by giving written notice to the Company or
to the Member who designated such Representative or Alternate.
(d) Removal. Each Member may, at any time, replace any of
its Representatives or Alternates with a new Representative or Alternate
and, upon such change or upon the death or resignation of any
Representative or Alternate, a successor shall be designated in writing by
the Member that appointed the Representative or Alternate being replaced.
(e) Vacancies. Any vacancy with respect to any
Representative or Alternate occurring for any reason may be filled by the
Member who designated the Representative or Alternate who vacated or was
removed from his or her position.
(f) Compensation. Without the approval of the Members, the
Representatives or Alternates will not be entitled to compensation for
their services as Representatives or Alternates. The Company shall,
however, reimburse the Representatives and Alternates for their reasonable
expenses incurred in connection with their services to the Company.
Section 1.11. Membership Interests Uncertificated. The interests
of the Members in the Company shall not be certificated.
ARTICLE II
MEETINGS GENERALLY
Section 2.1. Manner of Giving Notice.
(a) A notice of meeting shall specify the place, day and
hour of the meeting and any other information required by any provision of
the Act, the Certificate or this Operating Agreement.
(b) When a meeting at which there is a duly constituted
quorum is adjourned, it shall not be necessary to give any notice of the
adjourned meeting or of the business to be transacted at an adjourned
meeting, other than by announcement at the meeting at which the adjournment
is taken, unless the adjournment is for more than sixty (60) days in which
event notice shall be given in accordance with Section 2.2 or Section 2.3,
as applicable.
Section 2.2. Notice of Meetings of the Board of Representatives.
Notice of every meeting of the Board of Representatives shall be given to
each Representative by telephone or in writing at least 24 hours (in the
case of notice by telephone, telex or facsimile transmission) or 48 hours
(in the case of notice by telegraph, courier service or express mail) or
<PAGE>
five days (in the case of notice by first class mail) before the time at
which the meeting is to be held. Every such notice shall state the time and
place of the meeting. Subject to the provisions of Sections 3.3 and 4.5,
neither the business to be transacted at, nor the purpose of, any meeting
of the Board of Representatives need be specified in a notice of the
meeting.
Section 2.3. Notice of Meetings of Members. Written notice of
every meeting of the Members shall be given to each Member of record
entitled to vote at the meeting at least five (5) days prior to the day
named for the meeting. If the Managers neglect or refuse to give notice of
a meeting, the person or persons calling the meeting may do so.
Section 2.4. Waiver of Notice.
(a) Whenever any written notice is required to be given
under the provisions of the Act, the Certificate or this Operating
Agreement, a waiver thereof in writing, signed by the person or persons
entitled to the notice, whether before or after the time stated therein,
shall be deemed equivalent to the giving of the notice. Neither the
business to be transacted at, nor the purpose of, a meeting need be
specified in the waiver of notice of the meeting.
(b) Attendance of a person at any meeting shall constitute a
waiver of notice of the meeting except where a person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting was not lawfully called or
convened.
Section 2.5. Use of Conference Telephone and Similar Equipment.
Any Representative may participate in any meeting of the Board of
Representatives, and any Member may participate in any meeting of the
Members, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can
hear each other. Participation in a meeting pursuant to this Section shall
constitute presence in person at the meeting.
Section 2.6. Consent in Lieu of Meeting. Any action required or
permitted to be taken at a meeting of the Board of Representatives or
Members may be taken without a meeting if, prior or subsequent to the
action, written consents describing the action to be taken are signed by
the minimum number of Representatives or Members that would be necessary to
authorize the action at a meeting at which all Representatives or Members
entitled to vote thereon were present and voting; provided that, prior to
any such written consent becoming effective, such written consent has been
provided to all Representatives or Members entitled to vote, and the
Representatives or Members shall have ten (10) days to review such consent
prior to such written consent becoming effective (unless otherwise agreed
to by all Representatives or their respective Alternates or each Member,
respectively). The consents shall be filed with the Managers. Prompt notice
of the taking of Company action without a meeting by less than unanimous
written consent shall be given to those Members who have not consented in
writing.
<PAGE>
ARTICLE III
MANAGEMENT
Section 3.1. Management of the Company Generally. The business
and affairs of the Company shall be managed by its Managers under the
supervision of the Board of Representatives (a) in accordance with the
provisions of this Operating Agreement and the Business Plans and the other
resolutions and directives of the Board of Representatives adopted by the
Board of Representatives and in effect from time to time, and (b) subject
to the provisions of the Act, the Certificate and this Operating Agreement
including, without limitation, the provisions of Section 3.8 hereof. Unless
authorized to do so by this Operating Agreement or by the Board of
Representatives or the Managers of the Company (provided that the Managers
are authorized to grant such authority), no attorney-in-fact, employee,
officer or agent of the Company other than the Managers shall have any
power or authority to bind the Company in any way, to pledge its credit or
to render it liable pecuniarily for any purpose. No Member shall have any
power or authority to bind the Company unless the Member has been expressly
authorized by the Board of Representatives to act as an agent of the
Company. All Managers of the Company, as between themselves and the
Company, shall have such authority and perform such duties in the
management of the Company as may be provided by or pursuant to resolutions
or orders of the Board of Representatives or in the Business Plan, or, in
the absence of controlling provisions in the resolutions or orders of the
Board of Representatives, as may be determined by or pursuant to this
Operating Agreement. The Board of Representatives may confer upon any
Manager such titles as the Board deems appropriate, including, but not
limited to, President, Vice President, Secretary or Treasurer, and subject
to the limitations set forth in Section 3.8 of this Operating Agreement,
delegate specifically defined duties to the Managers. Notwithstanding the
foregoing or any other provision of this Operating Agreement or of the Act
to the contrary, no Manager of the Company shall have the power or
authority to do or perform any act with respect to any of the matters set
forth in Section 3.8 of this Operating Agreement unless such matter has
been approved by the mutual consent of BAM and CCIC Member in accordance
with the provisions of this Operating Agreement.
Section 3.2. Meetings of the Board of Representatives. Meetings
of the Board of Representatives shall be held at such time and place within
or without the State of Delaware as shall be designated from time to time
by resolution of the Board of Representatives or by written notice of any
Manager or by written notice of any Member; provided that meetings of the
Board of Representatives shall be held no less than quarterly, on a date to
be determined by the mutual consent of BAM and CCIC Member. At each meeting
of the Board of Representatives, the Managers shall (i) provide the Board
of Representatives with a report on the financial condition and operations
of the Company, including, without limitation, a report on the results of
operations compared to the then applicable Business Plan, (ii) disclose to
the Board of Representatives any material event or contingency occurring
since the previous meeting and (iii) disclose to the Board of
Representatives all matters which would require disclosure to, or the
approval of, the board of directors of a Delaware corporation. For so long
as BAM is entitled to
<PAGE>
designate at least one (1) Representative to the Board of Representatives
of HoldCo, any meeting of the Board of Representatives of HoldCo shall also
be deemed to be a meeting of the Board of Representatives of the Company
and OpCo.
Section 3.3. Quorum. The presence of at least one of the
Representatives or Alternates designated by each of BAM and CCIC Member
shall be necessary to constitute a quorum for the transaction of business
at a meeting of the Board of Representatives and the acts of a majority of
the Representatives or Alternates present and voting at a meeting at which
a quorum is present shall be the acts of the Representatives or Alternates;
provided, however, that if notice of a meeting is provided to the
Representatives and Alternates, and such notice describes the business to
be considered, the actions to be taken and the matters to be voted on at
the meeting in reasonable detail, and insufficient Representatives or
Alternates attend the meeting to constitute a quorum, the meeting may be
adjourned by those Representatives or Alternates attending such meeting for
a period not to exceed twenty (20) days. Such meeting may be reconvened by
providing notice of the reconvened meeting to the Representatives and
Alternates no less than ten (10) days prior to the date of the meeting
specifying that the business to be considered, the actions to be taken and
the matters to be voted upon are those set forth in the notice of the
original adjourned meeting. If, at the reconvened meeting, a quorum of
Representatives or Alternates is not present, a majority of the
Representatives and Alternates present and voting will constitute a quorum
for purposes of the reconvened meeting; provided, however that such
Representatives and Alternates may only consider the business, take the
actions or vote upon the matters set forth in the notice of the original
meeting.
Notwithstanding the foregoing, or any other provision in this Agreement, no
Representative, Alternate or Manager shall have any power or authority to
do or perform any act with respect to any of the matters set forth in
Section 3.8 of this Operating Agreement unless such matter has been
approved by the mutual consent of BAM and CCIC Member in accordance with
the provisions of this Operating Agreement.
Section 3.4. Manner of Acting. Other than any action contemplated
by Section 3.8, which shall require the mutual consent of CCIC Member and
BAM, whenever any Company action is to be taken by a vote of the Board of
Representatives, it shall be authorized upon receiving the affirmative vote
of a majority of the Representatives and Alternates present and voting at a
duly constituted meeting at which a quorum is present.
Section 3.5. Designation of Managers. CCIC
Member shall designate all Managers. The initial Managers
are set forth on Schedule C. CCIC Member shall promptly
give each Member notice of the designation of any new
Manager.
Section 3.6. Qualifications. Each Manager of the Company shall be
a natural person of full age who need not be a resident of the State of
Delaware.
<PAGE>
Section 3.7. Number, Selection and Term of Office.
(a) There shall be no less than 2 Managers, nor more than
11, as may be determined from time to time by the Board of Representatives.
Initially, there shall be 11 Managers.
(b) Each Manager shall hold office until a successor has
been selected and qualified or until his or her earlier death, resignation
or removal.
Section 3.8. Approval of Certain Matters by the Member.
Notwithstanding any provision of this Operating Agreement or the Act to the
contrary, for so long as BAM is entitled to designate at least one
Representative to the Board of Representatives of HoldCo, the following
matters require the mutual consent of BAM and CCIC Member, in their
respective capacities as the members of HoldCo, given by their respective
Representatives (acting as group) at a meeting of the Board of
Representatives or by written consent, and the Managers shall have no power
or authority to do or perform any act with respect to any of the following
matters without the mutual consent of BAM and CCIC Member, in their
respective capacities as the members of HoldCo, given in accordance with
the provisions of this Operating Agreement:
(a) Certain Contracts. The entering into any contract,
agreement or arrangement (whether written or oral) by the Company, other
than agreements and contracts in force as of the date hereof and renewals
thereof, which (i) contains provisions restricting the Company or any
member thereof from competing in any business activity in any geographic
area, (ii) contains provisions requiring the Company 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, (iii) contains provisions which are inconsistent
with the obligations of the Company under any of the Transaction Documents,
or (iv) 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.
(b) Conduct of Business. The engagement by the Company in any
line of business other than the ownership of 99.999% of the percentage
interests in OpCo, the performance of its duties and obligations under the
Management Agreement, the borrowing of the Anticipated Financing, the
making of the Financing Distribution, engaging in the business of acquiring
or constructing, owning or leasing, and maintaining and operating
communications towers in the United States and performing all business
activities related thereto. The making by the Company of any investment in,
or the acquisition by the Company of any equity securities of, any Person
other than OpCo.
(c) Solvency. The voluntary taking of any action by the
Company that would cause the Company to cease to be Solvent. As used
herein, the term "Solvent" means that the aggregate present fair saleable
value of the Company'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,
<PAGE>
the Company has not incurred debts beyond its foreseeable ability to pay
such debts as they mature, and the Company has capital adequate to conduct
the business in which it is presently employed.
(d) Bankruptcy. The voluntary dissolution or liquidation of
the Company, the making by the Company of a voluntary assignment for the
benefit of creditors, the filing of a petition in bankruptcy by the
Company, the Company petitioning or applying to any tribunal for any
receiver or trustee, the Company commencing any proceeding relating to
itself under any bankruptcy, reorganization, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction, the Company
indicating its consent to, approval of or acquiescence in any such
proceeding and failing to use its best efforts to have discharged the
appointment of any receiver of or trustee for the Company or any
substantial part of their respective properties.
(e) Indebtedness. The direct or indirect modification,
amendment or prepayment of the Anticipated Financing under the Formation
Agreement by the Company prior to the seventh (7th) anniversary of the
closing of the transactions contemplated by the Formation Agreement.
(f) Issuance of Interests. The authorization or issuance of
any interests in, or the admission of any members to, the Company.
(g) Preservation of Existence. Any action contrary to the
preservation and maintenance of the Company's existence, rights, franchises
and privileges as a limited liability company under the laws of the State
of Delaware. Any action which would prevent the Company from qualifying and
remaining 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.
(h) Merger or Sale of Assets. Any merger or consolidation by
the Company with any Person. Any sale, assignment, lease or other
disposition by the Company of (whether in one transaction or in a series of
transactions), or any voluntarily parting with the control of (whether in
one transaction or in a series of transactions), a material portion of the
Company's assets (whether now owned or hereinafter acquired), except in
accordance with the provisions of any of the Transaction Documents, and
except for sales or other dispositions of assets in the ordinary course of
business. Any sale, assignment or other disposition of (whether in one
transaction or in a series of transactions) any of the Company's 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.
(i) Dealings with Affiliates. Except pursuant to the
Transaction Documents, the entering into by the Company of any transaction,
including, without limitation, any loans or extensions of credit or royalty
agreements with any Representative, Manager, officer or member of the
Company or any officer, director of CCIC or CCIC Member or holder of more
<PAGE>
than five percent (5%) of CCIC 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 except in the ordinary
course of business and on terms not less favorable to the Company than it
would reasonably expect to obtain in a transaction between unrelated
parties.
(j) Dividends; Distributions. The declaration or payment by
the Company of any dividend, or making by the Company of any distribution
or return of capital, or the redemption by the Company of any equity
interest, or the making by the Company of any similar payments or transfer
of property to its Members (excluding payments for goods or services).
(k) Method of Certain Calculations. The determination of any
method to be used in calculating any of the payments to be made under the
Management Agreement or the Bidder Services Agreement.
(l) Business Plan. The approval of the Business Plan as set
forth in Section 10.3.
(m) OpCo Voting. Voting the membership interest in OpCo with
respect to any matter which, pursuant to the provisions of the OpCo
Operating Agreement, requires the unanimous approval of the members of
OpCo.
Section 3.9. Exculpation. No Member, Manager, Representative,
Alternate or officer shall be liable to the Company or to any Member for
any losses, claims, damages or liabilities arising from, related to, or in
connection with, this Operating Agreement or the business or affairs of the
Company, except for any losses, claims, damages or liabilities as are
determined by final judgment of a court of competent jurisdiction to have
resulted from such Member, Manager, Representative, Alternate or officer's
gross negligence or willful misconduct. To the extent that, at law or in
equity, any Member, Manager, Representative, Alternate or officer has
duties (including fiduciary duties) and liabilities relating thereto to the
Company or to any Member, such Member, Manager, Representative, Alternate
or officer acting in connection with this Operating Agreement or the
business or affairs of the Company shall not be liable to the Company or to
any Member, Manager, Representative, Alternate or officer for its good
faith conduct in accordance with the provisions of this Agreement or any
approval or authorization granted by the Company or any Member, Manager,
Representative, Alternate or officer. The provisions of this Operating
Agreement, to the extent that they restrict the duties and liabilities of
any Member, Manager, Representative, Alternate or officer otherwise
existing at law or in equity, are agreed by the Members to replace such
other duties and liabilities of such Member, Manager, Representative,
Alternate or officer.
<PAGE>
Section 3.10. Reliance on Reports and Information by Member,
Representative, Alternate or Manager. A Member, Representative, Alternate
or Manager of the Company shall be fully protected in relying in good faith
upon the records of the Company and upon such information, opinions,
reports or statements presented to the Company by any of its other
Managers, Members, Representatives, Alternates, officers, employees or
committees of the Company, or by any other person, as to matters the
Member, Representative, Alternate or Manager reasonably believes are within
such other person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Company, including
information, opinions, reports or statements as to the value and amount of
the assets, liabilities, profits or losses of the Company or any other
facts pertinent to the existence and amount of assets from which
distributions to Members might properly be paid.
Section 3.11. Bank Accounts. The Managers may from time to time
open bank accounts in the name of the Company, and the Managers, or any of
them, shall be the sole signatory or signatories thereon, unless the
Managers determine otherwise.
Section 3.12. Resignation. A Manager of the Company may resign at
any time by giving written notice to the Company. The resignation of a
Manager shall be effective upon receipt of such notice or at such later
time as shall be specified in the notice. Unless otherwise specified in the
notice, the acceptance of the resignation shall not be necessary to make
such resignation effective.
Section 3.13. Removal. Any individual Manager may be removed from
office at any time, without assigning any cause, by CCIC Member.
Section 3.14. Vacancies. Any vacancy with respect to a Manager
occurring for any reason may be filled by CCIC Member.
Section 3.15. Salaries. The salaries of the Managers shall be
fixed from time to time by the Board of Representatives in accordance with
the Business Plan or by such Manager as may be designated by resolution of
the Board of Representatives. The salaries or other compensation of any
other employees and other agents shall be fixed from time to time by the
Board of Representatives or by such Manager as may be designated by
resolution of the Board of Representatives.
<PAGE>
ARTICLE IV
MEMBERS
Section 4.1. Admission of Members.
(a) A person acquiring an interest in the Company in
connection with its formation shall be admitted as a Member of the Company
upon the later to occur of the formation of the Company or when the
admission of the person is reflected in the records of the Company.
(b) After the formation of the Company, a person acquiring
an interest in the Company from the Company, is admitted as a Member upon
the satisfaction of all requirements in Section 8.1 and Section 8.2 of this
Operating Agreement.
Section 4.2. Meetings. Meetings of the Members, for any purpose
or purposes, unless otherwise prescribed by statute, may be called by any
Manager or by any Member.
Section 4.3. Place of Meeting. The Managers or Members calling a
meeting pursuant to Section 4.2 may designate any place as the place for
any meeting of the Members. If no designation is made, the place of meeting
shall be the principal office of the Company.
Section 4.4. Record Date. For the purpose of determining Members
entitled to notice of, or to vote at, any meeting of Members or any
adjournment of the meeting, or Members entitled to receive payment of any
distribution, or to make a determination of Members for any other purpose,
the date on which notice of the meeting is mailed or the date on which the
resolution declaring the distribution or relating to such other purpose is
adopted, as the case may be, shall be the record date for the determination
of Members. Only Members of record on the date fixed shall be so entitled
notwithstanding any permitted transfer of a Member's Membership Interest
after any record date fixed as provided in this Section. When a
determination of Members entitled to vote at any meeting of Members has
been made as provided in this section, the determination shall apply to any
adjournment of the meeting.
Section 4.5. Quorum. A meeting of Members of the Company duly
called shall not be organized for the transaction of business unless a
quorum is present. The presence of each Member, represented in person or by
proxy, shall constitute a quorum at any meeting of Members, provided,
however, that if notice of a meeting is provided to the Members, and such
notice describes the business to be considered, the actions to be taken and
the matters to be voted on at the meeting in reasonable detail, and
insufficient Members attend the meeting to constitute a quorum, the meeting
may be adjourned by those Members attending such meeting for a period not
to exceed twenty (20) days. Such meeting may be reconvened by providing
notice of the reconvened meeting to the Members no less than ten (10) days
prior to the date of the meeting specifying that the business to be
considered, the actions to be taken and the matters to be voted
<PAGE>
upon are those set forth in the notice of the original adjourned meeting.
If, at the reconvened meeting, a quorum of Members is not present, a
majority of the Members present and voting will constitute a quorum for
purposes of the reconvened meeting; provided, however that such Members may
only consider the business, take the actions or vote upon the matters set
forth in the notice of the original meeting. At an adjourned meeting at
which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed. The Members present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal during
the meeting of Members whose absence would cause less than a quorum.
Notwithstanding the foregoing or any other provision in this Agreement, no
Member shall have any power or authority to do or perform any act with
respect to any of the matters set forth in Section 3.8 of this Operating
Agreement unless such matter has been approved by the mutual consent of BAM
and CCIC Member in accordance with the provisions of this Operating
Agreement.
Section 4.6. Manner of Acting. Except as otherwise provided in
the Act or the Certificate or this Operating Agreement, including, without
limitation, Section 3.8 hereof, whenever any Company action is to be taken
by vote of the Members of the Company, it shall be authorized upon
receiving the affirmative vote of Members entitled to vote who own a
majority of the Percentage Interests (as defined in Section 6.1) then held
by Members.
Section 4.7. Voting Rights of Members. Unless otherwise provided
in the Certificate, every Member of the Company shall be entitled to a
percentage of the total votes equal to that Member's then current
Percentage Interest.
Section 4.8. Relationship of Members. Except as otherwise
expressly and specifically provided in or as authorized pursuant to the
Certificate or this Operating Agreement, (a) in the event that any Member
(or any of such Member's shareholders, partners, members, owners, or
Affiliates (collectively, the "Liable Member")) has incurred any
indebtedness or obligation prior to the date of this Agreement that relates
to or otherwise affects the Company, neither the Company nor any other
Member shall have any liability or responsibility for or with respect to
such indebtedness or obligation unless such indebtedness or obligation is
assumed by the Company pursuant to this Operating Agreement, the Formation
Agreement or any of the other Transaction Documents, or a written
instrument signed by all Members; (b) neither the Company nor any Member
shall be responsible or liable for any indebtedness or obligation that is
incurred after the date of this Agreement by any Liable Member, and in the
event that a Liable Member, whether prior to or after the date hereof,
incurs (or has incurred) any debt or obligation that neither the Company
nor any of the other Members is to have any responsibility or liability
for, the Liable Member shall indemnify and hold harmless the Company and
the other Members from any liability or obligation they may incur in
respect thereof; (c) nothing contained herein shall render any Member
personally liable for any debts, obligations or liabilities incurred by the
other Members or the Company whether arising in contract, tort or otherwise
or for the acts or
<PAGE>
omissions of any other Member, Manager, agent or employee of the Company;
(d) no Member shall be constituted an agent of the other Members or the
Company; (e) nothing contained herein shall create any interest on the part
of any Member in the business or other assets of the other Members; (f)
nothing contained herein shall be deemed to restrict or limit in any way
the carrying on (directly or indirectly) of separate businesses or
activities by any Member now or in the future, even if such businesses or
activities are competitive with the Company; and (g) no Member shall have
any authority to act for, or to assume any obligation on behalf of, the
other Members or the Company. No Member or any of its Affiliates or any of
their respective officers, directors, employees or former employees shall
have any obligation, or be liable, to the Company or any other Member
pursuant to this Agreement for or arising out of the conduct described in
the preceding clause (f), for exercising, performing or observing or
failing to exercise, perform or observe, any of its rights or obligations
under the Formation Agreement or any other Transaction Document, for
exercising or failing to exercise its rights as a Member or, solely by
reason of such conduct, for breach of any fiduciary or other duty to the
Company or any Member. In the event that a Member, any of its Affiliates or
any of their respective officers, directors, employees or former employees
acquires knowledge of a potential transaction, agreement, arrangement or
other matter which may be a corporate opportunity for both the Member and
the Company, neither the Member nor such Affiliate, officers, directors,
employees or former employees shall have any duty to communicate or offer
such corporate opportunity to the Company, and neither the Member nor such
Affiliate, officers, directors, employees or former employees shall be
liable to the Company for breach of any fiduciary or other duty, as a
member or otherwise, by reason of the fact that the Member or such
Affiliate, officers, directors, employees or former employees pursue or
acquire such corporate opportunity for the Member, direct such corporate
opportunity to another person or entity or fail to communicate such
corporate opportunity or information regarding such corporate opportunity
to the Company.
Section 4.9. Business Transactions of Member, Representative or
Alternate with the Company. A Member, Representative or Alternate may lend
money to, borrow money from, act as a surety, guarantor or endorser for,
guarantee or assume one or more obligations of, provide collateral for, and
transact any and all other business with the Company and, subject to other
applicable law, has the same rights and obligations with respect to any
such matter as a person who is not a Member, Representative or Alternate.
ARTICLE V
INDEMNIFICATION
Section 5.1. Indemnification by the Company.
(a) The Company shall indemnify an indemnified
representative against any liability incurred in connection with any
proceeding in which the indemnified representative may be involved as a
party or otherwise, as and when incurred, by reason of the fact that such
<PAGE>
person is or was serving in an indemnified capacity, including, without
limitation, liabilities resulting from any actual or alleged breach or
neglect of duty, error, misstatement or misleading statement, negligence,
gross negligence or act giving rise to liability, except:
(1) where such indemnification is expressly prohibited
by applicable law;
(2) where the conduct of the indemnified
representative has been finally determined:
(i) to constitute willful misconduct or
recklessness sufficient in the circumstances to bar
indemnification against liabilities arising from the
conduct; or
(ii) to be based upon or attributable to the
receipt by the indemnified representative from the
Company of a personal benefit to which the indemnified
representative is not legally entitled; or
(3) to the extent such indemnification has been
finally determined in a final adjudication to be otherwise
unlawful.
(b) If an indemnified representative is entitled to
indemnification in respect of a portion, but not all, of any liabilities to
which such person may be subject, the Company shall indemnify such
indemnified representative to the maximum extent for such portion of the
liabilities.
(c) The termination of a proceeding by judgment, order,
settlement or conviction or upon a plea of nolo contendere or its
equivalent shall not of itself create a presumption that the indemnified
representative is not entitled to indemnification.
(d) Definitions. For purposes of this Article:
(1) "indemnified capacity" means any and all past,
present and future service by an indemnified representative
in one or more capacities as a Member, Manager,
Representative, Alternate or authorized agent of the
Company;
(2) "indemnified representative" means any and all
Members, Managers, Representatives, Alternates and
authorized agents of the Company and any other person
designated as an indemnified representative by the mutual
consent of BAM and CCIC Member, given in accordance with the
provisions of this Operating Agreement;
<PAGE>
(3) "liability" means any damage, judgment, amount paid
in settlement, fine, penalty, punitive damages, excise tax
assessed with respect to an employee benefit plan, or cost
or expense of any nature (including, without limitation,
attorneys' fees and disbursements); and
(4) "proceeding" means any threatened, pending or
completed action, suit, appeal or other proceeding of any
nature, whether civil, criminal, administrative or
investigative, whether formal or informal, and whether
brought by or in the right of the Company, a class of its
Members or security holders or otherwise.
Section 5.2. Proceedings Initiated by Indemnified
Representatives. Notwithstanding any other provision of this Article, the
Company shall not indemnify under this Article an indemnified
representative for any liability incurred in a proceeding initiated (which
shall not be deemed to include counterclaims or affirmative defenses) or
participated in as an intervenor or amicus curiae by the person seeking
indemnification unless such initiation of or participation in the
proceeding is authorized, either before or after its commencement, by the
unanimous consent of the Board of Representatives. This Section does not
apply to reimbursement of expenses incurred in successfully prosecuting or
defending the rights of an indemnified representative granted by or
pursuant to this Article.
Section 5.3. Advancing Expenses. The Company shall pay the
expenses (including attorneys' fees and disbursements) incurred in good
faith by an indemnified representative in advance of the final disposition
of a proceeding described in Section 5.1 or the initiation of or
participation in which is authorized pursuant to Section 5.2 upon receipt
of an undertaking by or on behalf of the indemnified representative to
repay the amount if it is ultimately determined that such person is not
entitled to be indemnified by the Company pursuant to this Article. The
financial ability of an indemnified representative to repay an advance
shall not be a prerequisite to the making of such advance.
Section 5.4. Payment of Indemnification. An indemnified
representative shall be entitled to indemnification within thirty (30) days
after a written request for indemnification has been delivered to the
secretary of the Company.
Section 5.5 Arbitration.
(a) Any dispute related to the right to indemnification,
contribution or advancement of expenses as provided under this Article,
except with respect to indemnification for Liabilities arising under the
Securities Act of 1933, as amended, that the Company has undertaken to
submit to a court for adjudication, shall be decided only by arbitration in
the metropolitan area in which the principal executive offices of the
Company are located at the time, in accordance with the commercial
arbitration rules then in effect of the American Arbitration Association
("AAA"), before a panel of three arbitrators, one of whom shall be
<PAGE>
selected by the Company, the second of whom shall be selected by the
Indemnified Representative and the third of whom shall be selected by the
other two arbitrators. In the absence of the AAA, or if for any reason
arbitration under the arbitration rules of the AAA cannot be initiated, and
if one of the parties fails or refuses to select an arbitrator or the
arbitrators selected by the Company and the Indemnified Representative
cannot agree on the selection of the third arbitrator within thirty (30)
days after such time as the Company and the Indemnified Representative have
each been notified of the selection of the other's arbitrator, the
necessary arbitrator or arbitrators shall be selected by the presiding
judge of the court of general jurisdiction in such metropolitan area.
(b) Each arbitrator selected as provided in this Section is
required to be or have been a manager, director or executive officer of a
limited liability company, corporation or other entity whose equity
securities were listed during at least one (1) year of such service on the
New York Stock Exchange or the American Stock Exchange or quoted on the
National Association of Securities Dealers Automated Quotations System.
(c) The party or parties challenging the right of an
Indemnified Representative to the benefits of this Article shall have the
burden of proof.
(d) The Company shall reimburse an Indemnified
Representative for the expenses (including attorneys' fees and
disbursements) incurred in successfully prosecuting or defending such
arbitration.
(e) Any award entered by the arbitrators shall be final,
binding and nonappealable and judgment may be entered thereon by any party
in accordance with applicable law in any court of competent jurisdiction,
except that the Company shall be entitled to interpose as a defense in any
such judicial enforcement proceeding any prior final judicial determination
adverse to the indemnified representative under Section 5.1 in a proceeding
not directly involving indemnification under this Article. This arbitration
provision shall be specifically enforceable.
Section 5.6. Contribution. If the indemnification provided for in
this Article or otherwise is unavailable for any reason in respect of any
liability or portion thereof, the Company shall contribute to the
liabilities to which the indemnified representative may be subject in such
proportion as is appropriate to reflect the intent of this Article or
otherwise.
Section 5.7. Mandatory Indemnification of Members and Managers.
To the extent that an indemnified representative of the Company has been
successful on the merits or otherwise in defense of any proceeding or in
defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees and disbursements)
actually and reasonably incurred by such person in connection therewith.
<PAGE>
Section 5.8. Contract Rights; Amendment or Repeal. All rights
under this Article shall be deemed a contract between the Company and the
indemnified representative pursuant to which the Company and each
indemnified representative intend to be legally bound. Any repeal,
amendment or modification hereof shall be prospective only and shall not
affect any rights or obligations then existing.
Section 5.9. Scope of Article. The rights granted by this Article
shall not be deemed exclusive of any other rights to which those seeking
indemnification, contribution or advancement of expenses may be entitled
under any statute, agreement, vote of disinterested Members or
disinterested Representatives, Alternates, Managers, or otherwise, both as
to action in an indemnified capacity and as to action in any other
capacity. The indemnification, contribution and advancement of expenses
provided by or granted pursuant to this Article shall continue as to a
person who has ceased to be an indemnified representative in respect of
matters arising prior to such time, and shall inure to the benefit of the
heirs, executors, administrators, personal representatives, successors and
permitted assigns of such a person.
Section 5.10. Reliance on Provisions. Each person who shall act
as an indemnified representative of the Company shall be deemed to be doing
so in reliance upon the rights of indemnification, contribution and
advancement of expenses provided by this Article.
ARTICLE VI
CAPITAL ACCOUNTS
Section 6.1. Definitions. For the purposes of this Operating
Agreement, unless the context otherwise requires:
(a) "Adjusted Capital Account" shall mean, for any Member,
its Capital Account balance maintained and adjusted as required by Treasury
Regulation Section 1.704- 1(b)(2)(iv).
(b) "Capital Account" shall mean, with respect to a Member,
such Member's capital account established and maintained in accordance with
the provisions of Section 6.5.
(c) "Capital Contribution" means any contribution to the
capital of the Company in cash, property or expertise by a Member whenever
made. A loan by a Member of the Company shall not be considered a Capital
Contribution.
(d) "IRC" shall mean the Internal Revenue Code of 1986, as
amended.
(e) "Membership Interest" means a Member's interest in the
Company.
<PAGE>
(f) "Percentage Interest" means, with respect to any Member,
the Percentage Interest set forth opposite such Member's name on Schedule A
attached hereto, as amended from time to time to reflect transfers of
Membership Interests in accordance with this Operating Agreement.
(g) "Profits" and "Losses" mean, for each fiscal year, an
amount equal to the Company's taxable income or loss for such fiscal year,
determined in accordance with IRC ss.703(a). For the purpose of this
definition, all items of income, gain, loss or deduction required to be
stated separately pursuant to IRC ss.703(a)(1) shall be included in taxable
income or loss with the following adjustments:
(1) Any income of the Company that is exempt from
federal income tax and not otherwise taken into account in
computing Profits or Losses pursuant to this Section shall
be added to such taxable income or loss;
(2) Any expenditures of the Company described in IRC
ss.705(a)(2)(B) or treated as IRC ss.705(a)(2)(B)
expenditures pursuant to Treasury Regulation ss.1.704-
1(b)(2)(iv)(i), and not otherwise taken into account in
computing Profits or Losses pursuant to this Section shall
be subtracted from such taxable income or loss.
(h) "Treasury Regulations" include proposed, temporary and
final regulations promulgated under the IRC in effect as of the date of
this Operating Agreement and the corresponding sections of any regulations
subsequently issued that amend or supersede such regulations.
Section 6.2. Determination of Tax Book Value of Company
Assets.
(a) Except as set forth below, the "Tax Book Value" of any
Company asset is its adjusted basis for federal income tax purposes.
(b) The initial Tax Book Value of any assets contributed by
a Member to the Company shall be the agreed fair market value of such
assets, increased by the amount of liabilities of the contributing Member
assumed by the Company in connection with the contribution of such assets
plus the amount of any other liabilities to which such assets are subject.
(c) The Tax Book Values of all Company assets may be
adjusted by the Managers to equal their respective gross fair market values
as of the following times: (i) the admission of an additional Member to the
Company or the acquisition by an existing Member of an additional
Membership Interest; (ii) the distribution by the Company of money or
property to a withdrawing, retiring or continuing Member in consideration
for the retirement of all or a
<PAGE>
portion of such Member's Membership Interest; and (iii) the termination of
the Company for Federal income tax purposes pursuant to Section
708(b)(1)(B) of the IRC.
Section 6.3. Capital Contributions.
(a) The initial capital contributions to be made by the
Members shall be contributed in cash, property, services rendered, as a
credit for expenses incurred by such Member for the benefit of the Company
or a promissory note or other obligation to contribute cash or property or
perform services. The initial capital contribution of each Member is set
forth on the books and records of the Company.
(b) No Member shall be obligated to make any capital
contributions to the Company in excess of its initial capital contribution.
(c) No Member shall be permitted to make any capital
contributions to the Company unless mutually agreed by BAM and CCIC Member.
Section 6.4. Liability for Contribution.
(a) A Member of the Company is obligated to the Company to
perform any promise to contribute cash or property or to perform services,
even if the Member is unable to perform because of death, disability or any
other reason. If a Member does not make the required contribution of
property or services, the Member is obligated at the option of the Company
to contribute cash equal to that portion of the agreed value (as stated in
the records of the Company) of the contribution that has not been made. The
foregoing option shall be in addition to, and not in lieu of, any other
rights, including the right to specific performance, that the Company may
have against such Member under applicable law.
(b) The obligation of a Member of the Company to make a
contribution or return money or other property paid or distributed in
violation of the Act may be compromised only by consent of all the Members.
Notwithstanding the compromise, a creditor of the Company who extends
credit, after entering into this Operating Agreement or an amendment hereof
which, in either case, reflects the obligation, and before the amendment
hereof to reflect the compromise, may enforce the original obligation to
the extent that, in extending credit, the creditor reasonably relied on the
obligation of a Member to make a contribution or return. A conditional
obligation of a Member to make a contribution or return money or other
property to the Company may not be enforced unless the conditions of the
obligation have been satisfied or waived as to or by such Member.
Conditional obligations include contributions payable upon a discretionary
call of the Company prior to the time the call occurs.
Section 6.5. Capital Accounts. A separate Capital Account
will be maintained for each Member. The initial Capital Accounts shall
consist solely of the initial capital contributed by the Members pursuant
to Section 6.3. Notwithstanding any other provision hereof, the
<PAGE>
Company shall determine and adjust the Capital Accounts in accordance with
the rules of Treasury Regulation Section 1.704-1(b)(2)(iv). Except as
otherwise required in the Act, no Member shall have any liability to
restore all or any portion of a deficit balance in the Member's Capital
Account.
Section 6.6. No Interest on or Return of Capital. No Member shall
be entitled to interest on any Capital Contribution or Capital Account. No
Member shall have the right to demand or receive the return of all or any
part of any Capital Contribution or Capital Account except as may be
expressly provided herein, and no Member shall be personally liable for the
return of the Capital Contributions of any other Member.
Section 6.7. Percentage Interest. The Percentage Interests of the
Members are as set forth on Schedule A. The Percentage Interests shall be
updated by the Managers to reflect any transfers of Membership Interests,
set forth on a revised Schedule A and filed with the records of the
Company. The sum of the Percentage Interests for all Members shall equal
100 percent.
Section 6.8. Allocations of Profits and Losses Generally. After
the allocations in Section 6.9, at the end of each year (or shorter period
if necessary or longer period if agreed by all of the Partners), Profits
and Losses shall be allocated as follows:
(a) Profits. Profits shall be allocated to the Members in
proportion to their respective Percentage Interests.
(b) Losses. Losses shall be allocated to the Members in
proportion to their respective Percentage Interests.
Section 6.9. Allocations Under Regulations.
(a) Company Nonrecourse Deductions. Loss attributable (under
Treasury Regulation Section 1.704-2(c)) to "partnership nonrecourse
liabilities" (within the meaning of Treasury Regulation Section
1.704-2(b)(1)) shall be allocated among the Members in the same proportion
as their respective Percentage Interests.
(b) Member Nonrecourse Deductions. Loss attributable (under
Treasury Regulation Section 1.704-2(i)(2)) to "partner nonrecourse debt"
(within the meaning of Treasury Regulation Section 1.704-2(b)(4)) shall be
allocated, in accordance with Treasury Regulation Section 1.704- 2(i)(1),
to the Member who bears the economic risk of loss with respect to the debt
to which the Loss is attributable. The Members acknowledge that the
Anticipated Financing shall be treated as "partner nonrecourse debt."
<PAGE>
(c) Minimum Gain Chargeback. Each Member will be allocated
Profits at such times and in such amounts as necessary to satisfy the
minimum gain chargeback requirements of Treasury Regulation Sections
1.704-2(f) and 1.704-2(i)(4).
(d) Qualified Income Offset. Losses and items of income and
gain shall be specially allocated when and to the extent required to
satisfy the "qualified income offset" requirement within the meaning of
Treasury Regulation Section 1.704-1(b)(2)(ii)(d).
Section 6.10. Other Allocations.
(a) Allocations when Tax Book Value Differs from Tax Basis.
When the Tax Book Value of a Company asset is different from its adjusted
tax basis for income tax purposes, then, solely for federal, state and
local income tax purposes and not for purposes of computing Capital
Accounts, income, gain, loss, deduction and credit with respect to such
assets ("Section 704(c) Assets") shall be allocated among the Members to
take this difference into account in accordance with the principles of IRC
Section 704(c), as set forth herein and in the Treasury Regulations
thereunder and under IRC Section 704(b). Except to the extent otherwise
required by final Treasury Regulations, the calculation and allocations
eliminating the differences between Tax Book Value and adjusted tax basis
of the Section 704(c) Assets shall be made on an asset-by-asset basis
without curative or remedial allocations to overcome the "ceiling rule" of
Treasury Regulation Section l.704-1(c)(2) and Treasury Regulation Section
1.704-3(b)(1).
(b) Change in Member's Interest.
(1) If during any fiscal year of the Company there is a
change in any Member's Membership Interest, then for
purposes of complying with IRC Section 706(d), the
determination of Company items allocable to any period shall
be made by using any method permissible under IRC Section
706(d) and the Regulations thereunder as may be determined
by the Managers.
(2) The Members agree to be bound by the provisions of
this Section 6.10(b) in reporting their shares of Company
income, gain, loss, and deduction for tax purposes.
(c) Allocations on Liquidation. Notwithstanding any other
provision of this Article VI to the contrary, in the taxable year in which
there is a liquidation of the Company, after the allocations in Sections
6.8 and 6.9 hereof, the Capital Accounts of the Members will, to the extent
possible, be brought to the amount of the liquidating distributions to be
made to them under Section 9.5 hereof by allocations of items of profit and
loss and, if necessary, by guaranteed payments (within the meaning of Code
Section 707(c)) credited to the Capital Account of a Member whose Capital
Account is less than the amount to be distributed to it and
<PAGE>
debited from the Capital Account of the Member whose Capital Account is
greater than the amount to be distributed to it.
Section 6.11. Limitations Upon Liability of Members. Except as
otherwise expressly and specifically provided in or required by the
Certificate or this Operating Agreement, the personal liability of each
Member to the Company, to the other Members, to the creditors of the
Company or any third party for the losses, debts or liabilities of the
Company shall be limited to the amount of its Capital Contribution which
has not theretofore been returned to it as a distribution (including a
distribution upon liquidation). For purposes of the foregoing sentence,
distributions to a Member shall first be deemed a return of its Capital
Contribution. No Member shall at any time be liable or held accountable to
the Company, to the other Members, to the creditors of the Company or to
any other third party for or on account of any negative balance in its
Capital Account.
ARTICLE VII
DISTRIBUTIONS
Section 7.1 Net Cash From Operations and Distributions.
(a) Except as otherwise provided in this Operating Agreement
including, without limitation, in Section 3.8 hereof, and subject to any
restrictions contained in any credit or other agreements to which the
Company is a party, Net Cash From Operations, if any, shall be determined
annually by the Managers and distributed for each fiscal year to the
Members in accordance with their Percentage Interests.
(b) For purposes of this Operating Agreement, "Net Cash From
Operations" means the gross cash proceeds from Company operations less the
portion thereof used to, or expected to be used to, pay expenses, debt
payments, capital improvements, replacements and increases to reserves
therefor. "Net Cash From Operations" shall not be reduced by depreciation,
amortization, cost recovery deductions or similar allowances, but shall be
increased by any reductions to reserves previously established.
Section 7.2. Limitations on Distributions.
(a) The Company shall not make a distribution to a Member to
the extent that at the time of the distribution, after giving effect to the
distribution, all liabilities of the Company, other than liabilities to
Members on account of their interests in the Company and liabilities for
which the recourse of creditors is limited to specified property of the
Company, exceed the fair value of the assets of the Company, except that
the fair value of property that is subject to a liability for which the
recourse of creditors is limited shall be included in the assets of the
Company only to the extent that the fair value of that property exceeds
that liability.
<PAGE>
(b) A Member who receives a distribution in violation of
subsection (a), and who knew at the time of the distribution that the
distribution violated this section, shall be liable to the Company for the
amount of the distribution. A Member who receives a distribution in
violation of this section, and who did not know at the time of the
distribution that the distribution violated this section, shall not be
liable for the amount of the distribution. Subject to subsection (c), this
subsection shall not affect any obligation or liability of a Member under
other applicable law for the amount of a distribution.
(c) A Member who receives a distribution from the Company
shall have no liability under this Section, the Act or other applicable law
for the amount of the distribution after the expiration of three (3) years
from the date of the distribution unless an action to recover the
distribution from such Member is commenced prior to the expiration of the
said three(3)-year period and an adjudication of liability against such
Member is made in the action.
Section 7.3. Amounts of Tax Paid or Withheld. All amounts paid or
withheld pursuant to the IRC or any provision of any state or local tax law
with respect to any Member shall be treated as amounts distributed to the
Member pursuant to this Article for all purposes under this Operating
Agreement.
Section 7.4. Distribution in Kind. The Company shall not
distribute any assets in kind, except pursuant to a dissolution in
accordance with Article IX.
ARTICLE VIII
TRANSFERABILITY
Section 8.1. Effect of Transfer.
(a) In addition to satisfaction of Section 4.1 above, no
assignee or transferee of all or part of a Membership Interest in the
Company shall have the right to become admitted as a Member, unless and
until:
(1) the assignee or transferee has executed an
instrument reasonably satisfactory to the Managers accepting
and adopting the provisions of this Operating Agreement;
(2) the assignee or transferee has paid all reasonable
expenses of the Company requested to be paid by the Managers
in connection with the admission of such assignee or
transferee as a Member; and
(3) such assignment or transfer shall be reflected in
a revised Schedule A to this Operating Agreement.
<PAGE>
(b) A person who is a permitted assignee of an interest in
the Company transferred in compliance with the provisions of this Article
VIII shall be admitted to the Company as a Member and shall receive an
interest in the Company without making a contribution or being obligated to
make a contribution to the Company.
Section 8.2. No Resignation of Members. A Member may not withdraw
or resign from the Company prior to dissolution or winding up of the
Company. If a Member is a corporation, trust or other entity and is
dissolved or terminated, the powers of that Member may be exercised by its
legal representative or successor.
ARTICLE IX
DISSOLUTION AND TERMINATION
Section 9.1. Dissolution. The Company shall be dissolved upon the
occurrence of any of the following events:
(a) By the written consent of both BAM and CCIC Member; or
(b) Upon the entry of a decree of judicial dissolution under
ss. 18-802 of the Act.
Section 9.2. Events of Bankruptcy of Member. The occurrence of
any of the events set forth in this Section 9.2, with respect to any
Member, shall not result in the dissolution of the Company. Such Member
shall cease to be a Member of the Company, but shall, however, retain its
interest in allocations and distributions, upon the happening of any of the
following bankruptcy events:
(a) A Member takes any of the following actions:
(1) Makes an assignment for the benefit of
creditors.
(2) Files a voluntary petition in bankruptcy.
(3) Is adjudged a bankrupt or insolvent, or has
entered against the Member an order for relief, in any
bankruptcy or insolvency proceeding.
(4) Files a petition or answer seeking for the
Member any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar
relief under any statute, law or regulation.
<PAGE>
(5) Files an answer or other pleading admitting or
failing to contest the material allegations of a
petition filed against the Member in any proceeding of
this nature.
(6) Seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator of the
Member or of all or any substantial part of the
properties of the Member.
(b) one hundred twenty (120) days after the commencement of
any proceeding against the Member seeking reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
any statute, law or regulation, if the proceeding has not been dismissed,
or if within ninety (90) days after the appointment without the consent or
acquiescence of the Member, of a trustee, receiver or liquidator of the
Member or of all or any substantial part of the properties of the Member,
the appointment is not vacated or stayed, or within ninety (90) days after
the expiration of any such stay, the appointment is not vacated.
Section 9.3. Judicial Dissolution. On application by or for a
Member or a Manager, a court may decree dissolution of the Company whenever
it is not reasonably practicable to carry on the business in conformity
with this Operating Agreement.
Section 9.4. Winding Up.
(a) The Managers shall wind up the affairs of the Company or
may appoint any person or entity, including a Member, who has not
wrongfully dissolved the Company, to do so (the "Liquidating Trustee").
(b) Upon dissolution of the Company and until the filing of
a certificate of cancellation as provided in Section 9.6, the persons
winding up the affairs of the Company may, in the name of, and for and on
behalf of, the Company, prosecute and defend suits, whether civil, criminal
or administrative, gradually settle and close the business of the Company,
dispose of and convey the property of the Company, discharge or make
reasonable provision for the liabilities of the Company, and distribute to
the Members any remaining assets of the Company, all without affecting the
liability of Members and Managers and without imposing liability on a
Liquidating Trustee.
Section 9.5. Distribution of Assets.
(a) In the event of a dissolution of the Company, upon the
winding up of the Company, its assets shall be distributed as follows:
<PAGE>
(1) First, to creditors, including Members and
Managers who are creditors, to the extent otherwise
permitted by law, in satisfaction of liabilities of the
Company (whether by payment or the making of reasonable
provision for payment thereof) other than liabilities
for which reasonable provision for payment has been
made; and
(2) Then, to the Members in proportion to their
Percentage Interests.
Notwithstanding the foregoing, the foregoing distribution procedures shall
be subject to, and carried out in a manner consistent with, the provisions
of the Transaction Documents.
(b) The Company following dissolution shall pay or make
reasonable provision to pay all claims and obligations, including all
contingent, conditional or unmatured claims and obligations, known to the
Company and all claims and obligations which are known to the Company but
for which the identity of the claimant is unknown. If there are sufficient
assets, such claims and obligations shall be paid in full and any such
provision for payment made shall be made in full. If there are insufficient
assets, such claims and obligations shall be paid or provided for according
to their priority and, among claims and obligations of equal priority,
ratably to the extent of assets available therefor. Any remaining assets
shall be distributed as provided in Subsection (a). Any Liquidating Trustee
winding up the affairs of the Company who has complied with this Section
shall not be personally liable to the claimants of the dissolved Company by
reason of such person's actions in winding up the Company.
Section 9.6. Cancellation of Certificate. The Certificate of the
Company shall be canceled upon the dissolution and the completion of
winding up of the Company.
ARTICLE X
BOOKS; REPORTS TO MEMBERS; TAX ELECTIONS
Section 10.1. Books and Records.
(a) The Managers shall maintain separate books of account
for the Company which shall show a true and accurate record of all costs
and expenses incurred, all charges made, all credits made and received and
all income derived in connection with the conduct of the Company and the
operation of its business, and, to the extent inconsistent therewith, in
accordance with this Operating Agreement.
(b) Except as and until otherwise required by the IRC, the
books of the Company shall be kept in accordance with the accrual method of
accounting.
<PAGE>
(c) Each Member of the Company has the right to obtain from
the Company from time to time upon demand for any purpose reasonably
related to the Member's interest as a Member of the Company:
(1) True and full information regarding the status of
the business and financial condition of the Company.
(2) Promptly after they become available, a copy of the
federal, state and local income tax returns for each year of
the Company.
(3) A current list of the name and last known business,
residence or mailing address of each Member and Manager.
(4) A copy of this Operating Agreement, the Certificate
and all amendments thereto.
(5) Any information or report deemed necessary by
either BAM or CCIC Member in order to prepare Securities and
Exchange Commission filing documents, financial statements
or tax returns.
(6) Other information regarding the affairs of the
Company as is just and reasonable.
(d) Each Manager shall have the right to examine all of the
information described in subsection (c) of this Section for a purpose
reasonably related to its position as a Manager.
Section 10.2. Tax Information. Within ninety (90) days after the
end of each fiscal year, the Company shall supply to each Member all
information necessary and appropriate to be included in each Member's
income tax returns for that year.
Section 10.3. Business Plans. On or before November 30 of each
year, the Managers of the Company shall, in consultation with BAM, develop
a business plan and budget for the Company (including HoldCo and OpCo) (the
"Business Plan") for the following calendar year of the Company (and HoldCo
and OpCo). The Business Plan for the period between the Effective Date and
December 31, 1999 is attached hereto as Schedule D. Each subsequent
Business Plan shall be submitted to BAM and CCIC Member, in their
respective capacities as members of HoldCo, for review and, subject to the
second following sentence, comment, and shall be adopted only with the
mutual consent of BAM and CCIC Member, in such capacities. The Company
shall use commercially reasonable efforts to, and cause OpCo to, conduct
their respective businesses in accordance with the then current Business
Plan.
<PAGE>
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 CCIC 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 fifty percent (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 one (1) plus an
amount equal to the percentage increase in the CPI during the
previous year.
If BAM and CCIC Member are unable to mutually agree on the Business Plan
for the year commencing January 1, 2000, 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, 1999, increased as
contemplated by the foregoing sentence, multiplied by three hundred and
sixty-five (365) (b) divided by the number of days elapsed between the
Effective Date and December 31, 1999 (including both the Effective Date and
December 31, 1999).
Notwithstanding the foregoing, each Business Plan that is implemented
pursuant to the foregoing two paragraphs of this Section 10.3 because BAM
and CCIC 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; (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 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's liens; (viii) salaries, commissions, compensation, benefits,
and payments or obligations of a similar
<PAGE>
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. Further, any such Business Plan may have
the effect of reducing amounts payable under the Management Agreement so
long as the Anticipated Financing remains outstanding.
Section 10.4. Reports. The Company shall cause to be prepared,
and each Member (and each of BAM and CCIC Member, in their respective
capacities as members of HoldCo) shall be furnished with, financial
statements accompanied by a report thereon of the Company's accountants
stating that such statements are prepared and fairly stated in all material
respects in accordance with generally accepted accounting principles, and,
to the extent inconsistent therewith, in accordance with this Operating
Agreement, including the following:
(a) within thirty (30) days of the end of each month, the
Company shall deliver to BAM and CCIC Member an unaudited income statement
and schedule as to the sources and application of funds for such month and
an unaudited balance sheet of the Company as of the end of such month, in
reasonable detail and prepared in accordance with generally accepted
accounting principles consistently applied ("GAAP") (except as permitted by
Form 10-Q under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), together with an analysis by management of the Company'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 the Company, a consolidated
income statement for such fiscal year, a consolidated balance sheet of the
Company as of the end of such year, a schedule as to the cash flow and a
statement of the Members' Capital Accounts, changes thereto for such fiscal
year and Percentage Interests at the end of such year, such year-end
financial reports to be in reasonable detail, prepared in accordance with
GAAP and audited and certified by the Company'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 the Company, 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 the Company 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 limited liability company affairs of the
Company as any Member (or CCIC Member, in their respective capacities as
members of HoldCo) may from time to time reasonably request.
<PAGE>
Section 10.5. Tax Matters Partner.
(a) BAM is hereby appointed and shall serve as the tax
matters partner of the Company (the "Tax Matters Partner") within the
meaning of IRC ss. 6231(a)(7) for so long as it is not the subject of a
bankruptcy event as defined in Section 9.2 and otherwise is entitled to act
as the Tax Matters Partner. The Tax Matters Partner may file a designation
of itself as such with the Internal Revenue Service. The Tax Matters
Partner shall (i) furnish to each Member affected by an audit of the
Company income tax returns a copy of each notice or other communication
received from the IRS or applicable state authority, (ii) keep such Member
informed of any administrative or judicial proceeding, as required by
Section 6223(g) of the Code, and (iii) allow such Member an opportunity to
participate in all such administrative and judicial proceedings. The Tax
Matters Partner shall take such action as may be reasonably necessary to
constitute the other Member a "notice partner" within the meaning of
Section 6231(a)(8) of the Code, provided that the other Member provides the
Tax Matters Partner with the information that is necessary to take such
action.
(b) The Company shall not be obligated to pay any fees or
other compensation to the Tax Matters Partner in its capacity as such.
However, the Company shall reimburse the expenses (including reasonable
attorneys' and other professional fees) incurred by the Tax Matters Partner
in such capacity. Each Member who elects to participate in Company
administrative tax proceedings shall be responsible for its own expenses
incurred in connection with such participation. In addition, the cost of
any adjustments to a Member and the cost of any resulting audits or
adjustments of a Member's tax return shall be borne solely by the affected
Member.
(c) The Company shall indemnify and hold harmless the Tax
Matters Partner from and against any loss, liability, damage, cost or
expense (including reasonable attorneys' fees) sustained or incurred as a
result of any act or decision concerning Company tax matters and within the
scope of such Member's responsibilities as Tax Matters Partner, so long as
such act or decision was not the result of gross negligence, fraud, bad
faith or willful misconduct by the Tax Matters Partner. The Tax Matters
Partner shall be entitled to rely on the advice of legal counsel as to the
nature and scope of its responsibilities and authority as Tax Matters
Partner, and any act or omission of the Tax Matters Partner pursuant to
such advice shall in no event subject the Tax Matters Partner to liability
to the Company or any Member.
Section 10.6. Tax Audits/Special Assessments. If the federal
tax return of either the Company or an individual Member with respect to an
item or items of Company income, loss, deduction, etc., potentially
affecting the tax liability of the Members generally is subject to an audit
by the Internal Revenue Service, the Managers may, in the exercise of their
business judgment, determine that it is necessary to contest proposed
adjustments to such return or items. If such a determination is made, the
Managers will finance the contest of the proposed adjustments out of the
Net Cash From Operations.
<PAGE>
Section 10.7. Tax Elections. The Company will elect to
amortize organizational costs. Upon the death of a Member, or in the event
of the distribution of property, the Company may file an election, in
accordance with applicable Treasury Regulations, to cause the basis of the
Company's property to be adjusted for federal income tax purposes as
provided by IRC ss.734, IRC ss.743 and IRC ss.754. The determination
whether to make and file any such election shall be made by the Managers in
their sole discretion.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Binding Effect. This Operating Agreement shall be
binding upon any person who executes this Operating Agreement or any
permitted transferee or permitted assignee of an interest in the Company.
Section 11.2. Entire Agreement. This Operating Agreement, the
Certificate, the Formation Agreement and the other Transaction Documents
contain the entire agreement of the parties hereto with respect to the
subject matter hereof and supersede all prior understandings and agreements
of the parties with respect thereto.
Section 11.3 Amendments. The Certificate and this Operating
Agreement may not be amended except by the written agreement of all of the
Members.
Section 11.4. Choice of Law. Notwithstanding the place where this
Operating Agreement may be executed by any of the parties hereto, the
parties expressly agree that all the terms and provisions hereof shall be
construed under the laws of Delaware (without regard to any conflicts of
law principles).
Section 11.5. Notices. Except as otherwise provided in this
Operating Agreement, any notice, demand or communication required or
permitted to be given by any provision of this Operating Agreement shall be
deemed to have been sufficiently given or served for all purposes if
delivered personally or sent by facsimile transmission or overnight express
to the party or to an executive officer of the party to whom the same is
directed or, if sent by registered or certified mail, postage and charges
prepaid, addressed to the Member's or Company's address, as appropriate,
which is set forth in this Operating Agreement or Schedule A hereto.
Section 11.6. Headings. The titles of the Articles and the
headings of the Sections of this Operating Agreement are for convenience of
reference only and are not to be considered in construing the terms and
provisions of this Operating Agreement.
<PAGE>
Section 11.7. Pronouns. All pronouns shall be deemed to refer to
the masculine, feminine, neuter, singular or plural, as the identity of the
person or persons, firm or corporation may require in the context thereof.
Section 11.8. Waivers. The failure of any party to seek redress
for violation of or to insist upon the strict performance of any covenant
or condition of this Operating Agreement shall not prevent a subsequent
act, that would have originally constituted a violation, from having the
effect of an original violation.
Section 11.9. Severability. If any provision of this Operating
Agreement or its application to any person or circumstance shall be
invalid, illegal or unenforceable to any extent, the remainder of this
Operating Agreement and its application shall not be affected and shall be
enforceable to the fullest extent permitted by law.
Section 11.10. No Third Party Beneficiaries. None of the
provisions of this Operating Agreement shall be for the benefit of or
enforceable by any person other than the parties to this Agreement and
their respective permitted successors and permitted transferees and
assigns.
Section 11.11. Interpretation. It is the intention of the Members
that, during the term of this Operating Agreement, the rights of the
Members and their successors-in-interest shall be governed by the terms of
this Agreement, and that the right of any Member or successor-in-interest
to assign, transfer, sell or otherwise dispose of any interest in the
Company shall be subject to limitations and restrictions of this Operating
Agreement.
Section 11.12. Further Assurances. Each Member shall execute all
such certificates and other documents and shall do all such other acts as
the Managers deem appropriate to comply with the requirements of law for
the formation of the Company and to comply with any laws, rules,
regulations and third-party requests relating to the acquisition, operation
or holding of the property of the Company.
Section 11.13. Counterparts. This Operating Agreement may be
executed in counterparts, each of which shall be deemed an original, but
all of which taken together shall constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the undersigned Members, intending to be
legally bound, have executed this Operating Agreement as of the date first
above written.
CROWN ATLANTIC HOLDING COMPANY LLC
By: /s/ Kathy G. Broussard
-------------------------------
Name: Kathy G. Broussard
Title: Secretary
Exhibit 99.3
CROWN ATLANTIC HOLDING COMPANY LLC
OPERATING AGREEMENT
THIS OPERATING AGREEMENT (this "Operating Agreement") is made and
entered into as of March 31, 1999 (the "Effective Date") by and between
Cellco Partnership, a Delaware general partnership doing business as Bell
Atlantic Mobile ("BAM"), and CCA Investment Corp., a Delaware corporation
("CCIC Member") and a wholly-owned indirect subsidiary of Crown Castle
International Corp., a Delaware corporation ("CCIC"). BAM and CCIC Member
(and such other persons who shall be admitted in the future in accordance
with the terms hereof and shall have agreed to be bound hereby), being
hereinafter sometimes referred to individually as a "Member" and
collectively as the "Members."
WHEREAS, BAM, CCIC, CCIC Member and certain transferring
partnerships (the "Transferring Partnerships") have entered into a
Formation Agreement dated as of December 8, 1998, as amended by Amendment
Number One to such Formation Agreement dated as of March 31, 1999 and as
further amended by the Schedule updates contemplated by Sections 6.1.2 and
6.2.1 of such Formation Agreement (as so amended, the "Formation
Agreement"), pursuant to which, among other things, BAM and the
Transferring Partnerships will (i) contribute the BAM Contributed Assets
and the BAM Assumed Liabilities (both as defined in the Formation
Agreement) to Crown Atlantic Company LLC, a Delaware limited liability
company ("OpCo"), in exchange for membership interests in OpCo; (ii)
thereafter, contribute their membership interests in OpCo (other than the
BAM Retained Interest (as hereinafter defined)) to Crown Atlantic Holding
Sub LLC, a Delaware limited liability company ("HoldCo Sub") in exchange
for membership interests in HoldCo Sub; and (iii) thereafter, contribute
their membership interests in HoldCo Sub to Crown Atlantic Holding Company
LLC, a Delaware limited liability company ("HoldCo" or the "Company"), and,
in addition, CCIC Member will contribute the CCIC Contributed Shares (as
defined below) to the Company, in exchange for membership interests in the
Company;
WHEREAS, in exchange for certain consideration, each Transferring
Partnership will transfer its respective interest in the Company to BAM
immediately following the formation of the Company;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
GENERAL PROVISIONS
Section 1.1 Certain Definitions. As used in this Agreement, the
following terms have the respective meanings assigned to them below:
<PAGE>
"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.
"Allocated Share" shall mean, except as otherwise provided in
Section 9.5(b), (i) fourteen percent (14.0%) of the Fair Market Value (as
defined in Section 9.5(b)), if the BAM HoldCo Interest as set forth on
Exhibit A is 37.7%, or (ii) if the BAM HoldCo Interest as set forth on
Exhibit A is other than 37.7%, the fraction, expressed as a percentage, the
numerator of which is the difference between (V) $650,000,000, increased by
any Additional Consideration (as defined in Section 3.8 of the Formation
Agreement) or decreased by any Amount of Decrease in Consideration (as
defined in Section 3.8 of the Formation Agreement) (the "Adjusted Total
Consideration") and the sum of (W) the BAM Capital Distribution (as defined
in Section 3.4 of the Formation Agreement and (X) the Adjusted Aggregate
Share Value (as defined in Section 3.8 of the Formation Agreement), and the
denominator of which is the difference between the sum of (Y) the Adjusted
Total Consideration and the Bidder Contributed Cash (as defined in the
Formation Agreement) minus (Z) the BAM Capital Distribution (as defined in
Section 3.4 of the Formation Agreement).
"Anticipated Financing" shall mean the proposed financing by
HoldCo Sub contemplated by Section 3.6 of the Formation Agreement of an
amount equal to not less than One Hundred Eighty Million Dollars
($180,000,000.00) (the "Closing Financing Amount"), except as adjusted
pursuant to its terms and conditions.
"BAM" is defined in the Preamble.
"BAM HoldCo Interest" is defined in Section 8.2.
"BAM HoldCo Interest Purchaser" is defined in Section 8.5.
"BAM Offer" is defined in Section 8.4.
"BAM Retained Interest" shall mean the .001 Percentage Interest
in OpCo held by BAM.
"Bidder Services Agreement" shall mean the Services Agreement
among CCIC, OpCo and HoldCo Sub, in form and substance reasonably
acceptable to BAM and CCIC and consistent with the terms set forth in the
letter agreement between BAM and CCIC set forth as Exhibit 2.7 to the
Formation Agreement, pursuant to which CCIC 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.
<PAGE>
"Build-to-Suit Agreement" shall mean the Build-to- Suit Agreement
among OpCo, HoldCo Sub and BAM (for itself and on behalf of the
Transferring Partnerships) pursuant to which BAM and the Transferring
Partnerships shall offer to OpCo and HoldCo Sub from time to time the right
to build tower structures on the terms and conditions described therein.
"Business Plan" is defined in Section 10.3.
"CCIC" is defined in the Preamble.
"CCIC Common Stock" shall mean the common stock, $.01 par value
of CCIC.
"CCIC Contributed Shares" shall mean those shares of CCIC Common
Stock contributed to the Company by CCIC Member pursuant to Section 3.5 of
the Formation Agreement.
"CCIC HoldCo Interest" is defined in Section 8.1.
"CCIC HoldCo Interest Purchaser" is defined in Section 8.5.
"CCIC Member" is defined in the Preamble.
"CCIC Offer" is defined in Section 8.3.
"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, BAM shall in good faith select a comparable index to replace the CPI
and the index selected by BAM shall be subject to CCIC Member's approval,
which approval shall not be unreasonably withheld or delayed.
"Effective Date" is defined in the Preamble.
"Exchange Act" is defined in Section 10.4(a).
"Fair Market Value" is defined in Section 9.5(b).
"Formation Agreement" is defined in the Preamble. All terms not
defined herein shall have the meaning given to them in the Formation
Agreement.
"GAAP" is defined in Section 3.8(e).
<PAGE>
"Global Lease" shall mean the Global Lease Agreement among OpCo
and BAM (for itself and on behalf of the Transferring Partnerships)
pursuant to which OpCo shall lease to BAM and the Transferring Partnerships
space on certain communications towers.
"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 Federal Communications Commission, or any
successor Governmental Authority and the Federal Aviation Administration,
or any successor Governmental Authority.
"HoldCo" is defined in the Preamble.
"HoldCo Sub" is defined in the Preamble.
"HoldCo Sub Operating Agreement" shall mean the Operating
Agreement of HoldCo Sub entered into as of March 31, 1999 by HoldCo.
"Lender" shall mean Key Corporate Capital Inc.
"Management Agreement" shall mean the Management Agreement
between HoldCo Sub and OpCo, in form and substance reasonably acceptable to
BAM and CCIC and consistent with the terms set forth in the letter
agreement between BAM and CCIC as set forth on Exhibit 2.7 to the Formation
Agreement, pursuant to which HoldCo Sub shall manage and lease OpCo's
assets.
"Managers" is defined in Section 1.2.
"Members" is defined in the Preamble.
"OpCo" is defined in the Preamble.
"OpCo Towers" is defined in Section 10.3.
"Person" means any natural person or entity.
"Solvent" is defined in Section 3.8(c).
"Taxes" means all taxes, duties, charges, fees, levies or other
assessments imposed by any taxing authority, whether domestic or foreign,
including, without limitation, income (net, gross or other including
recapture of any tax items such as investment tax credits), alternative or
add-on minimum tax, capital gains, gross receipts, value-added, excise,
withholding, personal property, real estate, sale, use, ad valorem,
license, lease, service, severance, stamp, transfer, payroll, employment,
customs, duties, alternative, add-on minimum,
<PAGE>
estimated and franchise taxes (including any interest, levies, charges,
penalties or additions attributable to or imposed on or with respect to any
such assessment).
"Transaction Documents" means, collectively, the Formation
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 Section 4.2 of the Formation Agreement.
"Transferring Partnership" is defined in the Preamble.
Section 1.2 Formation. Upon the filing of the Certificate of
Formation (the "Certificate") with the Secretary of State of the State of
Delaware, the Members and the Transferring Partnerships have formed Crown
Atlantic Holding Company LLC, a limited liability company, pursuant to the
Delaware Limited Liability Company Act of 1992, as amended from time to
time (the "Act"), for the purposes hereinafter set forth. The Transferring
Partnerships, after the filing of the Certificate and prior to the
execution and delivery of this Agreement, transferred all of their
respective interests in the Company to BAM. The Company was formed as a
limited liability company managed by its managers (the "Managers") under
the supervision of the Board of Representatives (as defined in Section
1.10) and the laws of the State of Delaware, upon the terms and conditions
hereinafter set forth. The Members intend that the Company shall be taxed
as a partnership. Promptly following the execution hereof, the Members
shall execute or cause to be executed all other necessary certificates and
documents, and shall make all other such filings and recordings, and shall
do all other acts as may be necessary or appropriate from time to time to
comply with all requirements for the formation, continued existence and
operation of a limited liability company in the State of Delaware. This
Operating Agreement is intended to serve as a "limited liability company
agreement" as such term is defined in ss. 18-101(7) of the Act.
Section 1.3 Company Name and Address. The Company shall do
business under the name Crown Atlantic Holding Company LLC or such other
name as the Board of Representatives may determine from time to time. The
Board of Representatives shall promptly notify the Members of any change of
name of the Company. The initial registered agent for the Company shall be
CT Corporation System. The initial registered office of the Company in the
State of Delaware shall be 1209 Orange Street, Wilmington, Delaware 19801.
The registered office and the registered agent may be changed from time to
time by action of the Board of Representatives by filing notice of such
change with the Secretary of State of the State of Delaware. The Board of
Representatives will promptly notify the Members of any change of the
registered office or registered agent. The Company may also have offices at
such other places within or outside of the State of Delaware as the Board
of Representatives may from time to time determine.
<PAGE>
Section 1.4 Term. The Company shall commence operating as of the
date the Certificate is filed with the Secretary of the State of Delaware,
and shall have perpetual existence unless terminated or dissolved pursuant
to Section 9.1 of this Operating Agreement.
Section 1.5 Business of the Company. The purpose of the Company
is to own (i) one hundred percent (100%) of the percentage interests in
HoldCo Sub and (ii) the CCIC Contributed Shares. The Company shall not
engage in any line of business except for (i) the ownership of the
membership interests in, and operation and management of, HoldCo Sub and
any and all activities ancillary or related thereto and (ii) the ownership
of the CCIC Contributed Shares. The Company shall possess and may exercise
all the powers and privileges granted by the Act or by any other law,
together with any powers incidental thereto, so far as such powers and
privileges are necessary or convenient to the conduct, promotion or
attainment of the business, purposes or activities of the Company.
Section 1.6 Names and Addresses of the Members. The names and
addresses of the Members are set forth in Schedule A.
Section 1.7 Partition. No Member, nor any successor-in-interest
to any Member, shall have the right, while this Operating Agreement remains
in effect, to have the property of the Company partitioned, or to file a
complaint or institute any proceeding at law or in equity to have the
property of the Company partitioned, and each of the Members, on behalf of
itself and its successors, representatives and assigns, hereby irrevocably
waives any such right.
Section 1.8 Fiscal Year. The fiscal year of the Company shall
begin on January 1 and end on December 31 of each calendar year.
Section 1.9 Title to Company Property. All property owned by the
Company, whether real or personal, tangible or intangible, shall be deemed
to be owned by the Company, and no Member individually shall have any
interest in such property. Title to all such property may be held in the
name of the Company or a designee, which designee may be a Member or an
entity affiliated with a Member.
Section 1.10 Board of Representatives.
(a) General. A Board of Representatives (the "Board of
Representatives") shall be established to oversee the Managers and review
the Business Plan (as defined in Section 10.3). There shall be no less than
five (5) Representatives, nor more than fifteen (15) Representatives, as
may be determined from time to time by the Board of Representatives.
Initially, there shall be six (6) Representatives. Each Member shall
designate that number of Representatives determined by multiplying the
total number of Representatives by that Member's Percentage Interest in the
Company and rounding to the nearest whole number. If such calculation shall
result in a greater number of Representatives than the total to be
designated, then the Board of Representatives shall be expanded to the
extent permitted by the
<PAGE>
second sentence of this Section 1.10(a) or if, despite such expansion,
there would still be a greater number of Representatives than the total to
be designated, the Members shall by vote determine a proportionate
readjustment with each Member entitled to a number of votes equal to its
Percentage Interest. Notwithstanding the foregoing, for so long as BAM
maintains ownership of at least a five percent (5%) Percentage Interest in
the Company, BAM shall have the right to designate from time to time a
number of Representatives that is equal to the greater of (i) one (1)
Representative or (ii) the number of Representatives (rounded to the
nearest whole number) which is equal to the same percentage of all
Representatives as the Percentage Interest in the Company held by BAM.
Initially, BAM shall designate two (2) Representatives and CCIC Member
shall designate four (4) Representatives.
(b) Representatives and Alternates. Each Member shall also
be entitled to designate one (1) alternate to each such Representative
(each an "Alternate"). In the event a Representative is unable to attend a
meeting of the Board of Representatives or otherwise participate in any
action to be taken by the Board of Representatives, the Alternate
associated with such Representative shall take such Representative's place
for all purposes on the Board of Representatives. Each Member shall
designate its Representatives and the associated Alternates by written
notice to the Company and each other Member. The initial Representatives
and Alternates of each Member are set forth on Schedule B. The
Representatives and Alternates shall at all times be executive officers or
other full-time employees of either such Member or any affiliate of such
Member. For so long as BAM has the right to designate at least one (1)
Representative of the Company, the Representatives and Alternates of the
Company shall also serve as the Representatives and Alternates of HoldCo
Sub and OpCo.
(c) Resignation. A Representative or Alternate of the
Company may resign at any time by giving written notice to the Company or
to the Member who designated such Representative or Alternate.
(d) Removal. Each Member may, at any time, replace any of
its Representatives or Alternates with a new Representative or Alternate
and, upon such change or upon the death or resignation of any
Representative or Alternate, a successor shall be designated in writing by
the Member that appointed the Representative or Alternate being replaced.
(e) Vacancies. Any vacancy with respect to any
Representative or Alternate occurring for any reason may be filled by the
Member who designated the Representative or Alternate who vacated or was
removed from his or her position.
(f) Compensation. Without the approval of the Members, the
Representatives or Alternates will not be entitled to compensation for
their services as Representatives or Alternates. The Company shall,
however, reimburse the Representatives and Alternates for their reasonable
expenses incurred in connection with their services to the Company.
<PAGE>
Section 1.11 Membership Interests Uncertificated. The interests
of the Members in the Company shall not be certificated.
ARTICLE II
MEETINGS GENERALLY
Section 2.1 Manner of Giving Notice.
(a) A notice of meeting shall specify the place, day and
hour of the meeting and any other information required by any provision of
the Act, the Certificate or this Operating Agreement.
(b) When a meeting at which there is a duly constituted
quorum is adjourned, it shall not be necessary to give any notice of the
adjourned meeting or of the business to be transacted at an adjourned
meeting, other than by announcement at the meeting at which the adjournment
is taken, unless the adjournment is for more than sixty (60) days in which
event notice shall be given in accordance with Section 2.2 or Section 2.3,
as applicable.
Section 2.2 Notice of Meetings of the Board of Representatives.
Notice of every meeting of the Board of Representatives shall be given to
each Representative by telephone or in writing at least 24 hours (in the
case of notice by telephone, telex or facsimile transmission) or 48 hours
(in the case of notice by telegraph, courier service or express mail) or
five (5) days (in the case of notice by first class mail) before the time
at which the meeting is to be held. Every such notice shall state the time
and place of the meeting. Subject to the provisions of Sections 3.3 and
4.5, neither the business to be transacted at, nor the purpose of, any
meeting of the Board of Representatives need be specified in a notice of
the meeting.
Section 2.3 Notice of Meetings of Members. Written notice of
every meeting of the Members shall be given to each Member of record
entitled to vote at the meeting at least five (5) days prior to the day
named for the meeting. If the Managers neglect or refuse to give notice of
a meeting, the person or persons calling the meeting may do so.
Section 2.4 Waiver of Notice.
(a) Whenever any written notice is required to be given
under the provisions of the Act, the Certificate or this Operating
Agreement, a waiver thereof in writing, signed by the person or persons
entitled to the notice, whether before or after the time stated therein,
shall be deemed equivalent to the giving of the notice. Neither the
business to be transacted at, nor the purpose of, a meeting need be
specified in the waiver of notice of the meeting.
<PAGE>
(b) Attendance of a person at any meeting shall constitute a
waiver of notice of the meeting except where a person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting was not lawfully called or
convened.
Section 2.5 Use of Conference Telephone and Similar Equipment.
Any Representative may participate in any meeting of the Board of
Representatives, and any Member may participate in any meeting of the
Members, by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can
hear each other. Participation in a meeting pursuant to this Section shall
constitute presence in person at the meeting.
Section 2.6 Consent in Lieu of Meeting. Any action required or
permitted to be taken at a meeting of the Board of Representatives or
Members may be taken without a meeting if, prior or subsequent to the
action, written consents describing the action to be taken are signed by
the minimum number of Representatives or Members that would be necessary to
authorize the action at a meeting at which all Representatives or Members
entitled to vote thereon were present and voting; provided that, prior to
any such written consent becoming effective, such written consent has been
provided to all Representatives or Members entitled to vote, and the
Representatives or Members shall have ten (10) days to review such consent
prior to such written consent becoming effective (unless otherwise agreed
to by all Representatives or their respective Alternates or each Member,
respectively). The consents shall be filed with the Managers. Prompt notice
of the taking of Company action without a meeting by less than unanimous
written consent shall be given to those Members who have not consented in
writing.
ARTICLE III
MANAGEMENT
Section 3.1 Management of the Company Generally. The business and
affairs of the Company shall be managed by its Managers under the
supervision of the Board of Representatives (a) in accordance with the
provisions of this Operating Agreement and the Business Plans and the other
resolutions and directives of the Board of Representatives adopted by the
Board of Representatives and in effect from time to time, and (b) subject
to the provisions of the Act, the Certificate and this Operating Agreement
including, without limitation, the provisions of Section 3.8 hereof. Unless
authorized to do so by this Operating Agreement or by the Board of
Representatives or the Managers of the Company (provided that the Managers
are authorized to grant such authority), no attorney-in-fact, employee,
officer or agent of the Company other than the Managers shall have any
power or authority to bind the Company in any way, to pledge its credit or
to render it liable pecuniarily for any purpose. No Member shall have any
power or authority to bind the Company unless the Member has been expressly
authorized by the Board of Representatives to act as an agent of the
Company. All Managers of the
<PAGE>
Company, as between themselves and the Company, shall have such authority
and perform such duties in the management of the Company as may be provided
by or pursuant to resolutions or orders of the Board of Representatives or
in the Business Plan, or, in the absence of controlling provisions in the
resolutions or orders of the Board of Representatives, as may be determined
by or pursuant to this Operating Agreement. The Board of Representatives
may confer upon any Manager such titles as the Board deems appropriate,
including, but not limited to, President, Vice President, Secretary or
Treasurer, and subject to the limitations set forth in Section 3.8 of this
Operating Agreement, delegate specifically defined duties to the Managers.
Notwithstanding the foregoing or any other provision of this Operating
Agreement or of the Act to the contrary, no Manager of the Company shall
have the power or authority to do or perform any act with respect to any of
the matters set forth in Section 3.8 of this Operating Agreement unless
such matter has been approved by the mutual consent of BAM and CCIC Member
in accordance with the provisions of this Operating Agreement.
Section 3.2 Meetings of the Board of Representatives. Meetings
of the Board of Representatives shall be held at such time and place within
or without the State of Delaware as shall be designated from time to time
by resolution of the Board of Representatives or by written notice of any
Manager or by written notice of any Member; provided that meetings of the
Board of Representatives shall be held no less than quarterly, on a date to
be determined by the mutual consent of BAM and CCIC Member. At each meeting
of the Board of Representatives, the Managers shall (i) provide the Board
of Representatives with a report on the financial condition and operations
of the Company, including, without limitation, a report on the results of
operations compared to the then applicable Business Plan, (ii) disclose to
the Board of Representatives any material event or contingency occurring
since the previous meeting and (iii) disclose to the Board of
Representatives all matters which would require disclosure to, or the
approval of, the board of directors of a Delaware corporation. For so long
as BAM is entitled to designate at least one (1) Representative to the
Board of Representatives of the Company, any meeting of the Board of
Representatives of the Company shall also be deemed to be a meeting of the
Boards of Representatives of HoldCo Sub and OpCo.
Section 3.3 Quorum. The presence of at least one of the
Representatives or Alternates designated by each of BAM and CCIC Member
shall be necessary to constitute a quorum for the transaction of business
at a meeting of the Board of Representatives and the acts of a majority of
the Representatives or Alternates present and voting at a meeting at which
a quorum is present shall be the acts of the Representatives or Alternates;
provided, however, that if notice of a meeting is provided to the
Representatives and Alternates, and such notice describes the business to
be considered, the actions to be taken and the matters to be voted on at
the meeting in reasonable detail, and insufficient Representatives or
Alternates attend the meeting to constitute a quorum, the meeting may be
adjourned by those Representatives or Alternates attending such meeting for
a period not to exceed twenty (20) days. Such meeting may be reconvened by
providing notice of the reconvened meeting to the Representatives and
Alternates no less than ten (10) days prior to the date of the meeting
specifying that the business to be considered, the actions to be taken and
the matters to be voted upon are those set forth in
<PAGE>
the notice of the original adjourned meeting. If, at the reconvened
meeting, a quorum of Representatives or Alternates is not present, a
majority of the Representatives and Alternates present and voting will
constitute a quorum for purposes of the reconvened meeting; provided,
however that such Representatives and Alternates may only consider the
business, take the actions or vote upon the matters set forth in the notice
of the original meeting.
Notwithstanding the foregoing or any other provision in this Operating
Agreement, no Representative, Alternate or Manager shall have any power or
authority to do or perform any act with respect to any of the matters set
forth in Section 3.8 of this Operating Agreement unless such matter has
been approved by the mutual consent of BAM and CCIC Member in accordance
with the provisions of this Operating Agreement.
Section 3.4 Manner of Acting. Other than any action contemplated
by Section 3.8, which shall require the mutual consent of CCIC Member and
BAM, whenever any Company action is to be taken by a vote of the Board of
Representatives, it shall be authorized upon receiving the affirmative vote
of a majority of the Representatives and Alternates present and voting at a
duly constituted meeting at which a quorum is present.
Section 3.5 Designation of Managers. CCIC Member shall designate
all Managers. The initial Managers are set forth on Schedule C. CCIC Member
shall promptly give each Member notice of the designation of any new
Manager.
Section 3.6 Qualifications. Each Manager of the Company shall be
a natural person of full age who need not be a resident of the State of
Delaware.
Section 3.7 Number, Selection and Term of Office.
(a) There shall be no less than 2 Managers, nor more than
10, as may be determined from time to time by the Board of Representatives.
Initially, there shall be 5 Managers.
(b) Each Manager shall hold office until a successor has
been selected and qualified or until his or her earlier death, resignation
or removal.
Section 3.8 Approval of Certain Matters by the Members.
Notwithstanding any provision of this Operating Agreement or the Act to the
contrary, the following matters require the mutual consent of BAM and CCIC
Member, given by their respective Representatives (acting as a group) at a
meeting of the Board of Representatives or by written consent, or if BAM
has no Representatives, such consent shall be given by BAM in its capacity
as a Member, and the Managers shall have no power or authority to do or
perform any act with respect to any of the following matters without the
mutual consent of BAM and CCIC Member, given in accordance with the
provisions of this Operating Agreement:
<PAGE>
(a) Certain Contracts. The entering into any contract,
agreement or arrangement (whether written or oral) by the Company, other
than agreements and contracts in force as of the date hereof and renewals
thereof, which (i) contains provisions restricting HoldCo or HoldCo Sub or
any member thereof from competing in any business activity in any
geographic area, (ii) contains provisions requiring HoldCo or HoldCo Sub 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, (iii) contains provisions which
are inconsistent with the obligations of HoldCo or HoldCo Sub under any of
the Transaction Documents, or (iv) 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.
(b) Conduct of Business. The engagement by the Company in
any line of business other than (i) the ownership of the membership
interests in HoldCo Sub and (ii) the ownership of the CCIC Contributed
Shares. The engagement by HoldCo Sub in any line of business other than the
business of acquiring or constructing, owning or leasing, and maintaining
and operating communications towers in the United States and performing its
obligations under the Management Agreement and performing all business
activities related thereto. The making by HoldCo Sub of any investment in,
or the acquisition by HoldCo Sub of any equity securities of, any Person
other than OpCo.
(c) Solvency. The voluntary taking of any action by the
Company or HoldCo Sub that would cause the Company or HoldCo Sub to cease
to be Solvent. As used herein, the term "Solvent" means that the aggregate
present fair saleable value of the Company's (or HoldCo Sub's, as
applicable) 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,
the Company (or HoldCo Sub, as applicable) has not incurred debts beyond
its foreseeable ability to pay such debts as they mature, and the Company
(or HoldCo Sub, as applicable) has capital adequate to conduct the business
in which it is presently employed.
(d) Bankruptcy. The voluntary dissolution or liquidation of
the Company or HoldCo Sub, the making by the Company or HoldCo Sub of a
voluntary assignment for the benefit of creditors, the filing of a petition
in bankruptcy by the Company or HoldCo Sub, the Company or HoldCo Sub
petitioning or applying to any tribunal for any receiver or trustee, the
Company or HoldCo Sub commencing any proceeding relating to itself under
any bankruptcy, reorganization, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction, the Company or HoldCo Sub
indicating its consent to, approval of or acquiescence in any such
proceeding and failing to use its respective best efforts to have
discharged the appointment of any receiver of or trustee for the Company or
HoldCo Sub or any substantial part of their respective properties.
(e) Indebtedness. The direct or indirect modification,
amendment or prepayment of the Anticipated Financing under the Formation
Agreement by the Company or
<PAGE>
HoldCo Sub prior to the seventh (7th) anniversary of the closing of the
transactions contemplated by the Formation Agreement. The Company directly
or indirectly, creating, incurring, assuming, guaranteeing, or otherwise
becoming or remaining directly or indirectly liable with respect to any
Indebtedness. As used herein, "Indebtedness" means, at any time, (i)
liabilities for borrowed money, (ii) liabilities for the deferred purchase
price of property acquired by the Company (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); (iii) all liabilities
appearing on its balance sheet in accordance with generally accepted
accounting principles consistently applied throughout the periods involved
("GAAP") in respect of capital leases; (iv) all liabilities for borrowed
money secured by any Encumbrance with respect to any property owned by the
Company (whether or not it has assumed or otherwise become liable for such
liabilities); (v) 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); and (vi) any guaranty of the Company with
respect to liabilities of a type described in any of clauses (i) through
(v) hereof.
(f) Liens. The Company, directly or indirectly, maintaining,
creating, incurring, assuming or permitting to exist any Encumbrance (other
than Encumbrances on the membership interests in HoldCo Sub granted to the
Lender to secure the Anticipated Financing) on or with respect to any
property or asset (including any document or instrument in respect of goods
or accounts receivable) of the Company, whether now owned or hereafter
acquired, or any income or profits therefrom.
(g) Issuance of Interests. Except pursuant to a transfer
permitted by Section 8.1 or Section 8.2, the authorization or issuance of
any interests in, or the admission of any members to, the Company or HoldCo
Sub, other than BAM and CCIC Member, including, without limitation, the
authorization or issuance of any additional interests in the Company to BAM
or CCIC Member beyond those interests authorized and issued in connection
with the formation of the Company.
(h) Contingent Obligations. The Company, directly or
indirectly, creating or becoming or being liable with respect to any
Contingent Obligation.
As used herein, the term "Contingent Obligations" means any direct or
indirect liability, contingent or otherwise (i) with respect to any
indebtedness, lease, dividend or other obligation of another if the primary
purpose or intent thereof is to 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 (ii) with respect to any letter
of credit. Contingent Obligations shall include with respect to the
Company, 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
the
<PAGE>
Company, 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 the Company 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.
(i) Preservation of Existence. Any action contrary to the
preservation and maintenance of the Company's and HoldCo Sub's existence,
rights, franchises and privileges as a limited liability company under the
laws of the State of Delaware. Any action which would prevent the Company
or HoldCo Sub from qualifying and remaining 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.
(j) Merger or Sale of Assets. Any merger or consolidation by
the Company or HoldCo Sub with any Person. Any sale, assignment, lease or
other disposition by the Company or HoldCo Sub of (whether in one
transaction or in a series of transactions), or any voluntarily parting
with the control of (whether in one transaction or in a series of
transactions), a material portion of the Company's or HoldCo Sub's assets
(whether now owned or hereinafter acquired), except in accordance with the
provisions of any of the Transaction Documents, and except for sales or
other dispositions of assets in the ordinary course of business. Any sale,
assignment or other disposition of (whether in one transaction or in a
series of transactions) any of the Company's or HoldCo Sub's 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.
(k) Dealings with Affiliates. Except pursuant to the
Transaction Documents, the entering into by the Company or HoldCo Sub of
any transaction, including, without limitation, any loans or extensions of
credit or royalty agreements with any Representative, Manager, officer or
member of the Company or HoldCo Sub or any officer, director of CCIC or
CCIC Member or holder of more than five percent (5%) of the outstanding
CCIC 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 except in the ordinary course of business and on terms
not less favorable to the Company or HoldCo Sub than it would reasonably
expect to obtain in a transaction between unrelated parties.
(l) Dividends; Distributions. The declaration or payment by
the Company or HoldCo Sub of any dividend, or making by the Company or
HoldCo Sub of any distribution or return of capital, or the redemption by
the Company or HoldCo Sub of any equity
<PAGE>
interest, or the making by the Company or HoldCo Sub of any similar
payments or transfer of property to its Members (excluding payments for
goods or services).
(m) Method of Certain Calculations. The determination of any
method to be used in calculating any of the payments to be made under the
Management Agreement or the Bidder Services Agreement.
(n) Business Plan. The approval of the Business Plan as set
forth in Section 10.3.
(o) Actions as Member of HoldCo Sub. The Company giving any
consent, in its capacity as a member of HoldCo Sub, under Section 3.8 of
the HoldCo Sub Operating Agreement.
(p) Voting of CCIC Contributed Shares held by the Company.
The Company exercising any voting rights with respect to the CCIC
Contributed Shares held by the Company, and in the absence of the mutual
agreement of BAM and CCIC Member as to the exercise of such voting rights,
the CCIC Contributed Shares shall be voted on each matter submitted to a
vote of the stockholders of CCIC 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.
Whenever the mutual consent of BAM and CCIC Member is required under either
this Operating Agreement, the HoldCo Sub Operating Agreement or the OpCo
Operating Agreement, the Managers shall only take action, vote the
membership interests in HoldCo Sub or authorize the Managers of HoldCo Sub
to vote the membership interest in OpCo in accordance with the direction of
BAM and CCIC Member as provided for in this Section 3.8.
Section 3.9 Exculpation. No Member, Manager, Representative,
Alternate or officer shall be liable to the Company or to any Member for
any losses, claims, damages or liabilities arising from, related to, or in
connection with, this Operating Agreement or the business or affairs of the
Company, except for any losses, claims, damages or liabilities as are
determined by final judgment of a court of competent jurisdiction to have
resulted from such Member, Manager, Representative, Alternate or officer's
gross negligence or willful misconduct. To the extent that, at law or in
equity, any Member, Manager, Representative, Alternate or officer has
duties (including fiduciary duties) and liabilities relating thereto to the
Company or to any Member, such Member, Manager, Representative, Alternate
or officer acting in connection with this Operating Agreement or the
business or affairs of the Company shall not be liable to the Company or to
any Member, Manager, Representative, Alternate or officer for its good
faith conduct in accordance with the provisions of this Agreement or any
approval or authorization granted by the Company or any Member, Manager,
Representative, Alternate or officer. The provisions of this Operating
Agreement, to the extent that they restrict the duties and liabilities of
any Member, Manager, Representative, Alternate or officer otherwise
existing at law or in
<PAGE>
equity, are agreed by the Members to replace such other duties and
liabilities of such Member, Manager, Representative, Alternate or officer.
Section 3.10 Reliance on Reports and Information by Member,
Representative, Alternate or Manager. A Member, Representative, Alternate
or Manager of the Company shall be fully protected in relying in good faith
upon the records of the Company and upon such information, opinions,
reports or statements presented to the Company by any of its other
Managers, Members, Representatives, Alternates, officers, employees or
committees of the Company, or by any other person, as to matters the
Member, Representative, Alternate or Manager reasonably believes are within
such other person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Company, including
information, opinions, reports or statements as to the value and amount of
the assets, liabilities, profits or losses of the Company or any other
facts pertinent to the existence and amount of assets from which
distributions to Members might properly be paid.
Section 3.11 Bank Accounts. The Managers may from time to time
open bank accounts in the name of the Company, and the Managers, or any of
them, shall be the sole signatory or signatories thereon, unless the
Managers determine otherwise.
Section 3.12 Resignation. A Manager of the Company may resign at
any time by giving written notice to the Company. The resignation of a
Manager shall be effective upon receipt of such notice or at such later
time as shall be specified in the notice. Unless otherwise specified in the
notice, the acceptance of the resignation shall not be necessary to make
such resignation effective.
Section 3.13 Removal. Any individual Manager may be removed from
office at any time, without assigning any cause, by CCIC Member.
Section 3.14 Vacancies. Any vacancy with respect to a Manager
occurring for any reason may be filled by CCIC Member.
Section 3.15 Salaries. The salaries of the Managers shall be
fixed from time to time by the Board of Representatives in accordance with
the Business Plan or by such Manager as may be designated by resolution of
the Board of Representatives. The salaries or other compensation of any
other employees and other agents shall be fixed from time to time by the
Board of Representatives or by such Manager as may be designated by
resolution of the Board of Representatives.
<PAGE>
ARTICLE IV
MEMBERS
Section 4.1 Admission of Members.
(a) A person acquiring an interest in the Company in
connection with its formation shall be admitted as a Member of the Company
upon the later to occur of the formation of the Company or when the
admission of the person is reflected in the records of the Company.
(b) After the formation of the Company, a person acquiring
an interest in the Company from the Company, is admitted as a Member upon
the satisfaction of all requirements in Article VIII of this Operating
Agreement.
Section 4.2 Meetings. Meetings of the Members, for any purpose
or purposes, unless otherwise prescribed by statute, may be called by any
Manager or by any Member.
Section 4.3 Place of Meeting. The Managers or Members calling a
meeting pursuant to Section 4.2 may designate any place as the place for
any meeting of the Members. If no designation is made, the place of meeting
shall be the principal office of the Company.
Section 4.4 Record Date. For the purpose of determining Members
entitled to notice of, or to vote at, any meeting of Members or any
adjournment of the meeting, or Members entitled to receive payment of any
distribution, or to make a determination of Members for any other purpose,
the date on which notice of the meeting is mailed or the date on which the
resolution declaring the distribution or relating to such other purpose is
adopted, as the case may be, shall be the record date for the determination
of Members. Only Members of record on the date fixed shall be so entitled
notwithstanding any permitted transfer of a Member's Membership Interest
after any record date fixed as provided in this Section. When a
determination of Members entitled to vote at any meeting of Members has
been made as provided in this section, the determination shall apply to any
adjournment of the meeting.
Section 4.5 Quorum. A meeting of Members of the Company duly
called shall not be organized for the transaction of business unless a
quorum is present. The presence of each Member, represented in person or by
proxy, shall constitute a quorum at any meeting of Members, provided,
however, that if notice of a meeting is provided to the Members, and such
notice describes the business to be considered, the actions to be taken and
the matters to be voted on at the meeting in reasonable detail, and
insufficient Members attend the meeting to constitute a quorum, the meeting
may be adjourned by those Members attending such meeting for a period not
to exceed twenty (20) days. Such meeting may be reconvened by providing
notice of the reconvened meeting to the Members no less than ten (10) days
prior to the date of the meeting specifying that the business to be
considered, the actions to be taken and the matters to be voted
<PAGE>
upon are those set forth in the notice of the original adjourned meeting.
If, at the reconvened meeting, a quorum of Members is not present, a
majority of the Members present and voting will constitute a quorum for
purposes of the reconvened meeting; provided, however that such Members may
only consider the business, take the actions or vote upon the matters set
forth in the notice of the original meeting. At an adjourned meeting at
which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed. The Members present at a duly organized meeting may continue to
transact business until adjournment, notwithstanding the withdrawal during
the meeting of Members whose absence would cause less than a quorum.
Notwithstanding the foregoing or any other provision in this Agreement, no
Member shall have any power or authority to do or perform any act with
respect to any of the matters set forth in Section 3.8 of this Operating
Agreement unless such matter has been approved by the mutual consent of BAM
and CCIC Member in accordance with the provisions of this Operating
Agreement.
Section 4.6 Manner of Acting. Except as otherwise provided in
the Act or the Certificate or this Operating Agreement, including, without
limitation, Section 3.8 hereof, whenever any Company action is to be taken
by vote of the Members of the Company, it shall be authorized upon
receiving the affirmative vote of Members entitled to vote who own a
majority of the Percentage Interests (as defined in Section 6.1) then held
by Members.
Section 4.7 Voting Rights of Members. Unless otherwise provided
in the Certificate, every Member of the Company shall be entitled to a
percentage of the total votes equal to that Member's then current
Percentage Interest.
Section 4.8 Relationship of Members. Except as otherwise
expressly and specifically provided in or as authorized pursuant to the
Certificate or this Operating Agreement, (a) in the event that any Member
(or any of such Member's shareholders, partners, members, owners, or
Affiliates (collectively, the "Liable Member")) has incurred any
indebtedness or obligation prior to the date of this Agreement that relates
to or otherwise affects the Company, neither the Company nor any other
Member shall have any liability or responsibility for or with respect to
such indebtedness or obligation unless such indebtedness or obligation is
assumed by the Company pursuant to this Operating Agreement, the Formation
Agreement or any of the other Transaction Documents, or a written
instrument signed by all Members; (b) neither the Company nor any Member
pursuant to this Agreement shall be responsible or liable for any
indebtedness or obligation that is incurred after the date of this
Agreement by any Liable Member, and in the event that a Liable Member,
whether prior to or after the date hereof, incurs (or has incurred) any
debt or obligation that neither the Company nor any of the other Members is
to have any responsibility or liability for, the Liable Member shall
indemnify and hold harmless the Company and the other Members from any
liability or obligation they may incur in respect thereof; (c) nothing
contained herein shall render any Member personally liable for any debts,
obligations or liabilities incurred by the other Members or the Company
whether arising in
<PAGE>
contract, tort or otherwise or for the acts or omissions of any other
Member, Manager, agent or employee of the Company; (d) no Member shall be
constituted an agent of the other Members or the Company; (e) nothing
contained herein shall create any interest on the part of any Member in the
business or other assets of the other Members; (f) nothing contained herein
shall be deemed to restrict or limit in any way the carrying on (directly
or indirectly) of separate businesses or activities by any Member now or in
the future, even if such businesses or activities are competitive with the
Company; and (g) no Member shall have any authority to act for, or to
assume any obligation on behalf of, the other Members or the Company. No
Member or any of its affiliates or any of their respective officers,
directors, employees or former employees shall have any obligation, or be
liable, to the Company or any other Member pursuant to this Agreement for
or arising out of the conduct described in the preceding clause (f), for
exercising, performing or observing or failing to exercise, perform or
observe, any of its rights or obligations under the Formation Agreement or
any other Transaction Document, for exercising or failing to exercise its
rights as a Member or, solely by reason of such conduct, for breach of any
fiduciary or other duty to the Company or any Member. In the event that a
Member, any of its Affiliates or any of their respective officers,
directors, employees or former employees acquires knowledge of a potential
transaction, agreement, arrangement or other matter which may be a
corporate opportunity for both the Member and the Company, neither the
Member nor such Affiliate, officers, directors, employees or former
employees shall have any duty to communicate or offer such corporate
opportunity to the Company, and neither the Member nor such Affiliate,
officers, directors, employees or former employees shall be liable to the
Company for breach of any fiduciary or other duty, as a member or
otherwise, by reason of the fact that the Member or such Affiliate,
officers, directors, employees or former employees pursue or acquire such
corporate opportunity for the Member, direct such corporate opportunity to
another person or entity or fail to communicate such corporate opportunity
or information regarding such corporate opportunity to the Company.
Section 4.9 Business Transactions of Member, Representative
or Alternate with the Company. A Member, Representative or Alternate may
lend money to, borrow money from, act as a surety, guarantor or endorser
for, guarantee or assume one or more obligations of, provide collateral
for, and transact any and all other business with the Company and, subject
to other applicable law, has the same rights and obligations with respect
to any such matter as a person who is not a Member, Representative or
Alternate.
ARTICLE V
INDEMNIFICATION
Section 5.1 Indemnification by the Company.
(a) The Company shall indemnify an indemnified
representative against any liability incurred in connection with any
proceeding in which the indemnified representative
<PAGE>
may be involved as a party or otherwise, as and when incurred, by reason of
the fact that such person is or was serving in an indemnified capacity,
including, without limitation, liabilities resulting from any actual or
alleged breach or neglect of duty, error, misstatement or misleading
statement, negligence, gross negligence or act giving rise to liability,
except:
(1) where such indemnification is expressly prohibited
by applicable law;
(2) where the conduct of the indemnified representative
has been finally determined:
(i) to constitute willful misconduct or
recklessness sufficient in the circumstances to bar
indemnification against liabilities arising from the
conduct; or
(ii) to be based upon or attributable to the
receipt by the indemnified representative from the
Company of a personal benefit to which the indemnified
representative is not legally entitled; or
(3) to the extent such indemnification has been finally
determined in a final adjudication to be otherwise unlawful.
(b) If an indemnified representative is entitled to
indemnification in respect of a portion, but not all, of any liabilities to
which such person may be subject, the Company shall indemnify such
indemnified representative to the maximum extent for such portion of the
liabilities.
(c) The termination of a proceeding by judgment, order,
settlement or conviction or upon a plea of nolo contendere or its
equivalent shall not of itself create a presumption that the indemnified
representative is not entitled to indemnification.
(d) Definitions. For purposes of this Article:
(1) "indemnified capacity" means any and all past,
present and future service by an indemnified representative
in one or more capacities as a Member, Manager,
Representative, Alternate or authorized agent of the
Company;
(2) "indemnified representative" means any and all
Members, Managers, Representatives, Alternates and
authorized agents of the Company and any other person
designated as an indemnified representative by the mutual
consent of BAM and CCIC Member, given in accordance with the
provisions of this Operating Agreement;
<PAGE>
(3) "liability" means any damage, judgment, amount paid
in settlement, fine, penalty, punitive damages, excise tax
assessed with respect to an employee benefit plan, or cost
or expense of any nature (including, without limitation,
attorneys' fees and disbursements); and
(4) "proceeding" means any threatened, pending or
completed action, suit, appeal or other proceeding of any
nature, whether civil, criminal, administrative or
investigative, whether formal or informal, and whether
brought by or in the right of the Company, a class of its
Members or security holders or otherwise.
Section 5.2 Proceedings Initiated by Indemnified Representatives.
Notwithstanding any other provision of this Article, the Company shall not
indemnify under this Article an indemnified representative for any
liability incurred in a proceeding initiated (which shall not be deemed to
include counterclaims or affirmative defenses) or participated in as an
intervenor or amicus curiae by the person seeking indemnification unless
such initiation of or participation in the proceeding is authorized, either
before or after its commencement, by the unanimous consent of the Board of
Representatives. This Section does not apply to reimbursement of expenses
incurred in successfully prosecuting or defending the rights of an
indemnified representative granted by or pursuant to this Article.
Section 5.3 Advancing Expenses. The Company shall pay the
expenses (including attorneys' fees and disbursements) incurred in good
faith by an indemnified representative in advance of the final disposition
of a proceeding described in Section 5.1 or the initiation of or
participation in which is authorized pursuant to Section 5.2 upon receipt
of an undertaking by or on behalf of the indemnified representative to
repay the amount if it is ultimately determined that such person is not
entitled to be indemnified by the Company pursuant to this Article. The
financial ability of an indemnified representative to repay an advance
shall not be a prerequisite to the making of such advance.
Section 5.4 Payment of Indemnification. An indemnified
representative shall be entitled to indemnification within thirty (30) days
after a written request for indemnification has been delivered to the
secretary of the Company.
Section 5.5 Arbitration.
(a) Any dispute related to the right to indemnification,
contribution or advancement of expenses as provided under this Article,
except with respect to indemnification for liabilities arising under the
Securities Act of 1933, as amended, that the Company has undertaken to
submit to a court for adjudication, shall be decided only by arbitration in
the metropolitan area in which the principal executive offices of the
Company are located at the time, in accordance with the commercial
arbitration rules then in effect of the American Arbitration Association
("AAA"), before a panel of three arbitrators, one of whom shall be
<PAGE>
selected by the Company, the second of whom shall be selected by the
Indemnified Representative and the third of whom shall be selected by the
other two arbitrators. In the absence of the AAA, or if for any reason
arbitration under the arbitration rules of the AAA cannot be initiated, and
if one of the parties fails or refuses to select an arbitrator or the
arbitrators selected by the Company and the Indemnified Representative
cannot agree on the selection of the third arbitrator within thirty (30)
days after such time as the Company and the Indemnified Representative have
each been notified of the selection of the other's arbitrator, the
necessary arbitrator or arbitrators shall be selected by the presiding
judge of the court of general jurisdiction in such metropolitan area.
(b) Each arbitrator selected as provided in this Section is
required to be or have been a manager, director or executive officer of a
limited liability company, corporation or other entity whose equity
securities were listed during at least one (1) year of such service on the
New York Stock Exchange or the American Stock Exchange or quoted on the
National Association of Securities Dealers Automated Quotations System.
(c) The party or parties challenging the right of an
Indemnified Representative to the benefits of this Article shall have the
burden of proof.
(d) The Company shall reimburse an Indemnified
Representative for the expenses (including attorneys' fees and
disbursements) incurred in successfully prosecuting or defending such
arbitration.
(e) Any award entered by the arbitrators shall be final,
binding and nonappealable and judgment may be entered thereon by any party
in accordance with applicable law in any court of competent jurisdiction,
except that the Company shall be entitled to interpose as a defense in any
such judicial enforcement proceeding any prior final judicial determination
adverse to the indemnified representative under Section 5.1 in a proceeding
not directly involving indemnification under this Article. This arbitration
provision shall be specifically enforceable.
Section 5.6 Contribution. If the indemnification provided for in
this Article or otherwise is unavailable for any reason in respect of any
liability or portion thereof, the Company shall contribute to the
liabilities to which the indemnified representative may be subject in such
proportion as is appropriate to reflect the intent of this Article or
otherwise.
Section 5.7 Mandatory Indemnification of Members and Managers.
To the extent that an indemnified representative of the Company has been
successful on the merits or otherwise in defense of any proceeding or in
defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees and disbursements)
actually and reasonably incurred by such person in connection therewith.
<PAGE>
Section 5.8 Contract Rights; Amendment or Repeal. All rights
under this Article shall be deemed a contract between the Company and the
indemnified representative pursuant to which the Company and each
indemnified representative intend to be legally bound. Any repeal,
amendment or modification hereof shall be prospective only and shall not
affect any rights or obligations then existing.
Section 5.9 Scope of Article. The rights granted by this Article
shall not be deemed exclusive of any other rights to which those seeking
indemnification, contribution or advancement of expenses may be entitled
under any statute, agreement, vote of disinterested Members or
disinterested Representatives, Alternates, Managers or otherwise, both as
to action in an indemnified capacity and as to action in any other
capacity. The indemnification, contribution and advancement of expenses
provided by or granted pursuant to this Article shall continue as to a
person who has ceased to be an indemnified representative in respect of
matters arising prior to such time, and shall inure to the benefit of the
heirs, executors, administrators, personal representatives, successors and
permitted assigns of such a person.
Section 5.10 Reliance on Provisions. Each person who shall act
as an indemnified representative of the Company shall be deemed to be doing
so in reliance upon the rights of indemnification, contribution and
advancement of expenses provided by this Article.
ARTICLE VI
CAPITAL ACCOUNTS
Section 6.1 Definitions. For the purposes of this Operating
Agreement, unless the context otherwise requires:
(a) "Adjusted Capital Account" shall mean, for any Member,
its Capital Account balance maintained and adjusted as required by Treasury
Regulation Section 1.704-1(b)(2)(iv).
(b) "Capital Account" shall mean, with respect to a Member,
such Member's capital account established and maintained in accordance with
the provisions of Section 6.5.
(c) "Capital Contribution" means any contribution to the
capital of the Company in cash, property or expertise by a Member whenever
made. A loan by a Member of the Company shall not be considered a Capital
Contribution.
(d) "IRC" shall mean the Internal Revenue Code of 1986, as
amended.
(e) "Membership Interest" means a Member's interest in the
Company.
<PAGE>
(f) "Percentage Interest" means, with respect to any
Member, the Percentage Interest set forth opposite such Member's name on
Schedule A attached hereto, as amended from time to time to reflect
transfers of Membership Interests in accordance with this Operating
Agreement.
(g) "Profits" and "Losses" mean, for each fiscal year,
an amount equal to the Company's taxable income or loss for such fiscal
year, determined in accordance with IRC ss. 703(a). For the purpose of this
definition, all items of income, gain, loss or deduction required to be
stated separately pursuant to IRC ss. 703(a)(1) shall be included in
taxable income or loss with the following adjustments:
(1) Any income of the Company that is exempt from
federal income tax and not otherwise taken into account
in computing Profits or Losses pursuant to this Section
shall be added to such taxable income or loss;
(2) Any expenditures of the Company described in
IRC ss. 705(a)(2)(B) or treated as IRC ss. 705(a)(2)(B)
expenditures pursuant to Treasury Regulation ss.
1.704-1(b)(2)(iv)(i), and not otherwise taken into
account in computing Profits or Losses pursuant to this
Section shall be subtracted from such taxable income or
loss.
(h) "Treasury Regulations" include proposed, temporary and
final regulations promulgated under the IRC in effect as of the date of
this Operating Agreement and the corresponding sections of any regulations
subsequently issued that amend or supersede such regulations.
Section 6.2 Determination of Tax Book Value of Company Assets.
(a) Except as set forth below, the "Tax Book Value" of any
Company asset is its adjusted basis for federal income tax purposes.
(b) The initial Tax Book Value of any assets contributed by
a Member to the Company shall be the agreed fair market value of such
assets, increased by the amount of liabilities of the contributing Member
assumed by the Company in connection with the contribution of such assets
plus the amount of any other liabilities to which such assets are subject.
(c) The Tax Book Values of all Company assets may be
adjusted by the Managers to equal their respective gross fair market values
as of the following times: (i) the admission of an additional Member to the
Company or the acquisition by an existing Member of an additional
Membership Interest; (ii) the distribution by the Company of money or
property to a withdrawing, retiring or continuing Member in consideration
for the retirement of all or a
<PAGE>
portion of such Member's Membership Interest; and (iii) the termination of
the Company for Federal income tax purposes pursuant to Section
708(b)(1)(B) of the IRC.
Section 6.3 Capital Contributions.
(a) The initial capital contributions to be made by the
Members shall be contributed in cash, property, services rendered, as a
credit for expenses incurred by such Member for the benefit of the Company
or a promissory note or other obligation to contribute cash or property or
perform services. The initial capital contribution of each Member will be
reflected in the books and records of the Company.
(b) No Member shall be obligated to make any capital
contributions to the Company in excess of its initial capital contribution.
(c) No Member shall be permitted to make any capital
contributions to the Company unless mutually agreed by BAM and CCIC Member.
Section 6.4 Liability for Contribution.
(a) A Member of the Company is obligated to the Company to
perform any promise to contribute cash or property or to perform services,
even if the Member is unable to perform because of death, disability or any
other reason. If a Member does not make the required contribution of
property or services, the Member is obligated at the option of the Company
to contribute cash equal to that portion of the agreed value (as stated in
the records of the Company) of the contribution that has not been made. The
foregoing option shall be in addition to, and not in lieu of, any other
rights, including the right to specific performance, that the Company may
have against such Member under applicable law.
(b) The obligation of a Member of the Company to make a
contribution or return money or other property paid or distributed in
violation of the Act may be compromised only by consent of all the Members.
Notwithstanding the compromise, a creditor of the Company who extends
credit, after entering into this Operating Agreement or an amendment hereof
which, in either case, reflects the obligation, and before the amendment
hereof to reflect the compromise, may enforce the original obligation to
the extent that, in extending credit, the creditor reasonably relied on the
obligation of a Member to make a contribution or return. A conditional
obligation of a Member to make a contribution or return money or other
property to the Company may not be enforced unless the conditions of the
obligation have been satisfied or waived as to or by such Member.
Conditional obligations include contributions payable upon a discretionary
call of the Company prior to the time the call occurs.
Section 6.5 Capital Accounts. A separate Capital Account will be
maintained for each Member. The initial Capital Accounts shall consist
solely of the initial capital contributed by the Members pursuant to
Section 6.3. BAM's Capital Account will be reduced immediately
<PAGE>
after the BAM Capital Distribution by the amount distributed to BAM (and
the Transferring Partnerships). BAM's Capital Account balance after the BAM
Capital Distribution will be reflected on the books and records of the
Company. Notwithstanding any other provision hereof, the Company shall
determine and adjust the Capital Accounts in accordance with the rules of
Treasury Regulation Section 1.704-1(b)(2)(iv). Except as otherwise required
in the Act, no Member shall have any liability to restore all or any
portion of a deficit balance in the Member's Capital Account.
Section 6.6 No Interest on or Return of Capital. No Member shall
be entitled to interest on any Capital Contribution or Capital Account. No
Member shall have the right to demand or receive the return of all or any
part of any Capital Contribution or Capital Account except as may be
expressly provided herein, and no Member shall be personally liable for the
return of the Capital Contributions of any other Member.
Section 6.7 Percentage Interest. The Percentage Interests of the
Members are as set forth on Schedule A. The Percentage Interests shall be
updated by the Managers to reflect any transfers of Membership Interests,
set forth on a revised Schedule A and filed with the records of the
Company. The sum of the Percentage Interests for all Members shall equal
100 percent.
Section 6.8 Allocations of Profits and Losses Generally. After
the allocations in Section 6.9, at the end of each year (or shorter period
if necessary or longer period if agreed by all of the Partners), Profits
and Losses shall be allocated as follows:
(a) Profits. Profits shall be allocated to the Members in
proportion to their respective Percentage Interests.
(b) Losses. Losses shall be allocated to the Members in
proportion to their respective Percentage Interests.
Section 6.9 Allocations Under Regulations.
(a) Company Nonrecourse Deductions. Loss attributable (under
Treasury Regulation Section 1.704-2(c)) to "partnership nonrecourse
liabilities" (within the meaning of Treasury Regulation Section
1.704-2(b)(1)) shall be allocated among the Members in the same proportion
as their respective Percentage Interests.
(b) Member Nonrecourse Deductions. Loss attributable (under
Treasury Regulation Section 1.704-2(i)(2)) to "partner nonrecourse debt"
(within the meaning of Treasury Regulation Section 1.704-2(b)(4)) shall be
allocated, in accordance with Treasury Regulation Section 1.704- 2(i)(1),
to the Member who bears the economic risk of loss with respect to the debt
to which the Loss is attributable. The Members acknowledge that the
Anticipated Financing shall be treated as "partner nonrecourse debt."
<PAGE>
(c) Minimum Gain Chargeback. Each Member will be allocated
Profits at such times and in such amounts as necessary to satisfy the
minimum gain chargeback requirements of Treasury Regulation Sections
1.704-2(f) and 1.704-2(i)(4).
(d) Qualified Income Offset. Losses and items of income and
gain shall be specially allocated when and to the extent required to
satisfy the "qualified income offset" requirement within the meaning of
Treasury Regulation Section 1.704-1(b)(2)(ii)(d).
Section 6.10 Other Allocations.
(a) Allocations when Tax Book Value Differs from Tax Basis.
When the Tax Book Value of a Company asset is different from its adjusted
tax basis for income tax purposes, then, solely for federal, state and
local income tax purposes and not for purposes of computing Capital
Accounts, income, gain, loss, deduction and credit with respect to such
assets ("Section 704(c) Assets") shall be allocated among the Members to
take this difference into account in accordance with the principles of IRC
Section 704(c), as set forth herein and in the Treasury Regulations
thereunder and under IRC Section 704(b). Except to the extent otherwise
required by final Treasury Regulations, the calculation and allocations
eliminating the differences between Tax Book Value and adjusted tax basis
of the Section 704(c) Assets shall be made on an asset-by-asset basis
without curative or remedial allocations to overcome the "ceiling rule" of
Treasury Regulation Section l.704-1(c)(2) and Treasury Regulation Section
1.704-3(b)(1).
(b) Change in Member's Interest.
(1) If during any fiscal year of the Company there is a
change in any Member's Membership Interest, then for
purposes of complying with IRC Section 706(d), the
determination of Company items allocable to any period shall
be made by using any method permissible under IRC Section
706(d) and the Regulations thereunder as may be determined
by the Managers.
(2) The Members agree to be bound by the provisions of
this Section 6.10(b) in reporting their shares of Company
income, gain, loss, and deduction for tax purposes.
(c) Allocations on Liquidation. Notwithstanding any other
provision of this Article VI to the contrary, in the taxable year in which
there is a liquidation of the Company, after the allocations in Sections
6.8 and 6.9 hereof, the Capital Accounts of the Members will, to the extent
possible, be brought to the amount of the liquidating distributions to be
made to them under Section 9.5 hereof by allocations of items of profit and
loss and, if necessary, by guaranteed payments (within the meaning of Code
Section 707(c)) credited to the Capital Account of a Member whose Capital
Account is less than the amount to be distributed to it and
<PAGE>
debited from the Capital Account of the Member whose Capital Account is
greater than the amount to be distributed to it.
Section 6.11 Limitations Upon Liability of Members. Except as
otherwise expressly and specifically provided in or required by the
Certificate or this Operating Agreement, the personal liability of each
Member to the Company, to the other Members, to the creditors of the
Company or any third party for the losses, debts or liabilities of the
Company shall be limited to the amount of its Capital Contribution which
has not theretofore been returned to it as a distribution (including a
distribution upon liquidation). For purposes of the foregoing sentence,
distributions to a Member shall first be deemed a return of its Capital
Contribution. No Member shall at any time be liable or held accountable to
the Company, to the other Members, to the creditors of the Company or to
any other third party for or on account of any negative balance in its
Capital Account.
ARTICLE VII
DISTRIBUTIONS
Section 7.1 Net Cash From Operations and Distributions.
(a) Except as otherwise provided in this Operating Agreement
including, without limitation, in Section 3.8 hereof, and subject to any
restrictions contained in any credit or other agreements to which the
Company is a party, Net Cash From Operations, if any, shall be determined
annually by the Managers and distributed for each fiscal year to the
Members in accordance with their Percentage Interests.
(b) For purposes of this Operating Agreement, "Net Cash From
Operations" means the gross cash proceeds from Company operations less the
portion thereof used to, or expected to be used to, pay expenses, debt
payments, capital improvements, replacements and increases to reserves
therefor. "Net Cash From Operations" shall not be reduced by depreciation,
amortization, cost recovery deductions or similar allowances, but shall be
increased by any reductions to reserves previously established.
Section 7.2 Limitations on Distributions.
(a) The Company shall not make a distribution to a Member to
the extent that at the time of the distribution, after giving effect to the
distribution, all liabilities of the Company, other than liabilities to
Members on account of their interests in the Company and liabilities for
which the recourse of creditors is limited to specified property of the
Company, exceed the fair value of the assets of the Company, except that
the fair value of property that is subject to a liability for which the
recourse of creditors is limited shall be included in the assets of the
Company only to the extent that the fair value of that property exceeds
that liability.
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(b) A Member who receives a distribution in violation of
subsection (a), and who knew at the time of the distribution that the
distribution violated this section, shall be liable to the Company for the
amount of the distribution. A Member who receives a distribution in
violation of this section, and who did not know at the time of the
distribution that the distribution violated this section, shall not be
liable for the amount of the distribution. Subject to subsection (c), this
subsection shall not affect any obligation or liability of a Member under
other applicable law for the amount of a distribution.
(c) A Member who receives a distribution from the Company
shall have no liability under this Section, the Act or other applicable law
for the amount of the distribution after the expiration of three (3) years
from the date of the distribution unless an action to recover the
distribution from such Member is commenced prior to the expiration of the
said three (3)-year period and an adjudication of liability against such
Member is made in the action.
Section 7.3 Amounts of Tax Paid or Withheld. All amounts paid or
withheld pursuant to the IRC or any provision of any state or local tax law
with respect to any Member shall be treated as amounts distributed to the
Member pursuant to this Article for all purposes under this Operating
Agreement.
Section 7.4 Distribution in Kind. The Company shall not
distribute any assets in kind, except pursuant to a dissolution in
accordance with Article IX.
ARTICLE VIII
TRANSFERABILITY
Section 8.1 Restriction on Transfers by CCIC Member. Without the
prior written consent of BAM, CCIC Member shall not have the right,
directly or indirectly, to sell, assign, transfer, pledge, hypothecate,
mortgage or dispose of, by gift or otherwise, or in any way encumber, any
interest in the Company held by CCIC Member (the "CCIC HoldCo Interest")
unless either (a) the transfer is made to an entity of which CCIC or CCIC
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 BAM pursuant to
which it agrees to be bound hereby and (y) CCIC (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) CCIC Member has complied with the procedures
described in this Article VIII and (i) the transfer is made subject to the
right of first refusal described in Section 8.3 hereof, and (ii) to the
extent BAM does not exercise its right of first refusal described in
Section 8.3 hereof, the transfer is made subject to the right of
participation in sales described in Section 8.5(a) hereof. For purposes of
the foregoing, CCIC Member shall not be deemed to have indirectly
transferred any of the CCIC HoldCo Interest if CCIC or any other parent
corporation of CCIC Member is a party to any merger or consolidation
transaction, whether or
<PAGE>
not such parent corporation is the surviving entity in such merger. Any
purported transfer of the CCIC HoldCo Interest in violation of this
Section 8.1 shall be void.
Section 8.2 Restriction on Transfers by BAM. Without the prior
written consent of CCIC Member, BAM shall not have the right, directly or
indirectly, to sell, assign, transfer, pledge, hypothecate, mortgage or
dispose of, by gift or otherwise, or in any way encumber, any of the
interest in the Company held by BAM (the "BAM HoldCo Interest") unless
either (a) the transfer is made to any entity of which either Bell Atlantic
Corporation or BAM 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 CCIC Member
pursuant to which it agrees to be bound hereby and (y) Bell Atlantic
Corporation or BAM (or the successor by merger to either) 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)
BAM has complied with the procedures described in this Article VIII and (i)
the transfer is made subject to the right of first refusal described in
Section 8.4 hereof or (ii) to the extent CCIC Member does not exercise its
right of first refusal described in Section 8.4 hereof, the transfer is
made subject to the right of participation in sales described in Section
8.5(b) hereof. For purposes of the foregoing, BAM shall not be deemed to
have indirectly transferred any of the BAM HoldCo Interest if Bell Atlantic
Corporation or any other parent corporation of BAM 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 BAM HoldCo
Interest in violation of this Section 8.2 shall be void.
Section 8.3 BAM Right of First Refusal of Transfer.
(a) If at any time CCIC Member wishes to sell all or any
part of the CCIC HoldCo Interest, CCIC Member shall submit a written offer
to sell such CCIC HoldCo Interest to BAM on terms and conditions, including
price, not less favorable to BAM than those on which CCIC Member proposes
to sell the CCIC HoldCo Interest to any other purchaser (the "CCIC Offer").
The CCIC Offer shall disclose the identity of the proposed purchaser or
transferee, the percentage of the CCIC HoldCo Interest to be sold, the
terms of the sale, any amounts owed to CCIC Member with respect to the CCIC
HoldCo Interest and any other material facts relating to the sale. BAM
shall respond to the CCIC Offer as soon as practicable after receipt
thereof, and in all events within thirty (30) days after receipt thereof.
The CCIC Offer may be revoked at any time. BAM shall have the right to
accept the CCIC Offer as to all (but not less than all) of the CCIC HoldCo
Interest offered thereby. In the event that BAM shall elect on a timely
basis to purchase all (but not less than all) of the CCIC HoldCo Interest
covered by the CCIC Offer, BAM shall communicate in writing such election
to purchase to CCIC Member, which communication shall be delivered by hand
or mailed to CCIC Member at the address set forth in Schedule A hereto and
shall, when taken in conjunction with the CCIC Offer, be deemed to
constitute a valid, legally binding and enforceable agreement for the sale
and purchase of the CCIC HoldCo Interest covered thereby; provided,
however, that CCIC Member may elect in its sole discretion to terminate
such agreement at any time prior to the closing of such sale and
<PAGE>
purchase, in which case such CCIC HoldCo Interest shall again become
subject to the requirements of a prior offer pursuant to this Section. In
the event CCIC Member terminates any such agreement prior to closing, CCIC
Member shall be prohibited from consummating a transaction for the sale and
purchase of the CCIC 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 CCIC HoldCo Interest with any other party for six (6) months from the
date of such termination. In the event that any CCIC Offer includes any
non-cash consideration, BAM 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 CCIC HoldCo Interest entered into between BAM and CCIC Member pursuant
to this Section 8.3 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 BAM and CCIC
Member hereby agrees to use its reasonable best efforts to obtain such
required approvals or consents from Governmental Authorities.
(b) In the event that BAM does not purchase the CCIC HoldCo
Interest offered by CCIC Member pursuant to the CCIC Offer, such CCIC
HoldCo Interest not so purchased may be sold by CCIC Member at any time
within ninety (90) days after the expiration of the CCIC Offer, subject to
the provisions of Section 8.5 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 CCIC Offer. If such CCIC 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 8.3. In the event
that such CCIC HoldCo Interest is sold pursuant to this Section 8.3 to any
purchaser other than BAM, such CCIC HoldCo Interest shall continue to be
subject to the restrictions imposed by this Operating Agreement and Section
9.3 of the Formation Agreement with the same effect as though such
purchaser were CCIC Member for purposes of this Section.
<PAGE>
Section 8.4 CCIC Member's Right of First Refusal of Transfer.
(a) If at any time BAM wishes to sell all or any part of the
BAM HoldCo Interest, BAM shall submit a written offer to sell such BAM
HoldCo Interest to CCIC Member on terms and conditions, including price,
not less favorable to CCIC Member than those on which BAM proposes to sell
the BAM HoldCo Interest to any other purchaser (the "BAM Offer"). The BAM
Offer shall disclose the identity of the proposed purchaser or transferee,
the percentage of the BAM HoldCo Interest to be sold, the terms of the
sale, any amounts owed to BAM with respect to the BAM HoldCo Interest and
any other material facts relating to the sale. CCIC Member shall respond to
the BAM Offer as soon as practicable after receipt thereof, and in all
events within thirty (30) days after receipt thereof. The BAM Offer may be
revoked at any time. CCIC Member shall have the right to accept the BAM
Offer as to all (but not less than all) of the BAM HoldCo Interest offered
thereby. In the event that CCIC Member elects on a timely basis to purchase
all (but not less than all) of the BAM HoldCo Interest covered by the BAM
Offer, CCIC Member shall communicate in writing such election to purchase
to BAM, which communication shall be delivered by hand or mailed to BAM at
the address set forth in Schedule A hereto and shall, when taken in
conjunction with the BAM Offer, be deemed to constitute a valid, legally
binding and enforceable agreement for the sale and purchase of the BAM
HoldCo Interest covered thereby; provided, however, that BAM 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 BAM HoldCo Interest
shall again become subject to the requirements of a prior offer pursuant to
this Section. In the event BAM terminates any such agreement prior to
closing, BAM shall be prohibited from consummating a transaction for the
sale and purchase of the BAM 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 BAM HoldCo Interest with any other party for six (6) months from the
date of such termination. In the event that any BAM Offer includes any
non-cash consideration, CCIC 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 BAM HoldCo Interest entered into between BAM and CCIC Member
pursuant to this Section 8.4 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 BAM and CCIC Member hereby agrees to use its reasonable best efforts to
obtain such required approvals or consents from Governmental Authorities.
(b) In the event that CCIC Member does not purchase the BAM
HoldCo Interest offered by BAM pursuant to the BAM Offer, such BAM HoldCo
Interest not so purchased may be sold by BAM at any time within ninety (90)
days after the expiration of the BAM Offer, subject to the provisions of
Section 8.5 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 BAM
Offer. If such BAM
<PAGE>
HoldCo Interest is not sold within such ninety (90)-day period, such BAM
HoldCo Interest shall continue to be subject to the requirements of a prior
offer pursuant to this Section. In the event that such BAM HoldCo Interest
is sold pursuant to this Section to any purchaser other than CCIC Member,
such portion of the BAM HoldCo Interest shall continue to be subject to the
restrictions imposed by this Operating Agreement and Section 9.4 of the
Formation Agreement with the same effect as though such purchaser were BAM
for purposes of such Section.
Section 8.5 Right of Participation in Sales.
(a) If at any time CCIC Member wishes to sell all or any
portion of the CCIC HoldCo Interest to any person or entity other than BAM
or any Affiliate of CCIC Member (the "CCIC HoldCo Interest Purchaser"), BAM
shall have the right to offer for sale to the CCIC HoldCo Interest
Purchaser, as a condition of such sale by CCIC Member, at the same price
and on the same terms and conditions as involved in such sale by CCIC
Member, the same proportion of the BAM HoldCo Interest as the proposed sale
represents with respect to the CCIC HoldCo Interest. BAM shall notify CCIC
Member of such intention as soon as practicable after receipt of the CCIC
Offer made pursuant to Section 8.3, and in all events within thirty (30)
days after receipt thereof. In the event that BAM elects to participate in
such sale by CCIC Member, BAM shall communicate such election to CCIC
Member, which communication shall be delivered in accordance with Section
11.5. CCIC Member and BAM shall sell to the CCIC HoldCo Interest Purchaser
the CCIC HoldCo Interest proposed to be sold by CCIC Member and the BAM
HoldCo Interest proposed to be sold by BAM, at not less than the price and
upon other terms and conditions, if any, not more favorable to the CCIC
HoldCo Interest Purchaser than those in the CCIC Offer provided by CCIC
Member under Section 8.3 above; provided, however, that any purchase of
less than all of the CCIC HoldCo Interest and the BAM HoldCo Interest by
the CCIC HoldCo Interest Purchaser shall be made from CCIC Member and BAM
pro rata based upon the amount offered to be sold by each. Any portion of
the CCIC HoldCo Interest and the BAM HoldCo Interest sold pursuant to this
Section 8.5(a) shall no longer be subject to the restrictions imposed by
Sections 8.3 or 8.4 of this Operating Agreement or entitled to the benefit
of this Section 8.5(a).
(b) If at any time BAM wishes to sell all or any portion of
the BAM HoldCo Interest to any person or entity other than CCIC Member or
Bell Atlantic Corporation or any other Affiliate of BAM (the "BAM HoldCo
Interest Purchaser"), CCIC Member shall have the right to offer for sale to
the BAM HoldCo Interest Purchaser, as a condition of such sale by BAM, at
the same price and on the same terms and conditions as involved in such
sale by BAM, the same proportion of the CCIC HoldCo Interest as the
proposed sale represents with respect to the BAM HoldCo Interest. CCIC
Member shall notify BAM of such intention as soon as practicable after
receipt of the BAM Offer made pursuant to Section 8.4, and in all events
within thirty (30) days after receipt thereof. In the event that CCIC
Member elects to participate in such sale by BAM, CCIC Member shall
communicate such election to BAM, which communication shall be delivered in
accordance with Section 11.5. BAM and CCIC Member shall sell to the BAM
HoldCo Interest Purchaser the BAM HoldCo Interest proposed to be sold by
BAM and the
<PAGE>
CCIC HoldCo Interest proposed to be sold by CCIC Member, at not less than
the price and upon other terms and conditions, if any, not more favorable
to the BAM HoldCo Interest Purchaser than those in the BAM Offer provided
by BAM under Section 8.4 above; provided, however, that any purchase of
less than all of the BAM HoldCo Interest and the CCIC HoldCo Interest by
the BAM HoldCo Interest Purchaser shall be made from BAM and CCIC Member
pro rata based upon the amount offered to be sold by each. Any portion of
the BAM HoldCo Interest and the CCIC HoldCo Interest sold pursuant to this
Section 8.5(b) shall no longer be subject to the restrictions imposed by
Sections 8.3 or 8.4 or entitled to the benefit of this Section 8.5(b).
Section 8.6 Effect of Transfer.
(a) In addition to satisfaction of Section 4.1 and the above
provisions of this Article VIII, no assignee or transferee of all or part
of a Membership Interest in the Company shall have the right to become
admitted as a Member, unless and until:
(1) the assignee or transferee has executed an
instrument reasonably satisfactory to the Managers accepting
and adopting the provisions of this Operating Agreement;
(2) the assignee or transferee has paid all reasonable
expenses of the Company requested to be paid by the Managers
in connection with the admission of such assignee or
transferee as a Member; and
(3) such assignment or transfer shall be reflected in a
revised Schedule A to this Operating Agreement.
(b) A person who is a permitted assignee of an interest in
the Company transferred in compliance with the provisions of this Article
VIII shall be admitted to the Company as a Member and shall receive an
interest in the Company without making a contribution or being obligated to
make a contribution to the Company.
Section 8.7 No Resignation of Members. A Member may not withdraw
or resign from the Company prior to dissolution or winding up of the
Company. If a Member is a corporation, trust or other entity and is
dissolved or terminated, the powers of that Member may be exercised by its
legal representative or successor.
ARTICLE IX
DISSOLUTION AND TERMINATION
Section 9.1 Dissolution. The Company shall be dissolved upon the
occurrence of any of the following events:
<PAGE>
(a) By the written consent of both BAM and CCIC Member;
(b) Upon the entry of a decree of judicial dissolution under
ss. 18-802 of the Act;
(c) Upon the unilateral election by BAM, exercisable at any
time after the third anniversary of the Effective Date of this Agreement by
BAM giving written notice thereof to CCIC Member; or
(d) Upon the unilateral election by CCIC Member, exercisable
at any time after the fourth anniversary of the Effective Date of this
Agreement by CCIC Member giving written notice thereof to BAM.
Section 9.2 Events of Bankruptcy of Member. The occurrence of any
of the events set forth in this Section 9.2, with respect to any Member,
shall not result in the dissolution of the Company. Such Member shall cease
to be a Member of the Company, but shall, however, retain its interest in
allocations and distributions, upon the happening of any of the following
bankruptcy events:
(a) A Member takes any of the following actions:
(1) Makes an assignment for the benefit of creditors.
(2) Files a voluntary petition in bankruptcy.
(3) Is adjudged a bankrupt or insolvent, or has entered
against the Member an order for relief, in any bankruptcy or
insolvency proceeding.
(4) Files a petition or answer seeking for the Member
any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any
statute, law or regulation.
(5) Files an answer or other pleading admitting or
failing to contest the material allegations of a petition
filed against the Member in any proceeding of this nature.
(6) Seeks, consents to or acquiesces in the appointment
of a trustee, receiver or liquidator of the Member or of all
or any substantial part of the properties of the Member.
(b) one hundred twenty (120) days after the commencement of
any proceeding against the Member seeking reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
any statute, law or regulation, if the proceeding has
<PAGE>
not been dismissed, or if within ninety (90) days after the appointment
without the consent or acquiescence of the Member, of a trustee, receiver
or liquidator of the Member or of all or any substantial part of the
properties of the Member, the appointment is not vacated or stayed, or
within ninety (90) days after the expiration of any such stay, the
appointment is not vacated.
Section 9.3 Judicial Dissolution. On application by or for a
Member or a Manager, a court may decree dissolution of the Company whenever
it is not reasonably practicable to carry on the business in conformity
with this Operating Agreement.
Section 9.4 Winding Up.
(a) The Managers shall wind up the affairs of the Company or
may appoint any person or entity, including a Member, who has not
wrongfully dissolved the Company, to do so (the "Liquidating Trustee").
(b) Upon dissolution of the Company and until the filing of
a certificate of cancellation as provided in Section 9.6, the persons
winding up the affairs of the Company may, in the name of, and for and on
behalf of, the Company, prosecute and defend suits, whether civil, criminal
or administrative, gradually settle and close the business of the Company,
dispose of and convey the property of the Company, discharge or make
reasonable provision for the liabilities of the Company, and distribute to
the Members any remaining assets of the Company, all without affecting the
liability of Members and Managers and without imposing liability on a
Liquidating Trustee.
Section 9.5 Distribution of Assets.
(a) In the event of any dissolution of the Company, upon the
winding up of the Company, its assets shall be distributed as follows:
(1) First, to creditors, including Members and Managers
who are creditors, to the extent otherwise permitted by law,
in satisfaction of liabilities of the Company (whether by
payment or the making of reasonable provision for payment
thereof) other than liabilities for which reasonable
provision for payment has been made;
(2) Next, (i) the CCIC Contributed Shares, including
all changes in the CCIC Contributed Shares by reason of
dividends payable in stock of CCIC, distributions, issuance
of stock, stock splits, recapitalizations, reorganizations,
mergers, consolidations, combinations, exchanges or other
similar changes with regard to CCIC Common Stock occurring
following the Effective Date, and together with all cash,
securities (and rights and interests therein) and other
property received or receivable with respect to the CCIC
Contributed Shares shall be distributed to BAM and (ii)
subject to the
<PAGE>
condition that CCIC Member makes the payment required under
the following subsection (b), the one hundred percent (100%)
percentage membership interest in HoldCo Sub held by the
Company shall be distributed to CCIC Member; provided,
however, (iii) that in the event that (x) the value of the
CCIC Contributed Shares at the date of dissolution of the
Company exceeds (y) the value of the CCIC Contributed Shares
on the Closing Date compounded to the date of dissolution of
the Company at twenty percent (20%) per annum (the excess of
(x) over (y) is referred to as the "Excess Return" herein),
then at CCIC Member's election, CCIC Member shall be
entitled to ten percent (10%) of the Excess Return, to be
provided to CCIC Member as a cash distribution of the net
proceeds of the sale of a number of the CCIC Contributed
Shares equal in value to ten percent (10%) of the Excess
Return; with such election to be made as part of CCIC
Member's election pursuant to Section 9.1(d) or within ten
(10) days of receipt of BAM's election pursuant to Section
9.1(c); and
(3) Then, to the Members in proportion to their
Percentage Interests.
(b) In consideration of the distribution to CCIC Member of
the HoldCo Sub membership interest, CCIC Member shall make a payment to BAM
in an amount equal to the Allocated Share of the Fair Market Value of such
membership interest in HoldCo Sub, which reflects the underlying value of
the assets held by each of HoldCo and OpCo; provided, however, that in the
event that CCIC Member makes the election set forth in Section
9.5(a)(2)(iii), then (x) "nineteen percent (19.0%)" shall be substituted
for "fourteen percent (14.0%)" in subsection (i) of the definition of
"Allocated Share" in Section 1.1; and (y) the determination of "Allocated
Share" pursuant to subsection (ii) of such definition shall be performed
appropriately taking into account the substitution described in (x) above.
At the option of CCIC Member, such payment shall be made either (i) in cash
or (ii) in shares of CCIC Common Stock, with the number of shares of CCIC
Common Stock determined by dividing the Allocated Share by the average
trading price of CCIC Common Stock in the sixty (60) trading days preceding
payment. For purposes of this Section, "Fair Market Value" of the HoldCo
Sub membership interest shall be calculated as follows: (i) BAM and CCIC
Member shall negotiate in good faith to determine Fair Market Value and
(ii) if BAM and CCIC Member fail to agree on Fair Market Value within
thirty (30) days after such trigger event, the Fair Market Value of the
HoldCo Sub membership interest shall be determined pursuant to the
appraisal process described below:
<PAGE>
(1) Not later than five (5) days after the expiration
of the period during which BAM and CCIC Member are to negotiate in good
faith to determine the Fair Market Value, BAM and CCIC Member shall each
select an appraiser (which may or may not be a Qualified Investment Banking
Firm (as hereinafter defined)) and shall give the other party notice of
such selection. Each of such appraisers (the "Original Appraisers") shall
determine the fair market value of the HoldCo Sub membership interest at
the time such appraiser renders its written appraisal.
(2) Each Original Appraiser shall deliver its written
appraisal to the party retaining such Original Appraiser within twenty (20)
days following the date of the selection of both Original Appraisers. Such
written appraisals shall be exchanged by BAM and CCIC Member at the offices
of Morgan, Lewis & Bockius LLP, or such other place as the parties shall
designate, at 10:00 a.m. local time on the twenty-first (21st) day
following the date of the selection of both Original Appraisers. In the
event that the Original Appraisers agree on the fair market value, the Fair
Market Value shall be such agreed-upon amount. In the event that the
Original Appraisers do not agree on the fair market value, (i) if the
higher of the two valuations is not more than one hundred ten percent
(110%) of the lower valuation of the Original Appraisers, the Fair Market
Value shall be the mean of the two valuations, and (ii) if the higher of
the two valuations is greater than one hundred ten percent (110%) of the
lower valuation, the Original Appraisers shall elect a Qualified Investment
Banking Firm which shall independently calculate the fair market value
within fifteen (15) days of such election. If the Original Appraisers
cannot agree upon a third appraiser within five (5) days following the end
of the twenty (20) day period referred to above, then the third appraiser
shall be a Qualified Investment Banking Firm appointed by the AAA. Neither
BAM nor CCIC Member nor either of the Original Appraisers shall provide the
third appraiser, directly or indirectly, with a copy of the written
appraisal of either of the Original Appraisers, an oral or written summary
thereof, or the valuation determined by either of the Original Appraisers,
either orally or in writing. The valuation of the third appraiser will be
compared with the two valuations of the Original Appraisers, and the
valuation farthest from the third valuation will be disregarded. The Fair
Market Value shall be the mean of the two remaining valuations.
(3) BAM and CCIC Member shall give to the Original
Appraisers and the third appraiser, and shall cause HoldCo Sub and OpCo to
give to the appraisers, 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 HoldCo Sub and OpCo and
shall permit them and cause HoldCo Sub and OpCo to permit them to consult
with the officers, employees, accountants, counsel and agents of HoldCo
Sub, OpCo, BAM and CCIC Member for the purpose of making such investigation
of HoldCo Sub and OpCo as they shall desire to make. Furthermore, BAM and
CCIC Member shall furnish to the Original Appraisers and the third
appraiser, and shall cause HoldCo Sub and OpCo to furnish to such
appraisers, all such documents and copies of documents and records and
information with respect to the affairs of HoldCo Sub and OpCo and copies
of any working papers relating thereto as they shall from time to time
reasonably request.
<PAGE>
(4) "Qualified Investment Banking Firm" means any firm
engaged in providing corporate finance, merger and acquisition, and
business valuation services and deriving revenues therefrom (excluding any
revenues derived from merchant banking activities) of at least $25 million
during its last completed fiscal year, but excluding, however, any firms
which received more than $250,000 in fees during the preceding twenty-four
(24) calendar months from BAM or CCIC Member or their respective affiliates
and any firms selected by BAM or CCIC Member as an Original Appraiser.
(c) The Company following dissolution shall pay or make
reasonable provision to pay all claims and obligations, including all
contingent, conditional or unmatured claims and obligations, known to the
Company and all claims and obligations which are known to the Company but
for which the identity of the claimant is unknown. If there are sufficient
assets, such claims and obligations shall be paid in full and any such
provision for payment made shall be made in full. If there are insufficient
assets, such claims and obligations shall be paid or provided for according
to their priority and, among claims and obligations of equal priority,
ratably to the extent of assets available therefor. Any remaining assets
shall be distributed as provided in subsection (a). Any Liquidating Trustee
winding up the affairs of the Company who has complied with this Section
shall not be personally liable to the claimants of the dissolved Company by
reason of such person's actions in winding up the Company.
Section 9.6 Cancellation of Certificate. The Certificate
of the Company shall be canceled upon the dissolution and the completion of
winding up of the Company.
ARTICLE X
BOOKS; REPORTS TO MEMBERS; TAX ELECTIONS
Section 10.1 Books and Records.
(a) The Managers shall maintain separate books of account
for the Company which shall show a true and accurate record of all costs
and expenses incurred, all charges made, all credits made and received and
all income derived in connection with the conduct of the Company and the
operation of its business, and, to the extent inconsistent therewith, in
accordance with this Operating Agreement.
(b) Except as and until otherwise required by the IRC, the
books of the Company shall be kept in accordance with the accrual method of
accounting.
(c) Each Member of the Company has the right to obtain from
the Company from time to time upon demand for any purpose reasonably
related to the Member's interest as a Member of the Company:
<PAGE>
(1) True and full information regarding the status of
the business and financial condition of the Company.
(2) Promptly after they become available, a copy of the
federal, state and local income tax returns for each year of
the Company.
(3) A current list of the name and last known business,
residence or mailing address of each Member and Manager.
(4) A copy of this Operating Agreement, the Certificate
and all amendments thereto.
(5) Any information or report deemed necessary by
either BAM or CCIC Member in order to prepare Securities and
Exchange Commission filing documents, financial statements
or tax returns.
(6) Other information regarding the affairs of the
Company as is just and reasonable.
(d) Each Manager shall have the right to examine all of the
information described in subsection (c) of this Section for a purpose
reasonably related to its position as a Manager.
Section 10.2 Tax Information. Within ninety (90) days
after the end of each fiscal year, the Company shall supply to each Member
all information necessary and appropriate to be included in each Member's
income tax returns for that year.
Section 10.3 Business Plans. On or before November 30 of
each year, the Managers of the Company shall, in consultation with BAM,
develop a business plan and budget for the Company (including HoldCo Sub
and OpCo) (the "Business Plan") for the following calendar year of HoldCo
(and HoldCo Sub and OpCo). The Business Plan for the period between the
Effective Date and December 31, 1999 is attached hereto as Schedule D. 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 BAM and CCIC Member. The Company 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 CCIC Member, to an amount not to exceed the
sum of:
<PAGE>
(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 fifty percent (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 one (1) plus an
amount equal to the percentage increase in the CPI during the
previous year.
If BAM and CCIC Member are unable to mutually agree on the Business Plan
for the year commencing January 1, 2000, 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, 1999, increased as
contemplated by the foregoing sentence, multiplied by three hundred
sixty-five (365) (b) divided by the number of days elapsed between the
Effective Date and December 31, 1999 (including both the Effective Date and
December 31, 1999).
Notwithstanding the foregoing, each Business Plan that is implemented
pursuant to the foregoing two paragraphs of this Section 10.3 because BAM
and CCIC 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; (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 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's 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.
Further, any such Business Plan may have the effect of reducing amounts
payable under the Management Agreement so long as the Anticipated Financing
remains outstanding.
<PAGE>
Section 10.4 Reports. The Company shall cause to be prepared, and
each Member furnished with, financial statements accompanied by a report
thereon of the Company's accountants stating that such statements are
prepared and fairly stated in all material respects in accordance with
generally accepted accounting principles, and, to the extent inconsistent
therewith, in accordance with this Operating Agreement, including the
following:
(a) within thirty (30) days of the end of each month, the
Company shall deliver to BAM and CCIC Member an unaudited income statement
and schedule as to the sources and application of funds for such month and
an unaudited balance sheet of the Company 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 Securities Exchange Act of 1934, as amended (the
"Exchange Act")), together with an analysis by management of the Company'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 the Company, a consolidated
income statement for such fiscal year, a consolidated balance sheet of the
Company as of the end of such year, a schedule as to the cash flow and a
statement of the Members' Capital Accounts, changes thereto for such fiscal
year and Percentage Interests at the end of such year, such year-end
financial reports to be in reasonable detail, prepared in accordance with
GAAP and audited and certified by the Company'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 the Company, 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 the Company 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 limited liability company affairs of the
Company as any Member may from time to time reasonably request.
Section 10.5 Tax Matters Partner.
(a) BAM is hereby appointed and shall serve as the tax
matters partner of the Company (the "Tax Matters Partner") within the
meaning of IRC ss. 6231(a)(7) for so long as it is not the subject of a
bankruptcy event as defined in Section 9.2 and otherwise is entitled to act
as the Tax Matters Partner. The Tax Matters Partner may file a designation
of itself as such with the Internal Revenue Service. The Tax Matters
Partner shall (i) furnish to each Member affected by an audit of the
Company income tax returns a copy of each notice or
<PAGE>
other communication received from the IRS or applicable state authority,
(ii) keep such Member informed of any administrative or judicial
proceeding, as required by Section 6223(g) of the Code, and (iii) allow
such Member an opportunity to participate in all such administrative and
judicial proceedings. The Tax Matters Partner shall take such action as may
be reasonably necessary to constitute the other Member a "notice partner"
within the meaning of Section 6231(a)(8) of the Code, provided that the
other Member provides the Tax Matters Partner with the information that is
necessary to take such action; and
(b) The Company shall not be obligated to pay any fees or
other compensation to the Tax Matters Partner in its capacity as such.
However, the Company shall reimburse the expenses (including reasonable
attorneys' and other professional fees) incurred by the Tax Matters Partner
in such capacity. Each Member who elects to participate in Company
administrative tax proceedings shall be responsible for its own expenses
incurred in connection with such participation. In addition, the cost of
any adjustments to a Member and the cost of any resulting audits or
adjustments of a Member's tax return shall be borne solely by the affected
Member; and
(c) The Company shall indemnify and hold harmless the Tax
Matters Partner from and against any loss, liability, damage, cost or
expense (including reasonable attorneys' fees) sustained or incurred as a
result of any act or decision concerning Company tax matters and within the
scope of such Member's responsibilities as Tax Matters Partner, so long as
such act or decision was not the result of gross negligence, fraud, bad
faith or willful misconduct by the Tax Matters Partner. The Tax Matters
Partner shall be entitled to rely on the advice of legal counsel as to the
nature and scope of its responsibilities and authority as Tax Matters
Partner, and any act or omission of the Tax Matters Partner pursuant to
such advice shall in no event subject the Tax Matters Partner to liability
to the Company or any Member.
Section 10.6 Tax Audits/Special Assessments. If the federal tax
return of either the Company or an individual Member with respect to an
item or items of Company income, loss, deduction, etc., potentially
affecting the tax liability of the Members generally is subject to an audit
by the Internal Revenue Service, the Managers may, in the exercise of their
business judgment, determine that it is necessary to contest proposed
adjustments to such return or items. If such a determination is made, the
Managers will finance the contest of the proposed adjustments out of the
Net Cash From Operations.
Section 10.7 Tax Elections. The Company will elect to amortize
organizational costs. Upon the death of a Member, or in the event of the
distribution of property, the Company may file an election, in accordance
with applicable Treasury Regulations, to cause the basis of the Company's
property to be adjusted for federal income tax purposes as provided by IRC
ss. 734, IRC ss. 743 and IRC ss. 754. The determination whether to make and
file any such election shall be made by the Managers in their sole
discretion.
<PAGE>
ARTICLE XI
MISCELLANEOUS
Section 11.1 Binding Effect. This Operating Agreement shall be
binding upon BAM and CCIC Member and any permitted transferee or permitted
assignee of an interest in the Company.
Section 11.2 Entire Agreement. This Operating Agreement, the
Certificate, the Formation Agreement and the other Transaction Documents
contain the entire agreement of the parties hereto with respect to the
subject matter hereof and supersede all prior understandings and agreements
of the parties with respect thereto.
Section 11.3 Amendments. The Certificate and this Operating
Agreement may not be amended except by the written agreement of all of the
Members.
Section 11.4 Choice of Law. Notwithstanding the place where this
Operating Agreement may be executed by any of the parties hereto, the
parties expressly agree that all the terms and provisions hereof shall be
construed under the laws of Delaware (without regard to any conflicts of
law principles).
Section 11.5 Notices. Except as otherwise provided in this
Operating Agreement, any notice, demand or communication required or
permitted to be given by any provision of this Operating Agreement shall be
deemed to have been sufficiently given or served for all purposes if
delivered personally or sent by facsimile transmission or overnight express
to the party or to an executive officer of the party to whom the same is
directed or, if sent by registered or certified mail, postage and charges
prepaid, addressed to the Member's or Company's address, as appropriate,
which is set forth in this Operating Agreement or Schedule A hereto.
Section 11.6 Headings. The titles of the Articles and the
headings of the Sections of this Operating Agreement are for convenience of
reference only and are not to be considered in construing the terms and
provisions of this Operating Agreement.
Section 11.7 Pronouns. All pronouns shall be deemed to refer to
the masculine, feminine, neuter, singular or plural, as the identity of the
person or persons, firm or corporation may require in the context thereof.
Section 11.8 Waivers. The failure of any party to seek redress
for violation of or to insist upon the strict performance of any covenant
or condition of this Operating Agreement shall not prevent a subsequent
act, that would have originally constituted a violation, from having the
effect of an original violation.
<PAGE>
Section 11.9 Severability. If any provision of this Operating
Agreement or its application to any person or circumstance shall be
invalid, illegal or unenforceable to any extent, the remainder of this
Operating Agreement and its application shall not be affected and shall be
enforceable to the fullest extent permitted by law.
Section 11.10 No Third Party Beneficiaries. None of the
provisions of this Operating Agreement shall be for the benefit of or
enforceable by any person other than the parties to this Agreement and
their respective permitted successors and permitted transferees and
assigns.
Section 11.11 Interpretation. It is the intention of the Members
that, during the term of this Operating Agreement, the rights of the
Members and their successors-in-interest shall be governed by the terms of
this Agreement, and that the right of any Member or successor-in-interest
to assign, transfer, sell or otherwise dispose of any interest in the
Company shall be subject to limitations and restrictions of this Operating
Agreement.
Section 11.12 Further Assurances. Each Member shall execute all
such certificates and other documents and shall do all such other acts as
the Managers deem appropriate to comply with the requirements of law for
the formation of the Company and to comply with any laws, rules,
regulations and third-party requests relating to the acquisition, operation
or holding of the property of the Company.
Section 11.13 Counterparts. This Operating Agreement may be
executed in counterparts, each of which shall be deemed an original, but
all of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned Members, intending to be
legally bound, have executed this Operating Agreement as of the date first
above written.
CELLCO PARTNERSHIP
By BELL ATLANTIC MOBILE INC., its managing
general partner
By: /s/ A.J. Melone
-------------------------------
Name: A.J. Melone
Title: Vice President
Network Planning and Administration
CCA INVESTMENT CORP.
By: /s/ David L. Ivy
-------------------------------
Name: David L. Ivy
Title: President
Exhibit 99.4
AMENDMENT No. 1 dated as of March 31, 1999, to the
Rights Agreement dated as of August 21, 1998 (the
"Rights Agreement"), between CROWN CASTLE INTERNATIONAL
CORP. (the "Company") and CHASEMELLON SHAREHOLDER
SERVICES, L.L.C., as Rights Agent (the "Rights Agent").
Pursuant to the terms of the Rights Agreement and
in accordance with Section 26 thereof, the following actions
are hereby taken prior to executing the Operating Agreement
referred to below:
Section 1. Amendment to Rights Agreement. The Rights Agreement is
hereby amended as follows:
(a) The definition of "Acquiring Person" in Section 1 of the
Rights Agreement is amended to add the following at the end of the third to
the last sentence thereof:
"; provided further that, for so long as Bell Atlantic or any
Affiliate of Bell Atlantic which is controlled by Bell Atlantic shall not
become the Beneficial Owner of any Voting Securities other than pursuant to
the following clauses (i), (ii) and (iii), none of Bell Atlantic or any
such Affiliate shall be deemed to be an Acquiring Person solely by virtue
of (i) the issuance of the Contributed Shares by the Company and the
contribution thereof by Company Member to Crown Atlantic HoldCo at the
closing of the transactions contemplated by the Formation Agreement and
also after such closing in accordance with the provisions of Section 3.8 of
the Formation Agreement, or (ii) the distribution or transfer of the
Contributed Shares (including all changes in the Contributed Shares by
reason of dividends payable in stock of the Company, distributions,
issuances of stock, stock splits, recapitalizations, reorganizations,
mergers, consolidations, combinations, exchanges or other similar changes
with regard to the Common Stock occurring following the date hereof, and
together with all cash, securities (and rights and interests therein) and
other property received or receivable with respect to the Contributed
Shares) to BAM in connection with the dissolution of Crown Atlantic HoldCo
or otherwise, or (iii) the payment by Company Member to BAM, made in Common
Stock in connection with the dissolution of Crown Atlantic HoldCo pursuant
to Section 9.5 of the Operating Agreement, of an amount equal to the
Allocated Share (as defined in the Operating Agreement) of the Fair Market
Value (as defined in
<PAGE>
the Operating Agreement) of the Crown Atlantic HoldCo Sub membership interest.
(b) The following definitions shall be added to Section 1 of the
Rights Agreement:
"BAM" shall mean Cellco Partnership, a Delaware general
partnership doing business as Bell Atlantic Mobile.
"Bell Atlantic" shall mean Bell Atlantic Corporation, a Delaware
corporation.
"Company Member" shall mean CCA Investment Corp., a Delaware
corporation and a wholly owned subsidiary of the Company.
"Contributed Shares" shall mean the Bidder Contributed Shares, as
such term is defined in the Formation Agreement.
"Crown Atlantic HoldCo" shall mean Crown Atlantic Holding Company
LLC, a Delaware limited liability company.
"Crown Atlantic HoldCo Sub" shall mean Crown Atlantic Holding Sub
LLC, a Delaware limited liability company.
"Formation Agreement" shall mean the Formation Agreement dated as
of December 8, 1998 among the Company, Company Member, BAM, and certain
transferring partnerships, as amended on March 31, 1999.
"Operating Agreement" shall mean the Operating Agreement of Crown
Atlantic HoldCo entered into as of March 31, 1999.
Section 2. Full Force and Effect. Except as expressly amended
hereby, all of the provisions of the Rights Agreement are hereby ratified
and confirmed to be in full force and effect in accordance with the
provisions thereof on the date hereof.
Section 3. Governing Law. This Amendment shall be governed by and
construed in accordance with the law of the State of Delaware applicable to
contracts to be made and performed entirely within such State.
<PAGE>
IN WITNESS WHEREOF, the Company and the Rights Agent have caused
this Amendment to be duly executed as of the day and year first above
written.
CROWN CASTLE INTERNATIONAL CORP.,
by: /s/ David L. Ivy
--------------------------
Name: David L. Ivy
Title: President
CHASEMELLON SHAREHOLDER SERVICES,
L.L.C.,
by: /s/ Timothy D. Oliver
--------------------------
Name: Timothy D. Oliver
Title: Relationship Manager
Exhibit 99.5
EXCLUSIVE MANAGEMENT AGREEMENT
EXCLUSIVE MANAGEMENT AGREEMENT (the "Agreement") dated as of March 31,
1999, by and among Cellco Partnership, a Delaware general partnership doing
business as Bell Atlantic Mobile ("BAM"), the Listed Partnerships (listed
on the signature pages hereof), and Crown Atlantic Company LLC ("Manager")
with reference to the following Preamble:
BAM and the Listed Partnerships (each, an "Owner" and,
collectively, the "Owners") are the owners of certain tower
structures, interests in real property related thereto, and related
assets, property rights, liabilities and obligations (hereinafter
defined as Managed Assets and Related Liabilities). Manager is engaged
in the business of owning, managing and operating assets similar to
the Managed Assets and Related Liabilities. BAM and the Listed
Partnerships desire to engage Manager to provide, and Manager desires
to provide, Management Services (hereinafter defined) for such Managed
Assets and Related Liabilities upon the terms and conditions herein
contained. BAM, Crown Castle International Corp., CCA Investment Corp.
and certain other Transferring Partnerships are parties to a Formation
Agreement dated as of December 8, 1998 (as amended through the date
hereof, the "Formation Agreement"). (All capitalized terms used herein
and not otherwise defined herein shall have the respective meanings
ascribed thereto in the Formation Agreement.)
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
ARTICLE 1.
Definitions
1.1 "Managed Assets" with respect to an Owner shall mean all right,
title and interest of such Owner in and to all of the assets, properties
and rights of such Owner to all Tower Structures of such Owner, all of such
Owner's rights to all Tower Sites; all Tower Related Assets of such Owner;
and all rights under any Governmental Permits (excluding FCC licenses) held
exclusively with respect to the ownership or use of the Tower Structures or
Tower Sites of such Owner and not used or useful by such Owner in any other
part of its business and operations, to the extent such Governmental
Permits may be managed hereunder. The Managed Assets shall not include any
Excluded Assets.
1.2 "Excluded Assets" shall mean (a) all assets, properties and rights
contributed to Manager on the date hereof pursuant to the Formation
Agreement, (b) any communications antennae, microwave transmitters or
receivers, wiring, devices, switches, generators or other communications
equipment, or any buildings, shelters or other structures housing such
equipment with respect to the Tower Structures and Tower Sites; (c) an
Owner's rights to the real estate listed in Schedule 2.3.2(b) to the
Formation Agreement, being real estate on which switch equipment of such
Owner or its Affiliates is located; (d) corporate seals, Charter Documents,
minute books, stock books, tax returns, books of account and other
financial records of an Owner, sales and marketing catalogs, brochures and
advertising material, the names "NYNEX," "Bell Atlantic," "Bell Atlantic
Mobile," "BAM," "Cellco," "Cellular One" and all other names under which an
Owner or any of its Affiliates (excluding Manager, if for some reason
<PAGE>
Manager falls within the definition of an Affiliate of an Owner) conducts
business; (e) all Intellectual Property of an Owner or any Affiliate of an
Owner, other than plans and specifications of the Tower Structures and data
(in electronic or machine-readable form) with respect to third party
tenants and lessors with respect to the Tower Structures; (f) any equipment
or transmissions systems used by an Owner for the remote monitoring of the
Tower Structures; (g) any assets, properties or rights which are not
exclusively Managed Assets including, but not limited to, any funded
employee benefit plan assets attributable to an employee benefit plan
maintained by an Owner or any Affiliate of an Owner; (h) the rights that
accrue or will accrue to an Owner under this Agreement or any of the other
Transaction Documents; (i) any claims or rights against third parties
except solely to the extent such claims or rights relate to Assumed
Liabilities, the BAM Contributed Assets, the Managed Assets or the Related
Liabilities; (j) any and all rights retained by and/or granted to BAM
pursuant to the Global Lease; (k) the assets specified in Schedule 2.3.2 to
the Formation Agreement; and (l) any Tower Sites (and all Tower Structures,
Tower Related Assets and other BAM Contributed Assets associated with such
Tower Sites) excluded from the BAM Contributed Assets pursuant to Sections
2.3.5, 2.3.6 and 6.1.7 of the Formation Agreement or which would have been
excluded from the Managed Assets if the Managed Assets had been BAM
Contributed Assets.
1.3 "Excluded Liabilities" means (a) all Liabilities of an Owner under
all Contracts and purchase orders included within the Managed Assets which
would be BAM Retained Liabilities if such Managed Assets had been included
in the BAM Contributed Assets; (b) all other Liabilities of an Owner in
respect of the Managed Assets existing as of the date hereof which would be
BAM Retained Liabilities if the Managed Assets had been included in the BAM
Contributed Assets; and (c) the rents, revenues, Taxes, charges and
payments that would be apportioned for the account of an Owner pursuant to
Section 2.3.8 of the Formation Agreement if the Managed Assets were BAM
Contributed Assets under the Formation Agreement.
1.4 "Related Liabilities" means (a) all Liabilities (other than any of
the Excluded Liabilities) of an Owner under all Contracts and purchase
orders included within the Managed Assets; (b) all Liabilities (other than
any of the Excluded Liabilities) of an Owner in respect of the Managed
Assets existing as of the date hereof; and (c) the rents, revenues, Taxes,
charges and payments that would be apportioned for the account of the
Manager pursuant to Section 2.3.8 of the Formation Agreement if the Managed
Assets were BAM Contributed Assets under the Formation Agreement.
1.5 "Tower Related Assets" shall mean with respect to an Owner (a) the
leases of rights to use spaces on the Tower Structures that are identified
in Annex I hereto for such Owner and located on Tower Sites of such Owner
(the "Tower Leases") and security deposits (if any) from tenants under the
Tower Leases, (b) the Site Leases of such Owner, (c) all Contracts with
respect to the management, operation, maintenance, servicing and
construction of, and the provision of utility services to, the Tower
Structures ("Tower Service Contracts"), (d) any existing leases (or
licenses or other Contracts) of an Owner for equipment or other personal
property which are Tower Structures ("Tower Equipment Leases"), (e) all
prepaid items, unbilled costs and fees, and accounts, notes and other
receivables under the Tower Service Contracts, Site Leases and Tower
Equipment Leases as of the date hereof ("Prepaid Expenses"), (f) all rights
to any warranties held by an Owner with respect to the Tower Structures or
Tower Related Assets to the extent such rights are assignable, including
those assignable with consent to the extent such consents are received, or,
to the extent not so received, all amounts received by an Owner with
respect to claims made after the date hereof with respect to such
unassigned rights to any warranties, and (g) copies of, or extracts from,
all current files and records of an Owner to the extent that
<PAGE>
such files or records contain information solely related to the design,
construction, management, operation, maintenance, ownership, occupancy or
leasing of the Managed Assets.
1.6 "Tower Sites" shall mean the sites of the Tower Structures that
are owned or leased by such Owner, including all fee, ground leasehold
interests and easements pertaining to such tower sites owned by such Owner
and shall include the leasehold interest in and to the real property
associated with the Tower Structures pursuant to the terms of the ground
leases related thereto identified in Annex I (the "Site Leases").
1.7 "Tower Structures" shall mean with respect to an Owner the
communications tower structures situated at the locations that are
identified on Annex I and owned or leased by such Owner, and such Owner's
rights to all attached tower lighting equipment, alarm systems, grounding
systems and physical improvements on each Tower Site, including fencing,
along with any tenant leases, easement rights necessary for access to the
Tower Structure and for location of the Tower Structure and guy wires, if
any, associated therewith; provided however, such term does not include any
equipment, property or other assets placed upon the Tower Structures or
Tower Sites by third parties pursuant to Tower Leases or other Contracts or
any Excluded Assets.
ARTICLE 2.
Services, Compensation
2.1 Management Services. As regards Managed Assets of an Owner,
Manager shall provide to each such Owner the services described in this
Section 2.1 (the "Management Services"). Manager shall manage all aspects
of the ownership and operation of the Managed Assets and in connection
therewith, Manager shall (i) punctually pay and perform on behalf of each
Owner all obligations of the Owner under all Contracts or other Liabilities
with respect to the Managed Assets relating to periods on or after the date
hereof, and (ii) punctually collect on behalf of the Owner all revenues
relating to periods on or after the date hereof from the Managed Assets and
exercise all rights on behalf of the Owner with respect to the Managed
Assets. Without limiting the generality of the foregoing, Manager shall
have the right, without obtaining the prior consent of any Owner, to
exercise any renewal or extension option or right expressly set forth in
any of the Contracts, Site Leases or other Managed Assets. Alternatively,
Manager shall have the right to give a written direction to an Owner for
the Owner to exercise any such option or right; and each Owner agrees that
it shall promptly comply with any such written direction from Manager.
Further, Manager shall have the right, without obtaining the prior consent
of any Owner, at Manager's sole risk, cost and expense, to make capital
improvements to the Managed Assets provided that Manager has the express
right to do so under the provisions of the applicable Site Lease and
Manager performs same in a manner consistent with all tenant leases of
space on the applicable Tower Structures (if applicable) and in a manner
that does not disturb, interfere with or otherwise adversely affect the use
or operation of an Owner's communications facilities or equipment located
on or at the applicable Managed Asset or an Owner's access to such
communications facilities or equipment. From time to time Manager may
negotiate on behalf of each Owner such leases of rights to use spaces on
the Tower Structures included in the Managed Assets, subject to the prior
written approval of such Owner as to the terms and conditions thereof,
which approval shall not be unreasonably withheld or delayed and shall be
given if the terms and conditions of a proposed lease are substantially
similar to the standard terms and conditions that Manager uses in leasing
rights to use space on communications tower structures owned by Manager.
<PAGE>
2.2 Standard of Performance. Management Services performed by Manager
pursuant to this Agreement shall be provided with the same standard of
care, diligence and performance which Manager is obligated to meet under
the Global Lease (as if the Manager were the "Lessor" under the Global
Lease and the Managed Assets were properties subject to a "Supplement"
under the Global Lease). Except for the duties or actions expressly
reserved to the Owner under this Agreement with respect to the Managed
Assets, Manager shall perform all actions and render the same services with
respect to the Managed Assets as Manager would be required to perform and
render if Manager were the "Lessor" under the Global Lease and the Managed
Assets were properties subject to a "Supplement" under the Global Lease.
Each Owner shall be entitled to rights (including, without limitation, use
rights) and obligations (including, without limitation, payment
obligations, which payment obligations are set forth in Annex II hereto and
are subject to the provisions of Section 2.3(a) below) with respect to such
Owner's Managed Assets as such Owner would be entitled to or required to
perform if such Owner were the "Lessee" under the Global Lease and such
Managed Assets were properties subject to a "Supplement" under the Global
Lease. Manager agrees to perform the Management Services in accordance with
the time commitments of the Owners that may be expressly set forth in the
Contracts, Site Leases or other Managed Assets. Manager will not commingle
funds of an Owner with those of Manager or any other party. Manager will
assure that assets and properties of an Owner will be clearly identified
and treated as belonging to the Owner and not to Manager. Manager will be
responsible for the consequences of its performance or failure to perform
in a timely or appropriate manner.
2.3 Amount of Compensation. The payments provided for in this Section
2.3 shall be the sole compensation to which Manager is entitled for the
performance of Manager's duties under this Agreement. It is the intent of
the parties that from and after the date of this Agreement, Manager shall
be responsible for, and entitled to, all economic gain and loss associated
with the use, ownership, possession, operation, leasing, management or all
other activities related to the Managed Assets.
(a) Periodic Cash Payment. The "Periodic Cash Payment" for any
period of time shall mean the remainder of the total amount of cash
actually received by each Owner from third parties during that period with
respect to the Managed Assets, plus an amount equal to the amount which the
Owner would otherwise have paid Manager if such Owner's Managed Assets were
properties subject to a "Supplement" under the Global Lease, as such amount
is specified in Annex II hereto, reduced by the total amount of cash
actually paid by the Owner (including the following amounts owing by the
Owner under Site Leases: rents, real estate taxes and personal property
taxes assessed other than those personal property taxes attributable to the
Owner's equipment located on the applicable Tower Structures) with respect
to the Managed Assets. During the Term, Manager shall be entitled to
receive and retain all cash received by Manager from third parties with
respect to the Managed Assets. During the Term, Manager shall be
responsible for bearing all taxes, costs and expenses of any type
whatsoever relating to the Managed Assets, excepting only personal property
taxes attributable to the Owners' equipment located on Tower Structures.
During the Term, Manager shall be obligated to pay all such taxes, costs
and expenses, excepting only those set forth in the following sentence, and
shall not (i) seek reimbursement for any such expense from any Owner or
(ii) pay any expense out of any funds of any Owner. During the Term, each
Owner shall pay (directly to the landlord or lessor or applicable taxing
authority) the following amounts owing by the Owner under Site Leases:
rents, real estate taxes and personal property taxes; and all such amounts,
excepting only personal property taxes attributable to the Owner's
equipment located on Tower Structures, shall be for the account of Manager
and a deduction in the calculation of the Periodic Cash Payment amounts. No
later than the 20th day of each calendar month, each Owner shall pay to
Manager an amount equal to the Periodic Cash Payment for the previous
<PAGE>
calendar month, which payment shall be accompanied by a reasonably detailed
calculation of the Periodic Cash Payment, together with reasonable evidence
supporting the calculation.
(b) Related Liabilities. Manager shall pay and discharge each of
the Related Liabilities in accordance with their terms.
(c) Excluded Liabilities. Each Owner shall pay and discharge each
of the Excluded Liabilities related to such Owner's Managed Assets in
accordance with their terms.
(d) Apportionments. Manager shall pay to each Owner and each
Owner shall pay to Manager the amounts which would have been required to be
paid for prorations with respect to the Managed Assets and Related
Liabilities under Section 2.3.8 of the Formation Agreement if such Managed
Assets had been BAM Contributed Assets under the Formation Agreement.
(e) Costs and Expenses. Manager shall pay its own costs and
expenses and the costs and expenses of its agents and subcontractors and no
part of such payments shall be for the account of an Owner.
ARTICLE 3.
Ancillary Covenants
3.1 Access, Audit.
(a) Manager shall give to each Owner and such Owner's officers,
employees, counsel, accountants and other representatives free and full
access to and the right to inspect, during normal business hours, all of
the premises, properties, assets, records, contracts and other documents
relating to its business and shall permit them to consult with the
officers, employees, accountants, counsel and agents of Manager for the
purpose of making such investigation of the Managed Assets, the Related
Liabilities, the Management Services, the Periodic Cash Payments and the
apportionments as such Owner shall desire to make, provided that such
investigation shall not unreasonably interfere with the business operations
of Manager. Furthermore, Manager shall furnish to each Owner copies of all
documents and records and information with respect to the Managed Assets,
the Related Liabilities, the Management Services, the Periodic Cash
Payments and the apportionments and copies of any working papers relating
thereto as an Owner shall from time to time reasonably request and shall
permit an Owner and its agents to make such physical inventories and
inspections of the properties and assets used in connection with its
business as an Owner may reasonably request from time to time. Manager
shall maintain complete records of all revenues, costs, cash receipts, cash
disbursements and other items taken into account in determining the
Periodic Cash Payments hereunder for three (3) years after termination of
this Agreement. All such records shall be maintained in accordance with
recognized accounting practices. Each of the Owners shall have the right,
through its authorized representatives, to examine and audit such records
at all reasonable times.
(b) Each Owner shall give to Manager and its officers, employees,
counsel, accountants and other representatives free and full access to and
the right to inspect, during normal business hours, all of the records and
other documents relating to such Owner's payment obligations and
indemnification obligations under this Agreement and shall permit them to
consult with the officers,
<PAGE>
employees, accountants, counsel and agents of such Owner for the purpose of
making such investigation of such payment and indemnification obligations
of such Owner that Manager shall desire to make, provided that such
investigation shall not unreasonably interfere with the business operations
of such Owner. Furthermore, each Owner shall furnish to Manager copies of
all documents and records and information with respect to such Owner's
payment and indemnification obligations under this Agreement as Manager
shall from time to time reasonably request. Each Owner shall maintain
complete records relating to its payment and indemnification obligations
under this Agreement for three (3) years after termination of this
Agreement. All such records shall be maintained in accordance with
recognized accounting practices. Manager shall have the right, through its
authorized representatives, to examine and audit such records at all
reasonable times.
3.2 Insurance.
(a) The parties hereby waive (for themselves and for any party
which may have a right of subrogation or similar right, including, without
limitation, any insurer) any and all rights of action for negligence
against the other which may hereafter arise on account of damage to a Tower
Structure, resulting from any fire, or other casualty of the kind covered
by standard fire insurance policies with extended coverage, regardless of
whether or not, or in what amounts, such insurance is now or hereafter
carried by the parties, or either of them. Manager agrees that any Owner
may self-insure against any loss or damage which could be covered by a
comprehensive general public liability insurance policy.
(b) Notwithstanding the foregoing, Manager shall at all times,
maintain adequate insurance covering the Managed Assets and its properties
and other assets used in connection with performing its obligations
hereunder, in at least the amounts and types of coverage customary in the
wireless telecommunications industry. In the event of any accident,
casualty or occurrence which results in damage to, or impairment of use of
a Tower Structure, Manager shall take all actions necessary to promptly
restore the Tower Structure to a condition fit for the applicable Owner's
intended use, utilizing the proceeds of any applicable insurance proceeds
in addition to any other sums which may be required.
3.3 Subcontracting. Manager shall be liable for the conduct of each
subcontractor engaged by Manager to perform any of the Management Services
to the same extent as Manager's liability under this Agreement and for all
fees and expenses of such subcontractor.
3.4 Property. Title to all assets, properties or rights owned by the
Owners and furnished to Manager shall remain that of the Owners and be used
only in the performance of this Agreement until such time, if any, that
such assets, properties or rights are transferred or conveyed to Manager
under Section 5.4 below. Manager shall be responsible for any loss of or
damage to the assets, properties or rights of an Owner which are in
Manager's possession or control, but Manager shall not be obligated to pay
or reimburse Owner for any amounts in respect of any loss of or damage to
any of the Managed Assets. Manager and its representatives shall, while on
the premises of an Owner, comply with all site rules and regulations in
effect, including security requirements. However, in light of the parties'
intention that from and after the date of this Agreement, Manager shall be
responsible for, and entitled to, all economic gain and loss associated
with the use, ownership, possession, operation, leasing, management or all
other activities related to the Managed Assets, in order for an Owner to
increase the space that it occupies or uses on any Tower Structure or Tower
Site included in the Managed Assets beyond the space that such Owner
occupies or uses on such Tower Structure or Tower Site, such Owner
<PAGE>
shall be required to pay Manager an amount for increased space that is
equal to the amount that would have been payable by such Owner to Manager
under the Global Lease, if the applicable Managed Assets were properties
subject to a "Supplement" under the Global Lease.
3.5 Compliance with Laws. Manager, its employees and representatives
shall, in providing Management Services under this Agreement, comply with
all local, state and federal laws, rules and regulations applicable to it.
Each Owner, its employees and representatives shall, in performing such
Owner's obligations under this Agreement, comply with all local, state and
federal laws, rules and regulations applicable to it.
3.6 Information Regarding Managed Assets. On or before April 30, 1999,
each Owner shall deliver to Manager, with respect to the Managed Assets of
such Owner, completed (but not executed) "Supplements" under the Global
Lease or another form of documentation which provides Manager with the same
information regarding such Managed Assets as would be provided if such
Owner completed a "Supplement" under the Global Lease for such Managed
Assets.
ARTICLE 4.
Indemnification
4.1 Indemnification by Manager. From and after the Closing, Manager
shall indemnify and hold harmless each Owner, its successors and assigns
and its officers, directors, employees, agents and any Person who controls
any of the foregoing within the meaning of the Securities Act or the
Exchange Act (each, an "Indemnified Owner Party") from and against any
Losses that such Indemnified Owner Party may sustain, suffer or incur and
that result from, arise out of or relate to (i) the use, ownership,
possession, operation, leasing, management or any other activities (other
than activities of any Owner or of any Affiliate of any Owner, excluding
Manager, if for some reason Manager falls within the definition of an
Affiliate of an Owner) related to the Managed Assets during the Term and
any Management Services provided hereunder (except only an Owner's
obligation to pay to Manager the compensation provided for in Section 2.3
hereof), (ii) any Related Liability, (iii) any apportionments allocated to
Manager pursuant to Section 2.3(d) hereof, (iv) any claim that any of the
Management Services (including, without limitation, any report or document
delivered by Manager as part of the Management Services) infringes or
misappropriates any patent, copyright, trademark, trade secret or other
intellectual property right of any third party, or (v) any breach by
Manager of any covenant, obligation or warranty contained herein.
4.2 Indemnification by Owners. From and after the Closing, each Owner
shall indemnify and hold harmless Manager, its successors and assigns and
its officers, directors, employees, agents and any Person who controls any
of the foregoing within the meaning of the Securities Act or the Exchange
Act (each, an "Indemnified Manager Party") from and against any Losses that
such Indemnified Manager Party may sustain, suffer or incur and that result
from, arise out of or relate to (i) the use, ownership, possession,
operation, leasing, management or any other activities related to such
Owner's Managed Assets prior to the commencement of the Term or any
activities of any Owner or of any Affiliate of any Owner (excluding
Manager, if for some reason Manager falls within the definition of an
Affiliate of an Owner), (ii) any Excluded Liability related to such Owner's
Managed Assets, (iii) any apportionments allocated to such Owner pursuant
to Section 2.3(d) hereof, and (iv) any breach by such Owner of any
covenant, obligation or warranty contained herein.
<PAGE>
4.3 Procedure for Indemnification Claims.
(a) Any Indemnified Owner Party or Indemnified Manager Party that
desires to seek indemnification under any provision of this Article 4 or
any other provision of this Agreement providing for indemnification (each,
in such capacity, an "Indemnified Party") shall give notice (a "Claim
Notice") to party that is obligated to indemnify the Indemnified Party
hereunder, either Manager or the appropriate Owner (each, in such capacity,
an "Indemnitor"). Such Claim Notice shall briefly explain the nature of the
claim and the parties known to be involved, and shall specify the amount
thereof. If the matter to which a claim relates shall not have been
resolved as of the date of the Claim Notice, the Indemnified Party shall
estimate the amount of the claim in the Claim Notice, but also specify
therein that the claim has not yet been liquidated (an "Unliquidated
Claim"). If an Indemnified Party gives a Claim Notice for an Unliquidated
Claim, the Indemnified Party shall also give a second Claim Notice (the
"Liquidated Claim Notice") within sixty (60) days after the matter giving
rise to the claim becomes finally resolved, and the Second Claim Notice
shall specify the amount of the claim. Any failure to give a Claim Notice
in a timely manner pursuant to this Section 4.3(a) shall not limit the
obligation of the Indemnitor under this Article 4, except to the extent
such Indemnitor is prejudiced thereby. Each Indemnitor to which a Claim
Notice is given shall respond to any Indemnified Party that has given a
Claim Notice (a "Claim Response") within thirty (30) days (the "Response
Period") after the later of (i) the date that the Claim Notice is given or
(ii) if a Claim Notice is first given with respect to an Unliquidated
Claim, the date on which the Liquidated Claim Notice is given. Any Claim
Notice or Claim Response shall be given in accordance with the notice
requirements hereunder, and any Claim Response shall specify whether or not
the Indemnitor giving the Claim Response disputes the claim described in
the Claim Notice. If any Indemnitor fails to give a Claim Response within
the Response Period, such Indemnitor shall be deemed not to dispute the
claim described in the related Claim Notice. If any Indemnitor elects not
to dispute a claim described in a Claim Notice, whether by failing to give
a timely Claim Response or otherwise, then the amount of such claim shall
be conclusively deemed to be an obligation of such Indemnitor. If the
Indemnitor notifies the Indemnified Party in the Claim Response that it
disputes the claim made by the Indemnified Party, then the Indemnitor and
the Indemnified Party shall endeavor in good faith for a period of thirty
(30) days to settle and compromise such claim, and if unable to agree on
any settlement or compromise, such claim for indemnification shall be
settled by arbitration in accordance with the provisions of Section 6.1 of
this Agreement, and any Loss established by reason of such settlement,
compromise or arbitration shall be deemed to be finally determined.
(b) Any Loss that is finally determined in the manner set forth
in Section 4.3(a) shall be paid by the Indemnitor to the Indemnified Party
within thirty (30) days after (i) the last day of the Claim Response Period
or (ii) the date on which such settlement, compromise or arbitration
described in the last sentence of Section 4.3(a) shall have been deemed to
be finally determined, as the case may be. If any Indemnitor fails to pay
all or part of any indemnification obligation when due, then such
Indemnitor shall also be obligated to pay to the applicable Indemnified
Party interest on the unpaid amount for each day during which the
obligation remains unpaid at an annual rate equal to the Prime Rate plus
two percent (2%) per annum, and the Prime Rate in effect on the first (1st)
business day of each calendar quarter shall apply to the amount of the
unpaid obligation during such calendar quarter.
4.4 Third Party Claims. An Indemnified Party that desires to seek
indemnification under any part of this Article 4 with respect to any
actions, suits or other administrative or judicial proceedings (each, an
"Action") that may be instituted by a third party shall give each
Indemnitor prompt notice of a third party's institution of such Action and
tender defense of such Action to the Indemnitor, with counsel
<PAGE>
reasonably satisfactory to such Indemnified Party; provided, however, that such
Indemnified Party shall have the right to participate at its own expense in
the defense of such Action; and provided, further, that the Indemnitor
shall not consent to the entry of any judgment or enter into any
settlement, that (x) does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a complete
release therefrom, or (y) provides for injunctive or other non-monetary
relief affecting the Indemnified Party, except with the written consent of
such Indemnified Party (which consent shall not be unreasonably withheld,
delayed or conditioned). The Indemnified Party shall render all assistance
and cooperation to the Indemnitor (at Indemnitor's sole expense) which the
Indemnitor may request in defense of any such Action including, without
limitation, the making of witnesses and documents available for
depositions, interrogatories and court proceedings. Any failure to give
prompt notice and to tender the defense of an Action pursuant to this
Section 4.4 shall not bar an Indemnified Party's right to claim
indemnification under this Article 4, except to the extent that an
Indemnitor shall have been materially harmed by such failure.
ARTICLE 5.
Term; Termination
5.1 Effective Date and Term. The term of this Agreement ("Term") shall
be effective as of the date first above written, and shall continue until
the earlier to occur of (a) the transfer and contribution to Manager of all
of the Managed Assets pursuant to Section 5.4 below, (b) the expiration of
the term of the last to expire of the Site Leases included within the
Managed Assets, if at the time of such expiration there are no owned Tower
Sites included within the Managed Assets, or (c) termination by either
party as provided in Section 5.2.
5.2 Termination. This Agreement shall terminate upon (i) the execution
of an agreement between the parties hereto providing for the termination of
this Agreement, (ii) the dissolution of Manager pursuant to the terms and
provisions of its operating agreement, or (iii) Manager or is adjudged
bankrupt or insolvent; makes a general assignment for the benefit of its
creditors; a trustee or receiver is appointed for Manager or for any of its
property; or any voluntary petition by or on behalf of Manager is filed to
take advantage of any debtor's act or to reorganize under the bankruptcy or
similar laws. This Agreement shall terminate with respect to any Managed
Assets to the extent that such Managed Assets shall have been transferred
and contributed to Manager, or excluded from the Managed Assets, in each
case pursuant to Section 5.4 hereof.
5.3 Obligations Upon Termination. In the event that this Agreement is
terminated pursuant to this Article 3, the obligations of Manager and each
Owner pursuant to Section 2.3 and Article 4 shall survive such termination.
5.4 Transfer of Managed Assets; Exclusion of Managed Assets.
(a) At Subsequent Closings (defined below), an Owner shall transfer
and contribute to Manager and Manager shall receive from such Owner the
Managed Assets without additional consideration other than the assumption
of all liabilities related to such Managed Assets and the final settlement
of all amounts payable with respect to such Managed Assets pursuant to
Section 2.3 and Article 4 hereof. "Subsequent Closings" with respect to any
group of Managed Assets relating to a Tower Structure shall be held
promptly after (i) the waiver or lapse of any restrictions contained in any
<PAGE>
Contract related to such Managed Assets, (ii) the completion of all
filings, (iii) the receipt of all necessary consents and approvals, in each
case to the extent necessary to permit such contribution in compliance with
all Contracts and applicable law, (iv) the delivery of Required BAM Phase I
Reports for such Managed Assets, which reports do not reveal any
Environmental Condition affecting such Managed Assets, or (v) the
completion of the work required under Section 6.1.7 of the Formation
Agreement to be performed by BAM (itself or on behalf of another Owner) to
remediate any Environmental Conditions affecting such Managed Assets, as
applicable. Each Owner shall use commercially reasonable efforts to
complete such filings and obtain such consents and approvals that relate to
such Owner's Managed Assets. Each Owner shall be responsible for paying any
fees and costs required to complete such filings and obtain such consents
and approvals that relate to such Owner's Managed Assets provided, however,
that no Owner shall be obligated to pay any fee or cost required to obtain
any such consent or approval unless the fee or cost is commercially
reasonable or expressly payable by the Owner pursuant to the provisions of
the Contract or other applicable Managed Asset. At each Subsequent Closing,
the Owner and Manager shall execute and deliver a contribution and
assignment and instrument of assumption and if applicable, a memorandum of
assignment of lease (and any other necessary instrument of transfer) with
respect to the applicable Managed Assets and all liabilities related
thereto, which shall be in substantially the forms executed and delivered
with respect to the BAM Contributed Assets at the Closing under the
Formation Agreement. With respect to all of the Managed Assets, BAM hereby
makes to Manager, as of the date of this Agreement, the representations and
warranties set forth in Section 5.1 of the Formation Agreement (except for
the representations and warranties set forth in Sections 5.1.3, 5.1.4 and
5.1.11 (with respect to only those Managed Assets for which BAM has not
obtained a Required BAM Phase I Report as of the date of this Agreement) of
the Formation Agreement), as if such Managed Assets were BAM Contributed
Assets, Tower Structures, Tower Sites, Site Leases and Contracts (as
applicable) under the representations and warranties set forth in such
Section 5.1. With respect to each of the Managed Assets, BAM shall be
deemed to make the representations and warranties set forth in Sections
5.1.3 and 5.1.4 of the Formation Agreement as of the date of the Subsequent
Closing for such Managed Assets, as if such Managed Assets were BAM
Contributed Assets under the representations and warranties set forth in
such Sections 5.1.3 and 5.1.4. With respect to each of the Managed Assets
for which BAM has not obtained a Required BAM Phase I Report as of the date
of this Agreement, BAM shall be deemed to make the representations and
warranties set forth in Sections 5.1.11 of the Formation Agreement as of
the date of the Subsequent Closing for such Managed Asset, as if such
Managed Assets were Tower Sites under the representations and warranties
set forth in such Section 5.1.11. Manager's remedies and BAM's liabilities
for any breach of such representations and warranties relating to the
Managed Assets will be the same as those set forth in the Formation
Agreement for any other breach by BAM of its representations and warranties
contained in the Formation Agreement, and for purposes of such remedies of
Manager and liabilities of BAM, BAM's representations and warranties
relating to the Managed Assets shall be deemed to be representations and
warranties of BAM set forth in the Formation Agreement and, accordingly,
subject to the provisions of Article 10 of the Formation Agreement and not
subject to the provisions of Article 4 of this Agreement. At Subsequent
Closings the Managed Assets shall be transferred and contributed without
any further representations and warranties, including without limitation
any implied warranties. The transferring and contributing Owner and Manager
shall each pay one-half of all state and local sales, documentary and other
transfer Taxes, if any, due as a result of the transfer and contribution of
each Managed Asset of such Owner that is transferred and contributed to
Manager at a Subsequent Closing.
(b) Under Section 6.1.7 of the Formation Agreement, BAM had the right
to exclude any Tower Site from the BAM Contributed Assets if a third party
estimate of the total costs and expenses
<PAGE>
to remediate Environmental Conditions affecting such Tower Site was
$150,000 or more. With respect to any Managed Asset that is affected by
Environmental Conditions, BAM (for itself or on behalf of another Owner)
shall have the right to exclude such Managed Asset from the Managed Assets
to be transferred and contributed by the applicable Owner to Manager under
this Section 5.4, which right shall be identical to BAM's right to exclude
a Tower Site from the BAM Contributed Assets under Section 6.1.7 of the
Formation Agreement including, without limitation, subject to the same
terms and conditions as those set forth in Section 6.1.7 of the Formation
Agreement. If BAM (for itself or on behalf of another Owner) so excludes
any Managed Asset from the Managed Assets to be transferred and conveyed to
Manager under this Section 5.4, (i) such Managed Asset shall be excluded
from the Managed Assets under this Agreement and this Agreement shall
terminate with respect to such Managed Asset, and (ii) the applicable Owner
shall promptly pay to Manager an amount in cash equal to $320,000.
(c) The City of Fitchburg, Massachusetts is the lessor under the
Site Lease (the "Fitchburg Site Lease") for the Tower Site located in
Fitchburg, Massachusetts, known as BAM Project Code Number 959087 (as such
site is currently located, the "Fitchburg Tower Site"). The City of
Fitchburg has taken the position that the Fitchburg Site Lease is a month
to month lease. If the Fitchburg Site Lease is terminated (other than in
connection with a replacement site lease being entered into by the
applicable Owner or Manager covering the Fitchburg Tower Site), the
Fitchburg Site Lease and all other Tower Related Assets that are related to
the Fitchburg Site Lease or the Fitchburg Tower Site shall be excluded from
the Managed Assets under this Agreement and this Agreement shall terminate
with respect to such Managed Asset. If the Fitchburg Site Lease is
terminated (other than in connection with a replacement site lease being
entered into by the applicable Owner or Manager covering the Fitchburg
Tower Site) before March 31, 2009, the applicable Owner shall pay to
Manager an amount in cash equal to the product determined by multiplying
(i) $2,667 by (ii) the number of full calendar months remaining between the
effective date of the termination of the Fitchburg Site Lease and March 31,
2009.
5.5 Remedies of the Parties.
(a) If Manager or any Owner fails to perform any of its obligations
under this Agreement and such failure continues for thirty (30) days after
written notice from any Owner (if Manager fails to perform), or from
Manager (if an Owner fails to perform), any Owner (if Manager fails to
perform) or Manager (if an Owner fails to perform) shall have the right
(but not the duty), to perform such obligation on behalf and for the
account of the breaching party. In such event, the breaching party shall
reimburse the performing non-breaching party upon demand for all costs and
expenses incurred by the performing non-breaching party in performing such
obligations of the breaching party.
(b) Each of the Owners specifically acknowledges and agrees that the
remedy at law for any breach of the covenants contained in Section 5.4 of
this Agreement will be inadequate and that Manager, in addition to any
other relief available to it under this Agreement, shall be entitled to
seek specific performance of such covenants.
(c) In no event shall any Owner and its Affiliates, or Manager and its
Affiliates be liable to the other party hereto for any special, incidental
or consequential damages incurred by such other party and caused by or
arising out of any breach of any representation, warranty, covenant or
agreement contained in this Agreement.
<PAGE>
ARTICLE 6.
Miscellaneous
6.1 Dispute Resolution. In the case of any dispute, controversy or
claim between or among the parties hereto related to this Agreement or the
transactions contemplated hereby or the other documents referred to herein,
except for disputes related to obtaining the equitable remedy of specific
performance, an injunction or a restraining order (a "Dispute"), the
parties will use the procedures set forth in this Section 6.1, in lieu of
any party pursuing other available remedies and as the sole remedy, to
resolve the Dispute.
(a) Submission to Arbitration. Any Dispute will be settled by
arbitration before three arbitrators in accordance with the Rules of the
American Arbitration Association ("AAA") then in effect and as modified by
this Section 6.1 or by further agreement of the parties. In addition to
what is allowed by the Rules of the AAA, discovery may be conducted
according to the Federal Rules of Civil Procedure, to be enforced by the
AAA, and if necessary, by a court having jurisdiction. Any such arbitration
will be conducted in New York, New York, unless otherwise agreed by the
Owners and Manager. The arbitrators will be selected from a panel of
persons (such as retired jurists, distinguished legal or business
professionals, and similar persons) knowledgeable in the specific areas
which may be relevant to the claim, who have had more than ten (10) years
of relevant experience in such areas, who have previously acted as
arbitrators, and who are generally held in the highest regard among
professionals in fields or businesses related or pertinent to such area.
Judgment upon the award rendered by the arbitrators may be entered pursuant
to applicable arbitration statutes.
(b) Authority of Arbitrators. The arbitrators will have no
authority to award punitive damages nor any other damages not measured by
the prevailing party's actual damages, and may not, in any event, make any
ruling, finding or award that does not conform to the terms and conditions
of this Agreement.
(c) Confidentiality. Neither the parties hereto nor the
arbitrators may disclose the existence or results of any arbitration under
this Agreement or any evidence presented during the course of the
arbitration without the prior written consent of the parties, other than by
entry of a judgment upon any arbitration award.
(d) Cost of Arbitration. The arbitrators will have the authority
to award to the prevailing party its attorneys' fees and costs incurred in
any arbitration. Absent any such award, each party will bear its own costs
incurred in the arbitration. If any party hereto refuses to submit to
arbitration any Dispute required to be submitted to arbitration pursuant to
this Section 6.1, and instead commences any other proceeding, including,
without limitation, litigation (except to the extent otherwise expressly
provided in this Agreement), then the party who seeks enforcement of the
obligation to arbitrate will be entitled to its attorneys' fees and costs
incurred in any such proceeding.
6.2 Contents of Agreement; Parties in Interest; etc. This Agreement
and the other Transaction Documents set forth the entire understanding of
the parties hereto with respect to the transactions contemplated hereby.
This Agreement shall not be amended or modified except by written
instrument duly executed by each of the parties hereto. Any and all
previous agreements and understandings between or among the parties
regarding the subject matter hereof, whether written or oral, are
superseded by this Agreement and the other Transaction Documents. Any term
or provision of this Agreement, or
<PAGE>
any breach thereof, may be waived at any time by the party entitled to the
benefit thereof by a written instrument duly executed by such party;
provided, however, that any waiver by any party of a breach of any term or
provision of this Agreement shall not operate or be construed as a waiver
of any subsequent breach, whether or not similar, unless such waiver
specifically states that it is to be construed as a continuing waiver.
6.3 Assignment and Binding Effect. This Agreement may not be assigned
by any party hereto without the prior written consent of the other parties,
provided that (a) any party may assign this Agreement to one of its
Affiliates, (b) any party may assign or transfer this Agreement in
connection with a merger, consolidation or other business reorganization
(other than a reorganization for the benefit of creditors or a similar
proceeding under Title 11 of the United States Code, or any rules or
regulations promulgated thereunder) of such party or an Affiliate of such
party (including, without limitation, a change in control of any entity
which is the ultimate parent of the party), and (c) Manager may
collaterally assign its rights hereunder to Lender (for itself and as agent
for the other financial institutions that are parties to the Loan
Agreement), or grant a security interest in Manager's rights under this
Agreement to Lender (for itself and as agent for the other financial
institutions that are parties to the Loan Agreement), in each case to
secure the obligations owing to Lender and such financial institutions
under the Loan Agreement and related loan documents. No such assignment
shall relieve an Owner or Manager of their respective obligations
hereunder. Subject to the foregoing, all of the terms and provisions of
this Agreement shall be binding upon and inure to the benefit of and be
enforceable by the permitted successors and assigns of the Owners and
Manager. All references herein to any party shall be deemed to include any
successor to such party, including any corporate successor.
6.4 Notices. All notices, consents or other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given when delivered personally, delivery charges
prepaid, or three (3) business days after being sent by registered or
certified mail (return receipt requested), postage prepaid, or one (1)
business day after being sent by a nationally recognized express courier
service, postage or delivery charges prepaid, to the parties at their
respective addresses stated below. Notices may also be given by prepaid
telegram or facsimile and shall be effective on the date transmitted if
confirmed within twenty-four (24) hours thereafter by a signed original
sent in the manner provided in the preceding sentence. Any party may change
its address for notice and the address to which copies must be sent by
giving notice of the new address to the other parties in accordance with
this Section 6.4, except that any notice of such change of address shall
not be effective unless and until received.
(a) If to an Owner:
Name of Owner
c/o Bell Atlantic Mobile
180 Washington Valley Road
Bedminster, NJ 07921
Attention: David Benson, CFO
Fax. No.: 908-306-4350
<PAGE>
with a required copy to:
Bell Atlantic Mobile
180 Washington Valley Road
Bedminster, NJ 07921
Attention: Alison Brotman, Esq.
Fax. No.: 908-306-6836
(b) If to Manager
Crown Atlantic Company LLC
c/o Crown Network Systems, Inc.
375 Southpointe Blvd.
Canonsburg, Pennsylvania 15317
Attention: Brian D. Jacks, President
Fax No.: (724) 416-2468
With required copies to:
Crown Castle International Corp.
510 Bering, Suite 500
Houston, Texas 77057
Attention: CEO and General Counsel
Fax No.: (713) 570-3150
and:
Crown Communication Inc.
USA Headquarters
Southpointe
375 Southpointe Blvd.
Canonsburg, Pennsylvania 15317
Attention: John Kelly, President
Fax No.: (724) 416-2468
6.5 Delaware Law to Govern. This Agreement shall be governed by and
interpreted and enforced in accordance with the laws of the State of
Delaware, without regard to the principles of conflict of law thereof.
6.6 No Benefit to Others. Except as expressly provided herein, the
representations, warranties, covenants and agreements contained in this
Agreement are for the sole benefit of the parties hereto and they shall not
be construed as conferring any rights on any other persons.
6.7 Table of Contents; Headings. The table of contents and all Section
headings contained in this Agreement are for convenience of reference only,
do not form a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
<PAGE>
6.8 Schedules and Exhibits. All Exhibits, Annexes and Schedules
referred to herein are intended to be and hereby are specifically made a
part of this Agreement.
6.9 Severability. Any provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall be ineffective to the
extent of such invalidity or unenforceability without invalidating or
rendering unenforceable the remaining provisions hereof, and any such
invalidity or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
6.10 Counterparts. This Agreement may be executed in any number of
counterparts and any party hereto may execute any such counterpart, each of
which when executed and delivered shall be deemed to be an original and all
of which counterparts taken together shall constitute but one and the same
instrument. This Agreement shall become binding when one or more
counterparts taken together shall have been executed and delivered by the
parties. It shall not be necessary in making proof of this Agreement or any
counterpart hereof to produce or account for any of the other counterparts.
6.11 Directly or Indirectly. Any provision in this Agreement referring
to action to be taken by any Person, or that such Person is prohibited from
taking, shall be applicable whether such action is taken directly or
indirectly by such Person.
6.12 Interpretation. When a reference is made in this Agreement to an
Article or Section, such reference shall be to an Article or Section of
this Agreement unless otherwise indicated. Whenever the words "include,"
"includes" or "including" are used in this Agreement, they shall be deemed
to be followed by the words "without limitation." The words "hereof,"
"herein" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. Any agreement, instrument or
statute defined or referred to herein or in any agreement or instrument
that is referred to herein means such agreement, instrument or statute as
from time to time amended, modified or supplemented, including (in the case
of agreements or instruments) by waiver or consent and (in the case of
statutes) by succession of comparable successor statutes and references to
all attachments thereto and instruments incorporated therein. References to
a Person are also to its permitted successors and assigns.
6.13 Relationship. Manager shall perform its duties and obligations
hereunder as an independent contractor retained by each of the Owners. No
employee of Manager shall for any reason be deemed to be an employee of any
Owner and no employee of Manager shall be entitled to participate in or
receive any benefit or right as an employee of any Owner under any employee
benefit and welfare plan of any Owner as a result of Manager entering into
and performing this Agreement. The obligations of the Owners hereunder
shall be several and not joint. Nothing contained in this Agreement shall
be deemed to create a relationship of employer/employee, master/servant,
agency, partnership or joint venture between any of the Owners or any
person employed by them and Manager or among any of the Owners. Nothing
contained in this Agreement shall be construed as an attempt by an Owner to
assign or transfer to Manager any Contract, Governmental Permit, franchise,
claim or asset that is by its terms or by Law nonassignable without the
consent of any other Person unless such consent or approval shall have been
given, or as to which all the remedies for the enforcement thereof
available to the Owner would not by Law pass to Manager as an incident of
the arrangements provided for by this Agreement.
6.14 Further Assurances. Each of the parties hereto will cooperate
with the other and execute and deliver to the other parties hereto such
other instruments and documents and take such other actions
<PAGE>
as may be reasonably requested from time to time by any other party hereto as
necessary to carry out, evidence and confirm the intended purposes of this
Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first above written.
CROWN ATLANTIC COMPANY, LLC
By: /s/ Brian D. Jacks
-----------------------------
Name: Brian D. Jacks
Title: President
CELLCO PARTNERSHIP
By Bell Atlantic Mobile, Inc.
Its Managing General Partner
By: /s/ A. J. Melone
--------------------------------
Name: A. J. Melone
Title: Vice President
Network Planning and
Administration
ALLENTOWN SMSA LIMITED PARTNERSHIP
By: Bell Atlantic Mobile Systems
of Allentown, Inc., its managing
general partner
By: Cellco Partnership, its
managing general partner
By: Bell Atlantic Mobile,
Inc., its managing
general partner
By: /s/ A. J. Melone
------------------------
Name: A.J. Melone
Title: Vice President
Network Planning
and Administration
<PAGE>
COLUMBIA CELLULAR TELEPHONE COMPANY
By: Cellco Partnership, its
managing general partner
By: Bell Atlantic Mobile, Inc.,
its managing general partner
By: /s/ A. J. Melone
----------------------------
Name: A.J. Melone
Title: Vice President
Network Planning and
Administration
NEW YORK SMSA LIMITED PARTNERSHIP
By: Cellco Partnership, its managing
general partner
By: Bell Atlantic Mobile, Inc.,
its managing general partner
By: /s/ A.J. Melone
----------------------------
Name: A.J. Melone
Title: Vice President
Network Planning and
Administration
ORANGE COUNTY-POUGHKEEPSIE MSA
LIMITED PARTNERSHIP
By: NYNEX Mobile Limited Partnership 2,
its managing general partner
By: Cellco Partnership, its
managing general partner
By: Bell Atlantic Mobile, Inc.,
its managing general partner
By: /s/ A. J. Melone
------------------------
Name: A.J. Melone
Title: Vice President
Network Planning
and Administration
<PAGE>
WASHINGTON, DC SMSA LIMITED PARTNERSHIP
By: Cellco Partnership, its managing
general partner
By: Bell Atlantic Mobile, Inc.,
its managing general partner
By: /s/ A.J. Melone
----------------------------
Name: A.J. Melone
Title: Vice President
Network Planning and
Administration
EXECUTION COPY
GLOBAL LEASE AGREEMENT
This Global Lease Agreement ("Agreement"), made this 31st day of March,
1999 between Crown Atlantic Company, LLC, with its principal offices
located at 2000 Corporate Drive, Orangeburg, New York 10962, with a Tax ID#
74-2910603, hereinafter designated LESSOR and Cellco Partnership, a
Delaware general partnership, d/b/a Bell Atlantic Mobile, with its
principal offices at 180 Washington Valley Road, Bedminster, New Jersey
07921, hereinafter designated LESSEE.
W I T N E S S E T H:
WHEREAS, LESSOR is the owner of certain buildings, towers, facilities
and/or real property, at which LESSEE may from time to time desire to
install and maintain communications facilities as hereinafter described;
and
WHEREAS, the LESSOR and LESSEE desire to enter into this Agreement to
define the general terms and conditions which would govern their
relationship with respect to particular sites at which the LESSOR and
LESSEE may wish to permit LESSEE to lease certain space for the
installation of its facilities as hereinafter set forth; and
WHEREAS, the LESSOR and LESSEE acknowledge that they will enter into a
lease supplement, substantially in the form of Exhibit A hereto
("Supplement") with respect to any particular location or site which the
parties agree to lease,
WHEREAS, the parties acknowledge that different related entities may
operate or conduct the communications business of the LESSEE in different
areas. As a result, the parties agree that each Supplement will be signed
by the LESSEE or by an entity which is LESSEE's principal, affiliate (which
for these purposes shall include without limitation, any entity with
respect to which LESSEE or LESSEE's parent or subsidiary, is a general
partner, manager or occupies a similar position of control, regardless of
ownership interest), subsidiary or subsidiary of its principal (any of the
foregoing, "LESSEE'S Affiliate").
NOW, THEREFORE, for ten dollars ($10) and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and in consideration and mutual covenants contained herein
and intending to legally bound hereby, the parties hereto agree as follows:
1. LESSOR agrees to lease to LESSEE that certain space on LESSOR's
building, tower and/or parcel of property, which space and/or parcel is
hereinafter referred to as "Property" more fully described in a Supplement
to be executed by the parties. The leasing of the Property shall only
become effective upon the full execution of a Supplement by the parties.
The parties acknowledge that different related entities may operate or
conduct the communications business of the LESSEE in different areas. As a
result, the parties agree that each Supplement will be signed by the LESSOR
on the one hand and on the other hand may be signed by either the LESSEE or
by any of LESSEE's Affiliates. The parties further agree that any
Supplement may be executed by the LESSOR and the LESSEE or any of the
LESSEE's Affiliates, as the case may be, by a stamped, photocopied or
electronically-generated signature of the officer authorized to sign on
behalf of such entity, and that such stamped, photocopied or
electronicallly generated signature shall signify such party's approval and
acceptance of the terms and conditions of such Supplement. The parties
further agree that such signatures may be stamped or electronically
generated on, or photocopies made of, any such Supplement by the applicable
authorized officer or such other person that such officer authorizes to
stamp, photocopy or generate such signature.
2. The LESSEE shall have the non-exclusive right of access and ingress
and egress, seven (7) days a week, twenty-four(24) hours a day, on foot or
motor vehicle, including trucks, to the Property, subject, however, to
LESSOR'S right to install and maintain a security gate or other security
system for which LESSEE will be given keys or other necessary access
devices, and which will be suitable for ingress and
<PAGE>
egress by LESSEE as provided for hereunder. LESSOR also grants to LESSEE
the easement and right to install and maintain wires, cables, conduits and
pipes either within, over, under or along the Property, or any other lands,
property, or structure in which the LESSOR has right, title or interest
which are adjacent to the Property or upon which the Property is located,
as shown in the Supplement. Additionally, the LESSOR grants to LESSEE any
specific right of way for access to the Property as described in the
Supplement. In the event any public utility is unable to use the
aforementioned rights-of-way or easement, the LESSOR hereby agrees to grant
an additional right-of-way, satisfactory to such public utility, either to
the LESSEE or to the public utility at no cost to the LESSEE.
2. This Agreement shall be for a term of twenty nine (29) years and
eleven (11) months and shall be effective upon execution by both the LESSOR
and the LESSEE after which term, the terms and conditions shall survive and
govern any remaining Supplements until their termination.
3. The initial term for each particular Supplement shall be for ten
(10) years and shall be subject to extension as provided in this Agreement.
4. The term of each particular Supplement shall automatically be
extended for three (3) additional five (5) year terms and one (1)
additional term of four years and eleven (11) months unless LESSEE
terminates it at the end of the then current term by giving LESSOR written
notice of the intent to terminate at least six (6) months prior to the end
of the then current term.
With respect to each Property (a) for which a Supplement has been
executed by the parties, and (b) subject to a Right of Use Agreement,
hereinafter defined in Paragraph 17 below, LESSOR shall provide LESSEE with
written notice (i) one hundred eighty (180) days prior to the termination
date of any Right of Use Agreement (which does not include provisions for
renewal of such agreement beyond the termination date) or (ii) ninety (90)
days prior to the latest date upon which LESSOR would be required to give
notice of exercise of any rights of renewal or extension of the term of
such Right of Use Agreement. The notice will state (a) with respect to a
terminating Right of Use Agreement, LESSOR's intention to negotiate a new
Right of Use Agreement (or an extension of the existing Agreement) (in
which case, the LESSOR will provide subsequent notification of the progress
of such negotiations, including the successful completion of the
negotiations); (b) with respect to a renewal, LESSOR's intent to exercise
its renewal rights (in which case, LESSOR will furnish LESSEE with a copy
of the renewal notice); or (c) if LESSOR does not intend to continue to
occupy the Property and/or any real property or structure upon which the
Property is located, the notice will set forth LESSOR's intention to
provide a replacement Property which in all material respects, is suitable
for LESSEE's use and at no additional cost to LESSEE; and provided further
such notice will describe how LESSOR intends to provide for the relocation
of LESSEE's equipment in a fashion which will result in no costs to LESSEE
or interruption of LESSEE's business. If LESSOR fails to deliver such
notice (or any subsequent notice required by this Paragraph), or if LESSEE,
in its sole discretion, determines that LESSOR's plans for an alternative
facility are not acceptable, LESSEE shall have the right, but not the
obligation, to cause, upon notice to LESSOR, LESSOR to (and LESSOR shall)
assign its rights in the Right of Use Agreement to LESSEE, and LESSOR shall
not remove any tower or similar structure which is located on the Property
or upon which the Property is located, provided, however, that failure of
LESSOR to deliver to provide the notices referred to above shall not
constitute a LESSOR default of allow the LESSEE to exercise the remedies
set out in this Paragraph if the terminating Right of Use Agreement is
nevertheless renewed or extended by LESSOR prior to its termination. In the
event that a terminating Right of Use Agreement cannot be extended by the
LESSOR or assigned to and extended by the LESSEE and plans for an alternate
site are not acceptable to LESSEE, then, as the LESSEE's option and sole
remedy, the particular Supplement may be terminated by the LESSEE so
notifying the LESSOR. Notwithstanding anything to the contrary in the
foregoing, LESSOR shall exercise any renewal options provided for in any
Right of Use Agreement and shall use commercially reasonable efforts to
obtain extensions of any terminating Right of Use Agreement for any
Property subject to a Supplement. For purposes of the foregoing sentence,
LESSOR's commercially reasonable obligations shall not require it to pay
rent or other fees in amounts which would exceed markets rates for
properties of the type and general location of the real estate
<PAGE>
subject to such Right of Use Agreement, unless the benefits which LESSOR
reasonably expects to receive from continued use of such real estate would
reasonably justify a greater payment.
6. The annual rental for each particular Supplement's initial term and
each extension term is set forth in the particular Supplement. On each
anniversary of the commencement date during the initial term, the annual
rent shall be increased as set forth on Schedule A, attached hereto and
incorporated herein by reference for all purposes. On each anniversary of
the commencement date during the extension terms, the annual rent shall be
increased as set forth on Schedule B, attached hereto and incorporated
herein by reference for all purposes.
7. LESSEE shall use the Property for the purpose of constructing,
maintaining and operating a Communications Facility or facilities and uses
incidental thereto, together with all necessary appurtenances (including
without limitation, the construction of a facility to house LESSEE's
equipment), or for any other use permitted at the Property under zoning or
other governmental regulations. If applicable, a security fence consisting
of chain link construction or similar but comparable construction may be
placed around the perimeter of the Property at the discretion of LESSEE
(not including the access easement). All improvements shall be at LESSEE's
expense and the installation of all improvements shall be at the discretion
and option of the LESSEE. LESSEE will maintain the Property in a reasonable
condition, reasonable wear and tear, fire and other insured casualty and
LESSOR's obligations excepted. LESSEE's use of the Property shall be in
compliance, in all material respects, with all laws, orders, ordiances,
regulations, and directives of applicable federal, state, county and
municpal authorities and regulatory agencies, including, without
limitation, the FCC, applicable to the operation of equipment owned by
LESSEE or LESSEE's use of the Property. It is understood and agreed that
LESSEE's ability to use the Property is contingent upon its obtaining after
the execution date of any Supplement all of the certificates, permits and
other approvals that may be required by any Federal, State or Local
authorities which will permit LESSEE use of the Property as set forth
above. LESSOR shall cooperate with LESSEE in its effort to obtain such
approvals and shall take no action which would adversely affect the status
of the Property with respect to the proposed use thereof by LESSEE. In the
event that any of such applications should be finally rejected or any
certificate, permit, license or approval issued to LESSEE is canceled,
expires, lapses, or is otherwise withdrawn or terminated by governmental
authority (due to no fault of LESSEE) or soil boring tests are found by
LESSEE to be unsatisfactory so that LESSEE in its sole discretion will be
unable to use the Property for its intended purposes, LESSEE shall have the
right to terminate the Supplement which is applicable to such Property.
Notice of the LESSEE's exercise of its right to terminate shall be given to
LESSOR in writing by certified mail, return receipt requested, and shall be
effective upon the mailing of such notice by the LESSEE. All rentals paid
prior to said termination date shall be retained by the LESSOR. Upon such
termination, the applicable Supplement shall become null and void and all
the parties shall have no further obligations including the payment of
money, to each other under that Supplement.
In the event the LESSOR requires additional or modified regulatory
approvals (including without limitation, zoning permits or approvals,
approvals or authorizations from the Federal Communications Commission
and/or the Federal Aviation Administration) (herein "Additional Approvals")
with respect to any Property which is subject to a Supplement, and (a) such
Additional Approvals relate to a modification to the Property and/or
LESSEE's use of such Property or (b) the failure to obtain such Additional
Approvals would adversely impact LESSEE's ability to utilize the Property
to conduct its business) then LESSOR shall obtain said additional approvals
at LESSOR's sole cost and expense. If LESSOR fails to obtains such
approvals, LESSEE shall at LESSEE's sole option, have the right to assume
responsibility for obtaining such Additional Approvals at LESSOR's sole
cost and expense. In the event that LESSEE declines to assume
responsibility, LESSOR shall nonetheless keep LESSEE informed of the status
of its efforts to obtain the Additional Approvals. In addition, LESSOR
shall not retain any third parties to assist LESSOR or act on LESSOR's
behalf in obtaining Additional Approvals of the type described in clause
(a) or (b) above, without obtaining LESSEE's prior written approval, which
will not be unreasonably withheld or delayed.
8. In the event the Property which is the subject of any applicable
Supplement consists of space on a tower owned by LESSOR, then it is further
understood and agreed that the LESSOR must approve of the
<PAGE>
installation contractor or personnel chosen by LESSEE to install, maintain
and operate the equipment and that said installation, maintenance and
operation will in no way damage or interfere with any other lessee's or the
LESSOR's use of the tower, antennas and appurtenances. The LESSOR's
approval of the installation contractor or personnel shall be withheld only
for good cause and in no event shall be unreasonably delayed. LESSOR
covenants that it will at all times, keep the tower in good repair as
required by federal law H.R. 6180/S. 2882, the Telecommunications
Authorization Act of 1992 including amendments to Paragraphs 303(q) and
503(b)(5) of the Communications Act of 1934 and such other laws,
regulations, ordinances or other provisions applicable to LESSOR's
operation of the tower for its intended purposes. The LESSOR shall also
comply with all rules and regulations enforced by the Federal
Communications Commission with regard to the lighting, marking and painting
of towers. If the LESSOR fails to make such repairs the LESSEE may, after
notice to LESSOR, and provided that with respect to any repairs other than
those necessary to comply with FCC rules and regulations, LESSOR has not
made such repairs within fifteen (15) days following such notice, make the
repairs and the costs thereof shall be payable to the LESSEE by the LESSOR
on demand. If the LESSOR does not make payment to the LESSEE within ten
(10) days after such demand, the LESSEE, without limitation of its rights
to pursue any other remedies, shall have the right to deduct the costs of
the repairs from the succeeding monthly rental amounts normally due from
the LESSEE to the LESSOR. Further, LESSOR shall furnish LESSEE with any
necessary keys for the purpose of ingress and egress to the tower in order
to ensure that the LESSEE shall have free access to the tower at all times.
It is agreed, however, that only authorized engineers, employees or
properly authorized contractors of LESSEE or persons under their direct
supervision will be permitted to enter the Premises.
In the event LESSEE utilizes LESSOR's tower, LESSOR agrees to perform,
at its sole cost and expense, any structural work necessary for the LESSEE
to utilize the tower in accordance with its intended purpose as described
in the Supplement.
In the event that LESSOR intends to employ any third parties to
perform repairs and/or maintenance functions with respect to any structures
used and occupied by LESSEE under a Supplement, LESSOR will, unless the
third party has been previously approved by LESSEE to perform work
generally, first provide LESSEE with prior notice (except in cases of
emergency), which notice will include the name of the person or entity (in
the case of an entity, the identity of the owner, principal operator or
persons exercising significant control) and the qualifications of such
party to perform the contemplated services. LESSEE shall have ten (10)
business days from receipt of such notice to object to the retention of
such person or entity, which objection shall be based upon the
qualifications and/or commercial reputation of the person or entity. If
LESSEE makes such an objection, LESSOR will make a good faith attempt to
retain another party to perform the required service. If LESSEE does not
provide timely notice of objection, LESSOR may proceed to perform the work
with the designated person or entity, but LESSEE's lack of an objection
shall not constitute its consent to such relationship nor constitute a
defense to any claim by LESSEE based upon or arising out of the acts or
omissions of such party.
9. LESSEE shall indemnify and hold LESSOR harmless against any claim
of liability or loss from personal injury or property damage resulting from
or arising out of the use and occupancy of the Property by the LESSEE,
LESSEE's Affiliates or their respective servants, employees or agents,
excepting, however, such claims or damages as may be due to or caused by
the acts of the LESSOR or its servants or agents or any other party taking
title or right to the Property by, through or under the LESSOR, or any
other occupier of the tower utilized by LESSEE.
LESSOR shall indemnify and hold LESSEE harmless against any claim of
liability or loss from personal injury or property damage resulting from or
arising out of the use and occupancy of any structure or parcel of real
property upon which the Property is located by LESSOR, any third-party
lessee or licensee of LESSOR (other than LESSEE) or their respective
servants, agents or employees.
Notwithstanding anything to the contrary herein, each party hereto
waives the right to recover consequential (including lost profits and
business interruption), punitive, exemplary and similar damages
<PAGE>
and the multiplied portion of damages except to the extent such damages are
suffered by such party in a third-party proceeding.
10. The parties hereby waive (for themselves and for any party which
may have a right of subrogation or similar right, including, without
limitation, any insurer) any and all rights of action for negligence
against the other which may hereafter arise on account of damage to the
premises or to property, resulting from any fire, or other casualty of the
kind covered by standard fire insurance policies with extended coverage,
regardless of whether or not, or in what amounts, such insurance is now or
hereafter carried by the parties, or either of them. LESSOR agrees that
LESSEE may self-insure against any loss or damage which could be covered by
a comprehensive general public liability insurance policy.
Notwithstanding the foregoing, LESSOR shall at all times, maintain adequate
insurance covering its properties and other assets used in connection with
performing its obligations hereunder, in at least the amounts and types of
coverage customary in the wireless telecommunications industry. In the
event of any accident, casualty or occurrence which results in damage to,
or impairment of use of the Property, LESSOR shall take all actions
necessary to promptly restore the Property to a condition fit for LESSEE's
intended use, utilizing the proceeds of any applicable insurance proceeds
in addition to any other sums which may be required. From and after any
such event, including, without limitation, during the period of any
restoration, LESSEE is unable to fully utilize the Property, there shall be
an abatement of rent proportionate to the amount of nonutilization suffered
by the LESSEE, and if the restoration process takes longer than sixty (60)
days, LESSEE shall have the right, at its sole option, to terminate the
applicable Supplement; provided, however at LESSOR's request, the period
for restoration may be extended for an additional sixty (60) day period if
the nature of the restoration is such that it reasonably requires more than
sixty (60) days, the LESSOR commences the restoration within the sixty (60)
day period and thereafter continuously and diligently pursues the
restoration to completion and the LESSEE determines in good faith that an
extension of the time period for restoration will not have a material
adverse effect on its use of the Property or the conduct of its business.
In addition to the foregoing, the LESSEE at its sole option, shall have the
right to place a temporary cell site, temporary antenna structure and/or
other temporary equipment, which are collectively referred to hereinafter
as "Temporary Facilities" from and after the occurrence of any event of the
type described above, including, without limitation, during the period of
any restoration. In the event any such Temporary Facilities are installed
and the LESSEE commences utilization of the same, any abatement of rent
based upon non-utilization shall cease as of the commencement of use of the
Temporary Facilities by the LESSEE, provided however, the LESSEE shall have
the right to deduct during any continued period of restoration, the cost of
installing the Temporary Facilities from the rental which would otherwise
be due. The right of the LESSEE to install Temporary Facilities shall not
in any way affect or limit the LESSEE's right to terminate in the event the
restoration process takes longer than sixty (60) days, subject to extension
as noted above.
11. Notwithstanding anything to the contrary contained herein, and
provided LESSEE is not in default hereunder after the giving of notice and
the expiration of any applicable cure period, and shall have paid all rents
and sums due and payable to the LESSOR by LESSEE, LESSEE shall have the
right to terminate, after the initial ten (10) year term, any Supplement
upon the annual anniversary of the Supplement provided that three (3)
months prior notice is given the LESSOR.
12. LESSEE agrees to have installed radio equipment of the type and
frequency which will not cause measurable interference to LESSOR, or other
current (defined for these purposes as the date of any applicable
Supplement) lessees of the premises. In the event LESSEE's equipment causes
such interference, and after LESSOR has notified LESSEE in writing of such
interference, LESSEE will take all steps necessary to correct and eliminate
the interference at LESSEE's sole cost and expense. For purposes of
application of the foregoing sentence, LESSOR agrees that any equipment of
LESSEE located on any
<PAGE>
Property as of the date of this Agreement is deemed not to cause
interference which must be corrected or eliminated. LESSOR agrees that
LESSOR and/or any other lessees or occupiers of the property who currently
have or in the future take possession of LESSOR's property will be
permitted to install only such radio equipment that is of the type and
frequency which will not cause measurable interference to LESSEE. LESSEE
hereby acknowledges and agrees that LESSEE's equipment which is installed
and operating pursuant to any Supplement executed as of the date first
written above is hereby deemed not to be experiencing any measurable
interference from any equipment as presently operated by any third party
tenant on any structure or real property upon which the Property is located
which must be corrected or eliminated, unless LESSEE has provided notice of
such interference on or before the date hereof to LESSOR. In the event any
such LESSOR's, lessee's or occupier's equipment causes such interference,
then, in addition to any other rights LESSEE may have at law or at equity,
LESSOR will see that the party causing the interference will take all steps
necessary to promptly correct and eliminate the interference.
13. LESSEE, upon termination of any Supplement, shall, within a
reasonable period (not to exceed forty-five (45) days, unless LESSEE can
demonstrate that such period would cause undue hardship), remove, to the
extent applicable, its equipment, building, antenna(s), fixtures and all
personal property and otherwise restore the Property to its original
condition, reasonable wear and tear, fire or other insured casualty and
LESSOR's obligations excepted. If such time for removal causes LESSEE to
remain on the Property after termination of this Agreement, LESSEE shall
pay rent at the then existing monthly rate or on the existing monthly
prorata basis if based upon a longer payment term, until such time as the
removal of the building, fixtures and all personal property is completed
and the Property is restored as provided for above.
14. Should the LESSOR, at any time during the term of any Supplement,
decide to sell all or any part of the Property and/or any real property
(including, without limitation any leasehold interest) or structure upon
which the Property is located, to a purchaser other than LESSEE, such sale
shall be under and subject to this Agreement and the applicable Supplement
and LESSEE's rights hereunder, and any sale by the LESSOR of the portion of
this Property and/or any real property (including, without limitation any
leasehold interest) or structure upon which the Property is located,
underlying the right-of-way herein granted shall be under and subject to
the right of the LESSEE in and to such right-of-way.
With respect to any Property subject to a Supplement, LESSOR shall
not, without LESSEE's prior written consent, which may be withheld for any
reason or no reason, enter into, or consummate any agreement to sell,
assign or otherwise directly or indirectly dispose of such Property, or any
real property (including, without limitation any leasehold interest) or
structure upon which the Property is located except: (i) pursuant to a
transaction in which all or substantially all of the LESSOR's assets,
businesses and properties in the Metropolitan Statistical Areas or Rural
Service Area (as defined by the Federal Communications Commission) in which
the Property is located are being transferred; (ii) if the LESSOR and the
prospective purchaser or assignee provide evidence, satisfactory to LESSEE,
regarding (X) the purchaser's or assignee's financial capacity (including,
without limitation its financial capacity to perform its obligations as a
lessor, as well as its ability to satisfy any other financial obligations
it may have), (Y) its technical and operating ability to perform it's
obligations as Lessor under the Global Lease (including, if applicable,
historical information relating to its conduct of any similar business and
any disputes with lessees) and (Z) its general reputation in the financial
community, the communities in which it conducts operations and the wireless
communications industry; and (iii) the prospective purchaser or assignee
executes an agreement, in form and substance satisfactory to LESSEE,
pursuant to which it undertakes to observe and comply with all provisions
of the Global Lease (as applicable to the Property being conveyed), as it
may be amended from time to time. In the event that LESSOR intends to sell,
assign or otherwise directly or indirectly dispose of any Property subject
to a Supplement, or any real estate (including, without limitation any
leasehold interest) or structure upon which such Property is located,
(whether or not LESSEE's consent is required hereunder), it shall provide
LESSEE with reasonable prior written notice of such intention and shall, at
LESSEE's request, enter into good faith discussions and negotiations with
LESSEE to permit LESSEE to acquire such Property and/or real property
(including, without limitation any leasehold interest) or structure upon
which such Property is located; provided, however, that LESSOR shall not be
obligated to sell to LESSEE, and LESSEE shall be under no obligation to
offer to acquire, or acquire, such Property and/or real property or
<PAGE>
structure upon which such Property is located. LESSEE's failure to make an
offer to acquire or to acquire the Property and/or real property or
structure upon which such Property is located shall not constitute a waiver
of any of its rights hereunder or relieve LESSOR of any obligations
hereunder with respect to such Property.
Notwithstanding the foregoing, the consent of LESSEE shall not be
required for a sale or transfer of the Property (i) to an entity which
controls, is controlled by, or is under common control with LESSOR (any of
the foregoing, a "LESSOR Affiliate"), or (ii) any merger, consolidation, or
other business reorganization (other than a reorganization for the benefit
of creditors or a similar proceeding under Title 11 of the United States
Code, or any rules or regulations promulgated thereunder) of LESSOR or a
LESSOR Affiliate (including, without limitation, a change in control of any
entity which is the ultimate parent of the LESSOR).
15. LESSOR warrants and covenants that, so long as LESSEE is not in
default hereunder after giving of notice and the expiration of any
applicable cure periods provided for herein, LESSEE shall be entitled to,
subject to the provisions of this Agreement and the applicable Supplement,
quiet use and enjoyment of the benefits of the Property, including, without
limitation, uninterrupted possession and use of the Property. LESSOR
further warrants and covenants that it shall not take, or permit to be
taken, any action which would limit or adversely impact LESSEE's use and
enjoyment of the Property, other than actions to enforce LESSOR's remedies
in the event of a default by LESSEE hereunder (but only with respect to the
applicable Supplement).
16. LESSOR covenants that LESSOR is seized of good and sufficient
title and interest to the Property and any real property (including,
without limitation any leasehold interest) or structure upon which such
Property is located and has full authority to enter into and execute this
Agreement and all Supplements. LESSOR further warrants and covenants that
there are no other liens, judgments or impediments of title on the Property
and any real property (including, without limitation any leasehold
interest) or structure upon which such Property is located, other than
Permitted Liens (as defined in the Formation Agreement) in existence on the
date hereof and any liens identified in an SLA (as defined in the Master
Build to Suit Agreement) and that there are no covenants, easements or
restrictions (other than Permitted Liens) which prevent the use of the
Property by the LESSEE as set forth above.
In the event LESSOR does not have clear title or authority as set
forth herein which adversely impacts LESSEE's use of the Property, or there
are liens, judgments or impediments to LESSEE's use, in addition to, and
not in lieu of, any other remedy available to LESSEE, LESSEE may following
written notice to LESSOR and LESSOR's failure to correct such condition
within thirty (30) days after notice is given, withhold rental payments
until such time as LESSOR demonstrates that it has clear title or authority
and/or there are no liens, judgments or impediments to LESSEE's use; or
terminate the applicable Supplement immediately and LESSOR will return all
rent paid by LESSEE. Notwithstanding the foregoing LESSEE may not exercise
its rights under this Paragraph 16 to withhold or receive a return of
rental payments or terminate the applicable supplement with respect to any
Property which was conveyed to LESSOR pursuant to the Formation Agreement
(or any agreement executed in connection with the Formation Agreement) and
as to which: (a) the lien, judgment, defect of title or other similar
impediment existed at the time the Property was conveyed by LESSEE or any
of its Affiliates to LESSOR; and (b) LESSOR is using commercially
reasonable efforts to resolve or remove any lien, encumbrance, cloud or
impediment to title or authority or other condition which adversely impacts
LESSEE's rights or ability to use the Property as provided for herein.
17. With respect to each Property (a) for which a Supplement has been
executed by the party, and (b) which is situated on any structure or parcel
of real property occupied by LESSOR pursuant to any (i) ground lease or
sublease; (ii) easement; (iii) premises lease (e.g., a lease of space on
the roof of a structure) or (iv) similar agreement pursuant to which
LESSOR's right to occupy the underlying real property is other than a fee
simple ownership) (any of the foregoing, a "Right of Use Agreement"),
LESSOR shall promptly provide (but in no event more than three (3) business
days after receipt thereof) copies of any notice or other correspondence to
LESSOR from any counter-party to such Right of Use Agreement, to the extent
that such notice or communication relates to (X) LESSOR's failure to
perform (including, without limitation, failure to perform on a timely
and/or adequate basis) any of its obligations under the Right of Use
Agreement; (Y) An
<PAGE>
alleged act or omission by LESSOR (other than acts which LESSOR was
required to perform) or (Z) the occurrence of any event which could
reasonably be expected to adversely impact LESSOR's rights to continue to
enjoy its rights under the Right of Use Agreement. Whenever practicable,
LESSOR shall obtain the agreement of the counter-party to provide copies of
such notices or correspondence directly to LESSEE simultaneously with the
transmittal of such notices to LESSOR.
18. Upon receipt by LESSOR of any notice of default (or notice of an
act or omission by LESSOR which could with the passing of time and/or the
giving of notice constitute an event of default) under a Right of Use
Agreement or noncompliance with the terms of a Right of Use Agreement,
LESSOR shall, within five (5) business days after receipt by it of such
notice, provide LESSEE with a letter stating that (i) the default or
noncompliance has been cured or remedied; (ii) the default (if other than a
payment default) has not been cured but will be cured within time periods
provided under the Right of Use Agreement, together with a reasonably
detailed explanation of the actions LESSOR intends to take to effect such
cure, its basis for concluding that it can effect the cure within the
requisite time periods and its basis for concluding that such actions will
be accepted by its counter-party as an adequate cure; or (iii) the basis,
if any for LESSOR's good faith position that there is no default or
noncompliance. In the event that LESSOR does not, or can not, provide such
notice (or in the event that, subsequent to delivery of a notice of the
type referred to in clause (ii) and (iii), LESSOR is unable to effect an
appropriate cure or LESSOR concludes that it no longer has a good faith
basis for contesting the assertion of a default or noncompliance) then
LESSEE has the right, but not the obligation, to take such actions as it
may reasonably deem necessary or appropriate to cure or otherwise remedy
such default or compliance, and in such event LESSEE shall have the right
to demand prompt reimbursement from LESSOR of any and all amounts expended
by LESSEE (or on its behalf), together with interest at a rate equal to
LESSEE's average cost of funds or to set off such sums against any payment
obligations it may have to LESSOR under this Agreement, which interest
shall accrue and be payable from the date of LESSEE's payment. LESSEE's
failure to take any such actions shall not constitute or be deemed a waiver
of any rights it may have to assert claims against LESSOR for a breach of
its obligations under this Agreement.
19. With respect to any Property subject to a Supplement and Right of
Use Agreement, the LESSOR shall use its reasonable best efforts to cause
(and with respect to any Right of Use Agreement entered into subsequent to
the date hereof shall cause) each counter-party under such Right of Use
Agreement to enter into an agreement, in form and substance satisfactory to
LESSEE, providing that in the event that such counter-party terminates the
Right of Use Agreement other than as a result of the expiration of its
term, such party will permit LESSEE to continue to occupy the Property
pursuant to the terms and conditions contained in this Agreement and the
applicable Supplement, provided that LESSEE performs all future obligations
under the Right of Use Agreement.
20. It is agreed and understood that this Agreement and any
Supplements under it contain all agreements, promises and understandings
between the LESSOR and LESSEE and that no verbal or oral agreements,
promises or understandings shall be binding upon either the LESSOR or
LESSEE in any dispute, controversy or proceeding at law, and any addition,
variation or modification to this Agreement or Supplements under it shall
be void and ineffective unless made in writing and signed by the parties.
21. Each Supplement, and the performance thereof shall be governed,
interpreted, construed, and regulated by the laws of the State in which the
Property covered by the Supplement is located. This Agreement and the
performance thereof shall be governed, interpreted, construed and regulated
by the laws of the State of New Jersey. Notwithstanding the foregoing,
LESSOR acknowledges and agrees that for purposes of 11 U.S.C. ss. 365 (h)
or any successor statute, rule or regulation, this Agreement shall be
deemed to be a lease of real property.
22. A trial by jury is specifically waived and the LESSOR and LESSEE
agree that any disputes, interpretation or questions of performance under
this Agreement or any Supplement to it shall be determined and resolved
without submission to a jury.
<PAGE>
23. Except as set forth below, LESSEE may not, without LESSOR's prior
written consent, which shall not be unreasonably withheld or delayed,
sublease all or a portion of a Property, or assign this Agreement or any
rights under a Supplement. Notwithstanding anything to the contrary herein,
LESSEE may, without LESSOR's consent, assign this Agreement or any
Supplement, provided that LESSEE shall remain liable to LESSOR for LESSEE's
obligations hereunder until the earlier of (i) expiration of the initial
term of the relevant Supplement(s), or (ii) ten (10) years from the date of
such assignment unless LESSOR otherwise agrees in writing, which agreement
shall not be unreasonably withheld or delayed, to (a) any of Lessee's
Affiliates, (b) pursuant to any sale of all or substantially all of
LESSEE's assets or properties, merger, consolidation, or other transfer of
control of the LESSEE, or (c) pursuant to a transaction in which all or
substantially all of the LESSEE's (or its Affiliate, as applicable) FCC
licenses or interest in Commercial Mobile Radio Service ("CMRS") properties
in the Metropolitan Statistical Areas or Rural Service Area (as defined by
the Federal Communications Commission) in which the Property is located, or
a controlling interest therein, are being transferred by LESSEE. Upon such
permitted assignment, such assignee shall succeed to all obligations,
rights and options (including renewal options) of LESSEE hereunder.
Notwithstanding the foregoing, no assignment by LESSEE shall affect the
rights and obligations of LESSOR under this Agreement. The resale of
capacity or CMRS by LESSEE or the appointment of a third party to act as
agent for, to provide management or other services to, LESSEE or its
Affiliates shall not constitute a sublease, assignment or transfer subject
to the provisions of this paragraph. The sale, merger, reorganization,
consolidation, or change in control of any entity which, directly or
indirectly controls LESSEE or its Affiliates shall not constitute an
assignment or transfer subject to the provisions of this paragraph.
24. All notices hereunder must be in writing and shall be deemed
validly given if sent by certified mail, return receipt requested, on the
third (3rd) day after deposit in the U.S. mail, or by overnight courier,
signature required, on the day of delivery, addressed as follows (or any
other address that the party to be notified may have designated to the
sender by like notice):
LESSOR: Crown Atlantic Company, LLC
375 Southpointe Boulevard
Canonsburg Pennsylvania 15317
Attention: Brian D. Jacks, President
Fax No: (724) 416-2468
With copies to:
Crown Castle International Corp.
510 Bering, Suite 500
Houston, Texas 77057
Attention: CEO and General Counsel
Fax No: (713) 570-3150
and:
Crown Communication Inc.
USA Headquarters
375 Southpointe Boulevard
Canonsburg Pennsylvania 15317
Attention: John Kelly, President
Fax No: (724) 416-2468
LESSEE: Cellco Partnership c/o Bell Atlantic Mobile
180 Washington Valley Road
<PAGE>
Bedminster, New Jersey 07921
Attention: Network Real Estate
LESSOR will promptly provide copies of any notice, communication or
other form of correspondence from any local, state or federal agency,
commission, board or governing or regulatory body relating to any Property
subject to a Supplement, to the extent that the subject of such notice
relates in any way to LESSEE's use or occupancy of the Property or LESSOR's
continuing ability to make the Property available for such use. In the
event any such notice, communication or other form of correspondence
requires action or conduct on behalf of the LESSOR and in the event the
LESSOR fails to take such action within five (5) business days of such
notice, then LESSEE shall have the right to act as outlined in Paragraph 18
herein.
25. This Agreement and any Supplement shall extend to and bind the
heirs, personal representatives, successors and assigns of the parties
hereto.
26. LESSOR shall not pledge, encumber, grant a security interest in or
permit a lien to exist with respect to any Property subject to a Supplement
(an "Encumbrance") without LESSEE's prior written consent unless the party
holding such Encumbrance has entered into an agreement, in form and
substance satisfactory to LESSEE, which expressly permits LESSEE to
continue to occupy and use the Property in accordance with the terms of the
Agreement in the event that such party exercises any rights it may have to
take title to the Property or otherwise divest LESSOR of its interest in
the Property, and such party further agrees that it shall not transfer the
Property to any third party unless such third party agrees to permit LESSEE
to continue to occupy and use the Property subject to the terms and
conditions of this Agreement and the applicable Supplements. In the event
any Encumbrances affects the Property as of the time of the execution of
the applicable Supplement, the LESSOR shall immediately after execution of
the particular Supplement obtain and furnish to LESSEE an agreement in the
form set forth in the preceding sentence. In addition, LESSOR shall have
the same obligations to give notice of, and cure any defaults or breaches
under the Encumbrances as provided for in Paragraphs 17 and 18 above with
respect to Right of Use Agreements and LESSEE shall have the same rights to
cure any defaults and noncompliance, and be reimbursed for the costs of
such cure, under any Encumbrance.
27. LESSOR acknowledges that LESSEE and/or its affiliates currently or
in the future may be a holder of debt and/or equity instruments issued by
LESSOR (or its affiliates) and, as a consequence of holding such
instruments may be in a position to influence the conduct of LESSOR's
business. LESSOR agrees that no action, inaction, exercise or rights or
pursuit by LESSEE or its affiliates of any remedies available to any of
them, pursuant to the terms of such instruments or otherwise, shall
constitute a waiver of any rights LESSEE may have under this Agreement, be
deemed to excuse any failure by LESSOR to perform its obligations hereunder
or otherwise form the basis for any defense asserted by or on behalf of
LESSOR in response to any action taken by LESSEE to enforce its rights
hereunder.
28. LESSOR agrees that it shall not grant any third-party rights with
respect to any structure, building, or parcel of real property upon which
the Property may be located, the exercise of which would be inconsistent
with LESSEE's rights hereunder or otherwise impede or prevent LESSEE from
exercising any rights hereunder in the future.
29. LESSOR (or LESSEE upon LESSOR's request) agrees to execute a
Memorandum or Notice of this Agreement and Supplement upon the execution of
an applicable Supplement, which Memorandum or Notice the LESSEE (or LESSOR
as applicable) may record with the appropriate Recording Officer. The date
set forth in such Memorandum or Notice is for recording purposes only and
bears no reference to commencement of either term or rent payments.
30. In the event there is a default by the LESSEE with respect to any
provisions of this Agreement or any Supplement under it, including the
payment of rent, the LESSOR shall give LESSEE written notice of
<PAGE>
such default. After receipt of such written notice, LESSEE shall have
fifteen (15) days in which to cure any monetary default and thirty (30)
days in which to cure any nonmonetary default, provided the LESSEE shall
have such period extended as may be required beyond the thirty (30) days if
the nature of the cure is such that it reasonably requires more than thirty
(30) days and the LESSEE commences the cure within the thirty (30) day
period and thereafter continuously and diligently pursues the cure to
completion. In the event the LESSEE has failed to cure a default as set
forth in this Paragraph, then, in addition to any other rights or remedies
specifically provided to the LESSOR herein, the LESSOR shall have the right
to terminate the Supplement applicable to the Property from which the
default has emanated; provided, however, this Agreement and any other
Supplements shall remain in full force and effect and provided further,
however, that such rights to terminate and an action to: (i) recover lost
rent (consisting of any past due rent and any rents due for the balance of
the applicable Supplement Term) and (ii) recover any reasonable
out-of-pocket costs incurred to take possession of the Property, in the
event of such termination, shall constitute LESSOR's sole remedy with
respect to such default. LESSOR agrees to use its commercially reasonable
efforts to mitigate its damages or losses as a result of LESSEE's default;
provided that for purposes of this section only, commercially reasonable
efforts shall consist of using the same efforts to market the Property as
LESSOR undertakes with respect to other vacant tower capacity and not
encouraging prospective tenants to lease other available tower space and
provided further that mitigation shall be determined by actual
consideration received for the use of the Property.
In the event there is an uncured material default by the LESSOR with
respect to any of the provisions of this Agreement or any Supplement under
it, the LESSEE shall have the right to terminate the Supplement applicable
to the Property from which the default has emanated; provided that LESSEE
shall have first given written notice to LESSOR of its intent to terminate
(unless LESSEE has already provided notice of default) and LESSOR shall
have failed to cure such default within the time periods provided for
herein, or where no such time period has been provided (other than for
default under Section 12), LESSOR has not cured such default within thirty
(30) days of delivery of notice; provided the LESSOR shall have such period
extended as may be required beyond the thirty (30) days if the nature of
the cure is such that it reasonably requires more than thirty (30) days,
the LESSOR commences the cure within the thirty (30) day period and
thereafter continuously and diligently pursues the cure to completion and
the LESSEE determines in good faith that an extension of the time period
for cure will not have a material adverse effect on its use of the Property
or the conduct of its business. The right to terminate for a material
default as set forth in the preceding sentence shall be in addition to any
and all other rights and remedies which the LESSEE has or may have as a
result of such material default. In the event the LESSEE has terminated the
Supplement applicable to the Property from which the material default has
emanated, then this Agreement and any other Supplements shall remain in
full force and effect. In the event that, within any continuous twelve (12)
month period, LESSOR has defaulted under any of the provisions of this
Agreement with respect to three percent (3%) or more of the Supplements,
and such defaults have not been cured within the time periods provided for
herein with respect to any such Supplement which has not been terminated,
then in addition to any of the foregoing rights, LESSEE shall also have the
right to terminate this Agreement. In the event of any default by the
LESSOR with respect to any provision of this Agreement or any Supplement
under it, or in the event of any act or omission by LESSOR hereunder with
respect to which LESSEE has the right to reimbursement, damages or the
right to perform any act hereunder in the event LESSOR fails to, or elects
not to, take an action (including, without limitation, under Paragraph 18
of this Agreement), LESSEE shall have the right to deduct from, and set off
against, any payments payable by LESSEE under this Agreement and any
Supplement under it, any amounts incurred by LESSEE in the form of damages,
costs of curing any such act or omission, or otherwise, together with
interest, where applicable, at the rate specified in this Agreement from
the date of payment by LESSEE to the date of repayment by LESSOR. In the
event LESSEE exercises its rights of termination under this Section 30,
LESSEE will use commercially reasonable efforts to mitigate its damages.
Except as expressly provided for above or as otherwise agreed to by
LESSEE, LESSOR shall have no right to terminate any Supplement. For all
other purposes, including without limitation, any rights LESSOR has or may
have pursuant to 11 U.S.C. ss. 365, this Agreement and the Supplements
thereto shall be treated by LESSOR as one single integrated agreement.
<PAGE>
31. Each party will be responsible for all obligations of compliance
with any and all environmental laws, including any regulations, guidelines,
standards, or policies of any governmental authorities regulating or
imposing standards of liability or standards of conduct with regard to any
environmental conditions or concerns as may now or at any time hereafter be
in effect, that are or were in any way related to activity conducted by
such party in, on, or in any way related to the Property, unless such
conditions or concerns are caused by the activities of the other, with the
LESSOR being responsible for activity formerly conducted on the Property
either by LESSOR or by other third parties.
Each party shall hold the other harmless and indemnify the other from
and assume all duties, responsibility and liability at its sole cost and
expense, for all duties, responsibilities, and liability (for payment of
penalties, sanctions, forfeitures, losses, costs, or damages) and for
responding to any action, notice, claim, order, summons, citation,
directive, litigation, investigation or proceeding which is in any way
related to: a) failure by the indemnifying party to comply with any
environmental law, including without limitation any regulations,
guidelines, standards, or policies of any governmental authorities
regulating or imposing standards of liability or standards of conduct with
regard to any environmental concerns or conditions as may now or at any
time hereafter be in effect; and b) any environmental conditions arising
out of or in any way related to the condition of the Property or activities
conducted thereon by the indemnifying party, unless such environmental
conditions are caused by the other. Further, LESSOR shall indemnify and
hold LESSEE harmless in all ways as set forth in this paragraph with
respect to activity formerly conducted on the Property; or to the extent
that the Property consists of space on a tower owned or operated by LESSOR,
with respect to the building, structure or parcel of land on which the
Property is located, any activity conducted or condition caused by any
party other than LESSEE, its agents or employees. Notwithstanding the
foregoing: (i)LESSOR shall have no indemnification obligations with respect
to any environmental conditions for which LESSEE is obligated to indemnify
LESSOR pursuant to the Formation Agreement; and (ii) nothing contained in
this Paragraph 31 shall have the effect of limiting or modifying LESSEE's
obligations to indemnify LESSOR for environmental conditions as set forth
in the Formation Agreement.
32. In the event the Property which is the subject of any applicable
Supplement consists of space on a tower owned by LESSOR, LESSOR agrees to
furnish LESSEE with written notice at such time as the remaining usable
capacity (ability of such structure to support additional communications
equipment without interference with any other tenant) is, in the reasonable
judgment of the Lessor, less than or equal to 25% of the total usable
capacity of such structure. The purpose of this Paragraph 32 is to provide
LESSEE with timely notice of possible restrictions on obtaining additional
capacity in the future.
33. As used in this Agreement, the term "Formation Agreement" shall
mean that certain agreement by and between Cellco Partnership, a Delaware
partnership doing business as Bell Atlantic Mobile, the Transferring
Partnerships (as defined therein), Crown Castle International Corp., a
Delaware corporation and CCA Investment Corp., a Delaware corporation,
dated as of December 8, 1998 (as amended from time to time), and the term
"Build to Suit Agreement" shall mean that certain agreement by and between
Cellco Partnership, a Delaware partnership doing business as Bell Atlantic
Mobile, and Crown Atlantic Company LLC, a Delaware limited liability
company, dated as of March 31, 1999 (as amended from time to time).
34. A default by a LESSEE Affiliate hereunder shall not constitute a
default by LESSEE and Landlord's rights and remedies shall be limited to
such LESSEE Affiliate. Notwithstanding the foregoing, LESSEE agrees that
for a period ending ten (10) years from the date hereof that, if LESSEE's
Affiliates or any assignee or transferee of LESSEE defaults hereunder and
LESSOR after using commercially reasonable efforts, fails to obtain the
required cure or payment from such entities (and provided that such
entities are not, in good faith, disputing such claim of default or have
not otherwise asserted a meritorious defense or counterclaim) or has not
otherwise settled or compromised such claim, then LESSOR may, by notice
make demand upon LESSEE to cure such default and subject to the provisions
of this Paragraph, LESSEE shall be obligated hereunder to cure such
default. LESSEE shall have the same time periods to cure such default as
were available to the LESSEE Affiliate or transferee or assignee hereunder,
commencing with the effective date of such notice and LESSEE shall
furthermore have the benefit of any and all defenses, claims or
counterclaims available to it or to such LESSEE Affiliate or transferee or
assignee.
<PAGE>
In the event that LESSEE cures the default it shall succeed to all of LESSOR's
rights and remedies with respect to such LESSEE Affiliate, assignee or
transferee (other than rights to terminate a Supplement or take possession of
Property subject to a Supplement). In the event that LESSEE fails to cure any
default of a LESSEE Affiliate as to which proper demand was made as provided
hereunder and LESSEE was obligated to cure under the provisions of this
Paragraph, the Landlord shall have all of the rights and remedies available to
it hereunder with respect to such uncured default by LESSEE as it would have
against the LESSEE Affiliate.
IN WITNESS WHEREOF, the parties hereto have set their hands and
affixed their respective seals the day and year first above written.
LESSOR: CROWN ATLANTIC COMPANY LLC
/s/ Kathy G. Broussard BY: /s/ Brian D. Jacks
- ------------------------- -----------------------------------
WITNESS
LESSEE: CELLCO PARTNERSHIP
By Bell Atlantic Mobile, Inc.
Its General Partner
/s/ Alison B. Brotman BY: /s/ A. J. Melone
- ------------------------- -----------------------------------
WITNESS A. J. Melone
Vice President
Network Plannines and Administration
EXHIBIT 99.7
EXECUTION COPY
MASTER BUILD TO SUIT
AGREEMENT
Between
Cellco Partnership
and
CROWN ATLANTIC COMPANY, LLC
March 31, 1999
<PAGE>
MASTER BUILD TO SUIT AGREEMENT
THIS MASTER BUILD TO SUIT AGREEMENT ("Agreement") is entered into as
of the 31st day of March, 1999, by and between Crown Atlantic Company, LLC,
a Delaware Limited Liability company, ( together with its affiliates,
"Landlord"), and Cellco Partnership, a Delaware general partnership doing
business as Bell Atlantic Mobile ("Tenant").
RECITALS
Tenant is in the business of owning, managing and operating wireless
telecommunications facilities and providing telecommunications and related
services. Landlord and Tenant have entered into that certain Global Lease
Agreement dated as of even date herewith, pursuant to which Tenant and/or
its principal, or affiliates (which for these purposes shall include,
without limitation, any entity with respect to which Tenant or Tenant's
parent or subsidiary is a general partner, manager or occupies a similar
position of control, regardless of ownership interest), subsidiary or
subsidiary of its principal (any of the foregoing, "Tenant's Affiliate"),
will from time to time lease from Landlord capacity on Landlord's
communications towers and related real property (as amended from time to
time, the "Global Lease"). Landlord is in the business of acquiring,
constructing, owning and operating communications towers and related real
property, for the purpose of leasing such capacity to third parties. Tenant
has informed the Landlord that it expects to require additional tower
capacity and that it believes that such needs cannot currently be met
through the use of any existing towers. Landlord intends to acquire, lease
or otherwise control real property on which Landlord will be constructing
certain improvements, including an antenna support structure for the
attachment of communications equipment in locations which would be suitable
for use by Tenant.
Landlord and Tenant are desirous of establishing terms and conditions
which will apply to the development of certain portions of such real
property and improvements to be constructed by Landlord for the operation
of Tenant's (or Tenant's Affiliates') communications facilities and for the
lease of additional space by Landlord to third parties. Each location for
which Tenant, pursuant to this Agreement, enters into a Supplement (as
defined in the Global Lease) for a portion of the property and improvements
will be referred to individually as a "Site" and collectively as "Sites".
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
1. BUILD -TO- SUIT AGREEMENT
<PAGE>
This Agreement contains the basic terms and conditions upon which each
Site is developed by Landlord for lease by Tenant of a portion thereof.
When the parties agree on the particular terms for a Site, the parties will
execute a completed Global Lease Supplement in the form attached hereto as
Exhibit "A" ("SLA"). Each executed SLA is deemed to be a part of this
Agreement until such time as Tenant or Tenant's Affiliate commences, or is
required to commence payment under the SLA, at which point the SLA shall no
longer be deemed to be part of this Agreement but shall be deemed to be a
part of the Global Lease as provided for therein. The terms and conditions
of the SLA will govern and control if there is a conflict or inconsistency
between the terms and conditions of an SLA and this Agreement.
2. SITE LEASE
Each Site to be leased from Landlord will include, as described in the
SLA for that Site, space on an antenna support structure ("Tower") to be
constructed by Landlord on that particular real property, described in the
SLA for that Site, together with either a specific area inside an enclosed
structure owned or to be built by Landlord on the Site to house a portion
of the communications equipment identified in this Agreement
("Communications Facility") or a specific portion of the Site to enable
Tenant to construct or locate a structure for Tenant's exclusive use,
together with the non-exclusive access easement and non-exclusive utility
easement described in this Agreement. The Tower space, the area in the
enclosed structure (or the portion of the Site to be used for Tenant's
construction of an enclosed structure), the access easement and the utility
easement for each Site are referred to collectively in this Agreement as
the "Premises". Subject to the terms and conditions contained in this
Agreement, the Global Lease and the SLA relating to the Site, upon the
execution of an SLA by both Landlord and Tenant, Landlord will lease to
Tenant and Tenant will lease from Landlord the Premises described in the
SLA.
3. SITE APPROVAL AND CONSTRUCTION PROCESS
3.1 Lessee's Proposals. Tenant shall make Landlord aware of an
opportunity to construct a Site or group of Sites pursuant to this
Agreement by providing Landlord with a written proposal ("Proposal") which
identifies the applicable search areas for the potential Sites and provides
the following information: (i) the maximum time for Landlord to submit to
Tenant candidates for the potential Sites (which unless a longer period of
time is specified by Tenant, shall be fourteen (14) days); (ii) the maximum
time for Landlord to submit to Tenant the "SLA Package" (which, unless a
longer period of time is specified by Tenant, shall be ninety (90) days
following receipt of "RF Approval", as defined below) as defined below; and
(iii) the height required for Tenant's Communications Facilities (as
defined below) for the potential Site or Sites. Subject to Landlord's
obligations hereunder with respect to the "Landlord Commitment" as defined
below, Landlord's failure to deliver to Tenant its written acceptance of
the Proposal within thirty (30) days of Landlord's receipt thereof shall be
deemed a rejection of Tenant's
<PAGE>
Proposal by Landlord and there shall be no further obligation or liability
between the parties in connection with the Sites encompassed by that
Proposal.
3.2 RF Approval. Within twenty-one (21) days of Landlord's submission
to Tenant of at least three (3) candidates for a potential Site, Tenant
shall provide written notice to Landlord whether or not any of the
candidates satisfy Tenant's RF requirements ("RF Approval"). The candidates
shall be deemed to not satisfy Tenant's RF requirements if Tenant fails to
provide timely notice to Landlord and Landlord shall have no further
obligation to identify additional candidates in connection with such
proposal. If Tenant affirmatively rejects the candidates, Landlord shall
have the obligation to identify other candidates within the search area.
Landlord shall be obligated to continue to identify potential candidates
within the applicable search area until: (i) Tenant determines that a
candidate satisfies Tenant's RF requirements; or (ii) Landlord indicates
that the search ring is condemned based upon the unavailability of feasible
candidates for that potential Site. In the event Landlord condemns a search
area, Landlord shall provide Tenant with reasonable support in writing for
condemning a search ring, which support shall consist of such factors such
as the probable inability to timely obtain a final, non-appealable building
permit, unwillingness of landowners to grant an interest in real property,
construction feasibility issues or probable inability to obtain FAA
approval, and/or any other factors agreed upon by Tenant and Landlord.
Within thirty (30) days of receipt of notice from Landlord that a search
area has been condemned, Tenant shall either provide Landlord with a new
search area or notify Landlord of the termination of the search area
pursuant to Section 3.6. Failure of Tenant to timely provide Landlord with
either a new search area or notice of termination shall be deemed a
termination by Tenant pursuant to Section 3.6. In the event Landlord
submits to Tenant other candidates within the search area, the time frames
applicable to said alternate candidates shall begin anew and shall be the
same as the time frames for the initial candidate.
3.3 SLA Package.
3.3.1 Upon Landlord's receipt of Tenant's RF Approval of a
candidate, Landlord shall submit to Tenant, within ninety (90) days of
RF approval, the following: (i) a completed SLA executed by Landlord;
(ii) ground lease or other instrument (which may include an option
agreement, provided that the term of such option is of sufficient
duration to permit Landlord to exercise such option in a timely
fashion, and provided further that Landlord exercises such option
prior to the commencement of construction) evidencing Landlord's real
estate interest in the potential Site and Landlord's right and ability
to grant Tenant rights therein, together with a certification from the
Landlord that such real estate interest conforms to the requirements
set forth in the Global Lease (and upon Tenant's request, copies of
any related documentation); (iii) title report, commitment, opinion or
abstract; (iv) site survey; (v) Phase I environmental report; (vi) FAA
analysis prepared by Landlord; (vii) a detailed description of the
proposed tower structure, identifying any differences between the
tower height proposed by Landlord and that specified by Tenant as
meeting Tenant's requirements; (viii)
<PAGE>
zoning synopsis (which shall include, without limitation, Landlord's
assessment of its ability to obtain all necessary approvals for the
facilities described in the SLA within the time periods specified
herein); and (ix) the date by which Landlord expects to substantially
complete the Site (the earlier of the date: (a) specified in the SLA
Package; or (b) which is within ninety (90) days of the issuance of a
final, non-appealable building permit for the Site, herein the
"Committed Completion Date")( the items specified in clauses (i)
through (ix) collectively, the "SLA Package"). Tenant shall notify
Landlord within ten (10) days of Tenant's receipt of the SLA Package
whether the SLA Package is acceptable to Tenant. Tenant shall indicate
its acceptance of the SLA Package by executing and dating the SLA and
forwarding same to Landlord. Failure of Tenant to timely provide
Landlord with an executed SLA shall be deemed a termination by Tenant
pursuant to Section 3.6 and Tenant shall be obligated to pay the fees
set forth on Exhibit C. In the event that Landlord indicates in the
SLA Package that it may require a time period beyond one hundred
eighty (180) days to obtain the required building permit, Tenant shall
have the right to request that Landlord engage in discussions and
negotiations to reduce the indicated period. If after such
discussions, the Landlord does not agree to reduce such period to a
period acceptable to Tenant, Tenant shall have the right, without
penalty or further obligation hereunder to reject the SLA Package. For
SLA Packages submitted pursuant to Landlord's Commitment, if Tenant
determines that Landlord's proposed tower height would be one of the
causes of an approval period longer than one hundred and eighty (180)
days, Landlord shall, at Tenant's request, revise the SLA Package to
provide for a tower height which, while meeting Tenant's requirements
as identified in the Proposal, will, in Tenant's judgment, be
permitted in a timely fashion; provided, however, in revising the SLA
Package Landlord shall have the right to pursue (i) a permit for a
tower structure which meets Tenant's requirements as identified in the
Proposal, but which structure (and permit) can be subsequently
modified to increase the height of the tower structure in order to
meet the Landlord's requirements and/or (ii) simultaneous permits for
the construction of (1) a temporary structure which meets Tenant's
height requirements identified in the Proposal, if such permit for a
temporary structure can be obtained within one-hundred eighty
(180)days, and (2) a permanent tower structure with greater height
which meets both Tenant's and Landlord's requirements. In the event
that Tenant locates its Communications Facilities on any such
temporary tower structure prior to Landlord's completion of permitting
and construction of a higher permanent tower structure, following
completion of such higher permanent tower structure, Tenant's
Communications Facilities shall be relocated to the permanent
structure at Landlord's sole cost and expense.
3.3.2. If in the course of preparing the SLA Package, Landlord
determines that an "Environmental Hazard" (as defined below) exists on
the prospective Site, Landlord may at its option and upon written
notice to Tenant, withdraw the prospective Site, without penalty. Upon
such withdrawal, the Landlord will submit new candidates for Tenant's
approval pursuant to Section 3.1 hereof.
<PAGE>
3.4 Building Permit; Substantial Completion of Site.
3.4.1 Upon timely receipt of the executed SLA, Landlord shall
diligently proceed to obtain the building permit (for purposes of this
Agreement, "building permit" shall mean all permits, licenses,
approvals, waivers, grants of authorization and any other
authorizations required under any applicable laws, rules, regulations
or ordinances of any governmental body, agency, authority, commission
or regulatory body for the construction and operation of a tower
facility) consistent with the terms of the SLA. Unless otherwise
provided for in the SLA Landlord shall obtain a building permit
consistent with the SLA Package within one hundred eighty (180) days
of Landlord's receipt of the approved SLA Package. The time period for
Landlord to obtain a building permit may be extended by reason of an
event of "Force Majeure" which is also defined in Exhibit "B" attached
hereto. Should Landlord fail to timely obtain said building permit,
Tenant may terminate pursuant to Section 3.6. If Landlord fails to
timely obtain said building permit, Landlord shall have the obligation
to make further efforts to obtain said building permit unless and
until the earliest of: (i)Tenant has given notice of termination
pursuant to Section 3.6; (ii) the actual costs and expenses incurred
by Landlord (including both direct costs payable to third parties and
internal costs, including salaries, allocable by Landlord consistent
with past practice) equals or exceeds one hundred thousand dollars
($100,000); or (iii)Landlord notifies Tenant in writing that Landlord
has determined that obtaining the building permit will take at least
twenty-four (24) months from the Landlord's receipt of the approved
SLA package. Landlord shall keep tenant apprised of its efforts to
obtain the required permits, and shall promptly notify Tenant when it
appears reasonably likely that Landlord will not obtain the permit
within the one hundred eighty (180) day period (or the period
specified in the SLA). If, during the course of attempting to obtain
the building permit, it becomes reasonably clear that one of the
reasons for any delay or failure to timely obtain the permit is that
Landlord has requested a building permit for a facility which exceeds
Tenant's height requirements, subject to Landlord's rights set forth
in Section 3.3, Landlord shall promptly modify its proposed structure
and building permit request to conform to the minimum structure
necessary to meet Tenant's requirements as set forth in the SLA, and
shall provide Tenant with a written notice of such modification.
Tenant shall have the right to review all building permits. Upon
receipt of a copy of the final building permit, Tenant shall have ten
(10) days to provide Landlord with its acceptance or rejection of such
building permit; provided, however, that Tenant may only reject a
building permit if it determines that the building permit was modified
without Tenant's written consent to authorize a tower structure with
less height than indicated in the SLA Package, and such lesser height
will result in a tower structure not suitable for Tenant's intended
use. Tenant's failure to give notice of rejection within the ten (10)
day period shall be deemed to constitute Tenant's acceptance of the
building permit.
3.4.2 Landlord shall be responsible for substantial completion of
the Site by the Committed Completion Date. For the purposes of this
Agreement, substantial completion is defined as set forth in Exhibit
"B" attached hereto. The substantial completion date (and
<PAGE>
Committed Completion Date) may be extended by reason of an event of
"Force Majeure" which is also defined in Exhibit "B" attached hereto.
The substantial completion period (and Committed Completion Date) may
also be extended by agreement of the parties due to circumstances such
as the diversion of resources for another project. Construction of the
Site by Landlord shall only include: (i) all site engineering,
architectural and engineering drawings (as necessary) and geotechnical
investigations; (ii) construction of an access road, if necessary,
suitable for pedestrian and vehicular ingress and egress; (iii) the
construction of a communications tower complete with grounding systems
and tower lighting and monitoring (as necessary); and (iv) unless
otherwise agreed in writing or provided in the SLA Package, the
installations described in Exhibit 3.4.2, attached hereto.
Notwithstanding the foregoing, the SLA Package shall, unless Landlord
and Tenant agree otherwise in writing, require Landlord to provide the
antenna installation services described in Subsection D of Exhibit
3.4.2; as compensation for performing such installation services,
Tenant shall pay to Landlord the per-site fee set forth in subsection
D2 of Exhibit 3.4.2.
3.5 Liquidated Damages. Landlord's failure to substantially complete
construction of the Site by the Committed Completion Date for the
applicable SLA (as extended pursuant to Section 3.4.2) shall result in
liquidated damages assessed against Landlord in the amount of two (2) days
rent for every additional day needed for substantial completion of the
Site. In the event Landlord fails to substantially complete construction of
the Site within ninety (90) days of the Committed Completion Date for the
applicable SLA (as extended pursuant to Section 3.4.2), Tenant has the
unilateral right to terminate the SLA by providing Landlord fifteen (15)
days written notice prior to the date of substantial completion of the
Site. In such event, Landlord shall be liable for liquidated damages
through the date of termination and there shall be no further liability
between the parties in connection with the applicable SLA. Notwithstanding
the foregoing, in no event shall Landlord be liable for liquidated damages
exceeding one hundred eighty (180) days rent.
3.6 Termination by Tenant.
3.6.1 Without limiting any other rights of termination available
to Tenant hereunder, Tenant has the unilateral right of termination at
any time prior to the issuance of a building permit for a particular
Site. In the event of any such termination, Tenant shall immediately
pay to Landlord a termination fee according to the schedule set forth
in Exhibit "C" attached hereto.
3.6.2 In the event that Tenant is entitled to exercise a right of
termination pursuant to Section 3.4.1, then, in addition to any other
rights or remedies available to Tenant hereunder, Tenant shall have
the right, but not the obligation, to either: (i) cause Landlord to
assign or convey to it, as appropriate, all rights to any real estate
(or interests in real estate) described in the SLA, together with any
building permits or applications for building permits relating to the
SLA and Tenant shall: (X) reimburse Landlord for any payments made to
third parties directly related to the foregoing and (Y) pay Landlord
the sum of seven thousand five hundred dollars ($7,500) for its site
acquisition and
<PAGE>
permitting activities; or (ii) Tenant shall have the right to assume
responsibility for obtaining the required building permit relating to
the SLA, at Landlord's cost and expense, but not to exceed fifteen
thousand dollars ($15,000). In the event that Tenant assumes
responsibility for obtaining the building permit, Tenant shall keep
Landlord informed of its progress and shall provide Landlord with
copies of any modified or additional filings related to the building
permit. Exercise by Tenant of the rights in the foregoing two
sentences shall not relieve Landlord of any of its obligations and
duties hereunder (other than the duty to obtain the building permit)
and shall not be deemed to create any additional obligations or duties
on the part of Tenant.
3.6.3 In the event that Tenant exercises its right of termination
as set forth in Section 3.5 above, then in addition to any other
rights and remedies available to Tenant hereunder, Tenant shall have
the right, but not the obligation, to cause Landlord to assign or
convey to it, as appropriate, all rights to any real estate (or
interests in real estate) described in the SLA, together with any
building permits relating to the SLA and any improvements placed upon
the real estate by the Landlord (including without limitation, any
purchase orders for equipment and any architectural and engineering
plans) and Tenant shall reimburse Landlord for any payments made to
third parties directly related to the foregoing.
3.7 Tenant Tower Commitment; Right of First Refusal.
3.7.1 Throughout the Term of this Agreement, Tenant agrees that,
in the event that Tenant determines that: (i) it has a need for
capacity upon which to place Communications Facilities; (ii) such need
cannot, in its sole judgment, be met through the use of structures
(owned by Tenant, Tenant's Affiliates or any other party) which
currently exist or are under construction by unaffiliated third
parties; and (iii) Tenant, in its sole discretion, determines that the
needs of its business do not require it to own the structure on which
its Communications Facilities will be located, then Tenant shall offer
Landlord a right of first refusal to develop and construct a Site to
be occupied by Tenant as provided for in this Agreement and the Global
Lease; provided, however that Tenant's obligations under this
subsection 3.7.1 shall expire after Tenant (together with Tenant's
Affiliates) has submitted seven hundred (700) Proposals to Landlord
(the "Total Commitment"). Landlord acknowledges and agrees that the
Global Lease Rates for Sites subject to this Agreement have been
negotiated with the understanding that the Proposals to be submitted
by Tenant and Tenant's Affiliates will encompass Sites in a broad
variety of locations and that the cost of acquiring real estate and
constructing towers in such locations (and Landlord's ability to
construct a tower suitable for use by multiple tenants) will vary.
Landlord agrees that it will take into account the overall historical
and projected costs and returns relating to Sites subject to this
Agreement in making its determination of whether to accept or reject a
Proposal under this Section 3.7.1.
3.7.2 Based upon its projected business needs, Tenant has
informed Landlord that it expects to require at least five hundred
(500) Sites during the first five (5) years of this Agreement. In
return for Landlord's undertaking set forth in subsection 3.7.4 below,
as
<PAGE>
well as Landlord's performance of its obligations under this
Agreement, Tenant agrees that it (together with Tenant's Affiliates)
shall provide Landlord with not less than five hundred (500) Proposals
(excluding proposals for facilities to be located on water towers or
roof tops) during the first five (5) years of this Agreement (the "500
Site Commitment). Tenant further agrees that the Proposals which it
shall provide Landlord to meet Tenant's obligations regarding the
Total Site Commitment shall reflect the first seven hundred (700)
Sites which Tenant (which for purposes of this subsection 3.7.2 shall
be deemed to include: (a) the "Transferring Partnerships" (as defined
in the Formation Agreement); (b) any entity formed in the future by
Tenant which is either wholly-owned by Tenant or over which Tenant
exercises sole management control and which enters into leases of
tower capacity either on its own behalf or on behalf of Tenant or a
Transferring Partnership; and (c) any entity which would otherwise
meet the definition of a Tenant Affiliate and over which Tenant
exercises sole management control and as to which Tenant in good faith
reasonably determines that it does not require (either as a matter of
agreement or under any law applicable to such entity or Tenant's
duties as a manager of such entity) the consent of any other party to
subject such Tenant Affiliate to the terms of this Agreement;
provided, however, with respect to any such entity for which Tenant
determines consent of another would be required, Tenant shall use
commercially reasonable efforts to obtain such consent; and provided
further, however, that any entity in which Tenant does not currently
hold an ownership interest that would otherwise become a Tenant
Affiliate as a result of an acquisition by Tenant or its parent shall
not be included in the definition of Tenant) requires for its business
needs following execution of this Agreement. For purposes of this
Section 3.7.2, if Tenant identifies a Site owned, operated or under
construction by Landlord or any of its affiliates, which would be
suitable for use by Tenant, and Tenant enters into a lease for such
Site, the lease of such Site shall apply towards the Total Commitment;
provided, however, no lease by Tenant which relates to either: (i)the
Sites acquired or to be acquired by Landlord pursuant to the Formation
Agreement dated as of December 8, 1998 by and between Tenant, certain
of Tenant's Affiliates, Crown Castle International Corp. and CCA
Investment Corp. (as amended from time to time, the "Formation
Agreement"); or (ii)the sites owned, managed or under construction as
of the date hereof by Crown Communication Corp., shall apply towards
the Total Commitment.
3.7.3 In the event that the Total Commitment has not been met by
the 5th anniversary of this Agreement, the Term of this Agreement
shall, at Landlord's Option, be extended by one (1) additional year
for each additional year or portion thereof until the Total Commitment
has been met.
3.7.4 In consideration of the Total Commitment, Landlord agrees
that, notwithstanding anything to the contrary in this Agreement, it
shall accept all Proposals submitted by Tenant and Tenant's
Affiliates, submit SLA packages for each such Proposal and perform all
other obligations set forth in Section 3 hereof, with respect to the
first 500 Proposals submitted by Tenant and Tenant's Affiliates (the
"Landlord Commitment"). A Proposal (or SLA) which is terminated
subject to Sections 3.2, 3.4.1, 3.4.2, 3.5, the last sentence of
Section 3.1 or the sixth (6th) sentence of Section 3.3.1 shall
<PAGE>
not be counted towards satisfaction of the Landlord Commitment, but
shall be counted towards satisfaction of the 500 Site Commitment and
Total Commitment.
3.7.5 With respect to Proposals furnished by Tenant (or Tenant's
Affiliates) in excess of the 500 Site Commitment or after the 5th
anniversary of this Agreement, regardless of whether the Landlord
Commitment has been satisfied Landlord shall have the right, but not
the obligation to accept the Proposals as set forth in Section 3.1. If
Landlord does not accept Tenant's Proposal or a Proposal or SLA is
terminated as set forth in Section 3, Tenant shall have no further
obligations to Landlord with respect to such Proposal or SLA or the
Communications Facilities which are the subject thereof.
3.7.6 In the event that, during the term of this Agreement,
Landlord has failed to comply with its obligations under Sections 3.2,
3.3, 3.4 or 3.5 herein with respect to the greater of: (i) ten (10)
Proposals or SLAs; or (ii) ten percent (10%) of the Proposals or SLAs,
during any continuous twelve (12) month period, then, in addition to
any other rights and remedies specifically provided to Tenant under
this Agreement, Tenant's obligations under the 500 Site Commitment
shall terminate, which termination shall not affect the Landlord
Commitment, and the Total Commitment, for all purposes of this
Agreement from after the date of such termination shall be reduced to
two hundred (200) Proposals. In the event that, during the term of
this Agreement, Landlord has failed to comply with its obligations
under Sections 3.2, 3.3, 3.4 or 3.5 herein with respect to the greater
of: (i)twenty (20) Proposals or SLAs; or (ii) twenty percent (20%) of
the Proposals or SLAs, during any continuous twelve (12) month period,
then, in addition to any other rights and remedies specifically
provided to Tenant under this Agreement, Tenant's obligations under
Sections 3.7.1 and 3.7.3 of this Agreement shall be terminated.
Termination by Tenant under this Section 3.7.6 shall not terminate the
rights or obligations of the parties with respect to: (X) any SLA then
subject to the Global Lease; or (Y) any Site for which Landlord has
delivered an SLA package prior to the date of termination (whether or
not Tenant has executed the SLA package).
3.7.7 From time to time, Tenant shall provide Landlord with
forecasts of its anticipated tower needs for the following twelve (12)
month period. Following presentation of such forecast, Tenant and
Landlord will meet to discuss the forecast, including any constraints
on Landlord's ability to construct the number of towers indicated and
any other relevant issues. Tenant's forecasts and Landlord's response
to such forecasts, shall not create binding obligations or commitments
on the part of either party, but shall be used only for long-range
planning purposes.
3.8 Access To Information Technology
Tenant shall have electronic access to Landlord's database information
for Sites which are the subject of this Agreement for the following items:
(i) the tracking of the Site Approval and Construction Process identified
in this Section 3 (currently part of the database known as the Project
Tracking System); and (ii) the utilization of Sites by providers of
wireless services, including leasing, licensing and other collocation
information (currently part of the database known as the Executive
Information System). The access to information technology described
<PAGE>
herein constitutes a license to Tenant terminable at will by Landlord upon
notice to Tenant upon termination of this Agreement and does not convey to
Tenant any title or other proprietary rights whatsoever in the information
or any other property related thereto. To the extent that Tenant is granted
access to information which is subject to an obligation of non-disclosure
to a third party, Tenant agrees that it shall keep such information
confidential and not publicly disclose such information (except to the
extent such information is otherwise made publicly available, disclosed to
Tenant by such third party, or Tenant is required to disclose pursuant to
court order, rule or regulation of governmental authority or other
judicial, administrative or regulatory process).
4. CONSTRUCTION OF IMPROVEMENTS
At the time each SLA is executed, the Site described in the SLA will
be undeveloped real estate. To enable Tenant to use the Site as a
Communications Facility, Landlord agrees to substantially complete
construction on each Site the improvements described in Section 3.4.2 and
the SLA ("Improvements") on or before the Committed Completion Date (as
extended pursuant to Section 3.4.2) specified in the SLA for that Site. The
timely substantial completion of the Improvements is of the essence in this
Agreement and the SLA and, by execution of the SLA, Landlord confirms that
the Committed Completion Date (as extended pursuant to Section 3.4.2) is a
reasonable period for the completion of the Improvements. Construction of
the Improvements will be done at Landlord's sole cost and expense and will
be completed (a) in a good and workmanlike manner; (b) in accordance with
all applicable governmental laws, codes, rules and regulations; (c) in
accordance with any applicable requirements or standards included in the
SLA; and (d) in accordance with the building plans. Subject to the
provisions of Section 3.6.2, Landlord agrees that it will be responsible
for obtaining and maintaining any permits, zoning approvals, variances or
similar governmental requirements or approvals necessary for the
construction and operation of a wireless communications facility at the
Site, excluding, however, any FCC or other licenses related specifically to
Tenant's operations ("Government Approvals"). Tenant shall cooperate with
Landlord, at no cost to Tenant, in obtaining Government Approvals,
including acting as applicant and executing documents reasonably needed to
obtain the Government Approvals, to the extent such actions are customary
in the communications industry.
5. USE
The Premises may be used by Tenant for any purpose specified in the
SLA or as permitted under the terms of the Global Lease, including, without
limitation, for the installation, operation, maintenance, upgrading and
removal of unmanned communications equipment and related communications
(voice and/or data) activities (a "Communications Facility"). The
Communications Facility which Tenant may attach to the Tower for each Site
will be specifically described in the SLA for that Site, subject to any
additional rights or obligations provided for in the Global Lease.
Notwithstanding anything to the contrary contained in this Agreement, and
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without limiting any additional rights granted, or obligations imposed,
under the Global Lease, Tenant may install in the same plane and at
substantially the same ERP as identified in the applicable SLA the
equipment identified in the applicable SLA and replacement equipment, so
long as the replacement equipment results in no materially greater wind
loading or structure loading than the equivalent of the equipment
identified in the applicable SLA, including all attachment hardware.
For purposes of this Agreement and the applicable provisions of the
Global Lease as to all Sites constructed by Landlord, Tenant, at the time
it first operates facilities on the Site identified in the SLA, will be
deemed to be the "first user" for purposes of resolving any interference
issues which may arise as the result of use of the Site by Landlord, other
tenants or any other party using the Site for the operation of
communications equipment.
6. TERM
Unless otherwise terminated or extended pursuant to the terms herein,
this Agreement will expire five (5) years after the date hereof. The
initial term of each SLA ("Initial Term") commences on the date that the
SLA is signed by both parties. All other terms and conditions relating to
term, renewal, termination, expiration and renewal of each SLA shall be
governed by the Global Lease, except to the extent that this Agreement
expressly provides for an earlier termination date.
7. TERMINATION
In addition to any other rights to terminate this Agreement or an SLA:
(a) Tenant has the right to terminate an SLA (whether subject to this
Agreement or the Global Lease) at any time upon six (6) months prior
written notice if any Governmental Approval needed for Tenant to utilize
the Site for the purposes intended by this Agreement is canceled, expires,
lapses, or is otherwise withdrawn or terminated by the applicable
governmental agency through no fault of Tenant; and (b) Tenant has the
right to terminate this Agreement (but not any SLA which is then a part of
the Global Lease) if Landlord ceases to be an affiliate of Crown Castle
International Corp. ("CCIC") For purposes of the foregoing sentence, a
merger or acquisition transaction pursuant to which CCIC continues to exist
as the surviving entity or as a subsidiary of another entity (but with its
assets and operations substantially intact) shall not give rise to a right
of termination by Tenant.
8. FEES
Unless otherwise specified in an SLA, Tenant will commence paying a
monthly lease fee (the "Fee") for a Premises on the first day of the month
following the substantial completion of construction of the Improvements
("Rent Commencement Date"). Upon substantial completion of construction of
the Improvements, Landlord will prepare, sign and submit to Tenant a
certificate evidencing the Rent Commencement Date for that Premises. The
Fee will be due as
<PAGE>
provided in the Global Lease. The Fee will be payable as specified in the
Global Lease and the applicable SLA. Unless otherwise agreed to by the
Parties, the applicable Fee for each Site subject to an SLA under this
Agreement shall be as set forth on Exhibit 8, "Build-to-Suit Fees." In the
event that Tenant proposes to place Communications Facilities on a Site
which are different from or exceed the facilities set forth on Exhibit 8A,
"Standard Tenant Facilities", the Fees shall be increased as provided in
Exhibit 8 or as otherwise agreed upon by the Tenant and Landlord in good
faith.
Subject to adjustment as provided for in Exhibit 8 or the Global
Lease, the Fee for the Premises is stated in the SLA for that Site.
9. IMPROVEMENTS AND CONSTRUCTION
9.1 Approved Communications Facility
Tenant has the right, at Tenant's sole cost and expense, subject to
compliance with the terms of this Agreement and the Global Lease, to
maintain, replace, operate, upgrade and remove at the Premises
Communications Facilities as specified on the SLA and in the Global Lease.
Landlord agrees that any improvements which Tenant makes to the Site will
be solely for the benefit of Tenant and no other party will be entitled to
use the Communication Facilities constructed by Tenant. Landlord's and
Tenant's rights, duties and obligations with respect to such facilities are
set forth in the Global Lease.
10. UTILITIES
Tenant has the right, at Tenant's sole cost and expense, to obtain
electrical and telephone service to the Premises subject to the terms and
conditions of the Global Lease and any limitations contained in underlying
real estate interests. Landlord understands and acknowledges that:
10.1 the Premises includes such non-exclusive easements as
necessary to enable Tenant to connect utility wires, cables, fibers
and conduits (including, without limitation, telecommunications
facilities) to the Communications Facility; and
10.2 Landlord does have the right to approve the route and the
manner of installation, which approval shall not be unreasonably
withheld, conditioned or delayed.
<PAGE>
11. ACCESS
Tenant and its agents, employees and contractors are entitled to
unrestricted access the Premises and the Communications Facility
twenty-four (24) hours per day, seven (7) days per week. Access to the
Premises may be by foot or vehicle, including trucks and equipment. Tenant
acknowledges that the foregoing access rights are subject to any
limitations or restrictions on access imposed upon Landlord (and therefore
upon Tenant) by Landlord under any underlying real property interests
relating to a particular Site if Tenant has been given a copy of the
document relating to a particular Site and has been notified in writing by
Landlord of such limitations or restrictions prior to the execution of the
SLA for that Site. Limitations or restrictions imposed by a Landlord which
is an affiliate of Landlord will not be more restrictive than those
contained in this Section.
12. IMPROVEMENT FEES AND TAXES
Tenant must pay all taxes and other fees and assessments, or increases
thereto, which are attributable to Tenant's Communications Facility. Tenant
shall have the right to appear before the appropriate public body and
contest any tax, fee or assessment, or increases thereto, attributed to the
Communications Facility.
Except as otherwise provided in this Agreement, Landlord must pay all
taxes and other fees or charges attributable to (including, without
limitation, debt and ground lease obligations), each Site and, if required
under Landlord's ground lease obligations, the real estate of which the
Premises are a portion.
13. MEMORANDUM OF LEASE
After execution of an SLA, each party, at the request of the other,
will sign a recordable Memorandum of Lease for the Site described in the
SLA. Either party, at its sole expense, may record the Memorandum of Lease
in the land records of any recording office.
14. INSURANCE
14.1 Required Insurance of Tenant
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Tenant must, during the term of this Agreement and at Tenant's sole
expense, obtain and keep in force, the insurance specified in the Global
Lease.
14.2 Required Insurance of Landlord
Landlord must, during the term of this Agreement and the Global Lease
and at Landlord's sole expense, obtain and keep in force, the insurance
specified in the Global Lease but in any event the following coverage:
14.2.1 Property insurance, including coverage for fire, extended
coverage, vandalism and malicious mischief on the Improvements, in an
amount equal to the full replacement cost of the Improvements;
14.2.2 Commercial General Liability insurance insuring operations
hazard, independent contractor hazard, contractual liability and
products and completed operations liability, in limits not less than
$5,000,000.00 combined single limit for each occurrence for bodily
injury, personal injury and property damage liability, naming Tenant
as an additional insured;
14.2.3 Workers' Compensation and Employer's Liability insurance;
14.2.4 Business Auto Insurance covering the ownership,
maintenance or use of any owned, non-owned or hired automobile, with a
limit of not less than $1,000,000.00 combined single limit per
accident for bodily injury and property damage liability; and
14.2.5 any other coverage required by the lessor of any property
included in a Site.
14.3 Policies of Insurance
All required insurance policies must be taken out with reputable
national insurers that are licensed to do business in the jurisdiction
where the Premises and Sites are located. Each party agrees that
certificates of insurance will be delivered to the other within ten (10)
days after the SLA has been signed for a Site. All certificates of
insurance must contain an undertaking by the agents or brokers to notify
the other party in writing not less than fifteen (15) days before any
material change, reduction in coverage, cancellation, or termination of the
insurance.
14.4 Release
Landlord and Tenant release each other, and their respective
principals, employees, representatives and agents, from any claims for
damage to any person or to the Premises, the Site, the Communications
Facility and the Improvements, that are caused by, or result from, risks
insured against under any insurance policies carried by the party suffering
such damage and in force at the time of any such damage. Each party will
cause each insurance policy obtained by it
<PAGE>
to provide that the insurance company waives all right of recovery by way
of subrogation against the other party in connection with any damage
covered by any policy.
15. INDEMNIFICATION
15.1 Indemnification by Tenant
Tenant shall indemnify Landlord from and against any and all claims,
actions, damages, liability and expense in connection with the loss of
life, personal injury, and/or damage to property as specified in the Global
Lease, and in the event that Tenant is granted access to a Site prior to
substantial completion, any of the foregoing arising from or out of:
15.1.1 any occurrence in, upon or at the Premises or Site caused
by the act or omission of Tenant or Tenant's agents, customers,
business invitees, concessionaires, contractors, servants, vendors,
materialmen or suppliers, except to the extent caused by the
negligence or misconduct of Landlord, Landlord 's agent, customers,
business invitees, concessionaires, contractors, servants, vendors,
materialmen or suppliers;
15.1.2 any occurrence caused by the violation of any law,
regulation or ordinance applicable to Tenant's actual use or presence
on the Premises or the actual use of or presence on the Site by
Tenant's agents, customers, business invitees, concessionaires,
contractors, servants, vendors, materialmen or suppliers; or
15.1.3 real estate brokers claiming by, through or under Tenant
for any commission, fee or payment in connection with this Agreement.
15.2 Indemnification by Landlord
Landlord shall indemnify Tenant from and against any and all claims,
actions, damages, liability and expense in connection with the loss of
life, personal injury, and/or damage to property as specified in the Global
Lease and prior to the time Tenant commences use of a Site any of the
foregoing arising from or out of:
15.2.1 any occurrence in, upon or at the Premises or Site caused
by the act or omission of Landlord or Landlord's agents, customers,
business invitees, concessionaires, contractors, servants, vendors,
materialmen or suppliers, except to the extent caused by the
negligence or misconduct of Tenant, Tenant's agent, customers,
business invitees, concessionaires, contractors, servants, vendors,
materialmen or suppliers;
<PAGE>
15.2.2 any occurrence caused by the violation of any law,
regulation or ordinance applicable to Landlord's actual use or
presence on the Premises or the actual use of or presence on the Site
by Landlord's agents, customers, business invitees, concessionaires,
contractors, servants, vendors, materialmen or suppliers; or
15.2.3 real estate brokers claiming by, through or under Landlord
for any commission, fee or payment in connection with this Agreement.
15.3 Procedure
For all claims for indemnification not governed by the Global Lease:
15.3.1 Any party being indemnified ("Indemnitee") will give the
party making the indemnification ("Indemnitor") written notice as soon
as reasonably possible of:
15.3.1.1 any claim or demand that may be made or liability
that may be asserted against Indemnitee; or
15.3.1.2 any suit, action, or administrative or legal
proceedings that may be instituted or commenced in which any
Indemnitee is involved or is named as a defendant, either
individually or with others.
15.3.2 If, within thirty (30) days after the giving of such
notice, Indemnitee receives written notice from Indemnitor stating
that Indemnitor disputes or intends to defend against such claim,
demand, liability, suit, action or proceeding, then Indemnitor will
have the right to select counsel of its choice and to dispute or
defend against such claim, demand, liability, suit, action or
proceeding, at Indemnitor's expense. Indemnitee will fully cooperate
with Indemnitor in such dispute or defense so long as Indemnitor is
conducting such dispute or defense diligently and in good faith;
provided, however, that Indemnitor will not be permitted to settle
such dispute or claim without the prior written approval of
Indemnitee, which will not be unreasonably withheld, conditioned or
delayed. Even though Indemnitor selects counsel of its choice,
Indemnitee has the right to additional representation by counsel of
its choice to participate in such defense at Indemnitee's sole cost
and expense.
15.3.3 If no such notice of intent to dispute or defend is
received by Indemnitee within the thirty (30) day period, or if
diligent and good faith defense is not being, or ceases to be,
conducted, Indemnitee has the right to dispute and defend against the
claim, demand or other liability at the sole cost and expense of
Indemnitor and to settle such claim, demand or other liability, and in
either event to be indemnified as provided for in this Section.
Indemnitee is not permitted to settle such dispute or claim without
the prior written approval of Indemnitor, which approval will not be
unreasonably withheld, conditioned or delayed.
<PAGE>
15.3.4 The Indemnitor's indemnity obligation includes reasonable
attorneys' fees, investigation costs, and all other reasonable costs
and expenses incurred by the Indemnitee from the first notice that any
claim or demand has been made or may be made, and is not limited in
any way by any limitation on the amount or type of damages,
compensation, or benefits payable under applicable workers'
compensation acts, disability benefit acts, or other employee benefit
acts. The entire indemnification provisions of this Section will
survive the termination of this Agreement with respect to any damage,
injury or death occurring before such termination.
16. ASSIGNMENT
16.1 By Tenant
Notwithstanding any provision to the contrary, Tenant shall have the
right to assign this Agreement (provided that such assignment shall not
relieve Tenant of its obligations under Section 3.7) and any SLA, subject
to the same terms and conditions applicable to Tenant's rights to assign
the Global Lease and any Supplement thereunder, under the Global Lease.
16.2 By Landlord
Notwithstanding any provision to the contrary, Landlord shall have the
right to assign this Agreement and any SLA, subject to the same terms and
conditions applicable to Landlord's rights to assign the Global Lease and
any Supplement thereunder, under the Global Lease. For purposes of
application of the foregoing sentence, Landlord's rights to assign a Site
or SLA shall be governed by the provisions of the Global Lease applicable
to Landlord's rights to assign, transfer, sell or otherwise convey a
Supplement or any Property (as defined in the Global Lease) subject to a
Supplement.
17. DEFAULT AND REMEDIES
17.1 Tenant's Events of Default
The occurrence of any one or more of the following event constitutes
an "event of default" by Tenant under this Agreement and the applicable SLA
(but only with respect to SLA's not then subject to the terms of the Global
Lease):
<PAGE>
17.1.1 if Tenant fails to pay any Fee or other sums payable by
Tenant for the applicable Premises which are not then subject to the
Global Lease within ten (10) business days after Tenant's receipt of
written request for payment:
17.1.2 if Tenant (which for purposes of this subsection shall
include any entity in which Tenant or Tenant's parent owns eighty
percent (80%) or more of the equity interests), as defined in Section
3.7.2, breaches its obligations under Section 3.7 (provided, however,
that the acquisition of a Site and the construction of a Tower by
Tenant or a third party on Tenant's behalf following termination
pursuant to Sections 3.2, 3.3 or 3.4 hereof shall not constitute a
breach by Tenant);
17.1.3 if any petition is filed by or against Tenant under any
section or chapter of the present or any future federal Bankruptcy
Code or under any similar law or statute of the United States or any
state thereof (and with respect to any petition filed against Tenant,
such petition is not dismissed within sixty (60) days after the filing
thereof), or Tenant is adjudged bankrupt or insolvent in proceedings
filed under any section or chapter of the present or any future
federal Bankruptcy Code or under any similar law or statute of the
United States or any state thereof;
17.1.4 if a receiver, custodian, or trustee is appointed for
Tenant or for any of the assets of Tenant and such appointment is not
vacated within sixty (60) days of the date of appointment;
17.1.5 if Tenant makes a transfer in fraud of creditors; and
17.1.6 if Tenant breaches in any material way any representation
or warranty set forth in this Agreement and such breach has a material
adverse effect on Landlord (for breaches related to a specific Site,
material adverse effect will be determined with reference to such Site
only).
17.2 Landlord's Remedies
17.2.1 If an event of default occurs, while Tenant remains in
default, Landlord may incur any expense reasonably necessary to
perform the obligation of Tenant specified in the notice previously
provided to Tenant and invoice Tenant for the actual and reasonable
expenses incurred by Landlord in performing such obligation Any
invoice must be accompanied by documentation reasonably detailing the
actual expenses incurred by Landlord. Tenant shall be obligated to
remit payment to Landlord within ten (10) days of Tenant's receipt of
request for payment.
17.2.2 If any event of default pursuant to Section 17.1.2 occurs
and is continuing, Landlord may, as its sole remedies: (a) pursue an
action at law for direct damages resulting from such breach; and (b)
pursue equitable remedies
<PAGE>
including specific performance and/or injunctive relief to compel
Tenant to comply with its obligations under Section 3.7.
17.2.3 If an event of default pursuant to subsection 17.1.3
occurs and is continuing or an event of default under subsection
17.1.1, 17.1.4, 17.1.5 or 17.1.6 occurs and is continuing and such
default has a material adverse effect on Landlord, then Landlord may,
in addition to any other remedy available at law or in equity or
otherwise provided for in this Agreement, at Landlord's option upon
fifteen (15) days written notice, terminate this Agreement and any
applicable SLA not then subject to the Global Lease.
17.2.4 In no event shall Tenant be liable to Landlord for
consequential damages resulting from an event of default.
17.3 Landlord's Default
The occurrence of any one or more of the following events constitutes
an "event of default" by Landlord under this Agreement:
17.3.1 If Landlord fails to perform or observe the terms of
Section 3.7.4, or any term of any SLA, including terms and conditions
applicable thereto contained in this Agreement, and such failure
continues for more than thirty (30) days after written notice from
Tenant; except such thirty (30) day cure period will be extended as
reasonably necessary to permit Landlord to complete such cure so long
as Landlord commences such cure within such thirty (30) days cure
period and thereafter continuously and diligently pursues and
completes each cure;
17.3.2 if any petition is filed by or against Landlord, under any
section or chapter of the present or future federal Bankruptcy Code or
under any similar law or statute of the United States or any state
thereof (and with respect to any petition filed against Landlord, such
petition is not dismissed within sixty (60) days after the filing
thereof), or Landlord is adjudged bankrupt or insolvent in proceedings
filed under any section or chapter of the present or any future
federal Bankruptcy Code or under any similar law or statute of the
United States or any state thereof;
17.3.3 if a receiver, custodian, or trustee is appointed for
Landlord or for any of the assets of Tenant and such appointment is
not vacated within sixty (60) days of the date of the appointment;
17.3.4 if Landlord makes a transfer in fraud of creditors; or
17.3.5 if Landlord breaches in any material way any
representation or warranty set forth in this Agreement and such breach
has a material adverse effect on Tenant (for
<PAGE>
breaches related to a specific Site, material adverse effect will be
determined with reference to such Site only).
17.4 Tenant's Remedies
If an event of default pursuant to subsection 17.3.2 occurs and is
continuing or an event of default under subsection 17.3.1 (and Tenant has
not exercised any other remedy available to it under Article 3 of this
Agreement), 17.3.3, 17.3.4 or 17.3.5 occurs and is continuing and such
default has a material adverse effect on Tenant, Tenant may, in addition to
any other remedy available at law or in equity or otherwise provided for in
this Agreement, at Tenant's option upon fifteen (15) days written notice,
terminate this Agreement and any applicable SLA not then subject to the
Global Lease, or incur any expense reasonably necessary to perform the
obligation of Landlord specified in the notice previously provided by
Tenant and invoice Landlord for the actual expenses incurred by Tenant. Any
invoice must be accompanied by documentation reasonably detailing the
actual expenses incurred by Tenant. If Landlord fails to reimburse the
costs within thirty (30) days of receipt of written invoice, then Tenant is
entitled to offset and deduct such expenses from the Fees or other charges
next becoming due under any SLA. In no event shall Landlord be liable to
Tenant for consequential damages resulting from an event of default.
18. COVENANT OF QUIET ENJOYMENT
Landlord covenants and warrants to Tenant that Tenant, so long as
Tenant is not in default hereunder after giving of notice and the
expiration of any applicable cure periods, will have, hold and enjoy
uninterrupted possession and use of each Premises leased under an SLA
during the term of the applicable SLA and any renewal or extension thereof.
Landlord will not, nor permit any other person occupying or using the Site
to, take any action not expressly permitted under the terms of this
Agreement or the Global Lease that will interfere with Tenant's intended
use of the Premises nor will Landlord fail to take any action or perform
any obligation identified in this Agreement or the Global Lease to fulfill
Landlord's aforesaid covenant of quiet enjoyment in favor of Tenant. This
Section will survive termination of the Agreement as to any SLAs then
subject to the Global Lease.
19. COVENANTS AND WARRANTIES
19.1 Landlord
Landlord warrants to Tenant, with respect to each particular SLA, that
except as indicated in the SLA Package:
19.1.1 Landlord owns good marketable fee simple title, has a good
and marketable leasehold interest, or has a valid easement or other
real property interest in the
<PAGE>
land on which the Site and Premises are located and has rights of
unobstructed access thereto;
19.1.2 Landlord will not permit or suffer the installation and
existence of any other improvement (including, without limitation,
transmission or reception devices) upon the structure or land of which
any Site or Premises is a portion if such improvement interferes with
transmission or reception by the Communications Facility, unless such
interference is caused by Tenant; and
19.1.3 The Premises are to the best of Landlord's knowledge not
contaminated by any Environmental Hazards (as defined in this
Agreement).
19.2 Mutual
Each party represents and warrants to the other party that:
19.2.1 it has full right, power and authority to make this
Agreement and to enter into the SLAs;
19.2.2 the making of this Agreement and the performance thereof
will not violate any laws, ordinances, restrictive covenants, or other
agreements under which such party is bound;
19.2.3 that such party is a duly organized and existing
corporation, partnership, limited liability company or limited
partnership;
19.2.4 the party is qualified to do business in any state in
which the Premises and Sites are located, to the extent that such
qualification is so required; and
19.2.5 all persons signing on behalf of such party were
authorized to do so by appropriate corporate, partnership or other
similar action.
20.3 No Brokers
Tenant and Landlord each represent to the other that they have not had
any dealings with any real estate brokers or agents in connection with the
negotiation of this Agreement.
21. ENVIRONMENTAL MATTERS
Landlord represents and warrants to Tenant that, to the best of
Landlord's knowledge (which will be limited to obtaining a Phase I
environmental report that includes, without
<PAGE>
limitation the results of specific inquiry made to the owners of any Site)
there are no Environmental Hazards on any Site not otherwise identified in
each SLA Package. Nothing in this Agreement or in any SLA will be construed
or interpreted to require that Tenant remediate any Environmental Hazards
located at any Site unless Tenant or Tenant's Affiliates or their
respective officers, employees, agents, or contractors placed the
Environmental Hazards on the Site.
Tenant will not bring to, transport across or dispose of any
Environmental Hazards on any Site without Landlord's prior written
approval, which approval may not be unreasonably withheld, except Tenant
may keep on Site substances commonly used in the wireless
telecommunications industry for back-up power generation. Tenant's use of
any approved substances constituting Environmental Hazards must comply with
all applicable laws, ordinances, and regulations governing such use.
The term "Environmental Hazards" means hazardous substances, hazardous
wastes, pollutants, asbestos, polychlorinated biphenyl (PCB), petroleum or
other fuels (including crude oil or any fraction or derivative thereof),
underground storage tanks and any other substances or emissions which are
regulated by any state or local government agency in the state in which a
Site is located. The term "hazardous substances" will be as defined in the
Comprehensive Environmental Response, Compensation, and Liability Act (and
any similar laws of any state in which a Site is located), and any
regulations promulgated pursuant thereto. The term "pollutants" will be as
defined in the Clean Water Act (and any similar laws of any state in which
a Site is located), and any regulations promulgated pursuant thereto. This
Section will survive termination of the Agreement and any SLA.
Tenant and each Tenant Affiliate which executes an SLA agrees (but
only with respect to SLAs executed by such party) to defend, indemnify and
hold Landlord harmless from and against any and all claims, causes of
action, demands and liability including, but not limited to, damages,
costs, expenses, assessments, penalties, fines, losses, judgments and
attorneys' fees that Landlord may suffer due to the existence or discovery
of any Environmental Hazards on the Site or the migration of any
Environmental Hazards to other properties or released into the environment
arising from Tenant's or Tenant's Affiliates' activities or the activities
of Tenant's and Tenant's Affiliates' respective owners, agents, employees
or contractors on the Site.
Landlord agrees to defend, indemnify and hold Tenant and each of
Tenant's Affiliates harmless from and against any and all claims, causes of
action, demands and liability including, but not limited to, damages,
costs, expenses, assessments, penalties, fines, losses, judgments and
attorneys' fees that Tenant (or any of Tenant's Affiliates) may suffer due
to the existence or discovery of any other Environmental Hazards on the
Site or the migration of any Environmental Hazards from the Site to other
properties except as to any Environmental Hazards identified in the Phase I
Environmental Report and SLA Package associated with such Site or
associated with
<PAGE>
Tenant's activities or the activities of Tenant's and Tenant's Affiliates'
respective owners, agents, employees or contractors on the Site.
The indemnification in this Section specifically includes costs
incurred in connection with any investigation of site conditions or any
cleanup, remedial, removal or restoration work required by any governmental
authority of competent jurisdiction. The provisions of this Section will
survive expiration or termination of this Agreement and each SLA. The
provisions of this Section are in addition to, and not in lieu of, any
rights or obligations of the Parties as set forth in the Global Lease.
22. GENERAL PROVISIONS
22.1 Entire Agreement; Global Lease
This Agreement and each SLA constitutes the entire agreement and
understanding between the parties, and, except as expressly provided for in
this Agreement with respect to the application of the Global Lease or any
terms contained therein, supersedes all offers, negotiations and other
agreements concerning the subject matter contained in this Agreement and
that SLA. Any amendments to this Agreement or any SLA must be in writing
and executed by Landlord and Tenant. To the extent of any conflict or
inconsistency between this Agreement and the Global Lease, the terms of the
Global Lease shall govern.
22.2 Severability
If any provision of this Agreement or any SLA is invalid or
unenforceable with respect to any party, the remainder of this Agreement,
the applicable SLA or the application of such provision to persons other
than those as to whom it is held invalid or unenforceable, is not to be
affected and each provision of this Agreement or the applicable SLA is
valid and enforceable to the fullest extent permitted by law.
22.3 Binding Effect
This Agreement and each SLA will be binding on and inure to the
benefit of the respective parties' successors and permitted assignees.
22.4 Captions
The captions of this Agreement are inserted for convenience only and
are not to be construed as part of this Agreement or the applicable SLA or
in any way limiting the scope or intent of its provision.
22.5 No Waiver
<PAGE>
No provision of this Agreement or a SLA will be deemed to have been
waived by either party unless the waiver is in writing and signed by the
party against whom enforcement is attempted. No custom or practice which
may develop between the parties in the administration of the terms of this
Agreement or any SLA is to be construed to waive or lessen any party's
right to insist upon strict performance of the terms of this Agreement or
any SLA. The rights granted in this Agreement and under each SLA are
cumulative of every other right or remedy that the enforcing party may
otherwise have at law or in equity or by statute and the exercise of one or
more rights or remedies will not prejudice or impair the concurrent or
subsequent exercise of other rights or remedies.
22.6 Construction
The parties acknowledge and agree that they have been represented by
counsel and that each of the parties has participated in the drafting of
this Agreement and each SLA. Accordingly, it is the intention and agreement
of the parties that the language, terms and conditions of this Agreement
and each SLA are not to be construed in any way against or in favor of any
party hereto by reason of the responsibilities in connection with the
preparation of this Agreement or each SLA.
22.7 Notice
Any notice or demand required to be given in this Agreement must be
made by certified or registered mail, return receipt requested or reliable
overnight courier to the address of other parties set forth below:
Landlord:
Crown Atlantic Company, LLC
375 Southpointe Boulevard
Canonsburg, Pennsylvania 15317
Attention: Brian D. Jacks, President
Fax No.: (724) 416-2468
With copies to:
Crown Castle International Corp.
510 Bering, Suite 500
Houston, Texas 77057
Attention: CEO and General Counsel
Fax No: (713) 570-3150
and:
<PAGE>
Crown Communication Inc.
USA Headquarters
375 Southpointe Boulevard
Canonsburg Pennsylvania 15317
Attention: John Kelly, President
Fax No: (724) 416-2468
Tenant: Cellco Partnership
c/o Bell Atlantic Mobile
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
With a copy to:
Cellco Partnership
c/o Bell Atlantic Mobile
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: General Counsel
Any such notice is deemed received one (1) business day following
deposit with a reliable overnight courier or five (5) business days
following deposit in the United States mail addressed as required above.
Landlord or Tenant may from time to time designate any other address for
this purpose by written notice to the other party.
22.8 Governing Law
This Agreement is governed by the laws of the State of New Jersey.
22.9 No Liens
(a) Each Communications Facility and related property of Tenant
located upon any Premises by Tenant pursuant to the terms of this
Agreement and the applicable SLA will at all times be and remain
the property of Tenant and will not be subject to any lien or
encumbrance created or suffered by Landlord. Tenant has the right
to make such public filings as Tenant deems necessary or
desirable to evidence Tenant's ownership of the Communications
Facility. Landlord hereby waives all lessor's or
<PAGE>
landlord's lien on any property of Tenant (whether created by
statute or otherwise). The provisions of this Section will
survive expiration or termination of this Agreement and each SLA.
(b) In the event that, prior to Substantial Completion, Tenant is
permitted hereunder to have access to a Site and constructs (or
causes to be constructed) improvements to the Site, Tenant agrees
to keep the Site free from any liens arising from any work
performed, materials placed materials furnished, or obligations
incurred by or at the request of Tenant. If any such valid lien
is filed against the Site as a result of the acts or omissions of
Tenant, or Tenant's employees, agents, or contractors, Tenant
must discharge such lien or bond the lien off within thirty (30)
days after Tenant receives written notice from any party that the
lien has been filed. If Tenant fails to discharge or bond any
such valid lien within such period, then, in addition to any
other right or remedy of Landlord, Landlord may, at Landlord's
election, discharge the lien by either paying the amount claimed
to be due or obtaining the discharge by deposit with a court or a
title company or by bonding. Tenant must pay, within thirty (30)
days of Landlord's written demand, any reasonable amount actually
paid by Landlord for the discharge or satisfaction of any such
valid lien, and all reasonable attorneys' fees and other legal
expenses of Landlord incurred in defending any such action or in
obtaining the discharge of such lien.
22.10 Time is of the Essence
Time is of the essence with respect to this Agreement and each SLA.
22.11 Non-Disclosure
The parties agree that without the express written consent of the
other party, neither party shall reveal, disclose or promulgate to any
third party the terms of this Agreement or any portion thereof, except to
such third party's auditor, accountant or attorney or to a governmental
agency if required by regulation, subpoena or government order to do so,
and in the case of Landlord or Tenant, to their respective Affiliates.
22.12 Reference to Tenant deemed to constitute reference to Tenant's
Affiliate.
Whenever a Proposal is submitted by, and a SLA package executed by,
Tenant's Affiliate, all references in this Agreement to "Tenant" shall be
deemed to be a reference to such Tenant's Affiliate and the Tenant's
Affiliate will be entitled to all benefits and rights, and subject to all
obligations, of Tenant with respect to the applicable Site and SLA Package.
A default by a Tenant Affiliate hereunder shall not constitute a default by
Tenant and Landlord's rights and remedies shall be limited to such Tenant
Affiliate. Notwithstanding the foregoing, Tenant agrees that, if Tenant's
Affiliate defaults hereunder and Landlord after using commercially
reasonable efforts, fails to obtain the required cure or payment from such
entity (and provided that such
<PAGE>
entity is not, in good faith, disputing such claim of default or have not
otherwise asserted a meritorious defense or counterclaim) or has not
otherwise settled or compromised such claim, then Landlord may, by notice
make demand upon Tenant to cure such default and subject to the provisions
of this Section, Tenant shall be obligated hereunder to cure such default.
Tenant shall have the same time periods to cure such default as were
available to the Tenant Affiliate or transferee or assignee hereunder,
commencing with the effective date of such notice and Tenant shall
furthermore have the benefit of any and all defenses, claims or
counterclaims available to it or to such Tenant Affiliate or transferee or
assignee. In the event that Tenant cures the default it shall succeed to
all of Landlord's rights and remedies with respect to such Tenant
Affiliate, assignee or transferee (other than rights to terminate an SLA
Package). In the event that Tenant fails to cure any default of a Tenant
Affiliate as to which proper demand was made as provided hereunder and
Tenant was obligated to cure under the provisions of this Section, the
Landlord shall have all of the rights and remedies available to it
hereunder with respect to such uncured default by Tenant as it would have
against the Tenant Affiliate.
22.13 Interest.
Any fee or reimbursement payable hereunder not paid within ten (10)
business days of when due may, at the option of the party entitled to such
payment, bear interest at the lesser of: (a) the rate of ten percent (10%)
per annum; or (b) the maximum rate allowed under the laws of the
jurisdiction in which the Site is located.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement
as of the date first above written.
TENANT:
ATTEST: Cellco Partnership
by Bell Atlantic Mobile, Inc.
its managing general partner
/s/ Alison B. Brotman By: /s/ A. J. Melone
- -------------------------------- -------------------------------
Assistant Secretary Title: A. J. Melone
Vice President
Network Planning and
Administration
LANDLORD:
ATTEST: Crown Atlantic Company LLC
/s/ Kathy G. Broussard By: /s/ Brian D. Jacks
- -------------------------------- -------------------------------
Secretary Title: President
Exhibit 99.8
EXECUTION COPY
LOAN AGREEMENT
by and among
CROWN ATLANTIC HOLDING SUB LLC,
as the Borrower,
KEY CORPORATE CAPITAL INC.,
as Agent,
and
THE FINANCIAL INSTITUTIONS LISTED HEREIN
AS OF MARCH 31, 1999
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS........................................1
1.1 Definitions......................................1
1.2 Other Terms.....................................20
1.3 Accounting Terms; Income Taxes..................20
SECTION 2. THE LOANS.........................................21
2.1 The Commitment and the Loans....................21
2.2 Making and Conversion/Continuation of the
Loans.........................................27
2.3 The Notes.......................................28
2.4 Fees............................................28
2.5 Prepayment......................................29
2.6 Reserves or Deposit Requirements, Etc...........32
2.7 Tax Law, Increased Costs, Etc...................32
2.8 Eurodollar Deposits Unavailable or
Interest Rate Unascertainable.................32
2.9 Changes in Law Rendering LIBOR Loans Unlawful...33
2.10 Funding.........................................33
2.11 Indemnity.......................................33
2.12 Capital Adequacy................................34
2.13 Taxes...........................................34
2.14 Right to Remove Affected Bank...................35
SECTION 3. INTEREST; PAYMENTS................................36
3.1 Interest........................................36
3.2 Manner of Payments..............................37
SECTION 4. CLOSING...........................................38
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE BORROWER....38
5.1 Organization and Powers.........................38
5.2 Authorization...................................38
5.3 Financial Statements............................39
5.4 Projections.....................................39
5.5 Capitalization..................................39
5.6 Subsidiaries....................................40
5.7 Title to Properties; Patents, Trademarks,
Etc.............................................40
<PAGE>
TABLE OF CONTENTS
(continued)
Page
5.8 Litigation; Proceedings.........................40
5.9 Taxes...........................................41
5.10 Absence of Conflicts............................41
5.11 Indebtedness....................................42
5.12 Compliance......................................42
5.13 Statements Not Misleading.......................42
5.14 Consents or Approvals...........................43
5.15 Material Contracts and Commitments..............43
5.16 Employee Benefit Plans..........................44
5.17 Licenses and Registrations......................44
5.18 Material Restrictions...........................45
5.19 Investment Company Act..........................45
5.20 Absence of Material Adverse Effect..............45
5.21 Defaults........................................45
5.22 Real Property...................................45
5.23 Securities Laws.................................45
5.24 Insurance.......................................46
5.25 Labor Disputes..................................46
5.26 Environmental Compliance........................46
5.27 Year 2000.......................................49
5.28 Solvency........................................49
5.29 Transaction Documents...........................49
SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE
BANKS..............................................50
6.1 Compliance......................................50
6.2 Security Agreements.............................50
6.3 Pledge Agreements...............................51
6.4 Real Property Matters...........................51
6.5 Financing Statements............................52
6.6 Guaranties......................................52
6.7 BAM Purchase Agreement..........................52
6.8 Consummation of Formation Agreement.............52
6.9 No Indebtedness.................................54
6.10 Opinion of Counsel..............................54
<PAGE>
TABLE OF CONTENTS
(continued)
Page
6.11 Insurance Certificates..........................54
6.12 Financial Information...........................54
6.13 Borrowing Request and Statement of
Application of Proceeds.........................55
6.14 Organizational Documents........................55
6.15 Due Diligence...................................56
6.16 Lien Searches, Consents and Releases of Liens...56
6.17 No Order, Judgment, Decree or Litigation........56
6.18 No Material Adverse Effect......................57
6.19 Fee Letter; Fees and Expenses...................57
6.20 Legal Approval..................................57
6.21 Other Documents.................................57
SECTION 7. AFFIRMATIVE COVENANTS OF THE BORROWER..............57
7.1 Use of Proceeds.................................57
7.2 Continued Existence; Compliance with Law........57
7.3 Insurance.......................................58
7.4 Obligations and Taxes...........................59
7.5 Financial Statements and Reports................59
7.6 Notices.........................................61
7.7 Maintenance of Property.........................62
7.8 Information and Inspection......................63
7.9 Maintenance of Liens............................63
7.10 Title To Property...............................63
7.11 Environmental Compliance and Indemnity..........63
7.12 Rate Hedging Obligations........................65
7.13 Maintenance of Separate Identity................65
SECTION 8. NEGATIVE COVENANTS OF THE BORROWER.................65
8.1 Indebtedness....................................65
8.2 Liens...........................................66
8.3 Guaranties......................................66
8.4 Rental and Conditional Sale Obligations.........66
8.5 Real Property Interests.........................67
8.6 Capitalized Lease Obligations...................67
8.7 Capital Expenditures............................67
<PAGE>
TABLE OF CONTENTS
(continued)
Page
8.8 Notes, Accounts Receivable and Claims...........67
8.9 Capital Distributions...........................68
8.10 Disposal of Property; Mergers; Acquisitions;
Reorganizations.................................69
8.11 Construction of Towers..........................73
8.12 Investments.....................................75
8.13 Amendment of Governing Documents................75
8.14 Financial Covenants.............................75
8.15 Management Agreements and Fees..................77
8.16 Fiscal Year.....................................77
8.17 ERISA...........................................77
8.18 Affiliates......................................77
8.19 Change of Name or Structure.....................77
8.20 Amendments, Waivers or Terminations.............78
8.21 Issuance or Transfer of Membership Interests....78
8.22 Types of Business...............................78
8.23 Regulation U....................................79
8.24 Tower Subsidiary and Other Subsidiaries.........79
SECTION 9. EVENTS OF DEFAULT..................................79
9.1 Non-Payment....................................79
9.2 Failure of Performance in Respect of Other
Obligations....................................79
9.3 Breach of Warranty.............................80
9.4 Cross-Defaults.................................80
9.5 Assignment for Benefit of Creditors............80
9.6 Bankruptcy.....................................80
9.7 Appointment of Receiver; Liquidation...........81
9.8 Judgments......................................81
9.9 Tenant Leases; Transaction Documents...........81
9.10 Impairment of Collateral; Invalidation of any
Loan Document..................................82
9.11 Termination of License or Agreements...........82
9.12 Change of Control..............................83
9.13 Unrestricted Subsidiary........................83
<PAGE>
TABLE OF CONTENTS
(continued)
Page
9.14 Default under Collateral Document..............83
9.15 Condemnation...................................83
9.16 Material Adverse Effect........................83
SECTION 10. REMEDIES..........................................83
10.1 Optional Defaults..............................83
10.2 Automatic Defaults.............................84
10.3 Performance by the Banks.......................84
10.4 Other Remedies.................................84
10.5 Enforcement and Waiver by the Banks............84
SECTION 11. THE AGENT.........................................85
11.1 Appointment....................................85
11.2 Powers.........................................85
11.3 General Immunity...............................85
11.4 Action on Instructions of the Banks............86
11.5 Employment of Agents and Counsel...............86
11.6 Reliance on Documents; Counsel.................86
11.7 Agent's Reimbursement and Indemnification......86
11.8 Rights as a Bank...............................87
11.9 Bank Credit Decision...........................87
11.10 Successor Agent................................87
11.11 Ratable Sharing................................88
11.12 Actions by the Agent and the Banks.............89
SECTION 12. MISCELLANEOUS.....................................89
12.1 Construction...................................89
12.2 Further Assurance..............................89
12.3 Expenses of the Agent and the Banks;
Indemnification................................89
12.4 Notices........................................90
12.5 Waiver and Release by the Borrower.............92
12.6 Right of Set Off...............................92
12.7 Successors and Assigns; Participations.........93
12.8 Applicable Law.................................95
12.9 ENFORCEMENT....................................95
12.10 JURY TRIAL WAIVER..............................96
<PAGE>
TABLE OF CONTENTS
(continued)
Page
12.11 Binding Effect and Entire Agreement; No Oral
Agreements.....................................96
12.12 Counterparts...................................96
12.13 Survival of Agreements.........................97
12.14 Modification...................................97
12.15 Separability...................................98
12.16 Section Headings...............................98
12.17 Termination....................................98
12.18 Interest Limitation............................98
12.19 Confidentiality................................99
12.20 Non-Recourse to CCIC; Limited Recourse to
BAM............................................99
<PAGE>
LOAN AGREEMENT
THIS LOAN AGREEMENT is made and entered into as of
March 31, 1999, by and among CROWN ATLANTIC HOLDING SUB LLC, a
Delaware limited liability company (the "Borrower"), the
FINANCIAL INSTITUTIONS listed on the signature pages hereof, and
KEY CORPORATE CAPITAL INC., as Agent (the "Agent").
R E C I T A L S:
The Borrower is a newly formed company created to
acquire certain towers and tower related assets from Bell
Atlantic Mobile and its affiliates. The Borrower desires to
borrow from the Banks up to $250,000,000 on a reducing revolving
credit basis, the proceeds of which will be used in part to
acquire such towers and tower related assets and other
communications tower facilities, to fund the construction of
communications tower facilities, for capital expenditures and for
general corporate purposes.
A G R E E M E N T S:
Accordingly, the Borrower, the Banks and the Agent
agree as follows:
SECTION 1. DEFINITIONS.
1.1 Definitions. All terms typed with leading
capitals are terms defined in this Agreement. For the purposes
of this Agreement, the terms defined in this Section 1 shall
have the meanings set out below.
"Affiliate" means, with respect to any Person, (a) any
other Person which is directly or indirectly controlled by, under
common control with or controlling the first specified Person;
(b) a Person owning beneficially or controlling 5% or more of the
equity interest in such other Person; (c) any officer, director
or partner of such other Person; or (d) any spouse or relative
(by blood, adoption or marriage) of any such individual Person.
The term "control" means possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of a Person whether through the ownership of voting
securities or partnership interests, by contract or otherwise.
<PAGE>
"Applicable Margin" means, as of any date of
determination, the percentage determined from the following table
based upon the ratio of Total Debt as of such date to Operating
Cash Flow for the four quarter period then ended or then most
recently ended:
Ratio of Total Debt Applicable Applicable
to Operating Cash Margin for Margin for
Flow: Base Rate Loans: LIBOR Loans:
Greater than 7.0:1.0 1.25% 2.75%
but less than or
equal to 8.25:1.0
Greater than 6.5:1.0 0.75% 2.500%
but less than or
equal to 7.0:1.0
Greater than 6.0:1.0 0.25% 2.250%
but less than or
equal to 6.5:1.0
Greater than 5.0:1.0 0.00% 1.750%
but less than or
equal to 6.0:1.0
Greater than 4.0:1.0 0.00% 1.500%
but less than or
equal to 5.0:1.0
Less than or equal to 0.00% 1.000%
4.0:1.0
"Applicable Percentage" means, as of any date of
determination, the percentage determined from the following table
based upon the Leverage Ratio:
Leverage Ratio: Applicable Percentage:
Greater than or equal to 5.0:1.0 50%
Less than 5.0:1.0 0%;
provided, however, that the Applicable Percentage shall be 100%
if at the time of determination a Possible Default or Event of
Default exists.
"Asset Sale" means the sale by the Borrower or any of
its Subsidiaries to any Person of any assets of the Borrower or
such Subsidiary, other than (a) the sale of assets with an
aggregate value which does not exceed in any fiscal year an
<PAGE>
amount equal to $1,250,000 and (b) the trade in or replacement of
assets in the ordinary course of business or the disposition of
any asset which, in the good faith exercise of its business
judgment, the Borrower or such Subsidiary determines is no longer
useful in the conduct of its business.
"BAM" means Cellco Partnership, a Delaware general
partnership, d/b/a Bell Atlantic Mobile.
"BAM Purchase Agreement" has the meaning assigned to it
in Section 6.7.
"BAM Sub" means BAM Tower Funding Corporation, a
Delaware corporation that is a wholly owned subsidiary of BAM.
"BAM Sub Guaranty" has the meaning assigned to it in
Section 6.6(b).
"Banking Day" means a day on which the main office of
the Agent is open to the public for the transaction of business,
and on which, with respect to any LIBOR Loan, banks are open for
business in London, England, and quoting deposit rates for dollar
deposits.
"Banks" means the financial institutions listed on the
signature pages of this Agreement and their respective successors
and assigns; the term "Banks" shall include the Issuing Bank.
"Base Rate" means the rate of interest determined and
publicly announced by the Agent from time to time as its prime
rate at its main office in Cleveland, Ohio. The prime rate
functions as a reference rate index, and the Agent may charge
other borrowers more or less than the prime rate. The Base Rate
will automatically change as and when such prime rate changes.
"Base Rate Loans" means those Loans described in
Section 2.1 on which the Borrower shall pay interest at a rate
based on the Base Rate.
"Benefit Arrangement" means any pension, profit-
sharing, thrift or other retirement plan, medical,
hospitalization, vision, dental, life, disability or other
insurance or benefit plan, deferred compensation, stock
ownership, stock purchase, stock option, performance share,
bonus, fringe benefit, savings or other incentive plan, severance
plan or other similar plan, agreement, arrangement or
understanding, established or maintained by the Borrower or any
member of the Controlled Group or to which the Borrower or any
member of the Controlled Group is, or in the preceding six years
was, required to contribute on behalf of its employees or
directors, whether or not such plan, agreement, arrangement or
understanding is subject to ERISA.
<PAGE>
"Bidder Services Agreement" means the Bidder Services
Agreement among CCIC, the Borrower and the Tower Subsidiary that
may be entered into pursuant to the Formation Agreement as of the
Closing Date in form and substance reasonably satisfactory to the
Agent.
"Borrower Security Agreement" has the meaning assigned
to it in Section 6.2(a).
"Borrowing Base" means (a) as of any date prior to
October 1, 2001, the product of Test Operating Cash Flow as of
such date times the highest Leverage Ratio permitted as of such
date pursuant to Section 8.14(a), and (b) as of any date on or
after October 1, 2001, the Commitment.
"Borrowing Base Period" means the period from the
Closing through September 30, 2001.
"Build to Suit Agreement" means the Master Build to
Suit Agreement, to be entered into pursuant to the Formation
Agreement as of the Closing Date among BAM on its own behalf and
on behalf of the Transferring Partnerships (as that term is
defined in the Formation Agreement), the Borrower and the Tower
Subsidiary.
"Build to Suit Obligations" means the obligations of
the Tower Subsidiary under the Build to Suit Agreement.
"Capital Distribution" means any dividend, payment or
distribution made, liability incurred or other consideration
given for the purchase, acquisition, redemption or retirement of
any membership interest, capital stock, partnership interest or
other equity interest of a Person or as a dividend, return of
capital or other payment or distribution of any kind to a member,
stockholder or partner of such Person (other than any stock
dividend or stock split or similar distribution payable only in
capital stock of such Person) in respect of such Person's
membership interests, capital stock, partnership interests or
other equity interests.
"Capital Expenditures" means any payments which are
made by a Person for or in connection with the rental, lease,
purchase, construction or use of any real or personal property
the value or cost of which, under GAAP, should be capitalized and
appear on such Person's balance sheet in the category of
property, plant or equipment, without regard to the manner in
which such payments or the instrument pursuant to which they are
made are characterized by such Person or any other Person;
provided, however, that (other than for purposes of calculating
Excess Cash Flow) neither (a) the capitalized portion of the
purchase price payable pursuant to a Qualified Acquisition nor
(b) the capitalized portion of expenditures for the construction
or improvement of communications tower facilities shall
constitute a Capital Expenditure.
<PAGE>
"Capitalized Lease Obligations" means, as to any
Person, the obligations of such Person to pay rent or other
amounts under leases of, or other agreements conveying the right
to use real or personal property, which obligations are required
to be classified and accounted for as capital leases on a balance
sheet of such Person, prepared in accordance with GAAP.
"CCIC" means Crown Castle International Corp., a
Delaware corporation.
"CCIC Indenture" means the Indenture dated as of
November 25, 1997, between CCIC and United States Trust Company
of New York in respect of CCIC's 10-5/8% Senior Discount Notes
due 2007.
"Closing" and "Closing Date" have the meanings assigned
to them in Section 4.
"Code" means the Internal Revenue Code of 1986, as
amended, or any successor statute thereto.
"Collateral Documents" means all promissory notes,
letters of credit, agreements, assignments, guaranties, financing
statements, certificates and other agreements, instruments and
documents which are required by this Agreement or any other
Collateral Document to be executed or delivered by or on behalf
of the Borrower, any of its Subsidiaries, Holdco, BAM, BAM Sub or
any other Person.
"Commitment" has the meaning assigned to it in Section
2.1(a).
"Controlled Group" means a controlled group of entities
which are treated as a single employer under Sections 414(b),
414(c), 414(m) or 414(o) of the Code of which the Borrower or any
of its Subsidiaries is a part.
"Debt Service" means, for any period, the sum of (a)
all principal payments required to be made by the Borrower and
its Subsidiaries on Total Debt, including, without limitation,
the Loans and Capitalized Lease Obligations, during such period,
and (b) all cash interest payments on, and fees in respect of,
Total Debt, and all fees in respect of the Letters of Credit,
required to be made by the Borrower and its Subsidiaries during
such period including the agency fee payable pursuant to the Fee
Letter but excluding all other fees payable pursuant to the Fee
Letter.
"Default Interest Rate" means a rate of interest equal
to the sum of the Base Rate plus 4.875% per annum.
"Discount Rate" means, with respect to a prepayment or
conversion of a LIBOR Loan on a date other than the last day of
its Interest Period, a rate equal to the interest rate (as of the
<PAGE>
date of prepayment or conversion) on United States Treasury
obligations in a like amount as such Loan and with a maturity
approximately equal to the period between the prepayment or
conversion date and the last day of the Interest Period of such
Loan, as determined by the Agent.
"Environmental Claim" means, with respect to any
Person, any written notice, claim, demand, request for
information, citation, summons, order or other communication
(each, a "claim") by any other Person alleging or asserting the
liability of the recipient of such claim for investigatory costs,
cleanup costs, governmental response costs, damages to natural
resources or other property or health, personal injuries, fines
or penalties arising out of, based on or resulting from (a) the
presence or Release of any Hazardous Material at or from any
location, whether or not owned by such Person, or (b) any
violation, or alleged violation, of any Environmental Law. The
term "Environmental Claim" shall include, without limitation, any
claim by any governmental authority for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant
to any applicable Environmental Law, and any claim by any third
party seeking damages, contribution, indemnification, cost
recovery, compensation or injunctive relief resulting from the
presence or Release of Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment.
"Environmental Laws" means all provisions of law,
statutes, ordinances, rules, regulations, permits, licenses,
judgments, writs, injunctions, decrees, orders, awards and
standards promulgated by the government of the United States of
America or by any state or municipality thereof or by any court,
agency, instrumentality, regulatory authority or commission of
any of the foregoing regulating, relating to or imposing
liability or a standard of conduct concerning the environment
(including laws and regulations of the FCC and other governmental
agencies related to the exposure to radio-frequency emissions) or
regulating the emission, release or discharge of substances or
radio-frequency energy into the environment.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, and the regulations thereunder.
"Event of Default" means any of the events specified in
Section 9.
"Excess Cash Flow" means, for any fiscal year,
Operating Cash Flow for such fiscal year less the sum (without
duplication) of (a) all principal, interest and fee payments in
respect of Total Debt made by the Borrower and its Subsidiaries
in such year, (b) cash income taxes paid by the Borrower and its
Subsidiaries in such year, (c) Capital Expenditures, excluding
proceeds of casualty insurance policies reasonably and promptly
applied to replace insured assets, paid in cash by the Borrower
<PAGE>
and its Subsidiaries during such year to the extent permitted
pursuant to Section 8.7, (d) capital expenditures included in the
Build to Suit Obligations and paid by the Borrower and its
Subsidiaries during such year to the extent the amount of such
capital expenditures exceeds the principal amount of Loans made
during such year other than Loans advanced for Qualified
Acquisitions, (e) Capitalized Lease Obligation payments made by
the Borrower and its Subsidiaries during such year to the extent
permitted pursuant to Section 8.6, (f) Capital Distributions made
by the Borrower in such year to the extent permitted pursuant to
Section 8.9, and (g) the excess, if any, in Working Capital of
the Borrower and its Subsidiaries as of the end of such year over
the Working Capital of the Borrower and its Subsidiaries as of
the end of the prior year.
"Extraordinary Items" means, to the extent deducted in
calculating Net Earnings, (a) gains or losses from sales,
exchanges and other dispositions of property not in the ordinary
course of business and (b) gains or losses from sales, exchanges
and other dispositions of any Tower, Land Lease Agreement or
management agreement in respect of a Tower, all on an after tax
basis.
"FAA" means the Federal Aviation Administration or any
governmental authority at any time substituted therefor.
"FCC" means the Federal Communications Commission or
any governmental authority at any time substituted therefor.
"Fee Letter" means the letter agreement between the
Agent and CCIC dated as of October 8, 1998, regarding certain
fees.
"Fixed Charge Coverage Ratio" means, as of any date of
determination, the ratio of Operating Cash Flow for the four
quarter period then ended or most recently ended as of such date
to Historical Fixed Charges as of such date; provided, however,
that the Fixed Charge Coverage Ratio, as of any date prior to the
first anniversary of the Closing Date, means the ratio of
Operating Cash Flow for the period from the Closing through the
end of the quarter then ended or most recently ended as of such
date to Historical Fixed Charges as of such date.
"Formation Agreement" means the Formation Agreement,
dated as of December 8, 1998, among BAM, CCIC, the Transferring
Partnerships (as that term is defined therein) and CCA Investment
Corp., a Delaware corporation.
"GAAP" means generally accepted accounting principles
in effect from time to time in the United States, consistently
applied.
"Global Lease" means the Global Lease Agreement, to be
entered into pursuant to the Formation Agreement as of the
<PAGE>
Closing Date, between BAM for itself and on behalf of the
Transferring Partnerships (as that term is defined in the
Formation Agreement) and the Tower Subsidiary.
"Guarantees" means the Tower Subsidiary Guaranty and
any additional guarantees executed and delivered pursuant to
Sections 8.10(b) or 8.10(d) hereof.
"Guarantor" means one who pledges its credit or
property in any manner, or otherwise becomes responsible for the
payment or other performance of the indebtedness, contract or
other obligation of another Person and includes (without
limitation) any guarantor (whether of payment or of collection),
surety, co-maker, endorser or one who agrees conditionally or
otherwise to make any purchase, loan or investment in order
thereby to enable another to prevent or correct a default of any
kind and one who has endorsed (otherwise than for collection or
deposit in the ordinary course of business), or has discounted
with recourse or agreed (contingently or otherwise) to purchase
or repurchase or otherwise acquire or become liable for, any
Indebtedness or who has entered into any agreement for the
purchase or other acquisition of any product, materials or
supplies, or for the making of shipments, or for the payment for
services, if in any such case payment therefor is to be made
regardless of the nondelivery of the product, materials or
supplies or the non-furnishing of the services.
"Hazardous Material" means, collectively, (a) any
petroleum or petroleum products, flammable materials, explosives,
radioactive materials, asbestos, urea formaldehyde foam
insulation, and transformers or other equipment that contain
polychlorinated biphenyls ("PCBs"), (b) any chemicals or other
materials or substances that are now or hereafter become defined
as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely hazardous
wastes", "restricted hazardous wastes", "toxic substances",
"toxic pollutants", "contaminants", "pollutants" or words of
similar import under any Environmental Law and (c) any other
chemical or other material or substance, exposure to which is now
or hereafter prohibited, limited or regulated under any
Environmental Law.
"Historical Fixed Charges" means, as of any date of
determination, the sum (without duplication) of the aggregate
amount of (a) all Debt Service paid by the Borrower and its
Subsidiaries during the four quarter period then ended or most
recently ended, (b) Capital Expenditures (including Capitalized
Lease Obligations) made by the Borrower and its Subsidiaries
during such four quarter period, (c) cash income taxes paid by
the Borrower and its Subsidiaries during such four quarter period
and (d) Capital Distributions made by the Borrower during such
four quarter period other than Capital Distributions made
pursuant to Section 8.9(a)(iii); provided, however, that for
purposes of determining Historical Fixed Charges as of any date
<PAGE>
prior to the first anniversary of the Closing, the period of time
referenced in clauses (a) through (d) above shall be the period
from the Closing through the end of the quarter then ended or
most recently ended as of such date.
"Holdco" means Crown Atlantic Holding Company LLC, a
Delaware limited liability company which owns all of the issued
and outstanding Membership Interests of the Borrower.
"Holdco Pledge Agreement" has the meaning assigned to
it in Section 6.3(a).
"Indebtedness" of any Person means, without
duplication, all liabilities, obligations and reserves,
contingent or otherwise, which, in accordance with GAAP, would be
reflected as a liability on a balance sheet (excluding trade
accounts payable and accrued expenses arising in the ordinary
course of business), and (without duplication) (a) all
obligations of such Person for borrowed money or with respect to
deposits or advances of any kind, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person upon which
interest charges are customarily paid, (d) all obligations of
such Person under conditional sale or other title retention
agreements relating to assets purchased by such Person, (e) all
obligations of such Person issued or assumed as the deferred
purchase price of property or services (excluding trade accounts
payable and accrued expenses arising in the ordinary course of
business and not more than ninety days past due), (f) all
Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on property owned or acquired by such
Person, whether or not the obligations secured thereby have been
assumed by such Person, (g) all obligations or liabilities in
respect of which such Person is a Guarantor, (h) all Capitalized
Lease Obligations of such Person, (i) all Rate Hedging
Obligations, and (j) all obligations of such Person as an account
party to reimburse any bank or any other Person in respect of
letters of credit (including the Letters of Credit) or bankers'
acceptances. The Indebtedness of any Person shall include any
recourse Indebtedness of any partnership in which such Person is
a general partner.
"Interest Expense" means, for any period, the gross
interest expense incurred by the Borrower and its Subsidiaries in
respect of their Indebtedness for such period (including, without
limitation, amortization of debt issuance costs and original
issue discount, non-cash interest payments, the interest
component of any deferred payment obligations, the interest
component of all payments associated with Capitalized Lease
Obligations, commissions, discounts and other fees and charges
incurred in respect of letter of credit or bankers' acceptance
financings, and net payments (if any) pursuant to Rate Hedging
Obligations), determined on a consolidated basis, all fees
<PAGE>
payable under Section 2.4, the agency fees payable pursuant to
the Fee Letter (but not including any other fees payable pursuant
to the Fee Letter) and any other fees, charges, commissions and
discounts in respect of Indebtedness, including fees payable in
connection with the Letters of Credit. For purposes of the
foregoing, gross interest expense shall be determined after
giving effect to any net payments made or received by the
Borrower with respect to Rate Hedging Obligations.
"Interest Period" means, with respect to any LIBOR
Loan, a period of one, two or three months, selected by the
Borrower, commencing on the date such Loan is made, continued or
converted and ending on the last day of such period. Whenever the
last day of an Interest Period would otherwise occur on a day
other than a Banking Day, the last day of such Interest Period
shall occur on the next succeeding Banking Day; provided,
however, that if such extension of time would cause the last day
of such Interest Period to occur in the next calendar month, the
last day of such Interest Period shall occur on the next
preceding Banking Day; and provided, further, that if the first
day of an Interest Period is the last Banking Day of a month or a
day for which there is no numerically corresponding day in the
appropriate subsequent calendar month, then such Interest Period
shall end on the last Banking Day of the appropriate subsequent
calendar month. The Borrower shall not select any Interest Period
which extends beyond any date on which a payment is required to
be made pursuant to Section 2.1(b) or Section 2.5(b)(i) unless
the sum of the amount available to be drawn under the Commitment
plus the aggregate principal balance of all Base Rate Loans and
all LIBOR Loans with Interest Periods ending prior to such date
is at least equal to the maximum amount that is required to be
paid on such date.
"Issuing Bank" means Key Corporate Capital Inc. in its
capacity as the issuer of the Letters of Credit, or any successor
issuer of the Letters of Credit. The Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be
issued by Affiliates of the Issuing Bank, in which case the term
"Issuing Bank" shall include any such Affiliate with respect to
Letters of Credit issued by such Affiliate.
"Land Lease Agreement" means each lease, license,
easement, right of use or other agreement for real property on
which the Borrower or one of its Subsidiaries owns, operates,
manages or maintains a Tower or other agreement pursuant to which
the Borrower or one of its Subsidiaries owns, operates, manages
or maintains a Tower.
"Letters of Credit" has the meaning assigned to it in
Section 2.1(d).
"Leverage Ratio" means, as of any date of
determination, the ratio of Total Debt as of such date to Test
Operating Cash Flow as of such date.
<PAGE>
"LIBOR" means the average (rounded upward to the
nearest 1/16th of 1%) of the per annum rates at which deposits in
immediately available funds in United States dollars for the
relevant Interest Period and in the amount of the LIBOR Loan to
be disbursed or to remain outstanding during such Interest
Period, as the case may be, are offered to the Agent by prime
banks in any Eurodollar market reasonably selected by the Agent,
determined as of 11:00 A.M. London time (or as soon thereafter as
practicable), two Banking Days prior to the beginning of the
relevant Interest Period.
"LIBOR Loans" means those Loans described in Section
2.1 on which the Borrower shall pay interest at a rate based on
the applicable LIBOR Rate.
"LIBOR Prepayment Premium" means, with respect to the
prepayment or conversion of any LIBOR Loan or any other receipt
or recovery of any LIBOR Loan prior to the end of the applicable
Interest Period, whether by voluntary prepayment, acceleration,
conversion to a Base Rate Loan or otherwise, an amount equal to
the sum of (a) the product of (i) the excess, if any, of the rate
of interest then applicable to such Loan pursuant to Section 3.1
at the time of such prepayment or conversion over LIBOR
calculated as of such date, multiplied by (ii) the principal
amount so prepaid, converted or accelerated, as the case may be,
multiplied by (iii) a fraction, the numerator of which is the
number of days remaining in the related Interest Period and the
denominator of which is 360 (taking into consideration the
applicable compounding for the frequency of installment payments
of the Loans being prepaid), plus (b) out-of-pocket costs and
expenses incurred by the Banks and the Agent with respect to such
prepayment.
"LIBOR Rate" means a rate per annum equal to the
quotient obtained (rounded upwards, if necessary, to the nearest
1/100th of 1%) by dividing (a) the applicable LIBOR by (b) 1.00
minus the LIBOR Reserve Percentage.
"LIBOR Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such
day, as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, all basic,
supplemental, marginal and other reserves and taking into account
any transitional adjustments or other scheduled changes in
reserve requirements) for a member bank of the Federal Reserve
System in respect of Eurocurrency Liabilities (as that term is
defined in Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time). The LIBOR Rate
shall be adjusted automatically on and as of the effective date
of any change in the LIBOR Reserve Percentage.
"License" means any license, authorization, permit,
consent, franchise, ordinance, registration, certificate,
<PAGE>
agreement, determination or other right filed with, granted by,
or entered into by a federal, state or local governmental
authority which permits or authorizes the ownership,
construction, or management or maintenance of a Tower or the use
of a Tower for communications.
"Licensing Authority" means a governmental authority
that has granted a License.
"Lien" as applied to the property of any Person means:
(a) any mortgage, lien, pledge, charge, lease constituting a
Capitalized Lease Obligation, conditional sale or other title
retention agreement, or other security interest or encumbrance of
any kind in respect of any property of such Person, or upon the
income or profits therefrom; (b) any arrangement, express or
implied, under which any property of such Person is transferred,
sequestered or otherwise identified for the purpose of subjecting
the same to the payment of Indebtedness in priority to the
payment of the general, unsecured creditors of such person; (c)
the filing of, or any agreement to give, any financing statement
under the Uniform Commercial Code or its equivalent of any
jurisdiction in respect of Indebtedness; and (d) in the case of
securities or other equity interests, any purchase option, call
or similar right of a third party with respect to such securities
or other equity interests.
"Loans" has the meaning assigned to it in Section
2.1(a).
"Management Agreement" means the Management Services
Agreement, to be entered into pursuant to the Formation Agreement
as of the Closing Date, between the Borrower and the Tower
Subsidiary.
"Material Adverse Effect" means a material adverse
effect upon or change in (a) the properties, assets, business,
operations, financial condition, prospects, liabilities or
capitalization of Holdco, the Borrower or any Subsidiary of the
Borrower taken as a whole or on the ability of the Borrower or
any Subsidiary of the Borrower to conduct its business or to own
or maintain any Material Towers, (b) the ability of Holdco, the
Borrower, any of its Subsidiaries or any other party to a
Collateral Document (other than the Agent and the Banks) to
perform any of its material obligations hereunder or under any
other Collateral Document to which it is a party, (c) the
validity or enforceability of this Agreement, any Note or any
other Collateral Document, or (d) the rights or remedies of the
Agent or the Banks under this Agreement, the Notes or any other
Collateral Document or at law or in equity or the value of any
material collateral granted to the Agent, for the benefit of the
Banks, pursuant to any Collateral Document. A reduction in the
number of Towers conveyed to the Tower Subsidiary pursuant to the
Formation Agreement at the closing under that agreement shall not
<PAGE>
constitute a Material Adverse Effect unless the number of Towers
so conveyed is less than 1227.
"Material Towers" means, as of any date of
determination, any Tower or any group or set of Towers
wheresoever located to which more than 10% of the Operating Cash
Flow for any of the immediately prior four fiscal quarters is
attributable.
"Membership Interest" in Holdco, the Borrower or any
Subsidiary of the Borrower that is a Delaware limited liability
company means the entire ownership or equity interest of a Person
in Holdco, the Borrower or such Subsidiary, including all of such
Person's limited liability company interest, as that term is
defined in the Delaware Limited Liability Company Act (the
"Delaware Act"), and all of such Person's rights and obligations
under the Delaware Act and under the Operating Agreement of
Holdco, the Borrower or such Subsidiary, as the case may be.
"Net Earnings" means the consolidated net income (or
deficit) of the Borrower and its Subsidiaries for the period
involved, after taxes, if any, and after all proper charges and
reserves (excluding, however, Extraordinary Items), all as
determined in accordance with GAAP.
"Notes" has the meaning assigned to it in Section 2.3.
"Obligation" means any obligation of the Borrower (a)
to pay to the Banks the principal of and interest on the Loans
and the Notes in accordance with the terms hereof and thereof,
including, without limitation, any interest accruing after the
date of any filing by the Borrower or any of its Subsidiaries of
any petition in bankruptcy or the commencing of any bankruptcy,
insolvency or similar proceedings with respect to the Borrower or
any of its Subsidiaries, regardless of whether such interest is
allowable as a claim in any such proceeding; (b) in respect of
the contingent liability of the Borrower under all outstanding
Letters of Credit; (c) in respect of any Rate Hedging Obligations
owing to any Bank or any Affiliate of any Bank; (d) to pay,
satisfy or perform any other agreement, liability or obligation
of the Borrower or any other Person to the Agent or any Bank,
arising under this Agreement or any Collateral Document, whether
now existing or hereafter incurred by reason of future advances
or otherwise, matured or unmatured, direct or contingent, joint
or several, including any extensions, modifications or renewals
thereof and substitutions therefor, and including without
limitation all fees, indemnification amounts, costs and expenses,
including interest thereon and reasonable attorneys' fees,
incurred by the Agent or any Bank for the protection and
preservation or enforcement of its rights and remedies arising
hereunder or under the Collateral Documents; (e) to repay to the
Agent and the Banks all amounts advanced at any time by the Agent
or the Banks hereunder or under any Collateral Document,
including, without limitation, advances for principal or interest
<PAGE>
payments to prior secured parties, mortgagees, or lienors or
other Persons, or for taxes, levies, insurance, rent or repairs
to, or maintenance or storage of, any of the property of the
Borrower or of any of its Subsidiaries; (f) to perform any
covenant or agreement made with the Agent or the Banks pursuant
to this Agreement or any Collateral Document; (g) to tak any
other action in respect of any other liability of any nature of
the Borrower or any of its Subsidiaries to the Agent or the Banks
under this Agreement or any Collateral Document; or (h) any
renewal, continuation or extension of any of the foregoing.
"Operating Agreement" means the Operating Agreement of
Holdco, the Borrower or any Subsidiary of the Borrower, as the
case may be, as in effect as of the date hereof or as amended in
accordance with Section 8.13.
"Operating Cash Flow" means, with respect to the
Borrower for any period, the Net Earnings for such period plus
(a) provision for taxes based on income or profits of the
Borrower and its Subsidiaries for such period, to the extent that
such provision for taxes was included in computing such Net
Earnings, plus (b) Interest Expense of the Borrower and its
Subsidiaries for such period, whether paid or accrued and whether
or not capitalized (including, without limitation, amortization
of debt issuance costs and original issue discount, non-cash
interest payments, the interest component of any deferred payment
obligations, the interest component of all payments associated
with Capitalized Lease Obligations, commissions, discounts and
other fees and charges incurred in respect of letter of credit or
bankers' acceptance financings, and net payments (if any)
pursuant to Rate Hedging Obligations), to the extent that any
such expense was deducted in computing such Net Earnings, plus
(c) depreciation, amortization (including amortization of
goodwill and other intangibles) and other non-cash expenses
(excluding any such non-cash expense to the extent that it
represents an accrual of or reserve for cash expenses in any
future period) of the Borrower and its Subsidiaries for such
period to the extent that such depreciation, amortization and
other non-cash expenses were deducted in computing such Net
Earnings, minus (d) non-cash items increasing such Net Earnings
for such period (excluding any items that were accrued in the
ordinary course of business), in each case on a consolidated
basis and determined in accordance with GAAP. For purposes of
calculating Operating Cash Flow for any period, each Qualified
Acquisition and each sale or other disposition of any Towers and
related assets, whether by purchase or sale of stock or assets,
which occurs during such period, shall be deemed to have occurred
on the first day of such period; accordingly, the operating cash
flow received by the seller of the Towers and related assets, or
of a management agreement in respect thereof, acquired pursuant
to each Qualified Acquisition shall be included for the entire
period and the Operating Cash Flow relating to any Towers and
related assets, or of a management agreement in respect thereof,
sold or otherwise disposed of during such period shall be
<PAGE>
excluded from the calculation of Operating Cash Flow for the
entire period.
"PBGC" means the Pension Benefit Guaranty Corporation
or any governmental authority at any time substituted therefor.
"Pension Plan" means an employee pension benefit plan
as defined in Section 3(2) of ERISA which is subject to the
provisions of Section 302 or Title IV of ERISA or Section 412 of
the Code.
"Permitted Lien" means any of the following Liens:
(a) Liens for taxes or assessments and similar
charges, which are either not delinquent or being contested
diligently and in good faith by appropriate proceedings, and as
to which the Borrower or the affected Subsidiary has set aside
adequate reserves on its books and which do not entail any risk
of loss, forfeiture, foreclosure or sale of the property subject
thereto;
(b) statutory Liens, such as mechanic's,
materialman's, warehouseman's, landlord's, artisan's, workman's,
contractor's, carrier's or other like Liens, (i) incurred in good
faith in the ordinary course of business, (ii) which are either
not delinquent or are being contested diligently and in good
faith by appropriate proceedings, (iii) as to which the Borrower
or the affected Subsidiary has set aside adequate reserves upon
its books or bonded satisfactorily to the Agent and (iv) which do
not entail any risk of loss, forfeiture, foreclosure or sale of
the property subject thereto;
(c) encumbrances consisting of zoning
restrictions, easements, licenses, reservations, provisions,
covenants, conditions, waivers, restrictions on the use of
property or minor irregularities of title, provided that none of
such encumbrances materially impairs the use or value of any
property in the operation of the Borrower's or the affected
Subsidiary's business;
(d) Liens granted by the Borrower securing
conditional sale, rental or purchase money obligations permitted
under Section 8.4, but only in the property which is the subject
of such obligations;
(e) Liens arising under or pursuant to this
Agreement or any Collateral Document or otherwise securing any
Obligation;
(f) Liens in respect of judgments or awards with
respect to which the Borrower or the affected Subsidiary is, in
good faith, prosecuting an appeal or proceeding for review and
with respect to which a stay of execution upon such appeal or
proceeding for review has been secured, and as to which judgments
<PAGE>
or awards the Borrower or the affected Subsidiary has established
adequate reserves on its books or has bonded in a manner
satisfactory to the Agent;
(g) pledges or deposits made by the Borrower in
the ordinary course of business to secure payment of worker's
compensation, or to participate in any fund in connection with
worker's compensation, unemployment insurance, old-age pensions
or other social security programs;
(h) Liens granted by the Borrower to secure the
performance of letters of credit, bids, tenders, contracts,
leases, public or statutory obligations, surety, customs, appeal
and performance bonds and other similar obligations incurred in
the ordinary course of business to the extent permitted herein
and not incurred in connection with the borrowing of money, the
obtaining of advances or the payment of the deferred purchase
price of any property;
(i) leasehold rights of parties under Tenant
Leases in the property of the Tower Subsidiary that is the
subject of such leases;
(j) rights to compensation from the Tower
Subsidiary owing under Land Lease Agreements; and
(k) any other Liens listed on Exhibit F hereto or
to which the Required Banks have consented in writing.
"Person" includes natural persons, governmental
agencies and authorities, corporations, business trusts,
associations, companies, limited liability companies, joint
ventures and partnerships.
"Plan" means any employee benefit plan, as defined
under Section 3(3) of ERISA, established or maintained by the
Borrower or any member of the Controlled Group or any such Plan
to which the Borrower or any member of the Controlled Group is,
or in the last eight years was, required to contribute.
"Pledge Agreements" means the Holdco Pledge Agreement,
the Tower Subsidiary Pledge Agreement and any additional pledge
agreements entered into pursuant to Sections 8.10(b) or 8.10(d).
"Possible Default" means an event, condition, situation
or thing which constitutes, or which with the lapse of any
applicable grace period or the giving of notice or both would
constitute, an Event of Default.
"Projected Debt Service" means, as of any date of
determination, the sum of (a) all scheduled Commitment reductions
under Section 2.1(b) during the four quarter period following the
end of the fiscal quarter then ended or then most recently ended,
(b) all principal payments required to be made by the Borrower
<PAGE>
and its Subsidiaries on Total Debt, other than the Loans, but
including, without limitation, Capitalized Lease Obligations,
during such subsequent four quarter period, and (c) all Interest
Expense and fees on Total Debt to be incurred by the Borrower and
its Subsidiaries during such subsequent four quarter period. In
calculating Projected Debt Service, (i) the interest rate
applicable during such subsequent four quarter period to any
Indebtedness which does not bear interest at a rate which is
fixed (either by its terms or pursuant to an agreement regarding
Rate Hedging Obligations) for the entire subsequent period shall
be deemed to be the interest rate in effect as of the date of
determination, and (ii) it shall be assumed that the principal
amount of Loans outstanding as of the date of determination will
be outstanding for the subsequent four quarter period subject to
any required commitment reductions.
"Purchase Price", in respect of any Qualified
Acquisition (whether of assets, stock or other equity interests),
means the total consideration payable in connection with such
acquisition, whether payable in cash or other property, and
including all forms of deferred compensation, such as non-compete
agreements, consulting agreements and the like.
"Qualified Acquisition" has the meaning assigned to it
in Section 8.10(b).
"Quarterly Date" means the last day of each March,
June, September and December.
"Ratable Share" means, with respect to any Bank, its
pro rata share of the Commitment, the Letters of Credit or the
Loans. As of the date of this Agreement, the Ratable Shares of
the Banks shall be as listed on Schedule 1.1 attached hereto.
"Rate Hedging Obligations" means any and all
obligations of the Borrower, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and
substitutions therefor), under (a) any and all agreements,
devices or arrangements designed to protect the Borrower from the
fluctuations of interest rates, including, but not limited to,
interest rate exchange or swap agreements and interest rate cap
or collar protection agreements, and (b) any and all
cancellations, buy backs, reversals, terminations or assignments
of any of the foregoing.
"Regulatory Change" means the adoption of or any change
in federal, state or local treaties, laws, rules, regulations or
policies or the adoption of or change in any interpretations,
guidelines, directives or requests of or under any federal, state
or local treaties, laws, rules, regulations or policies (whether
or not having the force of law) by any court, governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof.
<PAGE>
"Release" shall mean any release, spill, emission,
leaking, pumping, injection, deposit, disposal, discharge,
dispersal, leaching or migration into the indoor or outdoor
environment, including, without limitation, the movement of
Hazardous Materials through ambient air, soil, surface water,
ground water, wetlands, land or subsurface strata.
"Reportable Event" means a reportable event as that
term is defined in Title IV of ERISA, excluding, however, such
events as to which the PBGC by regulation has waived the
requirement of Section 4043(a) of ERISA that it be notified
within thirty days of the occurrence of such event (provided that
any failure to timely meet the minimum funding standard of
Section 412 of the Code or of Section 302 of ERISA shall be a
Reportable Event regardless of any waiver of notice by regulation
or the issuance of any such waivers in accordance with Section
412(d) of the Code).
"Required Banks" means, at any time, Banks holding at
least 51% of the then aggregate unpaid principal amount of the
Notes and the stated amount of the outstanding Letters of Credit,
or, if no principal amount of the Notes or any Letter of Credit
is then outstanding, Banks having at least 51% of the Commitment.
"Security Agreements" means the Borrower Security
Agreement, the Tower Subsidiary Security Agreement and any
additional security agreements entered into pursuant to Sections
8.10(b) or 8.10(d).
"Subsidiary" means, with respect to any Person, each
partnership, corporation or limited liability company, the
majority of the outstanding partnership interests, capital stock,
membership interests or voting power of which is (or upon the
exercise of all outstanding warrants, options and other rights
would be) owned, directly or indirectly, at the time in question
by such Person.
"Tenant Leases" means the Global Lease and all other
leases or licenses of any Tower, or of space on any Tower, of the
Borrower or any of its Subsidiaries now existing or hereafter
created or acquired.
"Termination Date" means March 31, 2006.
"Test Operating Cash Flow" means:
(a) as of the Closing Date, an amount to be
calculated on a proforma basis in accordance with the procedure
set forth on Exhibit L attached hereto;
(b) as of any date after the Closing Date but
prior to the first anniversary of the Closing Date, the sum of
(i) Operating Cash Flow for the period from the Closing Date
through the end of the most recently ended month less that
<PAGE>
portion of such Operating Cash Flow which is attributable to the
Tenant Leases, and (ii) the product of four times that portion of
Operating Cash Flow for the three month period then ended or most
recently ended which is attributable to the Tenant Leases, or, if
less than three full months have elapsed since the Closing, the
product of Operating Cash Flow which is attributable to the
Tenant Leases for the number of full months that have elapsed
since the Closing times twelve or six (as the case may be,
depending on whether one full month or two full months have
elapsed since the Closing); and
(c) as of any date on or after the first
anniversary of the Closing Date, the sum of (i) Operating Cash
Flow for the four quarter period then ended or then most recently
ended less that portion of such Operating Cash Flow which is
attributable to the Tenant Leases, and (ii) the product of four
times that portion of Operating Cash Flow for the quarter then
ended or most recently ended which is attributable to the Tenant
Leases.
"Total Debt" means, without duplication, all
Indebtedness of the Borrower and its Subsidiaries for borrowed
money, including the Loans, all Capitalized Lease Obligations of
the Borrower and its Subsidiaries, all other Indebtedness of the
Borrower and its Subsidiaries represented by notes or drafts
representing extensions of credit for borrowed money, all other
Indebtedness of other Persons for which the Borrower or any of
its Subsidiaries is a Guarantor, all obligations of the Borrower
and its Subsidiaries evidenced by bonds, debentures, notes or
other similar instruments (including all such obligations to
which any property or asset owned by the Borrower or any
Subsidiary of the Borrower is subject, whether or not the
obligation secured thereby shall have been assumed) and all
obligations of the Borrower or any of its Subsidiaries as an
account party to reimburse any bank or any other Person in
respect of letters of credit (including the Letters of Credit) or
bankers' acceptances.
"Towers" means the communications towers and other
structures, including rooftops, owned or leased by the Borrower
and its Subsidiaries or which are subject to a management
agreement to which the Borrower or a Subsidiary of the Borrower
is a party.
"Tower Subsidiary" means Crown Atlantic Company LLC, a
Delaware limited liability company that is owned 99.999% by the
Borrower and .001% by BAM.
"Tower Subsidiary Guaranty" has the meaning assigned to
it in Section 6.6(a).
"Tower Subsidiary Pledge Agreement" has the meaning
assigned to it in Section 6.3(b).
<PAGE>
"Tower Subsidiary Security Agreement" has the meaning
assigned to it in Section 6.2(b).
"Transaction Documents" means the Formation Agreement,
the Global Lease, the Build to Suit Agreement, the Management
Agreement, the Bidder Services Agreement, the Transitional
Services Agreement, the Operating Agreements, the Exclusive
Management Agreement, the conveyance documents required pursuant
to Section 4.2(b) of the Formation Agreement and any other
agreements, documents or instruments delivered in connection with
any of the foregoing.
"Transitional Services Agreement" means the
Transitional Services Agreement among BAM, the Borrower and the
Tower Subsidiary that may be entered into pursuant to the
Formation Agreement as of the Closing Date in form and substance
reasonably satisfactory to the Agent.
"Working Capital" means, as of any date, the excess of
the Borrower's and its Subsidiaries' combined current assets,
other than cash, over their combined current liabilities, other
than the current portion of long term debt, as of such date.
1.2 Other Terms. Except as otherwise specifically
provided in this Agreement, each term not otherwise expressly
defined herein which is defined in the Uniform Commercial Code,
as amended (the "UCC"), as adopted in any applicable
jurisdiction, shall have the meaning assigned to it in the UCC in
effect in such jurisdiction. Whenever the context may require,
any pronoun shall include the corresponding masculine, feminine
and neuter forms. All references herein to Sections, Exhibits or
Schedules shall be deemed to be references to Sections of, and
Exhibits and Schedules to, this Agreement unless the context
shall otherwise require. Whenever any agreement, promissory note
or other instrument or document is defined in this Agreement or
any Collateral Document, such definition shall be deemed to mean
and include, from and after the date of any amendment,
restatement or modification thereof, such agreement, promissory
note or other instrument or document as so amended, restated or
modified. All terms defined in this Agreement in the singular
shall have comparable meanings when used in the plural and vice
versa. 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.
1.3 Accounting Terms; Income Taxes. All accounting
terms used in this Agreement which are not expressly defined
herein shall have the respective meanings given to them in
accordance with GAAP, all computations shall be made in
accordance with GAAP, and all balance sheets and other financial
statements shall be prepared in accordance with GAAP. All
financial or accounting calculations or determinations required
pursuant to this Agreement unless otherwise expressly provided
<PAGE>
shall be made on a consolidated basis for the Borrower and its
Subsidiaries. The term "income tax" as used herein shall be
deemed to include the earned surplus element of the franchise tax
imposed by the State of Texas on income allocated to Texas.
SECTION 2. THE LOANS.
2.1 The Commitment and the Loans.
(a) Commitment. Subject to the terms and
conditions hereof, during the period from the Closing Date up to
but not including the Termination Date, the Banks severally, but
not jointly, shall make loans to the Borrower in such amounts as
the Borrower may from time to time request but not exceeding in
aggregate principal amount at any one time outstanding
$250,000,000 (as such amount may be reduced from time to time,
the "Commitment"); provided, however, that in no event shall the
aggregate principal amount of such loans plus the aggregate
stated amount of the Letters of Credit exceed at any time the
lesser of the Commitment or the Borrowing Base. All amounts
borrowed by the Borrower pursuant to this Section 2.1(a) and all
amounts drawn under any Letter of Credit and not repaid may be
referred to hereinafter collectively as the "Loans." Each Loan
requested by the Borrower shall be funded by the Banks in
accordance with their Ratable Shares of the requested Loan. A
Bank shall not be obligated hereunder to make any additional Loan
if immediately after making such Loan, the aggregate principal
balance of all Loans made by such Bank plus such Bank's Ratable
Share of any outstanding Letters of Credit would exceed such
Bank's Ratable Share of the Commitment. The Loans may be
comprised of Base Rate Loans or LIBOR Loans, as provided in
Section 2.2.
(b) Commitment Reductions. If the Borrowing Base
as of September 30, 2001, is less than the Commitment, then the
Commitment shall automatically reduce on that date to equal the
Borrowing Base as of that date. The Commitment on September 30,
2001, after giving effect to any reduction pursuant to the
foregoing sentence, may be referred to hereinafter as the
"Revised Commitment". On each date set forth in the table below
(including September 30, 2001), the Revised Commitment shall
automatically further reduce by an amount equal to that
percentage of the Revised Commitment set forth for such date in
such table:
Calendar March 31 June 30 September December 31
Year 30
2001 N/A N/A 1.5% 1.5%
2002 1.875% 1.875% 1.875% 1.875%
2003 5.625% 5.625% 5.625% 5.625%
2004 6.5% 6.5% 6.5% 6.5%
<PAGE>
2005 8% 8% 8% 8%
2006 all N/A N/A N/A
remaining
principal
Upon each such reduction, the Borrower shall make the
prepayment of the Loans, if any, required pursuant to
Section 2.5(b)(i).
(c) Repayment and Reborrowing. Prior to the
Termination Date, the Borrower may, at its option, from time to
time prepay all or any portion of the Loans, subject to the
provisions of Section 2.5, and the Borrower may reborrow from
time to time hereunder amounts so paid up to the amount of the
Commitment in effect at the time of reborrowing.
(d) Letters of Credit.
(i) Issuance. Subject to the terms and
conditions hereof, including the provisions of Section 6, the
Borrower may request that the Issuing Bank issue, from time to
time during the period from the Closing Date through the date
that is thirty days prior to the Termination Date, and the
Issuing Bank agrees to issue, from time to time, letters of
credit in an aggregate stated amount not exceeding $25,000,000
(the "Letters of Credit"). No Letter of Credit shall be issued
for a term of more than three hundred sixty-four days, and no
Letter of Credit shall have an expiration date which is later
than the thirtieth Banking Day prior to the Termination Date. No
Letter of Credit shall be issued if after giving effect to such
issuance, the sum of the outstanding principal balance of the
Loans (including amounts drawn on Letters of Credit and not
repaid), plus the aggregate stated amount of outstanding Letters
of Credit, would exceed the lesser of the Commitment and the
Borrowing Base. Each Letter of Credit shall be issued in the
manner and on the conditions set forth in this Section 2.1(d) and
Section 6. Each Letter of Credit shall be in the Issuing Bank's
standard form for letters of credit or in such other form as is
acceptable to the Issuing Bank in form and substance.
(ii) Application. Each request for a Letter of
Credit shall be made to the Issuing Bank by an application on the
Issuing Bank's standard form or in such other manner as the
Issuing Bank may approve. Promptly following the issuance of any
Letter of Credit, the Issuing Bank shall notify the Agent and the
Banks of such issuance.
(iii) Participation by the Banks.
(A) By the issuance of a Letter of
Credit and without any further action on the part of the Issuing
Bank, the Agent or the other Banks in respect thereof, the
<PAGE>
Issuing Bank hereby grants to each other Bank, and each other
Bank hereby agrees to acquire from the Issuing Bank, a
participation in such Letter of Credit equal to such Bank's
Ratable Share of the stated amount of such Letter of Credit,
effective upon the issuance of such Letter of Credit; provided,
however, that no Bank shall be required to acquire participations
in any Letter of Credit that would result in its Ratable Share of
the sum of outstanding Loans plus the stated amount of all
outstanding Letters of Credit to be greater than its Ratable
Share of the Commitment. In consideration and in furtherance of
the foregoing, each Bank hereby absolutely and unconditionally
agrees to pay to the Agent, for the account of the Issuing Bank,
in accordance with Section 2.1(d)(iv), such Bank's Ratable Share
of each amount disbursed pursuant to a Letter of Credit;
provided, that payment by the Issuing Bank under such Letter of
Credit against presentation of such draft or document shall not
have constituted gross negligence or willful misconduct of the
Issuing Bank.
(B) Each Bank acknowledges and agrees
that its obligation in respect of participations pursuant to
paragraph (A) above in respect of Letters of Credit is absolute
and unconditional and shall not be affected by any circumstances
whatsoever, including the occurrence and continuance of an Event
of Default or Possible Default, or the reduction or termination
of the Commitment, and that each such payment shall be made
without any offset, abatement, withholding or reduction
whatsoever.
(iv) Letter of Credit Disbursements.
(A) If the Agent has not received from
the Borrower the payment permitted pursuant to paragraph (B) of
this Section 2.1(d)(iv) by 11:00 A.M., Cleveland time, on the
date on which the Issuing Bank has notified the Borrower that
payment of a draft presented under any Letter of Credit will be
made, as provided in such paragraph (B), the Agent shall promptly
notify the Issuing Bank and each other Bank of the disbursement
to be made under such Letter of Credit and, in the case of each
Bank, its Ratable Share of such disbursement. Each Bank shall pay
to the Agent, not later than 1:00 P.M., Cleveland time, on such
date (or, if the Issuing Bank shall elect to defer reimbursement
from the Banks hereunder, such later date as the Issuing Bank
shall specify by notice to the Agent and the Banks), such Bank's
Ratable Share of such disbursement, which the Agent shall
promptly pay to the Issuing Bank. The Agent will promptly remit
to each Bank its share of any amount subsequently received by the
Agent from the Borrower in respect of such disbursement; provided
that amounts so received for the account of any Bank prior to
payment by such Bank of amounts required to be paid by it
hereunder in respect of any disbursement shall be remitted to the
Issuing Bank.
<PAGE>
(B) If the Issuing Bank shall receive
any draft presented under any Letter of Credit, the Issuing Bank
shall give notice thereof as provided in paragraph (C) below. If
the Issuing Bank shall pay any draft presented under a Letter of
Credit, the Borrower may pay to the Agent, for the account of the
Issuing Bank, an amount equal to the amount of such draft before
11:00 A.M., Cleveland time, on the Banking Day on which the
Issuing Bank shall have notified the Borrower that payment of
such draft will be made. The Agent will promptly pay any such
amounts received by it to the Issuing Bank.
(C) The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting
to represent a demand for payment under a Letter of Credit to
ascertain that the same appear on their face to be in substantial
conformity with the terms and conditions of such Letter of
Credit. The Issuing Bank shall as promptly as reasonably
practicable give oral notification, confirmed in writing, to the
Agent and the Borrower of such demand for payment and the
determination by the Issuing Bank as to whether such demand for
payment was in accordance with the terms and conditions of such
Letter of Credit and whether the Issuing Bank has made or will
make a disbursement thereunder, provided that the failure to give
such notice shall not relieve the Borrower of its obligation to
reimburse such disbursement, and the Agent shall promptly give
each Bank notice thereof.
(D) Any amounts paid by the Issuing Bank
on any Letter of Credit shall be deemed to be a Loan for all
purposes of this Agreement and shall bear interest from the date
of payment by the Issuing Bank at the rates provided in Section
3.1 until paid in full.
(v) Obligation to Repay Letter of Credit
Disbursements, etc. The Borrower assumes all risks in connection
with the Letters of Credit, and the Borrower's obligation to
repay each disbursement under a Letter of Credit shall be
absolute, unconditional and irrevocable under any and all
circumstances and irrespective of:
(A) any lack of validity or
enforceability of any Letter of Credit;
(B) the existence of any claim, setoff,
defense or other right which the Borrower or any other person may
at any time have against the beneficiary under any Letter of
Credit, the Agent, the Issuing Bank or any other Bank (other than
the defense of payment in accordance with the terms of this
Agreement or a defense based on the gross negligence or willful
misconduct of the Issuing Bank) or any other Person in connection
with this Agreement or any other agreement or transaction;
(C) any draft or other document
presented under a Letter of Credit proving to be forged,
<PAGE>
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect; and
(D) any other circumstance or event
whatsoever, whether or not similar to any of the foregoing.
It is understood that in making any payment under a
Letter of Credit (I) the Issuing Bank's exclusive reliance as to
any and all matters set forth therein, including reliance on the
amount of any draft presented under such Letter of Credit,
whether or not the amount due to the beneficiary equals the
amount of such draft and whether or not any documents presented
pursuant to such Letter of Credit prove to be insufficient in any
respect, if such document on its face appears to be in order, and
whether or not any such Letter of Credit proves to be forged or
invalid or any statement therein proves to be inaccurate or
untrue in any respect whatsoever and (II) any noncompliance in
any immaterial respect of the documents presented under a Letter
of Credit with the terms thereof, shall, in each case, not be
deemed willful misconduct or gross negligence of the Issuing
Bank.
(vi) Indemnification. The Borrower shall:
(A) indemnify and hold the Agent and each Bank (including the
Issuing Bank) harmless from any loss resulting from any claim,
demand or liability which may be asserted against the Agent or
such Bank in connection with actions taken under any Letter of
Credit, and (B) reimburse the Agent or such Bank for any fees
or other reasonable expenses paid or incurred by the Agent or
such Bank in connection with any Letter of Credit, other than
any loss or expense that, pursuant to a final non-appealable
judicial determination, is determined to have resulted solely
from the gross negligence or willful misconduct of the Agent or
such Bank.
(vii) Security. Upon the occurrence of any
Event of Default, the Borrower shall, upon demand, pay to the
Issuing Bank the stated amount of all outstanding Letters of
Credit, which amount the Issuing Bank shall hold as security for
the obligations incurred under the Letters of Credit, this
Agreement and the Notes. The payment by the Borrower of such
security shall not terminate the obligations of the Borrower
under this Section 2.1(d).
(viii) Additional Costs. If any Regulatory
Change shall either (A) impose upon, modify, require, make or
deem applicable to the Issuing Bank, the Agent or any Bank (or
its holding company) any reserve requirement, special deposit
requirement, insurance assessment or similar requirement against
or affecting any Letter of Credit issued or to be issued
hereunder, or (B) subject the Issuing Bank, the Agent or any Bank
to any tax, charge, fee, deduction or withholding of any kind
whatsoever, or (C) impose any condition upon or cause in any
manner the addition of any supplement to or increase of any kind
to the Issuing Bank's, the Agent's or any Bank's (or its holding
<PAGE>
company's) capital or cost base for issuing such Letter of Credit
which results in an increase in the capital requirement
supporting such Letter of Credit, or (D) impose upon, modify,
require, make or deem applicable to the Issuing Bank, the Agent
or any Bank (or its holding company) any capital requirement,
increased capital requirement or similar requirement such as the
deeming of such Letters of Credit to be assets held by the
Issuing Bank, the Agent or such Bank (or its holding company) for
capital calculation or other purposes and the result of any
events referred to in (A), (B), (C) or (D) above shall be to
increase the costs or decrease the benefit in any way to the
Issuing Bank, the Agent or a Bank (or its holding company) of
issuing, maintaining or participating in such Letters of Credit,
then and in such event the Borrower shall, within ten days after
the mailing of written notice of such increased costs or
decreased benefits to the Agent and the Borrower, pay to the
Issuing Bank, the Agent or such Bank all such additional amounts
which in the Issuing Bank's, the Agent's or such Bank's sole good
faith calculation as allocated to such Letters of Credit, shall
be sufficient to compensate it (or its holding company) for all
such increased costs or decreased benefits. The Issuing Bank's,
the Agent's or such Bank's calculation shall be conclusive absent
manifest error.
(ix) Fees. Each Letter of Credit shall be
issued for a fee equal to the product of the Applicable Margin
applicable to LIBOR Loans as of the date of issuance thereof
times the stated amount thereof, payable upon issuance. The fee
shall be payable to the Agent for the benefit of the Banks in
accordance with their Ratable Shares. In addition, the Borrower
shall pay to the Issuing Bank for its own account its standard
charges for the issuance of letters of credit and for draws upon
letters of credit, which charges, as of the date hereof, are as
follows: (A) $200 per Letter of Credit, payable upon issuance and
(B) .25% of the amount drawn, payable upon a draw under a Letter
of Credit.
(e) Termination or Reduction of Commitment. At any
time prior to the Termination Date, by written notice to the
Agent no later than 11:00 A.M. Cleveland, Ohio time five Banking
Days prior to such termination or reduction, the Borrower may
permanently terminate, or from time to time permanently reduce,
the Commitment. Such notice shall be in writing or by telephonic
communication confirmed by telecopy or other facsimile
transmission on the same day as such telephone notice. Any such
partial reduction hereunder shall be in an amount which is not
less than $2,500,000 or an integral multiple of $1,000,000 in
excess thereof. The Agent shall notify the Banks of any such
reduction or termination of the Commitment.
(f) Termination Date. All Loans, together with all
interest accrued thereon, shall be paid in full no later than the
Termination Date.
<PAGE>
(g) Permanent Reductions. All reductions of the
Commitment pursuant to Section 2.1(e), 2.5(c) or any other
provision of this Agreement shall be permanent reductions, and
the Commitment shall not be increased.
2.2 Making and Conversion/Continuation of the Loans.
(a) Making of the Loans.
(i) Each Loan shall be made by the Banks in
such amount as the Borrower shall request, provided that each
borrowing shall be in an amount which is a minimum of (A), with
respect to any LIBOR Loan, $5,000,000, and integral multiples of
$1,000,000 in excess thereof, and (B) with respect to any Base
Rate Loan, $1,000,000 and integral multiples of $500,000 in
excess thereof or such lesser amount as may be equal to the then
unused portion of the Commitment. The obligation of the Banks to
make any Loan is conditioned upon (w) the fact that the sum of
the outstanding principal amount of the Loans, after giving
effect to the making of such Loan, plus the aggregate stated
amount of all outstanding Letters of Credit would not exceed the
Borrowing Base as of the date of such Loan; (x) the fact that no
Possible Default or Event of Default shall then exist or
immediately after the Loan would exist; (y) the fact that all of
the Collateral Documents shall still be in full force and effect;
and (z) the fact that the representations and warranties
contained herein and in the Collateral Documents shall be true
and correct in all material respects as if made on and as of the
date of such borrowing, except to the extent that any thereof
expressly relate to an earlier date.
(ii) Subject to the satisfaction of the
conditions set forth in Section 6, Loans shall be effected at the
principal banking office of the Agent in Cleveland, Ohio, and
shall be made at such times as the Borrower may request by notice
to the Agent no later than 11:00 A.M. Cleveland, Ohio time (A)
three Banking Days prior to the date of a requested LIBOR Loan
and (B) one Banking Day prior to the date of a requested Base
Rate Loan. Such notices shall be in writing, or by telephonic
communication confirmed by telecopy or other facsimile
transmission on the same day as the telephone request, and shall
specify the proposed date and the amount of the requested Loan,
whether it is to bear interest initially at an interest rate
based on the Base Rate or the LIBOR Rate, and the Interest Period
thereof, if applicable.
(iii) Upon receipt of each borrowing notice
for a Loan, the Agent shall promptly notify each Bank of the
type, Interest Period, if applicable, amount and date of the
proposed borrowing or conversion. Not later than 11:00 A.M.
Cleveland time, on the date of a proposed borrowing of a Loan,
each Bank shall provide the Agent at its address specified in
Section 12.4 hereof with immediately available funds covering
<PAGE>
such Bank's Ratable Share of the borrowing, and the Agent shall
pay over such immediately available funds to the Borrower.
(b) Conversion/Continuation of the Loans. At the
Borrower's election pursuant to notice given to the Agent not
later than 11:00 A.M. Cleveland, Ohio time three Banking Days
prior to such conversion or continuation, any Base Rate Loan may
be converted to, or any LIBOR Loan may be continued as, as the
case may be, a LIBOR Loan as requested by the Borrower; provided,
however, that each conversion and continuation shall be in an
amount which is a minimum of $5,000,000, and integral multiples
of $1,000,000 in excess thereof; and provided, further, that no
Loan may be continued as or converted to a LIBOR Loan at any time
that an Event of Default or Possible Default exists. If the
Borrower has not timely delivered to the Agent such notice with
respect to any terminating Interest Period, the affected LIBOR
Loan shall convert to a Base Rate Loan at the end of such
Interest Period.
(c) Number of Interest Rate Options. In no event
shall the Borrower have more than five LIBOR Loans outstanding at
any time.
2.3 The Notes. All Loans shall be evidenced by separate
promissory notes payable to the Banks substantially in the form
attached hereto as Exhibit A to be duly executed and delivered by
the Borrower at or prior to the Closing in the principal amount
of the Commitment (which notes, together with any notes issued in
connection with the Letters of Credit, may be referred to herein
as the "Notes"). The Banks may, and are hereby authorized by the
Borrower to, set forth on the grids attached to the Notes, or in
other comparable records maintained by them, the amount of each
Loan, all payments and prepayments of principal and interest
received, the current outstanding principal balance, and other
appropriate information. The aggregate unpaid amount of any Loan
set forth in any records maintained by a Bank with respect to a
Note shall be presumptive evidence of the principal amount owing
and unpaid on such Note. Failure of a Bank to record the
principal amount of any Loan on the grid(s) attached to a Note
shall not limit or otherwise affect the obligation of the
Borrower hereunder or under such Note to repay the principal
amount of such Loan and all interest accruing thereon.
2.4 Fees.
(a) Commitment Fees.
(i) For each fiscal quarter during the
Borrowing Base Period, as of the end of which quarter the
Borrowing Base is greater than $200,000,000, and for each fiscal
quarter ending after the Borrowing Base Period, the Borrower
shall pay to the Agent for the benefit of the Banks a
non-refundable commitment fee of 1/2% per annum (based on a year
<PAGE>
having 360 days and actual days elapsed) on the excess of the
aggregate daily average undisbursed amount of the Commitment for
such quarter over the daily average aggregate stated amount of
the Letters of Credit for such quarter; provided, however, that
such commitment fee shall be 1/4% per annum for any such quarter
if as of the end of such quarter the Leverage Ratio is less than
or equal to 3.5 to 1.0. For each fiscal quarter during the
Borrowing Base Period, as of the end of which quarter the
Borrowing Base is less than or equal to $200,000,000, the
Borrower shall pay to the Agent for the benefit of the Banks a
non-refundable commitment fee of (i) 1/8% per annum (based on a
year having 360 days and actual days elapsed) on that portion of
the Commitment that exceeds $200,000,000 and (ii) 1/2% per annum
(based on a year having 360 days and actual days elapsed) on the
amount by which $200,000,000 exceeds the sum of the daily average
outstanding principal amount of the Loans for such quarter plus
the daily average aggregate stated amount of the Letters of
Credit for such quarter.
(ii) Such commitment fee shall (i) commence to
accrue as of the date hereof and continue to and including the
Termination Date, (ii) be determined by the Agent quarterly, and
upon the making of each Loan and the issuance of each Letter of
Credit in an amount in excess of $5,000,000, based on the
financial statements and the Compliance Certificate delivered to
the Banks pursuant to Sections 7.5(b) and (c) (in the case of a
quarterly determination) and the compliance certificate delivered
pursuant to Section 6.12(b) (in the case of the determination of
the commitment fees upon the making of a Loan or issuance of a
Letter of Credit), (iii) be in addition to any other fee required
by the terms and conditions of this Agreement, (iv) be payable
quarterly in arrears on each Quarterly Date and on the date the
Commitment is terminated, and (v) be shared by the Banks in
accordance with their Ratable Shares.
(b) Other Fees. The Borrower shall pay to the
Agent such other fees as are set forth in the Fee Letter.
2.5 Prepayment.
(a) Voluntary Prepayments. By notice to the Agent
(which shall be in writing or by telephonic communication
confirmed by telecopy or other facsimile transmission on the same
day as such telephone notice) no later than 11:00 A.M. Cleveland,
Ohio time on the Banking Day prior to such prepayment (with
respect to any Base Rate Loan) or on the third Banking Day prior
to such prepayment (with respect to any LIBOR Loan), the Borrower
may, at its option, prepay the Loans in whole at any time or in
part from time to time without penalty or premium (except as
provided in Section 2.5(d)); provided, however, that each partial
prepayment of the Loans shall be in the aggregate principal
amount of not less than $1,000,000 or an integral multiple of
$500,000 in excess thereof.
<PAGE>
(b) Mandatory Prepayments.
(i) Reduction of Commitment or Borrowing Base.
If at any time the sum of the outstanding principal amount of the
Loans plus the stated amount of all outstanding Letters of Credit
exceeds the lesser of the Commitment or the Borrowing Base, the
Borrower shall immediately prepay the Loans, without penalty or
premium (except that any such prepayment of any LIBOR Loan shall
be made together with the applicable LIBOR Prepayment Premium),
in an amount necessary to cause the sum of the outstanding
principal amount of the Loans plus the stated amount of all
outstanding Letters of Credit not to exceed the lesser of the
Commitment or the Borrowing Base. All accrued interest on the
amount prepaid shall be paid with the prepayment.
(ii) Excess Cash Flow. Within one hundred
twenty days after the end of each fiscal year of the Borrower,
commencing with the fiscal year ending on December 31, 2001, the
Borrower shall make a mandatory prepayment of the Loans in an
amount equal to the Applicable Percentage of Excess Cash Flow, if
any, for such fiscal year. Mandatory prepayments made pursuant to
this Section 2.5(b)(ii) shall be determined from the annual
financial statements for such fiscal year delivered by the
Borrower pursuant to Section 7.5(a) and shall be accompanied by a
certificate signed by the Borrower's chief financial officer
setting forth the calculations from which the amount of such
prepayment was determined.
(iii) Asset Sales. Immediately upon receipt by
the Borrower or any of its Subsidiaries of cash proceeds of any
Asset Sale, the Borrower shall immediately make a mandatory
prepayment of the Loans in an amount equal to such cash proceeds,
net of any costs directly incurred in connection with such Asset
Sale and any taxes reasonably estimated to be payable in
connection with such Asset Sale as certified by the Borrower's
chief financial officer. Together with such prepayment, the
Borrower shall deliver to the Agent a certificate executed by the
Borrower's chief financial officer setting forth the calculation
of the net cash proceeds of such Asset Sale.
(iv) Unapplied Insurance Proceeds. Within 180
days from the date of receipt of any cash payments under any
insurance policy maintained by the Borrower or any of its
Subsidiaries which have not been reinvested in productive assets
of a kind then used or usable in the business of the Borrower or
its Subsidiaries, the Borrower shall make a mandatory prepayment
of the Loans in the amount of such unreinvested or unused
proceeds, net of any costs directly incurred in connection with
receiving payment of such proceeds and any taxes reasonably
estimated to be payable in connection with such receipt as
certified by the Borrower's chief financial officer; provided,
however, that upon and during the continuance of any Event of
Default or Possible Default all such insurance proceeds received
<PAGE>
by the Borrower or any Subsidiary shall be applied as a
prepayment of the Loans.
(v) Net Equity and Debt Proceeds. If, on any
date that the Leverage Ratio is greater than 5.0 to 1.0, the
Borrower receives any capital contribution from Holdco or any
other Person, or receives the proceeds of any Indebtedness for
borrowed money or of the sale of debt or equity securities from
Holdco or any other Person, the Borrower shall, within five days
of receipt of such capital contribution or proceeds, make a
mandatory prepayment of the Loans in an amount equal to the
lesser of (A) 50% of such capital contribution or proceeds and
(B) that amount of such capital contribution or proceeds that,
when added to Operating Cash Flow for the four quarter period
then ended or most recently ended, would cause the Leverage Ratio
as of the date of receipt of such capital contribution or
proceeds to equal 5.0 to 1.0; provided, however, that if, as of
the date of such capital contribution or receipt of proceeds, the
Borrower is a party to a legally binding acquisition agreement
for a Qualified Acquisition permitted pursuant to Section 8.10(b)
or the Borrower has received an executed SLA Package (as that
term is defined in the Build to Suit Agreement) from BAM with
respect to construction of a specific Tower or group of Towers,
then the Borrower may use such capital contribution or proceeds
to pay the purchase price of such Qualified Acquisition or to
construct such Tower or Towers. The making of any such mandatory
prepayment shall not be deemed to have cured any Event of Default
resulting from the incurrence of any Indebtedness not permitted
pursuant to Section 8.1.
(c) Application of Prepayments.
(i) Application to LIBOR Prepayment Premium,
Accrued Interest and Principal. All prepayments made pursuant to
this Section 2.5 shall be applied as follows: first, to any LIBOR
Prepayment Premium then due, then to accrued interest and then to
the outstanding principal of the Loans. For purposes of the
calculation of interest and the determination of whether any
LIBOR Prepayment Premium is due in connection with any such
prepayment, such principal prepayments shall be applied first to
the Base Rate Loans and then to the LIBOR Loans with the shortest
remaining Interest Periods.
(ii) Application to the Loans and the
Commitment. Any mandatory prepayment of the Loans (other than
pursuant to Section 2.5(b)(i)) shall cause the Commitment to be
immediately and automatically reduced by the amount of such
prepayment, and each such mandatory reduction shall be applied to
the subsequent Commitment reductions set forth in Section 2.1(b)
in the inverse order of maturity.
(d) LIBOR Prepayment Premium. The Borrower shall
pay to the Agent, for the benefit of the Banks, the applicable
LIBOR Prepayment Premium upon any prepayment or conversion
<PAGE>
(whether voluntary or involuntary) of any LIBOR Loan not made on
the last day of the applicable Interest Period.
2.6 Reserves or Deposit Requirements, Etc. If at any
time any Regulatory Change (including without limitation, any
change in Regulation D of the Board of Governors of the Federal
Reserve System) shall impose any reserve and/or special deposit
requirement (other than reserves included in the LIBOR Reserve
Percentage, the effect of which is reflected in the interest rate
of any LIBOR Loan) against assets held by, or deposits in or for
the amount of any loans by, any Bank, and the result of the
foregoing is to increase the cost (whether by incurring a cost or
adding to a cost) to such Bank of taking or maintaining hereunder
any LIBOR Loan or to reduce the amount of principal, interest or
fees received by such Bank with respect to any such Loan, then
such Bank shall notify the Borrower and the Agent of such
occurrence. Thereafter, within ten days after written demand by
such Bank, the Borrower shall pay to such Bank additional amounts
sufficient to compensate and indemnify such Bank for such
increased cost or reduced amount. A statement as to the increased
cost or reduced amount as a result of any event mentioned in this
Section shall be submitted by such Bank to the Agent and to the
Borrower and shall, in the absence of manifest error, be
conclusive and binding as to the amount thereof.
2.7 Tax Law, Increased Costs, Etc. In the event that by
reason of any Regulatory Change, any Bank shall, with respect to
this Agreement or any transaction under this Agreement, be
subjected to any tax, levy, impost, charge, fee, duty, deduction
or withholding of any kind whatsoever (other than any tax imposed
upon the net income of such Bank and other than changes in
franchise taxes), and if any such measure or any other similar
measure shall result in an increase in the costs to such Bank of
making or maintaining any LIBOR Loan or in a reduction in the
amount of principal or interest ultimately receivable by such
Bank in respect of such Loan, then such Bank shall notify the
Borrower and the Agent stating the reasons therefor. The Borrower
shall thereafter pay to such Bank within ten days after written
demand such additional amounts as will compensate such Bank for
such increased cost or reduced amount. A statement as to any such
increased cost or reduced amount shall be submitted by such Bank
to the Agent and to the Borrower and shall, in the absence of
manifest error, be conclusive and binding as to the amount
thereof.
2.8 Eurodollar Deposits Unavailable or Interest Rate
Unascertainable. If any Bank determines that dollar deposits of
the relevant amount for the relevant Interest Period are not
available to it in the applicable Eurodollar market or if the
Agent determines that, by reason of circumstances affecting such
market, adequate and reasonable means do not exist for
ascertaining the LIBOR Rate applicable to such Interest Period,
or if any Bank determines that the LIBOR Rate does not adequately
reflect the cost to such Bank of making such Loan, as the case
<PAGE>
may be, the Agent or such Bank shall promptly give notice of such
determination to the Agent and to the Borrower, and any request
for a new LIBOR Loan or notice of conversion of an existing Loan
to a LIBOR Loan given thereafter or previously given by the
Borrower and not yet made or converted shall be deemed a notice
to make a Base Rate Loan.
2.9 Changes in Law Rendering LIBOR Loans Unlawful. If
at any time any Regulatory Change shall make it unlawful for any
Bank to fund any LIBOR Loan which it has committed to make
hereunder with moneys obtained in the applicable Eurodollar
market, such Bank shall notify the Agent and the Borrower, and
the obligation of the Banks to fund such Loan shall, upon the
happening of such event, forthwith be suspended for the duration
of such illegality. If any such change makes it unlawful for any
Bank to continue in effect the funding in the applicable
Eurodollar market of any LIBOR Loan previously made by it
hereunder, such Bank shall, upon the happening of such event,
notify the Agent and the Borrower thereof in writing stating the
reasons therefor, and the Borrower shall, on the earlier of (a)
the last day of the then current Interest Period or (b) if
required by such Regulatory Change on such date as shall be
specified in such notice, either convert all such Loans to Base
Rate Loans or prepay all such Loans in full.
2.10 Funding. Any Bank may, but shall not be required
to, make LIBOR Loans hereunder with funds obtained outside the
United States.
2.11 Indemnity. Without prejudice to any other
provisions of Sections 2.6 through 2.10 or to the obligation of
the Borrower to pay the LIBOR Prepayment Premium pursuant to
Section 2.5(d), the Borrower hereby agrees to indemnify the Agent
and each Bank against any loss or expense which the Agent or any
Bank may sustain or incur as a consequence of the Borrower's
failure to borrow any LIBOR Loan requested pursuant to this
Agreement, or the Borrower's failure to continue any LIBOR Loan
or convert any Base Rate Loan to a LIBOR Loan, in either case
after notice of such continuation or conversion shall have been
given to the Agent pursuant to Section 2.2(b), or any default by
the Borrower in payment when due of any amount due hereunder in
respect of any LIBOR Loan or any prepayment or conversion by the
Borrower of a LIBOR Loan prior to the end of its Interest Period,
whether voluntarily or as required pursuant to the terms hereof,
including, but not limited to, any premium or penalty incurred by
such Bank in respect of funds borrowed by it for the purpose of
making or maintaining such Loan, as determined by such Bank;
provided, however, that such indemnification shall be net of any
LIBOR Prepayment Premium received by such Bank in respect of any
such action or inaction of the Borrower. A statement as to any
such loss or expense shall be submitted by such Bank to the Agent
and the Borrower for payment under the aforesaid indemnification,
which statement shall, in the absence of manifest error, be
conclusive and binding as to the amount thereof.
<PAGE>
2.12 Capital Adequacy. If any Bank shall determine that
any Regulatory Change regarding capital adequacy or compliance by
such Bank (or its lending office) with any request or directive
regarding capital adequacy (whether or not having the force of
law) of any governmental authority, central bank or comparable
agency has or would have the effect of reducing the rate of
return on such Bank's capital (or on the capital of such Bank's
holding company) as a consequence of its obligations hereunder to
a level below that which such Bank (or its holding company) could
have achieved but for such Regulatory Change or compliance
(taking into consideration such Bank's policies or the policies
of its holding company with respect to capital adequacy) by an
amount which such Bank deems to be material, then from time to
time, within ten days after demand by such Bank, the Borrower
shall pay to such Bank such additional amount or amounts as will
compensate such Bank (or its holding company) for such reduction.
A certificate of such Bank claiming compensation under this
Section and setting forth the additional amount or amounts to be
paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods. Failure on the part
of any Bank to demand compensation for any reduction in return on
capital with respect to any period shall not constitute a waiver
of such Bank's rights to demand compensation for any reduction in
return on capital in such period or in any other period. The
protection of this Section shall be available to each Bank
regardless of any possible contention of the invalidity or
inapplicability of the law, regulation or other condition which
shall have been imposed.
2.13 Taxes. All sums payable by the Borrower hereunder
or under the Notes or in respect of the Letters of Credit,
whether of principal, interest, fees, expenses or otherwise,
shall be paid in full, free of any deductions or withholdings for
any and all present and future taxes, levies, imposts, stamps,
duties, fees, assessments, deductions, withholdings, and other
governmental charges and all liabilities with respect thereto
(collectively referred to as "Taxes"). If the Borrower is
prohibited by law from making payments hereunder or under the
Notes or in respect of the Letters of Credit free of such
deductions or withholdings, then the Borrower shall pay such
additional amount as may be necessary in order that the actual
amount received by the Banks after such deduction or withholding
shall equal the full amount stated to be payable hereunder or
under the Notes or in respect of the Letters of Credit. The
Borrower shall pay directly to all appropriate taxing authorities
any and all present and future Taxes, and all liabilities with
respect thereto imposed by law or by any taxing authority on or
with regard to any aspect of the transactions contemplated by
this Agreement or the execution and delivery of this Agreement or
the Notes or the issuance of the Letters of Credit, except for
any Taxes or other liabilities that the Borrower is contesting in
good faith by appropriate proceedings, provided that the Borrower
hereby indemnifies the Agent and each of the Banks and holds them
<PAGE>
harmless from and against any and all liabilities, fees or
additional expense with respect to or resulting from any delay in
paying, or omission to pay, Taxes. Within thirty days after
request by the Agent in respect of the payment by the Borrower of
any Taxes, the Borrower shall furnish the Agent with the original
or a certified copy of the receipt evidencing payment thereof,
together with any other information the Agent may reasonably
require to establish to its satisfaction that full and timely
payment of such Taxes has been made. Each Bank shall notify the
Borrower and the Agent of any payment of Taxes required or
requested of it and shall give due consideration to any advice or
recommendation given in response thereto by the Borrower, and
upon notice from the Agent or any Bank that Taxes or any
liability relating thereto (including penalties and interest)
have been paid, the Borrower shall pay or reimburse the Agent or
the paying Bank therefor within ten days of such notice. Without
prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower
contained in this Section shall survive the payment in full of
principal and interest hereunder and under the Notes.
2.14 Right to Remove Affected Bank. In the event that
(a) the Borrower receives a notice under Sections 2.6, 2.7, 2.8,
2.9, 2.11 or 2.12 (if such illegality or condition is not
generally applicable to the Banks) from any Bank, (b) any Bank
makes a demand for compensation from the Borrower pursuant to
Sections 2.6, 2.7, 2.9, 2.11 or 2.12 or (c) any Bank fails for
any reason to make its Ratable Share of any Loan it is required
to make pursuant to Section 2.1(a) (such Bank being referred to
in this Section as the "Affected Bank"), the Borrower, at its
option and in its sole discretion, shall have the right to
designate a replacement Bank that is reasonably acceptable to the
Agent, to purchase for cash the Affected Bank's Loans, if any,
and to assume all of the Affected Bank's Ratable Share of the
Commitment and the Letters of Credit and all of the Affected
Bank's other rights and obligations hereunder without recourse to
or warranty by, or expense to, the Affected Bank, for a purchase
price equal to (i) the principal amount of all of the Affected
Bank's outstanding Loans, plus (ii) any accrued but unpaid
interest thereon, plus (iii) any accrued but unpaid commitment
fees in respect of the Affected Bank's Ratable Share of the
Commitment, plus (iv) any other amounts that may be owing to the
Affected Bank hereunder, including any amount which would be
payable to the Affected Bank pursuant to Sections 2.6, 2.7, 2.9,
2.11 or 2.12. The assignee Bank shall pay to the Agent the fee
set forth in Section 12.7(c) in connection with any assignment
made pursuant to this Section. If any Bank becomes an Affected
Bank pursuant to clause (c) above, then it shall not have the
right to vote on any matter presented to the Banks for a vote
until such time as its failure to make its Ratable Share of a
Loan has been cured or until it has been removed pursuant to this
Section, and any portion of Loans made by it shall be deemed not
to be outstanding solely for purposes of such vote.
<PAGE>
SECTION 3. INTEREST; PAYMENTS.
3.1 Interest.
(a) Subject to Section 3.1(c), prior to maturity,
LIBOR Loans shall bear interest at the LIBOR Rate plus the
Applicable Margin and Base Rate Loans shall bear interest at the
Base Rate plus the Applicable Margin.
(b) The Applicable Margin shall be determined by
the Agent quarterly, and upon the making of each Loan and the
issuance of each Letter of Credit in an amount in excess of
$5,000,000, based on the financial statements and the Compliance
Certificate delivered to the Banks pursuant to Sections 7.5(b)
and (c) (in the case of a quarterly determination) and the
compliance certificate delivered pursuant to Section 6.12(b) (in
the case of the determination of the Applicable Margin upon the
making of a Loan or issuance of a Letter of Credit). Any change
in the interest rate on the Loans due to a change in the
Applicable Margin shall be effective on the fifth Banking Day
after delivery of such financial statements or compliance
certificate; provided, however, that if any such quarterly
financial statements and Compliance Certificate indicate an
increase in the Applicable Margin and such financial statements
and certificate are not provided within the time period required
in Section 7.5(b), the increase in the interest rate due to such
increase in the Applicable Margin shall be effective
retroactively as of the fifth Banking Day after the date on which
such financial statements and certificate were due. For purposes
of determining the Applicable Margin prior to the Borrower's
delivery to the Agent of such quarterly financial statements and
Compliance Certificate for the first full quarter after the
Closing, the Leverage Ratio shall be deemed to be greater than
7.0 to 1.0. The Borrower shall deliver to the Banks with each set
of quarterly financial statements which indicate a change in the
Applicable Margin a notice with respect to such change, which
notice shall set forth the calculation of, and the supporting
evidence for, such change.
(c) Upon the occurrence of any Event of Default,
the entire outstanding principal amount of each Loan and (to the
extent permitted by law) unpaid interest thereon and all other
amounts due hereunder shall bear interest, from the date of
occurrence of such Event of Default until the earlier of the date
such Loan is paid in full and the date on which such Event of
Default is cured or waived in writing, at the Default Interest
Rate which shall be payable upon demand.
(d) Interest shall be computed on a Three Hundred
Sixty day year basis calculated for the actual number of days
elapsed. Interest accrued on each Base Rate Loan shall be paid
quarterly in arrears on each Quarterly Date after the date hereof
until such Loan is paid in full and on the date such Loan is paid
in full, and interest accrued on each LIBOR Loan shall be paid on
<PAGE>
the last day of the Interest Period thereof and on the date such
Loan is paid in full.
(e) The rate of interest payable on any Note from
time to time shall in no event exceed the maximum rate, if any,
permissible under applicable law. If the rate of interest payable
on any Note is ever reduced as a result of the preceding sentence
and at any time thereafter the maximum rate permitted by
applicable law shall exceed the rate of interest provided for on
such Note, then the rate provided for on such Note shall be
increased to the maximum rate permitted by applicable law for
such period as is required so that the total amount of interest
received by the holder of such Note is that which would have been
received by such holder but for the operation of the preceding
sentence.
3.2 Manner of Payments.
(a) Prior to each Quarterly Date and the end of
each Interest Period, the Agent shall render a statement to the
Borrower of all amounts due to the Agent and the Banks for
principal, interest and fees hereunder. All amounts listed on
each such statement shall be due and payable on the Quarterly
Date or, as the case may be, the last day of such Interest
Period, in respect of which such statement was sent. As to all
other Obligations which become due and payable other than on a
fixed date by their terms, the Agent shall advise the Borrower by
a written statement that they are due and payable, and the
Borrower shall pay the same within ten days of receipt of such
statement. If any amounts are not paid by the Borrower when due
and payable, such amounts shall bear interest at the Default
Interest Rate, and the Banks may then charge any account of the
Borrower for such Obligation in the amount due to the Banks. Any
failure by the Agent to render any such statement or give any
such advice shall in no way relieve the Borrower of any liability
for or obligation to pay any amount due and payable hereunder.
(b) Whenever any payment to be made hereunder,
including without limitation any payment to be made on a Note,
shall be stated to be due on a day that is not a Banking Day,
such payment may be made on the next succeeding Banking Day, and
such extension of time shall in each case be included in the
computation of the interest payable on such Note.
(c) Unless otherwise provided in this Agreement,
all payments or prepayments made or due hereunder or under the
Notes shall be made in immediately available funds by federal
funds wire transfer, and without setoff, deduction or
counterclaim, to the Agent prior to 11:00 A.M., Cleveland time,
on the date when due, at its offices at 127 Public Square,
Cleveland, Ohio 44114, or at such other place as may be
designated by the Agent. Funds received after 11:00 A.M.,
Cleveland time, shall be deemed to have been received on the next
Banking Day. To the extent any such payment is made for the
<PAGE>
ratable benefit of the Banks, the Agent shall promptly distribute
such payment to the Banks in accordance with their respective
Ratable Shares.
SECTION 4. CLOSING.
The closing of the transactions contemplated by this
Agreement shall take place at the location of and simultaneously
with the closing under the Formation Agreement (provided that the
Borrower shall have given the Agent at least ten Banking Days
prior notice of the date of such closing), or such other date and
place as to which the parties may agree (the "Closing" and the
"Closing Date"). Subject to the terms and conditions hereof, upon
the fulfillment or waiver in writing of all the conditions
precedent set out in Section 6 below, and the delivery to the
Agent of the Notes, the Banks shall make such Loans as the
Borrower may request.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE BORROWER.
To induce the Banks to enter into this Agreement and to
make the Loans, the Borrower represents and warrants as follows:
5.1 Organization and Powers. The Borrower is a limited
liability company, duly organized, validly existing and in good
standing under the laws of the State of Delaware. The Borrower is
duly qualified or registered to conduct business and in good
standing under the laws of each jurisdiction in which any Tower
is located and of each other jurisdiction in which the character
of its business or the ownership of its assets makes such
qualification or registration necessary, except where failure to
so qualify or register could not reasonably be expected to have a
Material Adverse Effect. The Borrower has all requisite power and
authority to own and operate its properties, to carry on its
business as now conducted and proposed to be conducted, to enter
into this Agreement, the Collateral Documents to which it is a
party, the Management Agreement, the Formation Agreement, the
other Transaction Documents to which it is a party and all other
documents to be executed by it in connection with the
transactions contemplated hereby and thereby and to carry out the
terms hereof and thereof.
5.2 Authorization. All necessary limited liability
company, member, director or other actions on the part of the
Borrower and its Subsidiaries to authorize the execution and
delivery of this Agreement, the Collateral Documents, the
Management Agreement, the Build to Suit Agreement and the other
Transaction Documents to which it or any of its Subsidiaries is a
party, and the performance of the obligations of the Borrower and
its Subsidiaries herein and therein, have been taken. This
Agreement, each Collateral Document, the Management Agreement,
the Build to Suit Agreement and the Transaction Documents to
which the Borrower or any of its Subsidiaries is a party have
<PAGE>
been duly authorized and executed and are valid and legally
binding upon each of the Borrower and its Subsidiaries to the
extent it is a party thereto, and enforceable in accordance with
their respective terms, except to the extent that the
enforceability thereof may be limited by bankruptcy, insolvency
or like laws affecting creditors rights generally and the
availability of equitable remedies.
5.3 Financial Statements. Exhibit B attached hereto
contains pro forma financial statements for the Borrower and its
Subsidiaries, including a pro forma balance sheet and income
statements (collectively, the "Financial Statements"). The
Financial Statements disclose all material contingent liabilities
and present fairly, on a pro forma basis, the financial condition
of the Borrower and its Subsidiaries as of the dates and for the
periods indicated and have been prepared consistent with GAAP.
5.4 Projections. Exhibit C attached hereto are the
Borrower's projections for the calendar years 1999 through 2007.
Such projections were prepared on an operating basis. Such
projections represent the Borrower's good faith estimate of
projected future operations as of the date of this Agreement,
have been prepared based on assumptions that the Borrower
believes to be reasonable and assume the consummation of the
transactions contemplated by the Transaction Documents. As of the
date hereof, there are no facts which are known to the Borrower
which the Borrower believes would cause a material adverse change
in such projections.
5.5 Capitalization. The capitalization of Holdco and
the Borrower as of the date hereof is as set forth on Exhibit D
attached hereto. A subsidiary of CCIC and BAM own all of the
issued and outstanding Membership Interests of Holdco; Holdco
owns all of the issued and outstanding Membership Interests of
the Borrower; and the Borrower and BAM own all of the issued and
outstanding Membership Interests of the Tower Subsidiary. All of
the issued and outstanding Membership Interests of the Borrower
and its Subsidiaries have been duly and validly issued and are
fully paid and nonassessable. All of the authorized, issued and
outstanding Membership Interests of the Borrower and its
Subsidiaries are free and clear of any Liens, except as disclosed
on Exhibit D, and except for the Liens in favor of the Agent
pursuant to the Pledge Agreements. None of such Membership
Interests has been issued in violation of the Securities Act of
1933, as amended, or the securities or "Blue Sky" or any other
applicable laws, rules or regulations of any applicable
jurisdiction. Except as set forth on Exhibit D, as of the date
hereof, neither the Borrower nor any of its Subsidiaries has any
commitment or obligation, either firm or conditional, to issue,
deliver, purchase or sell, under any offer, option agreement,
bonus agreement, purchase plan, incentive plan, compensation
plan, warrant, conversion rights, operating agreement, contingent
share agreement, stockholders agreement, partnership agreement or
otherwise, any membership interests, capital stock, partnership
<PAGE>
interests or other equity securities or securities convertible
into membership interests, shares of capital stock, partnership
interests or other equity securities.
5.6 Subsidiaries. As of the date hereof, the Borrower
has no Subsidiaries other than the Tower Subsidiary. The Tower
Subsidiary is a Delaware limited liability company. Each
Subsidiary of the Borrower is duly organized, validly existing
and in good standing under the laws of its State of organization
and is duly qualified and in good standing under the laws of each
other jurisdiction in which it owns any Tower or in which the
character of its business or the ownership of its assets makes
such qualification or registration necessary, except where
failure to so qualify or register could not reasonably be
expected to have a Material Adverse Effect. Except as set forth
on Exhibit D, each Subsidiary is a direct or indirect, wholly
owned Subsidiary of the Borrower. Each Subsidiary has all
requisite power and authority to own and operate its properties,
to carry on its business as now conducted and proposed to be
conducted, to enter into and perform the Collateral Documents,
the Management Agreement, the Formation Agreement, the Build to
Suit Agreement and the other Transaction Documents to which it is
a party and all other documents to be executed by it in
connection with the transactions contemplated hereby and thereby
and to carry out the terms hereof and thereof.
5.7 Title to Properties; Patents, Trademarks, Etc. Each
of the Borrower and its Subsidiaries has, and will have after
consummation of the transactions contemplated by the Transaction
Documents, good and marketable title to all of its material
assets, whether real or personal, tangible or intangible, free
and clear of any Liens or adverse claims or interests, except
Permitted Liens. Each of the Borrower and its Subsidiaries owns
or possesses, and will own and possess after giving effect to the
consummation of the transactions contemplated by the Transaction
Documents, the valid right to use all the material patents,
patent applications, patent and know-how licenses, inventions,
technology, permits, trademark registrations and applications,
product designs, applications, processes, trademarks, service
marks, trade names, copyrights and licenses and rights in respect
of the foregoing used or necessary for the conduct of its
business, without any known conflict with the rights of others.
5.8 Litigation; Proceedings. Except as disclosed on
Exhibit E attached hereto, as of the date hereof, (a) there is no
material action, suit, complaint, proceeding, inquiry or
investigation at law or in equity, or by or before any court or
governmental instrumentality or agency, nor any order, decree or
judgment in effect, now pending or, to the best of the Borrower's
knowledge, threatened against or affecting the Borrower, any of
its Subsidiaries, any Material Towers or any of the properties or
rights relating to any Material Towers, and (b) there is no
application, petition, complaint, proceeding or investigation
<PAGE>
pending or, to the best of the Borrower's knowledge, threatened,
with respect to any License or which could restrict in any
material manner the ownership, operation or license status of any
Material Towers.
5.9 Taxes. All material Federal, state and local tax
returns, reports and statements (including, without limitation,
those relating to income taxes, withholding, social security and
unemployment taxes, sales and use taxes and franchise taxes)
required to be filed by Holdco, the Borrower or any of the
Borrower's Subsidiaries have been properly filed with the
appropriate governmental agencies in all jurisdictions in which
such returns, reports and statements are required to be filed,
which returns, reports and statements are complete and accurate,
and all taxes and other impositions due and payable have been
timely paid prior to the date on which any fine, penalty,
interest, late charge or loss may be added thereto for
non-payment thereof. As of the date hereof, neither the Borrower,
nor any of its Subsidiaries nor Holdco has filed with the
Internal Revenue Service or any other governmental authority any
agreement or other document extending or having the effect of
extending the period for assessment or collection of any Federal,
state, local or foreign taxes or other impositions. All tax
deficiencies asserted or assessments made as a result of any
examinations conducted by the Internal Revenue Service or any
other governmental authority relating to the Borrower, any of its
Subsidiaries and Holdco have been fully paid or are being
contested in accordance with the provisions of Section 7.4.
Proper and accurate amounts have been withheld by the Borrower,
its Subsidiaries and Holdco from their employees for all periods
to fully comply with the tax, social security and unemployment
withholding provisions of applicable Federal, state, local and
foreign law. The charges, accruals and reserves on the books of
the Borrower, its Subsidiaries and Holdco in respect of any taxes
or other governmental charges are adequate.
5.10 Absence of Conflicts. The execution, delivery and
performance by Holdco, the Borrower and the Borrower's
Subsidiaries of this Agreement, the Collateral Documents, the
Management Agreement, the Build to Suit Agreement and the other
Transaction Documents and all actions and transactions
contemplated hereby and thereby will not (a) violate, be in
conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default (i) under any
provision of the Operating Agreements or other organizational
documents of the Borrower, any of its Subsidiaries or Holdco,
(ii) under any material arbitration award or any material order
of any court or of any other governmental agency or authority,
(iii) under any License relating to any Material Towers or under
which the Borrower or any Subsidiary operates or will operate
after giving effect to the consummation of the Transaction
Documents which breach or default of such License could
reasonably be expected to have a Material Adverse Effect, (iv)
under any applicable law, rule, order or regulation (including
<PAGE>
without limitation, (A) the Communications Act of 1934, as
amended, (B) any rule, regulation or policy of the FCC, the FAA
or any other Licensing Authority or (C) Regulations T, U or X of
the Board of Governors of the Federal Reserve System) or (v) in
any material respect under the Transaction Documents, any Land
Lease Agreement, the CCIC Indenture or any material agreement,
instrument or document relating to any Material Towers or to
which the Borrower, any of its Subsidiaries or Holdco is a party,
or by which the Borrower, any of its Subsidiaries or Holdco or
any of their respective properties is bound, or (b) result in the
creation or imposition of any Lien of any nature whatsoever,
other than those Liens arising hereunder or under the Collateral
Documents, upon any of the properties of the Borrower, any of its
Subsidiaries or Holdco.
5.11 Indebtedness. Neither the Borrower, nor any of its
Subsidiaries nor Holdco has any Indebtedness of any nature,
whether due or to become due, absolute, contingent or otherwise,
including Indebtedness for taxes and any interest or penalties
relating thereto, except (a) liabilities reflected in the
Financial Statements, (b) the liability of the Borrower to pay
legal and accounting fees and reasonable closing expenses in
connection with this Agreement, (c) liabilities disclosed on
Exhibit F attached hereto and (d) Indebtedness permitted pursuant
to Section 8.1.
5.12 Compliance. Neither the Borrower nor any of its
Subsidiaries nor the construction, ownership or operation of any
Tower is in material violation of any provision of the Operating
Agreement or other organizational documents of the Borrower or
any of its Subsidiaries or any statute, ordinance, law, rule,
regulation or order of the United States of America, the FCC, the
FAA, or any other federal, state, county, municipal or other
governmental agency or authority applicable to it, any material
portion of its properties, the maintenance of any Material Towers
or the conduct of its business. Neither the Borrower nor any of
its Subsidiaries has violated or breached in any material respect
the provisions of any material indenture, License, agreement,
note, lease or other instrument or document to which it is a
party or by which it is bound, nor does there exist any material
default, or any event or condition which, upon notice or lapse of
time, or both, would become a material default, under any such
material indenture, License, agreement, note, lease, or other
instrument or document. Each of the Borrower and its Subsidiaries
has the legal right and authority, including without limitation,
necessary authorizations from the FCC and the FAA, to conduct its
business as now conducted or proposed to be conducted.
5.13 Statements Not Misleading. No statement,
representation or warranty made by the Borrower, any of its
Subsidiaries, Holdco or any other party (other than the Agent and
the Banks) in or pursuant to this Agreement or the Exhibits
attached hereto or any of the Collateral Documents contains or
<PAGE>
will contain any untrue statement of a material fact, nor omits
or will omit to state a material fact necessary to make such
statement not misleading or otherwise violates any federal or
state securities law, rule or regulation. There is no fact known
to the Borrower (other than matters of a general economic nature)
that has had or could reasonably be expected to have a Material
Adverse Effect and that has not been disclosed herein.
5.14 Consents or Approvals. No material consent,
approval or authorization of, or filing, registration or
qualification with, any governmental authority or any other
Person (including, without limitation, the FCC, the FAA or any
other Licensing Authority) is required to be obtained by the
Borrower, any of its Subsidiaries or Holdco in connection with
the execution, delivery or performance of this Agreement, any
Collateral Document, the Management Agreement, the Build to Suit
Agreement or any other Transaction Document (other than any of
the foregoing that may be required in connection with the Tower
Subsidiary's performance of its obligations under the Build to
Suit Agreement), including, without limitation, in connection
with the granting of liens and security interests in the
Membership Interests and assets of the Borrower and its
Subsidiaries, that has not already been obtained or completed,
except for the filing of financing statements and other actions
expressly required to be taken pursuant to the Collateral
Documents.
5.15 Material Contracts and Commitments. Exhibit G
attached hereto contains a true and complete description of all
material contracts, licenses and commitments of the Borrower,
each of its Subsidiaries and Holdco as of the Closing Date (after
giving effect to the transactions contemplated by the Transaction
Documents), whether oral or written, including, without
limitation, (a) those governing any Indebtedness; (b) any
security agreement, pledge agreement, mortgage or guaranty; (c)
management, construction supervision, service or employment
agreements, conditional sales contracts or leases of real or
personal property, which involve expenditures in excess of
$500,000 in any single case; (d) collective bargaining
agreements; (e) contracts or commitments for the future purchase
or sale of goods, other than those which involve the payment or
receipt of less than $500,000 in any single case; (f) contracts
or commitments which involve a Capital Expenditure in excess of
$500,000 in any single case; (g) bonus, pension, retirement,
insurance or other employee benefit plans; (h) all Licenses; (i)
all Tenant Leases; and (j) all management agreements. All of the
agreements, contracts and commitments listed on Exhibit G are in
full force and effect without material default. Exhibit G further
identifies each such Tenant Lease which requires consent to the
granting of a Lien in favor of the Agent, for the benefit of the
Banks, on the rights of the Borrower or any Subsidiary which is a
party to such contract. The Borrower has made available to the
Agent true and complete copies of all of the agreements,
contracts and commitments listed on Exhibit G.
<PAGE>
5.16 Employee Benefit Plans. Exhibit H contains a true
and complete list of all Plans maintained by the Borrower or any
member of the Controlled Group. Neither the Borrower nor any
member of the Controlled Group has, or will have after giving
effect to the consummation of the transactions contemplated by
the Transaction Documents, any liability, or reasonably
anticipates any accrued and unpaid liability, of any kind
(including any withdrawal liability under Section 4201 of ERISA)
which is in excess, in the aggregate, of $500,000, to or in
respect of any Plan or Benefit Arrangement. With respect to the
Plans and Benefit Arrangements currently maintained by the
Borrower or any member of the Controlled Group: (a) each Plan
that is intended to be qualified under Code Section 401(a) is so
qualified and has been so qualified since its adoption, and each
trust forming a part thereof is exempt from tax under Code
Section 501(a); (b) each Plan complies in all material respects
with all applicable requirements of law, has been administered in
accordance with its terms and all required contributions have
been made; (c) neither the Borrower nor any member of the
Controlled Group knows or has reason to know that the Borrower or
any member of the Controlled Group has engaged in a transaction
which would subject it to any tax, penalty or liability under
ERISA or the Code for any prohibited transaction; and (d) no Plan
is subject to the minimum funding requirements under ERISA
Section 302 or Code Section 412 or is a defined benefit plan (as
defined under ERISA Section 3(35) or Code Section 414(j)). No
Plan or Benefit Arrangement maintained by the Borrower or any
member of the Controlled Group or to which the Borrower or any
member of the Controlled Group is required to contribute is (i) a
multiple employer welfare arrangement (as defined in ERISA
Section 3(40)), (ii) a multiemployer plan (as defined in ERISA
Section 4001(a)(3)), or (iii) a multiple employer plan (as
defined in ERISA Section 4063).
5.17 Licenses and Registrations. The Licenses shown on
Exhibit G constitute as of the Closing Date (after giving effect
to the transactions contemplated by the Transaction Documents)
all of the material Licenses which are necessary for the lawful
ownership, construction, management or operation of Towers
(including Towers acquired pursuant to the Transaction Documents)
or of the business of the Borrower or of any of its Subsidiaries
in the manner and to the full extent they are currently (or after
giving effect to the consummation of the Transaction Documents,
will be) owned, constructed, managed and operated. Exhibit G sets
forth a correct and complete list as of the Closing Date
(after giving effect to the transactions contemplated by the
Transaction Documents) of each pending application for a License
filed by the Borrower or any of its Subsidiaries. Subject only
to the submission of routine informational filings concerning
name changes which will be submitted no later than ten days
following the Closing, all of the material Licenses have been
duly and validly issued to and are legally held by the Borrower
and its Subsidiaries and are in full force and effect without
condition (after giving effect to the transactions contemplated
<PAGE>
by the Transaction Documents) except those of general
application. The material Licenses have been issued in compliance
with all applicable laws and regulations, are legally binding and
enforceable in accordance with their terms and are in good
standing. The Borrower knows of no facts or conditions which
would constitute grounds for any Licensing Authority to deny any
pending material application for a License with respect to any
Material Towers, to suspend, revoke, materially adversely modify
or annul any License with respect to any Material Towers or to
impose a material financial penalty on the Borrower or any of its
Subsidiaries. All Material Towers that are required to be
registered with the FCC have either been so registered or are in
the process of being registered, and all information submitted in
connection with such registrations is true and complete in all
material respects.
5.18 Material Restrictions. Neither the Borrower nor
any of its Subsidiaries is a party to any agreement or other
instrument or subject to any other restriction that materially
and adversely affects or could materially and adversely affect
its business, property, assets, operations or condition,
financial or otherwise.
5.19 Investment Company Act. The Borrower (a) is not an
investment company as that term is defined in the Investment
Company Act of 1940, as amended, (b) does not directly or
indirectly control, and is not controlled by a company which is,
an investment company as that term is defined in such act and (c)
is not otherwise subject to regulation under such act.
5.20 Absence of Material Adverse Effect. No Material
Adverse Effect has occurred.
5.21 Defaults. No Possible Default or Event of Default
now exists or will exist upon the making of any Loan.
5.22 Real Property. Exhibit I attached hereto lists as
of the Closing Date, after giving effect to the consummation of
the transactions contemplated by the Transaction Documents, (a)
all real estate owned by the Borrower or any of its Subsidiaries,
and (b) all Land Lease Agreements and other leases pursuant to
which the Borrower or any of its Subsidiaries has acquired a
leasehold interest in real estate.
5.23 Securities Laws. No proceeds of any Loan will be
used by the Borrower or its Subsidiaries to acquire any security
in any transaction which is subject to Section 13 or 14 of the
Securities Exchange Act of 1934, as amended. Neither the
registration of any security under the Securities Act of 1933, as
amended, or the securities laws of any state, nor the
qualification of an indenture in respect thereof under the Trust
Indenture Act of 1939, as amended, is required in connection with
the consummation of this Agreement or any of the Transaction
Documents or the execution and delivery of the Notes.
<PAGE>
5.24 Insurance. All policies of insurance of any kind
or nature owned by or issued to the Borrower or any of its
Subsidiaries, including, without limitation, policies of fire,
theft, public liability, property damage, other casualty,
employee fidelity, worker's compensation, employee health and
welfare, title, property and liability insurance, comply with the
requirements of Section 7.3, are in full force and effect and are
of a nature and provide such coverage as is sufficient and as is
customarily carried by companies of the size and character of the
Borrower or such Subsidiary and engaged in a similar business. In
the past three years, neither the Borrower nor any of its
Subsidiaries has been refused insurance for which it applied or
had any policy of insurance terminated (other than at its
request).
5.25 Labor Disputes. There are no material strikes,
unfair labor practice charges or other labor disputes or
grievances pending or, to the best of the Borrower's knowledge,
threatened against the Borrower or any of its Subsidiaries.
Neither the Borrower nor any of its Subsidiaries has received any
written complaints, and has no knowledge of any threatened
complaints, nor to the best of the Borrower's knowledge are any
such complaints on file with any Federal, state or local
governmental agency, alleging material employment discrimination
by the Borrower or any of its Subsidiaries. All payments due from
the Borrower or any of its Subsidiaries pursuant to the
provisions of any collective bargaining agreement have been paid
or accrued as a liability on the books of the Borrower or such
Subsidiary.
5.26 Environmental Compliance.
After giving effect to the consummation of the
transactions contemplated by the Formation Agreement:
(a) The Borrower and its Subsidiaries have
obtained all material permits, licenses and other authorizations,
and have filed all material certificates and reports, that are
required under all Environmental Laws, are in material compliance
with all terms and conditions of all such permits, licenses and
authorizations, and the Borrower, its Subsidiaries and their
properties are in material compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any applicable
Environmental Law or in any regulation, code, plan, order,
decree, judgment, injunction, notice or demand letter issued,
entered, promulgated or approved thereunder, including, without
limitation, all Environmental Laws in all jurisdictions in which
the Borrower or any of its Subsidiaries owns, maintains or
manages a Tower, a facility or site, arranges or has arranged for
disposal or treatment of Hazardous Materials, solid waste or
other wastes, accepts or has accepted for transport any Hazardous
Materials, solid waste or other wastes or holds or has held any
interest in real property or otherwise.
<PAGE>
(b) No Environmental Claim has been issued, no
complaint has been filed, no penalty has been assessed and no
litigation, proceeding, investigation or review is pending or, to
the best of the Borrower's knowledge, threatened by any Person
with respect to any alleged failure by the Borrower or any of its
Subsidiaries or any predecessor owner or operator of any of their
respective properties to comply in any material respect with any
Environmental Law or to have any material permit, license or
authorization required in connection with the conduct of their
respective businesses or with respect to any generation,
treatment, storage, recycling, transportation, use, disposal or
Release of any Hazardous Materials generated by them or with
respect to any real property in which the Borrower or any of its
Subsidiaries holds or has held an interest or any past or present
operation of the Borrower or any of its Subsidiaries.
(c) There are no Environmental Laws requiring any
material work, repairs, construction, Capital Expenditures or
other remedial work of any nature whatsoever, with respect to any
real property in which the Borrower or any of its Subsidiaries
holds or has held an interest or any past or present operation of
the Borrower or any of its Subsidiaries.
(d) To the best of the Borrower's knowledge,
neither the Borrower nor any of its Subsidiaries has handled any
Hazardous Material, on any property now or previously owned or
leased by the Borrower or any of its Subsidiaries to an extent
that it has, or could reasonably be expected to have, a Material
Adverse Effect, and to the best of the Borrower's knowledge,
except as could not reasonably be expected to have a Material
Adverse Effect:
(i) no PCBs are present at any property now
or previously owned or any premises now or previously leased by
the Borrower or any of its Subsidiaries;
(ii) no asbestos is present at any property
now or previously owned or any premises now or previously leased
by the Borrower or any of its Subsidiaries;
(iii) no underground storage tanks for
Hazardous Materials, active or abandoned, are now or were
previously operated at any property now or previously owned by
the Borrower or any of its Subsidiaries, and, with respect to
premises now or previously leased by the Borrower or any of its
Subsidiaries, no underground storage tanks for Hazardous
Materials, active or abandoned, are now or were previously
operated by the Borrower or any of its Subsidiaries;
(iv) no Hazardous Materials have been
Released, in a reportable quantity, where such a quantity has
been established by statute, ordinance, rule, regulation or
order, at, on or under any property now or previously owned by
the Borrower or any of its Subsidiaries; and
<PAGE>
(v) no Hazardous Materials have been
otherwise Released at, on or under any property now or previously
owned or any premises now or previously leased by the Borrower or
any of its Subsidiaries.
(e) Neither the Borrower nor any of its
Subsidiaries has transported or arranged for the transportation
of any material amount of Hazardous Material to any location that
is listed on the National Priorities List ("NPL") under the
Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended ("CERCLA"), listed for possible inclusion
on the NPL by the Environmental Protection Agency in the
Comprehensive Environmental Response and Liability Information
System, as provided for by 40 C.F.R. ss.300.5 ("CERCLIS"), or on
any similar state or local list or that is the subject of
Federal, state or local enforcement actions or other
investigations that may lead to any material Environmental Claims
against the Borrower or any of its Subsidiaries.
(f) No material amount of Hazardous Material
generated by the Borrower or any of its Subsidiaries has been
recycled, treated, stored, disposed of or Released by the
Borrower or any of its Subsidiaries at any location.
(g) No notification of a Release of any material
amount of a Hazardous Material has been filed by or on behalf of
the Borrower or any of its Subsidiaries and no property now, or,
to the best of the Borrower's knowledge, previously, owned or
leased by the Borrower or any of its Subsidiaries is listed or
proposed for listing on the NPL or on any similar state list of
sites requiring investigation or clean-up.
(h) There are no Liens arising under or pursuant
to any Environmental Laws on any of the property owned or
premises leased by the Borrower or any of its Subsidiaries, and
no government actions have been taken or are in process which
could subject any of such property to such Liens, and neither the
Borrower nor any of its Subsidiaries would be required to place
any notice or restriction relating to the presence of Hazardous
Materials at any property owned by it in any deed to such
property.
(i) Neither the Borrower nor any of its
Subsidiaries has retained or assumed any liabilities (contingent
or otherwise) in respect of any Environmental Claims (i) under
the terms of any contract or agreement or (ii) by operation of
law as a result of merger, consolidation or the sale, exchange or
contribution of assets or stock, other than any liabilities
expressly described in Exhibit M attached hereto.
(j) There have been no environmental
investigations, studies, audits, tests, reviews or other analyses
conducted by or which are in the possession of the Borrower or
any of its Subsidiaries in relation to any property or facility
<PAGE>
now or previously owned or leased by the Borrower or any of its
Subsidiaries which have not been disclosed in writing and made
available to the Agent.
5.27 Year 2000. The Borrower has determined that the
computer systems of the Borrower and its Subsidiaries and
equipment containing embedded microchips (including systems and
equipment supplied by others or with which the systems of the
Borrower or its Subsidiaries interface) will function properly in
and following the year 2000, and that no action is required to be
taken by the Borrower or its Subsidiaries to permit such proper
functioning. The cost to the Borrower and its Subsidiaries of the
reasonably foreseeable consequences of year 2000 to the Borrower
and its Subsidiaries (including, without limitation,
reprogramming errors and the failure of others' systems or
equipment) will not result in an Event of Default or a Material
Adverse Effect. The computer and management information systems
of the Borrower and its Subsidiaries are and, with ordinary
course upgrading and maintenance, will continue to be, sufficient
to permit the Borrower and its Subsidiaries to conduct their
business without Material Adverse Effect.
5.28 Solvency. The Borrower has received, or has the
right hereunder to receive, consideration which is the reasonably
equivalent value of the obligations and liabilities that the
Borrower has incurred to the Banks. The Borrower is not insolvent
as defined in Section 101 of Title 11 of the United States Code
or any applicable state insolvency statute, nor, after giving
effect to the consummation of the transactions contemplated
herein and in the Transaction Documents, will the Borrower be
rendered insolvent by the execution and delivery of this
Agreement, the Notes or the Collateral Documents to the Banks.
The Borrower is not engaged, and the Borrower is not about to
engage, in any business or transaction for which the assets
retained by it shall be an unreasonably small capital, taking
into consideration the obligations to the Banks incurred
hereunder. The Borrower does not intend to, nor does the Borrower
believe that it will, incur debts beyond its ability to pay them
as they mature.
5.29 Transaction Documents. The Borrower has provided
to the Agent a complete and correct copy of each of the
Transaction Documents and the other agreements and documents
executed and delivered pursuant thereto. To the best of the
Borrower's knowledge, all of the representations and warranties
of the parties in the Transaction Documents are true and correct
in all material respects as of the date hereof as if given as of
the date hereof, and will be true and correct in all material
respects as of the Closing Date as if given as of such date, and
no default or event of default exists thereunder or will exist
after giving effect to the making of any Loan or the issuance of
any Letter of Credit hereunder. The Transaction Documents have
not been amended or modified, and no provisions thereof have been
<PAGE>
waived. The making of any Loan hereunder does not and will not
constitute a default under any of the Transaction Documents.
SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE BANKS.
The obligations of the Banks to make the initial Loans
on the Closing Date, to issue any Letter of Credit and to make
any subsequent Loan are subject to the fulfillment or waiver in
writing of each of the following conditions precedent. The
Borrower shall deliver to the Agent copies for each Bank of each
document, instrument or other item to be delivered pursuant to
this Section 6.
6.1 Compliance. All of the representations and
warranties of the Borrower, its Subsidiaries and Holdco herein
and in the Collateral Documents shall be true in all material
respects on and as of the Closing Date, the date of issuance of
any Letter of Credit and the date of any subsequent Loan (other
than a Loan resulting from the funding of a Letter of Credit), as
if made on and as of such date, both before and after giving
effect to the making of the proposed Loan or the issuance of the
proposed Letter of Credit, except to the extent that any thereof
expressly relate to an earlier date, in which case such
representations and warranties shall have been true in all
material respects as of such earlier date. The Borrower, its
Subsidiaries and Holdco shall have performed and be in compliance
with all the provisions of this Agreement and each Collateral
Document, and no Possible Default or Event of Default shall have
occurred and be continuing, on and as of the Closing Date and the
date of any subsequent Loan (other than a Loan resulting from the
funding of a Letter of Credit) or the issuance of a Letter of
Credit, before and after giving effect to the making of the
proposed Loan or the issuance of the proposed Letter of Credit.
On the Closing Date and on the date of each subsequent Loan
(other than a Loan resulting from the funding of a Letter of
Credit) and the date of issuance of any Letter of Credit, the
Borrower shall deliver to the Banks a certificate, dated as of
such date, and signed by the President or the chief financial
officer of the Borrower, certifying compliance with the
conditions of this Section 6.1. Each request by the Borrower for
a Loan or a Letter of Credit shall, in and of itself, constitute
a representation and warranty that the Borrower, as of the date
of such Loan or Letter of Credit, is in compliance with this
Section.
6.2 Security Agreements.
(a) The Borrower shall have executed and delivered
to the Agent a Security Agreement in form and substance
satisfactory to the Agent (the "Borrower Security Agreement"),
granting to the Agent, for the benefit of the Banks, a perfected,
first priority security interest in all of the Borrower's right,
title and interest in and to the Management Agreement and in all
distributions and other payments from the Tower Subsidiary and
<PAGE>
each other Subsidiary to the Borrower; all actions necessary or
appropriate to perfect such security interest shall have been
taken; and the Borrower Security Agreement, and the security
interests granted pursuant thereto, shall be in full force and
effect.
(b) The Tower Subsidiary shall have executed and
delivered to the Agent a Security Agreement in form and substance
satisfactory to the Agent (the "Tower Subsidiary Security
Agreement"), granting to the Agent, for the benefit of the Banks,
a perfected, first priority security interest in all of the Tower
Subsidiary's right, title and interest in and to the Global Lease
and all other Tenant Leases; all actions necessary or appropriate
to perfect such security interest shall have been taken; and the
Tower Subsidiary Security Agreement, and the security interests
granted pursuant thereto, shall be in full force and effect.
6.3 Pledge Agreements.
(a) Holdco shall have executed and delivered to
the Agent a Pledge Agreement in form and substance satisfactory
to the Agent (the "Holdco Pledge Agreement"), granting to the
Agent, for the benefit of the Banks, a perfected, first priority
security interest in all of the issued and outstanding Membership
Interests of the Borrower; Holdco shall have delivered to the
Agent any certificates evidencing all of such Membership
Interests and duly executed blank powers in respect thereof and
shall have taken all other actions as may be required to effect
the grant and perfection of the Agent's security interest in such
Membership Interests; and the Holdco Pledge Agreement, and the
security interests granted pursuant thereto, shall be in full
force and effect.
(b) The Borrower and BAM shall have executed and
delivered to the Agent a Pledge Agreement in form and substance
satisfactory to the Agent (the "Tower Subsidiary Pledge
Agreement"), granting to the Agent, for the benefit of the Banks,
a perfected, first priority security interest in all of the
issued and outstanding Membership Interests of Tower Subsidiary;
the Borrower and BAM shall have delivered to the Agent any
certificates evidencing all of such Membership Interests and duly
executed blank powers in respect thereof and shall have taken all
actions as may be required to effect the grant and perfection of
the Agent's security interest in such Membership Interests; and
the Tower Subsidiary Pledge Agreement, and the security interests
granted pursuant thereto, shall be in full force and effect.
6.4 Real Property Matters.
(a) Non-Disturbance Agreement. BAM and each of
its affiliates that is a party to the Global Lease shall have
entered into a Subordination, Non-Disturbance and Attornment
Agreement, in form and substance satisfactory to the Agent, with
the Agent, for the benefit of the Banks, with respect to the
<PAGE>
Global Lease. At the request of the Agent, the Borrower shall
have used its commercially reasonable efforts to have each other
anchor tenant under a Tenant Lease on any Tower not included in
the Global Lease enter into a Subordination, Non-Disturbance and
Attornment Agreement, in form and substance satisfactory to the
Agent, with the Agent, for the benefit of the Banks, with respect
to such Tenant Lease.
(b) Environmental Studies. The Borrower shall have
delivered to the Agent a summary of the conclusions of each
environmental assessment and environmental transaction screen
available to it relating to any of its or its Subsidiaries'
properties (including those acquired pursuant to the Formation
Agreement), and none of such environmental assessments and
environmental transaction screens shall indicate any material
violation of Environmental Laws or other environmental matters
that individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect.
6.5 Financing Statements. Any financing statements
required by the Security Agreements, the Pledge Agreements or any
other Collateral Documents shall have been filed for record with
the appropriate governmental authorities.
6.6 Guaranties.
(a) The Tower Subsidiary shall have executed and
delivered to the Agent, for the benefit of the Banks, a limited
recourse guaranty in form and substance satisfactory to the Agent
(the "Tower Subsidiary Guaranty"), of all of the Borrower's
Obligations hereunder, under the Notes and under each Collateral
Document.
(b) BAM Sub shall have executed and delivered to
the Agent, for the benefit of the Banks, a guaranty of
performance in form and substance satisfactory to the Agent (the
"BAM Sub Guaranty"), of all of the Borrower's Obligations
hereunder, under the Notes and under each Collateral Document,
and the Agent shall be satisfied with the capitalization of BAM
Sub.
6.7 BAM Purchase Agreement. BAM and each of the Banks
shall have entered into an agreement in form and substance
satisfactory to the Banks granting BAM the right (but not the
obligation), upon the occurrence of an Event of Default, to
purchase the Loans (the "BAM Purchase Agreement").
6.8 Consummation of Formation Agreement.
(a) The Formation Agreement (including the
exhibits, schedules and annexes thereto) shall not have been
amended or modified in any respect except as such Agreement may
be modified by the addition of Towers transferred thereunder and
disclosure relating to such additional Towers which disclosure
<PAGE>
shall be reasonably satisfactory to the Agent. The transactions
contemplated by the Formation Agreement shall have been
consummated, or shall be consummated simultaneously with the
making of the initial Loans hereunder, without the waiver of any
material term or condition by any party thereto; provided,
however, that a reduction in the number of Towers conveyed to the
Tower Subsidiary pursuant to the Formation Agreement at the
closing under that agreement shall not constitute a waiver of a
material term or condition thereunder unless the number of Towers
so conveyed is less than 1227. Without limiting the foregoing
sentence, the Borrower and the Tower Subsidiary shall have
acquired pursuant to the Formation Agreement substantially all of
the "BAM Contributed Assets" (as that term is defined in the
Formation Agreement), free and clear of all Liens, except
Permitted Liens. The consummation of the transactions
contemplated by the Formation Agreement shall be completed in a
manner satisfactory to the Agent, and the Agent shall have
received conformed copies or photocopies of all conveyance and
other material documents relating thereto. The Borrower shall
cause all opinions and certificates delivered to the Borrower or
the Tower Subsidiary in connection with such closing to be
addressed to the Banks.
(b) The Borrower shall have delivered to the Agent
certified copies of the Formation Agreement and of all other
Transaction Documents and agreements, documents and instruments
entered into in connection therewith. None of the Transaction
Documents shall have been modified from the forms thereof
reviewed and approved by the Agent at the time of execution of
the Formation Agreement in any respect (other than the addition
of Transferring Partnerships or as set forth in subsection (a)
above). The Bidder Services Agreement and the Transitional
Services Agreement, if then applicable, the Management Agreement
and the Operating Agreements shall be in form and substance
reasonably satisfactory to the Agent.
(c) Any party to the Formation Agreement or any
other Transaction Document that has rights pursuant to such
Transaction Document that are similar to those set forth in
Article 8 of the Formation Agreement shall have entered into an
agreement with the Agent, in form and substance satisfactory to
the Agent, pursuant to which such party (i) consents to the
execution, delivery and performance of this Agreement and all of
the Collateral Documents, (ii) agrees that it shall not (A) agree
to or cause the filing of any petition, or the commencement of
any proceeding, described in Section 9.6 by or against Holdco,
the Borrower or the Tower Subsidiary, (B) exercise any right it
may have under Article 8 of the Formation Agreement or any
comparable provision of any other Transaction Document in any
manner that would cause Holdco, the Borrower or the Tower
Subsidiary to be in breach of any representation, covenant or
agreement herein or in any other Collateral Document, or (C)
exercise any right it may have under Article 8 of the Formation
Agreement or any comparable provision of any other Transaction
<PAGE>
Document to block or prevent the exercise, after the occurrence
and during the continuance of an Event of Default, by the Agent
or the Banks of any rights they may have hereunder or under the
Collateral Documents in respect of Holdco, the Borrower or the
Tower Subsidiary or any of their respective assets, and (iii)
agrees that, if the Membership Interest originally held by BAM in
the Tower Subsidiary is still pledged to the Agent pursuant to
the Tower Subsidiary Pledge Agreement (or a successor pledge
agreement executed pursuant to Section 8.21) as of the date of
such foreclosure or commencement of such exercise, the rights of
such party under Article 8 of the Formation Agreement and under
any comparable provision of any other Transaction Document shall
cease at such time as the Agent forecloses or otherwise commences
the exercise of remedies under the Tower Subsidiary Pledge
Agreement or such successor pledge agreement.
6.9 No Indebtedness. On the Closing Date, the Agent
shall have received evidence satisfactory to it that (a) the
Borrower has no Indebtedness owing to CCIC, BAM, Holdco or any
other Affiliate of the Borrower or Holdco (other than
indemnification obligations under the Formation Agreement), and
(b) the Tower Subsidiary has no Indebtedness except as expressly
permitted pursuant to Section 8.24.
6.10 Opinion of Counsel. On the Closing Date, the Agent
shall have received the favorable written opinions of (a) counsel
to Holdco, the Borrower and Tower Subsidiary in Texas,
Pennsylvania and New Jersey, (b) counsel to BAM with respect to
any Collateral Documents executed by BAM or any of its Affiliates
and (c) FCC counsel to the Borrower and its Subsidiaries, in each
case dated the Closing Date, addressed to the Banks and in form
and substance satisfactory to the Agent.
6.11 Insurance Certificates. The Borrower shall have
furnished to the Agent on or prior to the Closing Date
certificates of insurance (together with, if requested by the
Agent, copies of all policies referred to in such certificates)
or other satisfactory evidence that the insurance required by
Section 7.3 is in full force and effect.
6.12 Financial Information.
(a) On the Closing Date, the Borrower shall have
delivered to the Agent (i) a pro forma balance sheet as of the
Closing Date and (ii) a statement in form and substance
reasonably satisfactory to the Agent as to the Operating Cash
Flow and Test Operating Cash Flow of the Towers being acquired
pursuant to the Transaction Documents, in each case on a pro
forma basis, giving effect to the closing hereunder and the
closing under the Transaction Documents, for the twelve month
period most recently ended prior to the Closing Date, and as to
such other matters as the Agent may reasonably request.
<PAGE>
(b) On, or one Banking Day prior to, the date of
each borrowing hereunder of $5,000,000 or more, the date of each
issuance of a Letter of Credit with a stated amount of $5,000,000
or more, and, to the extent requested by the Agent, the date of
any other borrowing hereunder or issuance of a Letter of Credit,
the Borrower shall have delivered to the Agent a pro forma
compliance certificate in form and substance satisfactory to the
Agent showing the Leverage Ratio and the Borrowing Base as of the
date of such borrowing or issuance of a Letter of Credit and the
Borrower's compliance on a pro forma basis with the financial
covenants set forth in Section 8.
(c) On the Closing Date, the Borrower shall have
delivered to the Agent a solvency certificate in form and
substance satisfactory to the Agent executed by the chief
financial officer of the Borrower.
6.13 Borrowing Request and Statement of Application of
Proceeds. The Borrower shall have delivered to the Agent in
respect of each Loan a borrowing request, in form and substance
satisfactory to the Agent, setting forth the application of the
proceeds of the requested Loan, evidence that such application is
permitted pursuant to Sections 2 and 7.1, the recipient of such
proceeds and wire transfer instructions.
6.14 Organizational Documents. On the Closing Date, the
Borrower shall have delivered to the Agent the following:
(a) certificates of good standing for Holdco and
each of the Borrower and its Subsidiaries from the Secretary of
State (or other appropriate governmental body) of their
respective jurisdictions of organization and from each other
jurisdiction in which any of them is qualified to do business, in
each case dated as of a date as near to the Closing Date as
practicable;
(b) a certificate signed by the Secretary or
Assistant Secretary of the Borrower dated as of the Closing Date
certifying that attached thereto are true and complete copies of
(i) the Operating Agreements and other organization documents of
the Borrower, Holdco, and each of the Borrower's Subsidiaries,
which shall be in form and substance reasonably satisfactory to
the Agent, and (ii) resolutions adopted by the respective Boards
of Representatives of the Borrower, its Subsidiaries and Holdco
authorizing the execution, delivery and performance of this
Agreement and the Collateral Documents and the Obligations to be
performed by such parties hereunder and thereunder;
(c) an incumbency certificate for the Borrower,
each of its Subsidiaries and Holdco; and
(d) such other documents as any Bank may
reasonably request in connection with the proceedings taken by
the Borrower, any of its Subsidiaries or Holdco authorizing this
<PAGE>
Agreement, the Collateral Documents and the transactions
contemplated hereby, to the extent it is a party thereto.
6.15 Due Diligence. Prior to the Closing Date, the
Agent and its counsel shall have conducted a due diligence
investigation of Holdco, the Borrower, the Borrower's
Subsidiaries and the transactions and documents contemplated by
the Transaction Documents, and the results of such investigation
shall have been satisfactory to the Agent in all respects.
6.16 Lien Searches, Consents and Releases of Liens. The
Agent shall have received: (a) on the Closing Date, certified
copies of UCC, judgment and tax lien search reports for each
state in which are located towers or other income producing
property of the Borrower or any of its Subsidiaries and in each
county in which are located towers or other income producing
property of the Borrower or any of its Subsidiaries that the
Borrower reasonably estimates will generate in the aggregate at
least 50% of the gross revenues of the Borrower and its
Subsidiaries for the twelve month period following the Closing
Date, listing all effective financing statements and other Liens
on any of the property of the Borrower or such Subsidiary in such
jurisdictions, (b) on the date of any subsequent Loan the
proceeds of which are being used to acquire towers or other
income producing property, certified copies of UCC, judgment and
tax lien search reports for each state in which are located such
towers or other income producing property and in each county in
which are located such towers or other income producing property
that have generated on a pro forma basis in the aggregate at
least 50% of the gross revenues of all such towers and other
income producing property being acquired for the twelve month
period most recently ended prior to date of making such Loan,
listing all effective financing statements and other Liens on any
of the property of the Borrower or such Subsidiary (including
such acquired property) in such jurisdictions, and (c) on the
Closing Date and the date of any subsequent Loan, releases of any
existing Liens encumbering any assets of the Borrower or any of
its Subsidiaries, except for Permitted Liens.
6.17 No Order, Judgment, Decree or Litigation. No
order, judgment or decree of any court, arbitrator or
governmental authority shall purport to enjoin or restrain the
Banks from making any Loan. No action, suit, complaint,
proceeding, inquiry or investigation at law or in equity, or by
or before any court or governmental instrumentality or agency,
nor any order, decree or judgment in effect, shall be pending or,
to the best of the Borrower's knowledge, threatened against or
affecting the Borrower, any of its Subsidiaries, any Material
Towers or any of the properties or rights relating to any
Material Towers, and no application, petition, complaint,
proceeding or investigation shall be pending or, to the best of
the Borrower's knowledge, threatened, with respect to any License
or which could restrict the ownership, operation or license
<PAGE>
status of any Material Towers, which in any such case could
reasonably be expected to have a Material Adverse Effect.
6.18 No Material Adverse Effect. No Material Adverse
Effect shall have occurred since September 30, 1998, and be
continuing.
6.19 Fee Letter; Fees and Expenses. The Borrower shall
have paid all fees accrued under the Fee Letter through the
Closing Date, and the Borrower shall have paid all other fees,
expenses and other amounts due pursuant hereto and pursuant to
the Fee Letter on or prior to the date of such initial or
subsequent Loan.
6.20 Legal Approval. All legal matters incident to this
Agreement and the consummation of the transactions contemplated
hereby shall be reasonably satisfactory to Dow, Lohnes &
Albertson, PLLC, special counsel to the Agent.
6.21 Other Documents. The Agent shall have received all
Collateral Documents duly executed, and each Bank shall have
received such other certificates, opinions, agreements and
documents, in form and substance satisfactory to it, as it may
reasonably request.
SECTION 7. AFFIRMATIVE COVENANTS OF THE BORROWER.
So long as this Agreement remains in effect or any of
the Obligations remains unpaid or to be performed, or any Letter
of Credit remains outstanding, the Borrower shall, and shall
cause its Subsidiaries to, perform and comply with the
affirmative covenants contained in this Section.
7.1 Use of Proceeds. The Borrower shall use the
proceeds of the Loans only as follows: (a) not more than
$180,000,000, as such amount may be reduced pursuant to the
Formation Agreement (or increased with the consent of all of the
Banks), for the Capital Distribution contemplated pursuant to
Section 8.9(a)(iii); (b) for Qualified Acquisitions; (c) for
Capital Expenditures to the extent permitted pursuant to Section
8.7; (d) for the construction of communications tower facilities,
including construction pursuant to the Build to Suit Agreement;
(e) for fees and transaction costs associated with this Agreement
and Qualified Acquisitions; and (f) for general working capital
purposes.
7.2 Continued Existence; Compliance with Law. The
Borrower shall, and shall cause each of its Subsidiaries to, do
or cause to be done all things necessary to preserve, renew and
keep in full force and effect its existence and its material
rights, Licenses, Land Lease Agreements and the Global Lease.
Without limiting the generality of the foregoing, the Borrower
shall, and shall cause each of its Subsidiaries to, obtain and
<PAGE>
maintain and preserve in full force and effect any and all
material Licenses and Land Lease Agreements and other material
contracts necessary to maintain, operate and manage the Towers,
not breach or violate the same, and take all actions which may be
required to comply in all material respects with all laws,
statutes, rules, regulations, ordinances, codes, orders and
decrees now in effect or hereafter promulgated by any federal,
state, local or foreign governmental authority. The Borrower
shall obtain, renew and extend all of the foregoing rights,
franchises, permits, Licenses, Land Lease Agreements and the like
which may be necessary for the continuance of the operation,
maintenance and management of the Towers.
7.3 Insurance. The Borrower shall, and shall cause
its Subsidiaries to, keep their insurable properties insured to
the full replacement cost thereof at all times by financially
sound and reputable insurers acceptable to the Agent, and
maintain such other insurance, to such extent and against such
risks, including fire, lightning, vandalism, malicious mischief,
flood (if the Borrower's property is located in an identified
flood hazard area, in which insurance has been made available
pursuant to the National Flood Insurance Act of 1968) and other
risks insured against by extended coverage, as is customary with
companies engaged in the same or similar business similarly
situated. All such insurance shall be in amounts sufficient to
prevent the Borrower or any of its Subsidiaries from becoming a
coinsurer and may contain loss deductible provisions of not to
exceed $150,000. The Borrower shall, and shall cause its
Subsidiaries to, maintain in full force and effect liability
insurance and general accident and public liability insurance
against claims for personal or bodily injury, death or property
damage occurring upon, in, about or in connection with the use or
operation of any property or motor vehicles owned, occupied,
controlled or used by the Borrower or any of its Subsidiaries and
its employees or agents, or arising in any other manner out of
the business conducted by the Borrower and its Subsidiaries. The
Borrower shall maintain business interruption insurance in form
and amount satisfactory to the Agent. All of such insurance
shall be in amounts reasonably satisfactory to the Agent and
shall be obtained and maintained by means of policies with
generally recognized, responsible insurance companies authorized
to do business in such states as may be necessary depending upon
the locations of the Borrower's and its Subsidiaries' assets.
The insurance to be provided may be blanket policies. Each
policy of insurance shall be written so as not to be subject to
cancellation or substantial modification without not less than
thrty days advance written notice to the Agent. The Borrower
shall furnish the Agent annually with certificates or other
evidence satisfactory to the Agent that the insurance required
hereby has been obtained and is in full force and effect and,
prior to the expiration of any such insurance, the Borrower shall
furnish the Agent with evidence satisfactory to the Agent that
such insurance has been renewed or replaced. The Borrower shall,
upon request of the Agent, furnish the Agent such information
<PAGE>
about the Borrower's and its Subsidiaries' insurance as the
Agent may from time to time reasonably request.
7.4 Obligations and Taxes. The Borrower shall, and
shall cause its Subsidiaries to, pay or perform all of their
respective material Indebtedness and other material liabilities
and obligations in a timely manner in accordance with normal
business practices and with the terms governing the same. The
Borrower shall, and shall cause its Subsidiaries to, comply
with the terms and covenants of all material agreements and all
material leases of real or personal property, including,
without limitation, the Management Agreement, the Land Lease
Agreements and the Tenant Leases. The Borrower shall take all
commercially reasonable actions as may be necessary to keep all
material patents, copyrights and trademarks from becoming
invalidated or subject to any claim of abandonment for non-use.
The Borrower shall, and shall cause its Subsidiaries to, pay
and discharge promptly all taxes, assessments and governmental
charges or levies imposed upon them or in respect of their
property before the imposition of any penalty, as well as all
lawful claims for labor, materials, supplies or other matters
which, if unpaid, might become a Lien or charge upon such
properties or any part thereof; provided, however, that the
Borrower and its Subsidiaries shall not be required to pay and
discharge or cause to be paid and discharged any such tax,
assessment, charge, levy or claim so long as (a) the validity
thereof is being contested diligently and in good faith by
appropriate proceedings and the enforcement thereof is stayed,
pending the outcome of such proceedings, (b) the Borrower or
its Subsidiary has set aside on its books adequate reserves (to
the extent required by GAAP or sound business practice) with
respect thereto, and (c) such contest will not endanger the
Lien of the Agent or the Banks in any of the Borrower's or such
Subsidiary's assets.
7.5 Financial Statements and Reports. The Borrower
shall, and shall cause each of its Subsidiaries to, maintain
true and complete books and records of account in accordance
with GAAP. The Borrower shall furnish to the Agent, for
delivery to the Banks, the following financial statements,
projections and notices at the following times:
(a) As soon as available, but in no event later
than ninety days after the end of each fiscal year of the
Borrower, the Borrower shall furnish (i) audited consolidated
financial statements, including a consolidated balance sheet and
consolidated income and expense statements, of the Borrower and
its Subsidiaries as of the close of such fiscal year reflecting
the results of their operations during such fiscal year, together
with a consolidated statement of cash flows of the Borrower and
its Subsidiaries and additional statements, schedules and
footnotes as are customary in a complete accountant's report;
such financial statements shall set forth, in comparative form,
corresponding figures for the prior year and shall be certified
by nationally recognized independent certified public accountants
<PAGE>
selected by the Borrower and acceptable to the Agent and
accompanied by the management letter of such accountants to the
Borrower, and the opinion of such accountants shall be
unqualified and in a form reasonably satisfactory to the Agent;
and (ii) a statement signed by such accountants to the effect
that in connection with their examination of such financial
statements they have reviewed the provisions of this Agreement
and have no knowledge of any event or condition which
constitutes an Event of Default or Possible Default or, if they
have such knowledge, specifying the nature and period of
existence thereof; provided, however, that in issuing such
statement, such independent accountants shall not be required
to go beyond normal auditing procedures conducted in connection
with their opinion referred to above;
(b) As soon as available, but in no event later
than forty-five days after the end of each month during the
Borrowing Base Period, and after the end of each quarter
thereafter, the Borrower shall furnish (i) unaudited
consolidated and consolidating financial statements, including
consolidated and consolidating balance sheets and income and
expense statements, of the Borrower and its Subsidiaries as of
the end of such period reflecting the results of their
operations during such period and for the then elapsed portion
of the fiscal year, which shall be accompanied by consolidated
and consolidating statements of cash flows of the Borrower and
its Subsidiaries for such periods, and (ii) a statement showing
Capital Expenditures (including a comparison to Capital
Expenditures budgeted for such period), capital expenditures
for the construction or improvement of Towers and income taxes
paid, each for such period; all such financial statements shall
set forth, in comparative form, corresponding figures for the
equivalent period of the prior year and a comparison to budget
for the relevant period, shall be in form and detail
satisfactory to the Agent, and shall be certified as to
accuracy and completeness by the chief financial officer of the
Borrower;
(c) As soon as available, but in no event later
than thirty days after the end of each month, the Borrower
shall furnish (i) an unaudited statement of income and expense
for each Tower for such period and for the then elapsed portion
of the fiscal year and (ii) a report showing the aging of
Receivables and the Borrowing Base as of the end of such month;
all such statements and reports shall set forth, in comparative
form, corresponding figures for the equivalent period of the
prior year and a comparison to budget for the relevant period,
shall be in form and detail satisfactory to the Agent, and
shall be certified as to accuracy and completeness by the chief
financial officer of the Borrower;
(d) The financial statements required under (a)
and (b) above, shall be accompanied by a compliance certificate
in the form attached hereto as Exhibit J executed by the
Borrower's chief financial officer setting forth the computations
<PAGE>
showing compliance with the financial covenants set forth in
Section 8, and certifying that no Possible Default or Event of
Default has occurred, or if any Event of Default or Possible
Default has occurred, stating the nature thereof and the
actions the Borrower intends to take in connection therewith;
(e) The Borrower shall deliver (i) within
forty-five days after the end of each fiscal year, an annual
operating budget for the then current fiscal year, (ii)
promptly upon preparation thereof, any material revisions of
such annual budget and (iii) after each monthly period in which
there is a material adverse deviation from budget a certificate
of the Borrower's chief financial officer explaining the
deviation and the action, if any, the Borrower has taken or
proposes to take with respect thereto;
(f) The Borrower shall furnish within forty-
five days after the end of each month a report in substantially
the form attached hereto as Exhibit K containing the
information required by such report relating to the Towers
owned, operated or managed by the Borrower or any of its
Subsidiaries.
(g) The Borrower shall furnish (i) upon request,
promptly after the filing thereof with the Internal Revenue
Service, copies of each annual report with respect to each Plan
established or maintained by the Borrower or any member of the
Controlled Group for each plan year, including (A) where
required by law, a statement of assets and liabilities of such
Plan as of the end of such plan year and statements of changes
in fund balance and in financial position, or a statement of
changes in net assets available for plan benefits, for such
plan year, certified by an independent public accountant
satisfactory to the Agent, and (B) if prepared by or available
to the Borrower, an actuarial statement of such Plan applicable
to such plan year, certified by an enrolled actuary of
recognized standing acceptable to the Agent; and (ii) promptly
after receipt thereof, a copy of any notice the Borrower or a
member of the Controlled Group may receive from the Department
of Labor or the Internal Revenue Service with respect to any
Plan (other than notices of general application) which could
result in a material liability to the Borrower or any of its
Subsidiaries; the Borrower will promptly notify the Agent of
any material taxes assessed, proposed to be assessed or which
the Borrower has reason to believe may be assessed against the
Borrower or any member of the Controlled Group by the Internal
Revenue Service with respect to any Plan or Benefit
Arrangement; and
(h) Upon the Agent's written request, such other
information about the financial condition, properties and
operations of the Borrower and its Subsidiaries as any Bank may
from time to time reasonably request.
7.6 Notices. The Borrower shall give the Agent, for
distribution to the Banks, notice (a) promptly after its receipt
<PAGE>
of notice thereof, of any action, suit or proceeding by or
against the Borrower or any of its Subsidiaries at law or in
equity, or before any governmental instrumentality or agency, or
of any of the same which may be threatened, which, if adversely
determined, could have a Material Adverse Effect, including,
without limitation, any admonition, censure or adverse citation,
notice or order by the FCC, the FAA, any other Licensing
Authority or any other regulatory agency; (b) within three days
after its receipt of notice thereof, of any action or event
constituting an event of default or violation of any License,
Land Lease Agreement, Transaction Document, the Global Lease, any
material Tenant Lease or any other material contract to which the
Borrower or any of its Subsidiaries is a party or by which the
Borrower or any of its Subsidiaries is bound, or any
investigation, assertion, claim or challenge relating thereto, in
either case which could reasonably be expected to have a Material
Adverse Effect (c) within three days after the occurrence
thereof, of any Possible Default or Event of Default and the
actions the Borrower intends to take in connection therewith; (d)
within five days after its receipt of notice thereof, of any
cancellation of or any material amendment to any of the insurance
policies maintained in accordance with the requirements of this
Agreement, except for cancellations and amendments that occur in
the ordinary course of business; (e) promptly after the
occurrence thereof, of any material strike, labor dispute, slow
down or work stoppage due to a labor disagreement (or any
material development regarding any thereof) affecting the
Borrower or any of its Subsidiaries; (f) promptly after the
occurrence thereof, of any other event, condition, situation,
occurrence or circumstance which could reasonably be expected to
have a Material Adverse Effect; (g) promptly after their receipt
of notice theref, of any material Environmental Claim; and (h)
with respect to all rights, franchises, permits, Licenses and the
like which may be necessary for the continuance of the operation,
maintenance and management of its Towers, (i) any citation or
order relating thereto, (ii) any lapse, suspension, revocation,
rescission, adverse modification or other termination thereof,
(iii) any alleged breach or violation thereof by the Borrower,
any of its Subsidiaries or any other Person, (iv) any proceeding
relating thereto and (v) any refusal of any Person to grant,
renew or extend the same, which in any such case under this
clause (h) could reasonably be expected to have a Material
Adverse Effect.
7.7 Maintenance of Property. The Borrower shall, and
shall cause its Subsidiaries to, at all times maintain and
preserve their Towers, machinery, equipment, motor vehicles,
fixtures and other property in good working order, condition and
repair, normal wear and tear excepted, and in compliance with all
material applicable standards, rules or regulations imposed by
any governmental authority or agency (including, without
limitation, the FCC, the FAA and any other Licensing Authority)
or by any insurance policy held by the Borrower or the
Subsidiaries, except for such property which, in the good faith
<PAGE>
judgment of the Borrower, can no longer be profitably employed in
the business of the Borrower or its Subsidiaries.
7.8 Information and Inspection. The Borrower shall
furnish to the Banks from time to time, upon request, full
information pertaining to any covenant, provision or condition
hereof or of any Collateral Document, or to any matter connected
with its, or its Subsidiaries', books, records, operations,
financial condition, properties, activities or business. The
Borrower shall upon request supply the Banks with copies of all
correspondence, documents, reports or information filed with or
received from any Licensing Authority relating to the Borrower,
any of its Subsidiaries, any Tower or any License. At all
reasonable times and upon reasonable notice, the Borrower shall
permit any authorized representatives designated by any Bank to
visit and inspect any of the properties of the Borrower or any of
its Subsidiaries and their books and records, and to take
extracts therefrom and make copies thereof, and to discuss the
Borrower's and its Subsidiaries' affairs, finances and accounts
with the management and independent accountants of the Borrower
and its Subsidiaries. Any such visit and inspection by a Bank or
its representatives shall by coordinated by the Agent.
7.9 Maintenance of Liens. The Borrower shall, and shall
cause its Subsidiaries to, do all things necessary to preserve
and perfect the Liens of the Agent, for the benefit of the Banks,
arising pursuant hereto and pursuant to the Collateral Documents
as first priority Liens, except for Permitted Liens, and to
insure that the Agent, for the benefit of the Banks, has a Lien
on all of the assets of the Borrower and of each of its
Subsidiaries to the extent purported to be provided herein or in
the Collateral Documents.
7.10 Title To Property. The Borrower shall, and shall
cause each of its Subsidiaries to, own and hold title to all of
its assets in its own name and not in the name of any nominee.
7.11 Environmental Compliance and Indemnity.
(a) The Borrower shall, and shall cause its
Subsidiaries to, comply in all material respects with all
Environmental Laws, including, without limitation, all
Environmental Laws in jurisdictions in which the Borrower or any
of its Subsidiaries owns, maintains, operates or manages a Tower,
facility or site, arranges for disposal or treatment of Hazardous
Materials, solid waste or other wastes, accepts for transport any
Hazardous Materials, solid wastes or other wastes or holds any
interest in real property or otherwise. The Borrower shall not,
and shall not permit any of its Subsidiaries to, cause or allow
the Release of Hazardous Materials, solid waste or other wastes
on, under or to any real property in which the Borrower or such
Subsidiary holds any interest or performs any of its operations,
in material violation of any Environmental Law. The Borrower
shall promptly notify the Agent and the Banks (i) of any material
<PAGE>
Release of a Hazardous Material on, under or from the real
property in which the Borrower or any of its Subsidiaries holds
or has held an interest, upon the Borrower's learning thereof by
receipt of notice that the Borrower or such Subsidiary is or may
be liable to any Person as a result of such Release or that the
Borrower or such Subsidiary has been identified as potentially
responsible for, or is subject to investigation by any
governmental authority relating to, such Release, and (ii) of the
commencement or threat of any material judicial or administrative
proceeding alleging a violation of any Environmental Laws.
(b) If the Agent at any time has a reasonable
basis to believe that there may be a violation of any
Environmental Law by, or any liability arising thereunder of, the
Borrower or any of its Subsidiaries or related to any real
property owned, leased or operated by the Borrower or any of its
Subsidiaries or real property adjacent to such real property,
which violation or liability could reasonably be expected to have
a Material Adverse Effect, then the Borrower shall, upon request
from the Agent, provide the Agent with such reports,
certificates, engineering or environmental studies or other
written material or data as the Agent may require so as to
satisfy the Agent that the Borrower or such Subsidiary is in
material compliance with all applicable Environmental Laws.
(c) The Borrower shall defend, indemnify and hold
the Agent and the Banks, and their respective officers,
directors, stockholders, employees, agents, affiliates,
successors and assigns harmless from and against all costs
(including clean up costs), expenses, fines, claims, demands,
damages, penalties and liabilities of every kind or nature
whatsoever (including reasonable attorneys', consultants' and
experts' fees) arising out of, resulting from or relating to,
directly or indirectly, (i) the noncompliance of the Borrower or
any of its Subsidiaries or any property at any time owned or
leased by the Borrower or any of its Subsidiaries with any
Environmental Law, or (ii) any investigatory or remedial action
involving the Borrower, any of its Subsidiaries or any property
at any time owned or leased by the Borrower or any of its
Subsidiaries and required by Environmental Laws or by order of
any governmental authority having jurisdiction under any
Environmental Laws, or (iii) any injury to any Person whatsoever
or damage to any property arising out of, in connection with or
in any way relating to the breach of any of the environmental
warranties or covenants contained in this Agreement or any
Collateral Document or any facts or circumstances that cause any
of the environmental representations or warranties contained in
this Agreement or any Collateral Document to cease to be true, or
(iv) the Release of any Hazardous Material on or affecting any
property owned or leased by the Borrower or any of its
Subsidiaries, or (v) the presence of any asbestos-containing
material or underground storage tanks, whether in use or closed,
under or on any property owned or leased by the Borrower or any
of its Subsidiaries.
<PAGE>
7.12 Rate Hedging Obligations. The Borrower shall, at
all times from and after the date that is 120 days after the
Closing Date, maintain in full force and effect, for an average
term of two years, agreements in form and substance reasonably
satisfactory to the Agent regarding Rate Hedging Obligations so
that the sum (without duplication) of (a) the notional amount
subject to such agreements and (b) the aggregate principal amount
of all Total Debt which bears interest at a fixed interest rate
equals at all times at least 50% of the aggregate principal
amount of all Total Debt of the Borrower and its Subsidiaries.
7.13 Maintenance of Separate Identity. The Borrower
shall (a) not fail to correct any known misunderstanding
regarding its existence separate and distinct from Holdco, (b)
maintain its accounts, books and records separate from those of
Holdco, (c) not commingle its funds or assets with those of
Holdco and shall not permit Holdco to have direct access to its
cash, (d) hold all of its assets in its own name and shall not
permit Holdco to acquire or dispose of any assets on its behalf,
(e) not conduct business in the name of Holdco, (f) not assume or
guaranty or otherwise become obligated for the debts of Holdco or
hold out its credit as being available to satisfy the obligations
of Holdco, and (g) allocate fairly and reasonably any overhead
for office space shared with Holdco and shall use separate
stationery, invoices and checks from those used by Holdco.
SECTION 8. NEGATIVE COVENANTS OF THE BORROWER.
So long as this Agreement remains in effect or any of
the Obligations remains unpaid or to be performed, or any Letter
of Credit remains outstanding, the Borrower shall not, and shall
not permit any of its Subsidiaries directly or indirectly to,
take any of the actions set out in this Section 8 nor permit any
of the conditions set out herein to occur.
8.1 Indebtedness. The Borrower shall not, and shall not
permit any of its Subsidiaries to, incur, create, assume or
permit to exist any Indebtedness, except:
(a) the Obligations;
(b) Indebtedness permitted under Section 8.4, 8.5
or 8.6;
(c) existing Indebtedness set forth on Exhibit F;
(d) unsecured trade accounts payable and other
unsecured current Indebtedness incurred in the ordinary course of
business and not more than one hundred twenty days past due (but
excluding any Indebtedness for borrowed money);
(e) Indebtedness for taxes, assessments,
governmental charges, liens or similar claims to the extent that
<PAGE>
payment thereof shall not be required to be made by the
provisions of Section 7.4;
(f) Indebtedness arising under Rate Hedging
Obligations required pursuant to Section 7.12;
(g) the Build to Suit Obligations; and
(h) other unsecured Indebtedness of the Borrower
in an aggregate principal amount not to exceed $10,000,000 at any
one time outstanding.
8.2 Liens.
(a) The Borrower shall not, and shall not permit
any of its Subsidiaries to, grant, incur, create, assume or
permit to exist any Lien of any nature whatsoever, including
those arising in connection with conditional sales or other title
retention agreements, on any property or assets now owned or
hereafter acquired by the Borrower or any of its Subsidiaries,
other than Permitted Liens.
(b) The Borrower shall not, and shall not permit
any of its Subsidiaries to, enter into or permit to exist any
arrangement or agreement, other than pursuant to this Agreement
or any Collateral Document, which directly or indirectly
prohibits the Borrower or any of its Subsidiaries from creating
or incurring any Lien on any of its assets, other than (a) leases
and agreements regarding purchase money Indebtedness permitted
pursuant to Section 8.4 (so long as such prohibition only relates
to the asset which is subject to such lease or which secures such
Indebtedness), (b) standard provisions in agreements which
prohibit the assignment of such agreements and (c) restrictions
on the creation of Liens contained in the Formation Agreement as
in effect as of the date hereof.
8.3 Guaranties. The Borrower shall not, and shall not
permit any of its Subsidiaries to, become a Guarantor for any
Person, except with respect to endorsements of negotiable
instruments for collection in the ordinary course of business.
8.4 Rental and Conditional Sale Obligations. The
Borrower shall not incur, create, assume or permit to exist, with
respect to any personal property, any conditional sale
obligation, any purchase money obligation, any rental obligation,
any purchase money security interest or any other arrangement for
the use of personal property of any other Person, pursuant to
which the Borrower is the buyer, borrower or lessee, other than
an arrangement classifiable as a capital lease which is permitted
in Section 8.6, if the aggregate amount payable pursuant to such
arrangements (other than any such arrangements incurred in
connection with a Qualified Acquisition) would exceed $1,000,000
in any fiscal year. The Borrower shall not permit any of its
Subsidiaries to incur, create, assume or permit to exist, with
<PAGE>
respect to any personal property, any conditional sale
obligation, any purchase money obligation, any rental obligation,
any purchase money security interest or any other arrangement for
the use of personal property of any other Person, pursuant to
which such Subsidiary is the buyer, borrower or lessee.
8.5 Real Property Interests. The Borrower shall not,
and shall not permit any of its Subsidiaries to, enter into,
assume or permit to exist any lease or rental obligation for real
property, other than the Land Lease Agreements, if the aggregate
amount payable in respect thereof by the Borrower and its
Subsidiaries (other than any such arrangements incurred in
connection with a Qualified Acquisition) would exceed $1,500,000
in the aggregate in any fiscal year.
8.6 Capitalized Lease Obligations. The Borrower shall
not incur, create, assume or permit to exist any Capitalized
Lease Obligations under any lease of personal or real property if
the aggregate amount payable in respect of all such Capitalized
Lease Obligations (other than Capitalized Lease Obligations
incurred in connection with a Qualified Acquisition) would exceed
$750,000 in the aggregate in any fiscal year. The Borrower shall
not permit any of its Subsidiaries to incur, create, assume or
permit to exist any Capitalized Lease Obligations under any lease
of personal or real property.
8.7 Capital Expenditures. Except for (a) any payments
in respect of Capitalized Lease Obligations, and (b) expenditures
of proceeds of casualty insurance policies reasonably and
promptly applied to replace insured assets, the Borrower and its
Subsidiaries shall not make Capital Expenditures which exceed the
sum of $10,000,000 in the aggregate in calendar year 1999 or
which exceed the sum of $5,000,000 in the aggregate in any fiscal
year thereafter (the amount permitted in any year pursuant to
this sentence being referred to as the "Base Amount" for such
year). If the Base Amount for any year exceeds the aggregate
amount of Capital Expenditures actually made by the Borrower and
its Subsidiaries in such year (such excess being referred to as
the "Excess Amount"), then the Borrower and its Subsidiaries may
make Capital Expenditures in the immediately succeeding year (but
not in any year thereafter) in excess of the Base Amount for such
succeeding year in an amount not to exceed the Excess Amount for
the prior year.
8.8 Notes, Accounts Receivable and Claims. The
Borrower shall not, and shall not permit any of its Subsidiaries
to, (a) sell, discount or otherwise dispose of any note, account
receivable or other right to receive payment, with or without
recourse, except for collection in the ordinary course of
business; or (b) fail to timely assert any claim, cause of action
or contract right which its possesses against any third party nor
agree to settle or compromise any such claim, cause of action or
contract right except in any case in the exercise of good
business judgment and except for settlements or compromises made
<PAGE>
in the reasonable exercise of business judgment in the ordinary
course of business.
8.9 Capital Distributions.
(a) The Borrower shall not, and shall not permit
any of its Subsidiaries to, make, or declare or incur any
liability to make, any Capital Distribution, except that:
(i) any Subsidiary of the Borrower may make
Capital Distributions to the Borrower or to a wholly owned
Subsidiary of the Borrower;
(ii) the Borrower may make Capital
Distributions to Holdco (A) solely in order to permit Holdco to
pay its actual out-of-pocket costs in respect of directors and
officers liability insurance, costs of filings in Delaware and
other jurisdictions where Holdco may be qualified or registered
to conduct business and customary record keeping and financial
reporting, so long as the aggregate amount of such Capital
Distributions does not exceed $100,000 in any year, and (B)
solely in order to permit Holdco to pay that portion of the
federal, state and local income tax liability (exclusive of
penalties and interest) of Holdco which arises from the
allocation to Holdco for income tax purposes of taxable income or
taxable gain of the Borrower (not to exceed the actual federal,
state and local income tax liability of Holdco), so long as in
each case: (I) prior to making any such distribution, the
Borrower shall have demonstrated to the satisfaction of the Agent
that the Borrower will be in compliance with all of the covenants
contained herein after giving effect to such distribution; (II)
no Possible Default or Event of Default exists at the time of
making such distribution or would exist after giving effect
thereto; (III) prior to making any such distribution, the
Borrower shall have delivered to the Agent a certificate of its
chief financial officer in form and substance satisfactory to the
Agent which shall contain calculations demonstrating on a pro
forma basis the Borrower's compliance with the financial
covenants set forth in this Section 8 after giving effect to such
distribution; (IV) such distributions shall not be made more
frequently than four times per year; and (V) with respect to
distributions pursuant to clause (B) above, prior to such
distribution, the chief financial officer of the Borrower shall
have executed and delivered to the Agent a certificate in form
and substance satisfactory to the Agent stating the amount of
each tax liability for which a distribution is to be made and
stating in reasonable detail the basis for and method of
calculating such tax liability; and
(iii) the Borrower may make a Capital
Distribution to Holdco on the Closing Date in an amount not to
exceed $380,000,000 in connection with the consummation of the
transactions contemplated by the Formation Agreement, of which no
more than $180,000,000 may be borrowed pursuant hereto (without
<PAGE>
the consent of all of the Banks) and the balance shall be paid
from the proceeds of a cash distribution made to the Borrower by
the Tower Subsidiary from the proceeds of the Bidder Contributed
Cash (as that term is defined in the Formation Agreement). The
foregoing amounts shall be reduced pursuant to the provisions of
Section 3.8 and 3.9 of the Formation Agreement, to the extent
applicable.
(b) The Borrower shall not permit any of its
Subsidiaries to agree to or to be subject to any restriction on
its ability to make Capital Distributions or loans or loan
repayments or other asset transfers to its members, partners,
stockholders or other equity holders other than (i) restrictions
imposed by applicable law, (ii) the restrictions set forth in
this Section, (iii) restrictions set forth in the Operating
Agreement of such Subsidiary as in effect as of the date hereof
or as amended pursuant to Section 8.13 and (iv) customary
non-assignment provisions contained in leases.
8.10 Disposal of Property; Mergers; Acquisitions;
Reorganizations.
(a) Except as expressly permitted pursuant to
Section 8.10(b), Section 8.10(c) or Section 8.10(d), the Borrower
shall not, and shall not permit any of its Subsidiaries to, (i)
dissolve or liquidate; (ii) sell, lease, transfer or otherwise
dispose of any material portion of its properties or assets to
any Person; (iii) be a party to any consolidation, merger,
recapitalization or other form of reorganization; (iv) make any
acquisition of all or substantially all the assets of any Person,
or of a business division or line of business of any Person, or
of any other assets constituting a going business; (v) create,
acquire or hold any Subsidiary other than the Tower Subsidiary;
or (vi) be or become a party to any joint venture or other
partnership.
(b) The Borrower may accept the contribution of
assets contemplated by the Formation Agreement and may also make
acquisitions of communications tower facilities, site management
and site acquisition companies and related communications and
information transmission businesses, either by the acquisition of
assets or the acquisition of all of the outstanding equity
interests of entities engaged in such businesses, subject to the
satisfaction of the following conditions (the acquisition
contemplated by the Formation Agreement and any such other
acquisition, or series of related acquisitions, that satisfies
the following conditions being referred to hereinafter as a
"Qualified Acquisition"):
(i) the Borrower shall have given to the
Agent written notice of such acquisition at least fifteen days
prior to executing any binding commitment with respect thereto;
<PAGE>
(ii) the Borrower shall have demonstrated to
the satisfaction of the Agent that the Borrower will be in
compliance with all of the covenants contained herein after
giving effect to such acquisition and that no Event of Default or
Possible Default then exists or would exist after giving effect
to such acquisition;
(iii) the Borrower shall have delivered to
the Agent within twenty days prior to the consummation of such
acquisition a report signed by the Borrower's chief financial
officer in form and substance satisfactory to the Agent which
shall contain calculations demonstrating on a pro forma basis the
Borrower's compliance with the financial covenants set forth in
this Section 8 after giving effect to such acquisition and, if
the borrowing hereunder in connection with such acquisition is in
an amount in excess of $5,000,000, projections for the Borrower
for a five year period after the closing of such acquisition
giving effect to such acquisition and including a statement of
sources and uses of funds for such acquisition showing, among
other things, the source of financing for such acquisition;
(iv) after giving effect to such acquisition,
the Borrower or one of its Subsidiaries shall have (A) marketable
fee simple title or an assignable (subject to receipt of any
necessary consents) and insurable leasehold interest in each
property on which an acquired Tower is located, and (B) in the
case of acquired Towers, either (I) written agreements (including
by assignment) for licensing of space on such Tower with
licensees that generate at least 75% of the revenues then
attributable to such Tower or (II) in its good faith judgment, a
strong probability of retaining licensees that generate 90% of
the revenues then attributable to such Tower, in each case, with
respect to such license agreements, on substantially the same
terms and conditions as existed immediately prior to such
acquisition;
(v) the Agent shall have received from the
Borrower an engineering report from an engineer, satisfactory to
the Agent (which engineer may be an employee of the Borrower or
one of its Subsidiaries or Affiliates), acceptable in form and
substance to the Agent, with respect to the construction,
engineering and maintenance of the Towers to be constructed,
acquired or managed and their compliance with applicable laws,
rules and regulations;
(vi) the agreement governing such acquisition
and all related documents and instruments shall be reasonably
satisfactory to the Agent in form and substance;
(vii) the Purchase Price of such acquisition
shall be payable in cash at the closing of such acquisition;
<PAGE>
(viii) other than in the case of acquisitions
from BAM or any of its Affiliates or other acquisitions of Towers
that will be covered by the Global Lease, the Borrower and its
Subsidiaries shall have taken any actions as may be necessary or
reasonably requested by the Agent to grant to the Agent, for the
benefit of the Banks, first priority, perfected Liens in all
assets, real and personal, tangible and intangible, acquired or
constructed by the Borrower or any of its Subsidiaries in such
acquisition or construction pursuant to the Collateral Documents
in form and substance satisfactory to the Agent, subject to no
prior Liens except Permitted Liens; if any such Tower
subsequently becomes subject to the Global Lease, such Liens
granted to the Agent will be released;
(ix) if the Borrower or any of its
Subsidiaries acquires a Subsidiary or creates a Subsidiary
pursuant to or in connection with such acquisition,
(A) the Borrower shall, or shall cause
its Subsidiary which owns such newly acquired or created
Subsidiary to, execute a Pledge Agreement, in substantially the
form of the Pledge Agreements or otherwise in form and substance
satisfactory to the Required Banks, pursuant to which all of the
stock or other securities or equity interests of such acquired or
created Subsidiary are pledged to the Agent, for the benefit of
the Banks, as security for the Obligations of the Borrower
hereunder and under the Notes and the Collateral Documents; and
(B) such acquired or created Subsidiary
shall execute and deliver to the Agent, for the benefit of the
Banks, a guaranty, and shall grant to the Agent, for the benefit
of the Banks, a first priority, perfected lien or security
interest in all of its assets, real and personal, tangible and
intangible, subject to no prior liens or security interests
except for Permitted Liens, pursuant to Collateral Documents in
form and substance satisfactory to the Required Banks, and shall
take all actions required pursuant thereto;
(x) the Borrower shall have delivered to the
Agent evidence reasonably satisfactory to the Agent to the effect
that all material approvals, consents or authorizations required
in connection with such acquisition from any Licensing Authority
or other governmental authority shall have been obtained, and
such opinions as the Agent may reasonably request as to the liens
and security interests granted to the Agent, for the benefit of
the Banks, as required pursuant to this Section, and as to any
required regulatory approvals for such acquisition;
(xi) the Agent shall have received copies of
all material documents relating to such acquisition, and the
Borrower shall have caused all opinions and certificates of the
seller of such Towers delivered in connection with such closing
to be addressed to the Banks; and
<PAGE>
(xii) if such acquisition involves an
aggregate Purchase Price of at least $5,000,000, then, to the
extent requested by the Required Banks, the Banks shall have
received a statement from KPMG Peat Marwick (or another
nationally recognized firm of independent certified public
accountants selected by the Borrower and acceptable to the Agent)
certifying as to the operating cash flow of the acquired Towers
or, in the case of a management agreement, such management
agreement, for the twelve month period most recently ended prior
to the closing of such acquisition and as to such other matters
as the Agent may reasonably request.
(c) Subject to compliance with Section
2.5(b)(iii), the Borrower may, and may permit any of its
Subsidiaries to, dispose of Towers subject to the following
conditions:
(i) no Event of Default or Possible Default
shall then exist or shall exist after giving effect to such
disposition;
(ii) the Borrower shall have delivered to the
Agent a certificate of its chief financial officer in form and
substance satisfactory to the Agent which shall contain
calculations demonstrating on a pro forma basis the Borrower's
compliance with the financial covenants set forth in this Section
8 after giving effect to such disposition;
(iii) the Operating Cash Flow attributable to
such Towers in the four quarter period most recently ended,
together with the Operating Cash Flow attributable to all Towers
previously disposed of in such four quarter period, shall not
exceed 5% of total Operating Cash Flow for such four quarter
period; and
(iv) no Towers may be disposed of at any time
if the Operating Cash Flow attributable to such Towers, together
with the Operating Cash Flow attributable to all Towers
previously disposed of since the Closing Date exceeds 15% of
total Operating Cash Flow for the four quarter period most
recently ended.
(d) The Borrower may form one or more Subsidiaries
which shall be direct, wholly owned Subsidiaries of the Borrower,
and cause the Tower Subsidiary to transfer to such newly created
Subsidiaries assets of the Tower Subsidiary acquired by it
pursuant to the Formation Agreement at the closing thereunder,
subject to the following conditions:
(i) the Borrower shall have given to the
Agent thirty days prior written notice of each such transfer;
(ii) the organizational documents of each
such Subsidiary shall be comparable in all material respects to
<PAGE>
the organizational documents of the Tower Subsidiary or shall be
reasonably satisfactory to the Agent in form and substance;
(iii) no Event of Default or Possible Default
then exists or would exist after giving effect to any such
transfer;
(iv) the Borrower shall have executed and
delivered to the Agent a pledge agreement, in substantially the
form of the Tower Subsidiary Pledge Agreement or otherwise in
form and substance reasonably satisfactory to the Required Banks,
pursuant to which all of the stock or other securities or equity
interests of each such Subsidiary are pledged to the Agent, for
the benefit of the Banks, as security for the Obligations of the
Borrower hereunder and under the Notes and the Collateral
Documents;
(v) each such Subsidiary shall have executed
and delivered to the Agent, for the benefit of the Banks, a
guaranty in substantially the form of the Tower Subsidiary
Guaranty, or otherwise in form and substance reasonably
satisfactory to the Required Banks, pursuant to which such
Subsidiary shall guarantee the Obligations of the Borrower
hereunder and under the Notes and the Collateral Documents;
(vi) each such Subsidiary shall have executed
and delivered to the Agent, for the benefit of the Banks, a
security agreement in substantially the form of the Tower
Subsidiary Security Agreement, or otherwise in form and substance
reasonably satisfactory to the Required Banks, pursuant to which
such Subsidiary shall grant to the Agent for the benefit of the
Banks a first priority, perfected lien or security interest in
the collateral described therein and shall have taken all actions
required pursuant thereto;
(vii) each such Subsidiary shall have become
a party to the Global Lease, the Management Agreement and such of
the other Transaction Documents as may be appropriate pursuant to
amendments or joinder agreements in form and substance
satisfactory to the Required Banks; and
(viii) the Borrower shall have entered into
an amendment to this Agreement to reflect the creation of such
Subsidiaries, the execution and delivery of the foregoing
Collateral Documents and such other matters as the Required Banks
may reasonably request in connection therewith.
8.11 Construction of Towers. The Borrower shall not,
and shall not permit any of its Subsidiaries to, construct any
Tower or related group of Towers pursuant to a request from any
Person for an aggregate construction cost, as reasonably
estimated by the Borrower, of more than $2,500,000 except in
accordance with the following provisions:
<PAGE>
(a) the Borrower shall have provided to the Agent
within the prior three month period a certificate describing such
proposed construction and any other projected construction during
the three month period following the delivery of such
certificate;
(b) such certificate shall have demonstrated to
the satisfaction of the Agent that the Borrower will be in
compliance with all of the covenants contained herein after
giving effect to such construction and that no Event of Default
or Possible Default then exists or would exist after giving
effect to such construction;
(c) the Borrower shall have delivered to the Agent
prior to the commencement of such construction a report signed by
the Borrower's chief financial officer in form and substance
satisfactory to the Agent which shall contain calculations
demonstrating on a pro forma basis the Borrower's compliance with
the financial covenants set forth in this Section 8 after giving
effect to such construction and, if the borrowing hereunder in
connection with such construction is in an amount in excess of
$5,000,000, projections for the Borrower for a five year period
after the completion of such construction giving effect to such
construction and including a statement of sources and uses of
funds for such construction showing, among other things, the
source of financing for such construction;
(d) after giving effect to such construction, the
Borrower or one of its Subsidiaries shall have marketable fee
simple title or an assignable (subject to receipt of any
necessary consents) and insurable leasehold interest in each
property on which a constructed Tower is located and either such
Tower shall have been added to the Global Lease or the Borrower
or its Subsidiary shall have entered into a standard Tenant Lease
in form and substance reasonably satisfactory to the Agent with
an anchor tenant;
(e) except in connection with Towers constructed
pursuant to the Build to Suit Agreement or other constructions of
Towers that will be covered by the Global Lease, the Borrower and
its Subsidiaries shall take any actions as may be necessary or
reasonably requested by the Agent to grant to the Agent, for the
benefit of the Banks, first priority, perfected Liens in all
assets, real and personal, tangible and intangible, relating to
the Tower constructed by the Borrower or any of its Subsidiaries
pursuant to the Collateral Documents in form and substance
satisfactory to the Agent, subject to no prior Liens except
Permitted Liens; if any such Tower subsequently becomes subject
to the Global Lease, such Liens granted to the Agent will be
released;
(f) neither the Borrower nor any of its
Subsidiaries shall acquire or create a Subsidiary in connection
with such construction;
<PAGE>
(g) the Borrower shall deliver to the Agent
evidence reasonably satisfactory to the Agent to the effect that
all material approvals, consents or authorizations required in
connection with such construction from any Licensing Authority or
other governmental authority shall have been obtained, and such
opinions as the Agent may reasonably request as to the liens and
security interests granted to the Agent, for the benefit of the
Banks, as required pursuant to this Section (if such liens and
security interests have been granted), and as to any required
regulatory approvals for such construction.
8.12 Investments. The Borrower shall not, and shall not
permit any of its Subsidiaries to, purchase or otherwise acquire,
hold or invest in any stock or other securities or evidences of
indebtedness of, or any interest or investment in, or make or
permit to exist any loans or advances to, any other Person,
except:
(a) direct obligations of the United States
Government maturing within one year;
(b) certificates of deposit of a member bank of
the Federal Reserve System having capital, surplus and undivided
profits in excess of $100,000,000;
(c) any investment in commercial paper which at
the time of such investment is assigned the highest quality
rating in accordance with the rating systems employed by either
Moody's Investors Service, Inc. or Standard & Poor's Corporation;
(d) investments in the Tower Subsidiary or in a
Subsidiary created or acquired in connection with a Qualified
Acquisition to the extent permitted pursuant to Section 8.10(b)
or in a Subsidiary created pursuant to Section 8.10(d); and
(e) loans and advances to employees in an
aggregate amount for the Borrower and its Subsidiaries not to
exceed at any time $250,000.
8.13 Amendment of Governing Documents. The Borrower
shall not, and shall not permit any of its Subsidiaries or any
other Person to, amend, modify or supplement its Operating
Agreement or any other organizational or governing document of
the Borrower or any of its Subsidiaries, unless required by law,
in any manner adverse, as reasonably determined by the Agent, to
the Borrower, such Subsidiary or the Banks.
8.14 Financial Covenants.
(a) Leverage Ratio. The Borrower shall not permit
the Leverage Ratio as of any date in any period listed in Column
A below to be greater than the ratio set forth in Column B below
opposite such period:
<PAGE>
Column A Column B
Period: Permitted Ratio:
Closing Date to December 30, 8.25:1.0
1999:
December 31, 1999, to 7.25:1.0
December 30, 2000:
December 31, 2000, to 7.00:1.0
September 30, 2001:
October 1, 2001, to March 6.50:1.0
30, 2002:
March 31, 2002, to December 5.00:1.0
31, 2002:
January 1, 2003, and 4.00:1.0.
thereafter:
(b) Fixed Charge Coverage Ratio. The Borrower
shall not permit the Fixed Charge Coverage Ratio as of any date
to be less than 1.1 to 1.0.
(c) Projected Debt Service Coverage Ratio. The
Borrower shall not permit the ratio of Test Operating Cash Flow
as of the end of any four quarter period to Projected Debt
Service as of such date to be less than 1.15 to 1.0.
(d) Operating Cash Flow to Interest Expense Ratio.
The Borrower shall not permit the ratio of Operating Cash Flow
for any period beginning on the Closing Date and ending on the
last day of any fiscal quarter ending on or prior to December 31,
1999, to Interest Expense for such period to be less than 1.5 to
1.0; the Borrower shall not permit the ratio of Operating Cash
Flow for the four quarter period ending on March 31, 2000, to
Interest Expense for such four quarter period to be less than
1.75 to 1.0; and the Borrower shall not permit the ratio of
Operating Cash Flow for any four quarter period ending after
March 31, 2000, to Interest Expense for such four quarter period
to be less than 2.0 to 1.0.
(e) Right to Cure. If, as of the end of any
quarter ending prior to the second anniversary of the Closing
Date, Operating Cash Flow or Test Operating Cash Flow is
insufficient to satisfy any of the financial covenants set forth
in this Section 8.14, then, notwithstanding the provisions of
Section 9.2 below, no Event of Default will be deemed to have
occurred if the Borrower receives from Holdco, within five days
of the receipt by the Agent pursuant to Section 7.5(b) of the
financial statements for such quarter, a capital contribution in
<PAGE>
an amount which, had it been applied as a prepayment of the Loans
prior to the end of such quarter, would have been sufficient to
satisfy such financial covenants. After the second anniversary of
the Closing Date, such right to cure shall require the consent of
the Required Banks.
8.15 Management Agreements and Fees. The Borrower shall
not, and shall not permit any of its Subsidiaries to, make or
enter into, or pay any management fees pursuant to, any
management or service agreement whereby management, supervision
or control of its business, or any significant aspect thereof,
shall be delegated to or placed in any Person other than an
employee of the Borrower or a Subsidiary of the Borrower, other
than the Management Agreement, the Transition Services Agreement,
the Bidder Services Agreement and the Koll Management Agreement.
8.16 Fiscal Year. The Borrower shall not, and shall not
permit any of its Subsidiaries to, change its fiscal year, which
shall be the calendar year.
8.17 ERISA. Neither the Borrower nor any member of the
Controlled Group shall fail to make any contributions which are
required by applicable law or pursuant to the terms of any Plan
or any Benefit Arrangement. Neither the Borrower nor any member
of the Controlled Group shall contribute to or agree to
contribute to any Plan which is (a) subject to the minimum
funding requirements under ERISA Section 302 or Code Section 412;
(b) a multiemployer plan (as defined in ERISA Section
4001(a)(3)); (c) a defined benefit plan (as defined under ERISA
Section 3(35) or Code Section 414(j)); (d) a multiple employer
plan (as defined in ERISA Section 4063); or (e) a multiple
employer welfare arrangement (as defined in ERISA Section 3(40)).
8.18 Affiliates. The Borrower shall not, and shall not
permit any of its Subsidiaries to, enter into any transaction,
agreement or arrangement, other than as expressly provided in the
Transaction Documents as in effect on the Closing Date, with
Holdco or any other Affiliate of the Borrower (other than a
Subsidiary of the Borrower), or pay any compensation or salary to
any such Person unless such transaction, agreement or arrangement
is in the ordinary course of and pursuant to the reasonable
requirements of the business of the Borrower or any of its
Subsidiaries and the terms of such transaction or agreement are
not substantially less favorable to the Borrower or such
Subsidiary than could be obtained in an arms-length transaction
with an unaffiliated third party or unless the amount paid to
such person is not substantially in excess of the fair value of
the services rendered by such person.
8.19 Change of Name or Structure. The Borrower shall
not, and shall not permit any of its Subsidiaries to, change its
name or organizational structure without thirty days prior
written notice to the Agent.
<PAGE>
8.20 Amendments, Waivers or Terminations. The Borrower
shall not, and shall not permit any of its Subsidiaries to, (a)
amend, alter or modify in any material respect, or terminate or
consent to or suffer any material amendment, alteration,
modification or termination, of the Global Lease, the Management
Agreement, the Build to Suit Agreement or any other Transaction
Document, or (b) amend, alter, modify, or terminate or consent to
or suffer any amendment, alteration, modification or termination,
of any License, any Land Lease Agreement, any Tenant Lease (other
than the Global Lease) or any other material contract (or waive a
material right thereunder) except for any amendments,
alterations, modifications or terminations which could not
reasonably be expected to have a Material Adverse Effect.
8.21 Issuance or Transfer of Membership Interests. The
Borrower shall not, and shall not permit any of its Subsidiaries
to, sell or issue any Membership Interests or other equity
interests of the Borrower or such Subsidiary or any warrants,
options or other securities convertible into or exercisable for
any Membership Interests or other equity interests of the
Borrower or such Subsidiary, and the Borrower shall not, and
shall not permit any of its Subsidiaries to, permit the transfer
of any of its Membership Interests or other equity interests or
any warrants, options or other securities convertible into or
exercisable for any of its Membership Interests or other equity
interests; provided, however, that (a) the Borrower may permit
the Tower Subsidiary to permit the transfer of the .001%
Membership Interest held by BAM as of the date hereof to be
transferred to a Person that as of the date hereof is a member of
Holdco or to any Subsidiary of Bell Atlantic Corporation so long
as (i) the Borrower gives thirty days prior notice to the Agent
of such transfer, and (ii) the transferee member enters into a
pledge agreement in form and substance substantially identical to
the Tower Subsidiary Pledge Agreement pursuant to which its
Membership Interest in the Tower Subsidiary is pledged to the
Agent, for the benefit of the Banks, as security for the
obligations of the Borrower hereunder and under the Notes and the
other Collateral Documents, and (b) the Borrower may permit the
transfer of any of its Membership Interests to a Person that as
of the date hereof is a member of Holdco so long as (i) the
Borrower gives thirty days prior notice to the Agent of such
transfer, and (ii) the transferee member enters into a pledge
agreement in form and substance substantially identical to the
Holdco Pledge Agreement pursuant to which its Membership Interest
in the Borrower is pledged to the Agent, for the benefit of the
Banks, as security for the obligations of the Borrower hereunder
and under the Notes and the other Collateral Documents.
8.22 Types of Business. The Borrower shall not, and
shall not permit any of its Subsidiaries to, engage in any
business other than (a) constructing, owning, operating, leasing,
managing and acquiring Towers and leasing space on such Towers to
tenants and (b) other activities related thereto.
<PAGE>
8.23 Regulation U. The Borrower shall not, directly or
indirectly, (a) apply any part of the proceeds of the Loans to
the purchasing or carrying of any "margin stock" within the
meaning of Regulations T, U or X of the Federal Reserve Board, or
any regulations, interpretations or rulings thereunder, (b)
extend credit to others for the purpose of purchasing or carrying
any such margin stock, or (c) retire Indebtedness which was
incurred to purchase or carry any such margin stock.
8.24 Tower Subsidiary and Other Subsidiaries. The
Borrower shall not permit the Tower Subsidiary or any Subsidiary
created pursuant to Section 8.10 to (a) incur, create, assume or
permit to exist any Indebtedness other than pursuant to the Land
Lease Agreements, the Tenant Leases, a Guaranty, the Build to
Suit Agreement and the other Collateral Documents, (b) incur,
create, assume or permit to exist any Lien of any nature
whatsoever on any property or assets now owned or hereafter
acquired by it except pursuant to the Tenant Leases and in favor
of the Agent, for the benefit of the Banks, and except for
Permitted Liens described in clauses (a), (b), (c), (f), (i), (j)
and (k) of the definition of that term in Section 1.1, or (c)
hire or engage any employees.
SECTION 9. EVENTS OF DEFAULT.
The occurrence of any one or more of the following
events, whether voluntarily or involuntarily or by operation of
law, shall constitute an Event of Default hereunder:
9.1 Non-Payment. The Borrower shall (a) fail to pay
when due, whether by acceleration of maturity or otherwise, any
installment of principal due hereunder or under any Note or (b)
fail to pay when due, whether by acceleration of maturity or
otherwise, or within two days thereafter, any installment of
interest due hereunder or under any Note or any fee or other
payment obligation in respect of the Obligations or payable
pursuant to the Fee Letter.
9.2 Failure of Performance in Respect of Other
Obligations. (a) The Borrower shall fail to observe, perform or
be in compliance with any of the provisions of Section 8,
Sections 7.1 or 7.3 or the first sentence of Section 7.2; or (b)
the Borrower, any of its Subsidiaries, Holdco or any other party
to a Collateral Document (other than the Agent or a Bank) shall
fail to observe, perform or be in compliance with the terms of
any Obligation, covenant or agreement, other than those referred
to in Section 9.1, Section 8, Sections 7.1 or 7.3 or the first
sentence of Section 7.2, to be observed, performed or complied
with by the Borrower, such Subsidiary or such other party
hereunder or under any Collateral Document and, provided that
such failure is of a type which can be cured, such failure shall
continue and not be cured for thirty days after: (i) notice
thereof from the Agent or a Bank or (ii) the Agent or the Banks
are notified thereof or should have been notified thereof
<PAGE>
pursuant to the provisions of Section 7.6, whichever is earlier;
or (c) any party to any Pledge Agreement shall, or shall attempt
to, voluntarily or involuntarily, encumber, subject to any
further pledge or security interest, sell, transfer or otherwise
dispose of any of the Pledged Collateral (as that term is defined
in any Pledge Agreement) or any interest therein except as
expressly provided herein or therein.
9.3 Breach of Warranty. Any financial statement,
representation, warranty, statement or certificate made or
furnished by the Borrower, any of its Subsidiaries, Holdco or any
other party to a Collateral Document (other than the Agent or a
Bank) to the Agent or the Banks in or in connection with this
Agreement or any Collateral Document, or as an inducement to the
Agent or the Banks to enter into this Agreement or any of the
Collateral Documents, including, without limitation, those in
Section 5 above or in any Collateral Document, shall have been
false, incorrect or incomplete when made or deemed made in any
material respect.
9.4 Cross-Defaults. Any default shall have occurred
under the Formation Agreement and shall not have been cured
within any applicable cure period and the effect of such default
on Holdco, the Borrower or any of its Subsidiaries, if
quantifiable by a dollar amount, could reasonably be expected to
exceed $2,500,000, or if not so quantifiable, could reasonably be
expected to have a Material Adverse Effect; or the Borrower or
any of its Subsidiaries shall default in any payment due on any
Indebtedness in excess of $2,500,000 in the aggregate and such
default shall continue for more than the period of grace, if any,
applicable thereto; or the Borrower or any of its Subsidiaries
shall default in the performance of or compliance with any term
of any evidence of such Indebtedness or of any mortgage,
indenture or other agreement relating thereto, and any such
default shall continue for more than the period of grace, if any,
specified therein and shall not have been waived pursuant thereto
if such default causes, or permits the holder thereof to cause,
the acceleration of such Indebtedness.
9.5 Assignment for Benefit of Creditors. The Borrower,
any of its Subsidiaries or Holdco shall make an assignment for
the benefit of its creditors, or shall admit its insolvency or
shall fail to pay its debts generally as such debts become due.
9.6 Bankruptcy. Any petition seeking relief under
Title 11 of the United States Code, as now constituted or
hereafter amended, shall be filed by or against the Borrower, any
of its Subsidiaries or Holdco or any proceeding shall be
commenced by or against the Borrower, any of its Subsidiaries or
Holdco with respect to relief under the provisions of any other
applicable bankruptcy, insolvency or other similar law of the
United States or any State providing for the reorganization,
winding-up or liquidation of Persons or an arrangement,
<PAGE>
composition, extension or adjustment with creditors; provided,
however, that no Event of Default shall be deemed to have
occurred if any such involuntary petition or proceeding shall
be discharged within sixty days of its filing or commencement.
9.7 Appointment of Receiver; Liquidation. A receiver
or trustee shall be appointed for the Borrower, any of its
Subsidiaries or Holdco or for any substantial part of its
assets, and such receiver or trustee shall not be discharged
within sixty days of his appointment; any proceedings shall be
instituted for the dissolution or the full or partial
liquidation of the Borrower, any of its Subsidiaries or Holdco
and such proceedings shall not be dismissed or discharged
within sixty days of their commencement; or the Borrower, any
of its Subsidiaries or Holdco shall discontinue its business.
9.8 Judgments. The Borrower, any of its Subsidiaries
or Holdco shall incur a final judgment for the payment of money
in an amount which, together with all other final judgments
against the Borrower, any of its Subsidiaries or Holdco,
exceeds $2,500,000 in the aggregate, and shall not discharge
(or make adequate provision for the discharge of) the same
within a period of thirty days unless, pending further
proceedings, execution thereon has been effectively stayed; or
a non-monetary judgment or order shall be rendered against the
Borrower, any of its Subsidiaries or Holdco that could
reasonably be expected to have a Material Adverse Effect, and
there shall be any period in excess of thirty consecutive days
during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in
effect.
9.9 Tenant Leases; Transaction Documents.
(a) The Global Lease or any other material
Tenant Leases shall be terminated for any reason or modified in
any manner materially adverse to the Borrower, any of its
Subsidiaries or the Banks, or Supplements to the Global Lease
in respect of any Material Towers shall be terminated within
any twelve month period, or any tenant under the Global Lease
shall offset any material amount against rent owing under the
Global Lease to a Subsidiary (unless such offset is to
reimburse such tenant for a payment made by it under the Global
Lease that at the time of such payment should have been made by
the Tower Subsidiary pursuant to subsection (b) or (c) of
Section 9 of the Tower Subsidiary Security Agreement or any
comparable provision of any other Security Agreement so long as
such tenant agrees that upon such offset for the full amount so
reimbursable it will not exercise any other remedy under the
Global Lease), or any party to the Global Lease shall default
thereunder and such default shall not be cured within the
applicable cure period, if any, or any tenant under the Global
Lease shall assign any of its rights under the Global Lease or
any material Supplements thereto to any Person (unless the
number of Towers affected by all such assignments since the
Closing Date is less than 140).
<PAGE>
(b) Any default shall occur under the Build to
Suit Agreement, the Management Agreement or any of the other
Transaction Documents and shall not have been waived or cured
within any applicable cure period and the effect of such
default on Holdco, the Borrower or any of its Subsidiaries, if
quantifiable by a dollar amount, could reasonably be expected
to exceed $2,500,000, or if not so quantifiable, could
reasonably be expected to have a Material Adverse Effect.
9.10 Impairment of Collateral; Invalidation of any
Loan Document. (a) A creditor of the Borrower, of any of its
Subsidiaries, of Holdco or of any other party to a Collateral
Document shall obtain possession of any of the collateral for
the Obligations or in any other material property of the
Borrower, any of its Subsidiaries or Holdco by any means,
including, without limitation, attachment, levy, distraint,
replevin or self-help, or any creditor shall establish or
obtain any right in such collateral or other property; or (b)
the Agent shall cease to have a perfected, first priority Lien
on all of the issued and outstanding Membership Interests of
the Borrower and of each Subsidiary of the Borrower; or (c) any
Lien created or purported to be created by this Agreement or
any Collateral Document shall cease or fail to be perfected
with respect to any of the collateral purported to be covered
thereby; or (d) any material portion of the property of the
Borrower or any of its Subsidiaries shall be lost, stolen,
damaged or destroyed for which there is either no insurance
coverage; or (e) this Agreement, any Note or any Collateral
Document ceases to be a legal, valid, binding agreement or
obligation enforceable against any party thereto (including the
Agent and the Banks) in accordance with its terms, or shall be
terminated, invalidated, set aside or declared ineffective or
inoperative; or (f) any party to any Collateral Document shall
contest or deny the validity or enforceability of such
Collateral Document or any lien, security interest or
obligation purported to be created thereby.
9.11 Termination of License or Agreements. The FCC,
the FAA or any other Licensing Authority shall revoke,
terminate, substantially and adversely modify or fail to renew
any License, or any group of Licenses, of the Borrower or any
of its Subsidiaries or commence proceedings to suspend, revoke,
terminate or substantially and adversely modify any such
License and such proceedings shall not be dismissed or
discharged within sixty days if such revocation, termination,
modification or failure to renew could reasonably be expected
to have a Material Adverse Effect; or the License Agreements or
any Land Lease Agreements or other agreements which are
necessary to the operation of the business of the Borrower or
any of its Subsidiaries shall be revoked, terminated or
adversely modified and not replaced by substitutes acceptable
to the Agent within thirty days of such revocation, termination
or modification and without which agreements a Material Adverse
Effect could reasonably be expected.
<PAGE>
9.12 Change of Control. (i) A Subsidiary of CCIC or
BAM (or any of its Subsidiaries) shall cease to own all of the
issued and outstanding Membership Interests and other equity
interests in Holdco; (ii) Holdco shall cease to own directly
all of the issued and outstanding Membership Interests and
other equity interests of the Borrower; (iii) the Borrower
shall cease to own directly all of the issued and outstanding
Membership Interests and other equity interests of the Tower
Subsidiary or any other Subsidiary other than the 0.001%
Membership Interest in the Tower Subsidiary held by BAM or a
comparable interest in any such other Subsidiary to be held by
BAM; or (iv) BAM shall cease to own the 0.001% Membership
Interest in the Tower Subsidiary (except pursuant to a transfer
in accordance with Section 8.21(a)).
9.13 Unrestricted Subsidiary. Any of Holdco, the
Borrower or any of the Borrower's Subsidiaries shall cease to
be an Unrestricted Subsidiary, as that term is defined in the
CCIC Indenture.
9.14 Default under Collateral Document. The Borrower,
any of its Subsidiaries, Holdco, BAM, BAM Sub or any other
party (other than the Agent and the Banks) shall default under
any Collateral Document after any required notice and such
default shall continue beyond any applicable grace period.
9.15 Condemnation. Any court, government or
governmental agency shall condemn, seize, or otherwise
appropriate, or take custody or control of any substantial
portion of the assets of the Borrower or any of its
Subsidiaries.
9.16 Material Adverse Effect. Any Material Adverse
Effect shall occur.
SECTION 10. REMEDIES.
Notwithstanding any contrary provision or inference
herein or elsewhere,
10.1 Optional Defaults. If any Event of Default
referred to in Section 9.1 through and including Section 9.4 or
Section 9.8 through and including Section 9.16 shall occur, the
Issuing Bank shall not be required to issue any additional
Letters of Credit, and the Agent, with the consent of the
Required Banks, upon written notice to the Borrower, may
(a) terminate the Commitment and the credit
hereby established and forthwith upon such election the
obligations of the Banks to make any further Loans hereunder
(other than Loans resulting from the funding of Letters of
Credit) immediately shall be terminated, and/or
(b) accelerate the maturity of the Loans and all
other Obligations, whereupon all Obligations shall become and
<PAGE>
thereafter be immediately due and payable in full without any
presentment or demand and without any further or other notice of
any kind, all of which are hereby waived by the Borrower, and/or
(c) demand the payment to the Issuing Bank of the
aggregate stated amount of the outstanding Letters of Credit,
which amount the Issuing Bank shall hold as security for the
obligations incurred under the Letters of Credit.
10.2 Automatic Defaults. If any Event of Default
referred to in Sections 9.5-9.7 shall occur,
(a) the Commitment and the credit hereby
established shall automatically and forthwith terminate, and the
Banks thereafter shall be under no obligation to grant any
further Loans hereunder (other than Loans resulting from the
funding of Letters of Credit), and
(b) the principal of and interest on the Notes,
then outstanding, and all of the other Obligations shall
thereupon become and thereafter be immediately due and payable in
full, all without any presentment, demand or notice of any kind,
which are hereby waived by the Borrower, and
(c) the Issuing Bank shall not be required to
issue any additional Letters of Credit, and the aggregate stated
amount of the outstanding Letters of Credit shall be immediately
payable by the Borrower to the Issuing Bank, which amount the
Issuing Bank shall hold as security for the obligations incurred
under the Letters of Credit.
10.3 Performance by the Banks. If at any time the
Borrower or any of its Subsidiaries fails or refuses to pay or
perform any material obligation or duty to any third Person,
except for payments which are the subject of bona fide disputes
in the ordinary course of business, the Agent or the Banks may,
in their sole discretion, but shall not be obligated to, pay or
perform the same on behalf of the Borrower or such Subsidiary,
and the Borrower shall promptly repay all amounts so paid, and
all costs and expenses so incurred. This repayment obligation
shall become one of the Obligations of the Borrower hereunder and
shall bear interest at the Default Interest Rate.
10.4 Other Remedies. Upon the occurrence of an Event of
Default, the Agent and the Banks may exercise any other right,
power or remedy as may be provided herein, in any Note or in any
other Collateral Document, or as may be provided at law or in
equity, including, without limitation, the right to recover
judgment against the Borrower for any amount due either before,
during or after any proceedings for the enforcement of any
security or any realization upon any security.
10.5 Enforcement and Waiver by the Banks. The Agent and
the Banks shall have the right at all times to enforce the
<PAGE>
provisions of this Agreement and all Collateral Documents in
strict accordance with the terms hereof and thereof,
notwithstanding any conduct or custom on the part of the Agent or
the Banks in refraining from so doing at any time, unless the
Banks shall have waived such enforcement in writing in respect of
a particular instance. The failure of the Agent or the Banks at
any time to enforce their rights under such provisions shall not
be construed as having created a custom or course of dealing in
any way contrary to the specific provisions of this Agreement or
the Collateral Documents, or as having in any way modified or
waived the same. All rights, powers and remedies of the Agent and
the Banks are cumulative and concurrent and the exercise of one
right, power or remedy shall not be deemed a waiver or release of
any other right, power or remedy.
SECTION 11. THE AGENT.
11.1 Appointment. Key Corporate Capital Inc. is hereby
appointed agent hereunder, and each of the Banks irrevocably
authorizes the Agent to act as the agent of such Bank. The Agent
agrees to act as such upon the express conditions contained in
this Section 11. The Agent shall not have a fiduciary
relationship in respect of any Bank by reason of this Agreement.
In its capacity as Agent hereunder, the Agent does not hereby
assume any fiduciary duties to any of the Banks and is acting as
an independent contractor, the rights and duties of which are
limited to those expressly set forth in this Agreement and the
other Collateral Documents. Each of the Banks hereby agrees to
assert no claim against the Agent on any agency theory or any
other theory of liability for breach of fiduciary duty, all of
which claims each Bank hereby waives.
11.2 Powers. The Agent shall have and may exercise such
powers hereunder as are specifically delegated to it by the terms
hereof, together with such powers as are reasonably incidental
thereto. The Agent shall not have any implied duties or any
obligation to the Banks to take any action hereunder except any
action specifically provided by this Agreement to be taken by the
Agent.
11.3 General Immunity. Neither the Agent nor any of its
directors, officers, affiliates, agents or employees shall be
liable to the Banks or any Bank for any action taken or omitted
to be taken by it or them hereunder or in connection herewith
except for its or their own gross negligence or willful
misconduct. Without limiting the foregoing, neither the Agent
nor any of its directors, officers, affiliates, agents or
employees shall be responsible for, or have any duty to examine
(a) the genuineness, execution, validity, effectiveness,
enforceability, value or sufficiency of this Agreement, any
Collateral Document, or any other document or instrument
furnished pursuant to or in connection with this Agreement or any
Collateral Document, (b) the collectibility of any amounts owed
by the Borrower or any of its Subsidiaries, (c) any recitals,
<PAGE>
statements, reports, representations or warranties made in
connection with this Agreement or any Collateral Document, (d)
the performance or satisfaction by the Borrower or any of its
Subsidiaries of any covenant or agreement contained herein or in
any Collateral Document, (e) any failure of any party to this
Agreement to receive any communication sent, including any
telegram, teletype, bank wire, cable, radiogram or telephone
message sent or any writing, application, notice, report,
statement, certificate, resolution, request, order, consent
letter or other instrument or paper or communication entrusted to
the mails or to a delivery service, or (f) the assets or
liabilities or financial condition or results of operations or
business or credit-worthiness of the Borrower or any of its
Subsidiaries. The Agent shall not be bound to ascertain or
inquire as to the performance or observance of any of the terms
of this Agreement or any Collateral Document.
11.4 Action on Instructions of the Banks. The Agent
shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting
(and shall be fully protected in so acting or refraining from
acting) upon the instructions of the Required Banks (subject to
Section 11.12 hereof), and such instructions shall be binding
upon all the Banks and all holders of the Notes; provided,
however, that the Agent shall not be required to take any action
which exposes it to personal liability or which is contrary to
this Agreement or applicable law. The foregoing provisions of
this Section 11.4 shall not limit in any way the exercise by any
Bank of any right or remedy granted to such Bank pursuant to the
terms of this Agreement or any Collateral Document. Except as
otherwise expressly provided herein, any reference in this
Agreement to action by the Banks shall be deemed to be a
reference to the Required Banks.
11.5 Employment of Agents and Counsel. The Agent may
execute any of its duties as Agent hereunder by or through
employees, agents and attorneys-in-fact and shall not be
answerable to the Banks, except as to money or securities
received by it or its authorized agents, for the default or
misconduct of any such agents or attorneys-in- fact selected by
it with reasonable care.
11.6 Reliance on Documents; Counsel. The Agent shall be
entitled to rely upon any Note, notice, consent, certificate,
affidavit, letter, telegram, statement, paper, document or other
communications believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, and,
with respect to legal matters, upon the opinion of counsel
selected by the Agent, which counsel may be employees of the
Agent, concerning all matters pertaining to the agency hereby
created and its duties hereunder.
11.7 Agent's Reimbursement and Indemnification. The
Banks agree to reimburse and indemnify the Agent (which
<PAGE>
indemnification shall be shared by the Banks ratably in
proportion to their respective Ratable Shares) (a) for any
amounts not reimbursed by the Borrower for which the Agent is
entitled to reimbursement by the Borrower hereunder or under any
Collateral Document, (b) for any other expenses reasonably
incurred by the Agent on behalf of the Banks, in connection with
the preparation, execution, delivery, administration, amendment
or enforcement hereof or of any of the Collateral Documents and
(c) for any liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
any kind and nature whatsoever which may be imposed on, incurred
by or asserted against the Agent in any way relating to or
arising out of this Agreement, any Collateral Document or any
other document related hereto or thereto or the transactions
contemplated hereby or the enforcement of any of the terms hereof
or thereof or of any such other documents, provided that no Bank
shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the Agent.
11.8 Rights as a Bank. With respect to its Ratable
Share of the Commitment and the Letters of Credit, the Loans made
by it and the Notes issued to it, the Agent shall have the same
rights and powers hereunder as any Bank and may exercise the same
as though it were not the Agent, and the term "Bank" or "Banks"
shall, unless the context otherwise indicates, include the Agent
in its individual capacity. The Agent may accept deposits from,
lend money to, and generally engage in any kind of banking or
trust business with the Borrower and its Subsidiaries as if it
were not the Agent hereunder.
11.9 Bank Credit Decision. Each Bank acknowledges that
it has, independently and without reliance upon the Agent or any
other Bank and based on the financial statements prepared by the
Borrower and such other documents and information as it has
deemed appropriate, made its own credit analysis and decision to
enter into this Agreement and the other Collateral Documents.
Each Bank also acknowledges that it will, independently and
without reliance upon the Agent or any other Bank and based on
such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or
not taking action under this Agreement and the other Collateral
Documents. The Agent shall not be required to keep the Banks
informed as to the performance or observance by the Borrower or
its Subsidiaries of this Agreement or any other document referred
to or provided for herein or to inspect the properties or books
of the Borrower or any of its Subsidiaries. Except for notices,
reports and other documents and information expressly required to
be furnished to the Banks by the Agent hereunder, the Agent shall
not have any duty or responsibility to provide any Bank with any
credit or other information concerning the affairs, financial
condition or business of the Borrower or any of its Subsidiaries
which may come into its possession.
<PAGE>
11.10 Successor Agent.
(a) The Agent may, without the consent of the
Borrower or the other Banks, assign its rights and obligations as
Agent hereunder and under the Collateral Documents to its parent
or to any wholly owned subsidiary of its parent which has capital
and retained earnings of at least $500,000,000, and upon such
assignment, the former Agent shall be deemed to have retired, and
such wholly owned subsidiary shall be deemed to be a successor
Agent.
(b) The Agent may resign at any time by giving
written notice thereof to the Banks. Upon any such resignation,
the Required Banks, with the consent of the Borrower, which shall
not be unreasonably withheld, shall have the right to appoint a
successor Agent; provided, however, that the consent of the
Borrower shall not be required if at the time of such resignation
an Event of Default exists. If no successor Agent shall have been
so appointed by the Required Banks and shall have accepted such
appointment within thirty days after the notice of resignation,
then the retiring Agent may appoint a successor Agent. Such
successor Agent shall be a commercial bank having capital and
retained earnings of at least $500,000,000.
(c) Upon the acceptance of any appointment as the
Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the assigning or retiring Agent,
and the assigning or retiring Agent shall be discharged from its
duties and obligations hereunder. After any assigning or retiring
Agent's resignation hereunder as the Agent, the provisions of
this Section 11 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while
it was acting as the Agent hereunder.
11.11 Ratable Sharing. All principal and interest
payments on Loans and commitment fees received by the Agent shall
be remitted to the Banks in accordance with their Ratable Shares.
Any amounts received by the Agent or any other Bank upon the sale
of any collateral for the Loans or upon the exercise of any
remedies hereunder or under any of the Collateral Documents or
upon the exercise of any right of setoff shall be remitted to the
Banks in accordance with their Ratable Shares; provided, however,
that, solely for purposes of the sharing of any amounts received
by the Agent or any other Bank, if at the time of any such
receipt the Borrower has defaulted under any agreements regarding
Rate Hedging Obligations with any Bank or the Affiliate of any
Bank, such Bank's Ratable Share shall be proportionately
increased and the Ratable Shares of the other Banks shall be
proportionately decreased based upon the amount due to the
affected Bank (or such Bank's Affiliate) pursuant to such
agreements. If any Bank shall obtain any payment hereunder
(whether voluntary, involuntary, through exercise of any right of
set-off or otherwise) in excess of its Ratable Share, then such
Bank shall immediately remit such excess to the other Banks pro
rata.
<PAGE>
11.12 Actions by the Agent and the Banks. The Agent
shall take formal action following the occurrence of a Possible
Default or an Event of Default only upon the agreement of the
Required Banks; provided, however, that if -------- ------- the
Agent gives notice to the Banks of a Possible Default or an Event
of Default, and the Required Banks cannot agree (which agreement
shall not be unreasonably withheld) on a mutual course of action
within ten days following such notice, the Agent may (but shall
not be required to) pursue such legal rights and remedies against
the Borrower as it deems necessary and appropriate to protect the
Banks and any collateral under the circumstances.
SECTION 12. MISCELLANEOUS.
12.1 Construction. The provisions of this Agreement
shall be in addition to those of the Collateral Documents and to
those of any other guaranty, security agreement, note or other
evidence of the liability relating to the Borrower held by the
Banks, all of which shall be construed as complementary to each
other. Nothing contained herein shall prevent the Agent or the
Banks from enforcing any or all of such instruments in accordance
with their respective terms. Each right, power or privilege
specified or referred to in this Agreement or in any Collateral
Document is in addition to any other rights, powers or privileges
that the Agent or the Banks may otherwise have or acquire by
operation of law, by other contract or otherwise. No course of
dealing in respect of, nor any omission or delay in the exercise
of, any right, power or privilege by the Agent or the Banks shall
operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any further or other exercise thereof
or of any other, as each right, power or privilege may be
exercised independently or concurrently with others and as often
and in such order as the Agent or the Banks may deem expedient.
Notwithstanding any other provision of this Agreement, the
Borrower shall not be required to pay any amount of interest
pursuant hereto or pursuant to the Notes which is in excess of
the maximum amount permitted by law.
12.2 Further Assurance. From time to time, the Borrower
shall, and shall cause its Subsidiaries to, execute and deliver
to the Agent and the Banks such additional documents and take
such additional actions as the Agent may require to carry out the
purposes of this Agreement or any of the Collateral Documents, or
to preserve and protect the rights of the Agent and the Banks
hereunder or thereunder.
12.3 Expenses of the Agent and the Banks;
Indemnification.
(a) Whether or not the transactions contemplated
by this Agreement are consummated, the Borrower shall pay the
costs and expenses, including the reasonable fees and
disbursements of the Agent's special counsel, incurred by the
Agent and the Banks in connection with (i) the negotiation,
<PAGE>
preparation, administration, amendment or enforcement of this
Agreement and the Collateral Documents and the closing of the
transactions contemplated hereby and thereby; (ii) the perfection
of the Liens granted pursuant hereto or pursuant to the
Collateral Documents; (iii) the making of the Loans and issuance
of the Letters of Credit hereunder; (iv) the negotiation,
preparation or enforcement of any other document in connection
with this Agreement, the Collateral Documents or the Loans made
or Letters of Credit issued hereunder; (v) any proceeding brought
or formal action taken by the Agent or the Banks to enforce any
provision of this Agreement or any Collateral Document, or to
enforce or exercise or preserve any right, power or remedy
hereunder or thereunder; or (vi) any action which may be taken or
instituted by any Person against the Agent or any Bank as a
result of any of the foregoing. The fees and expenses of the
Agent's special counsel through the Closing shall be paid on the
Closing Date. If any taxes, charges or fees shall be payable, or
ruled to be payable, to any state or Federal authority in respect
of the execution, delivery or performance of this Agreement, any
Note or any other Collateral Document by reason of any existing
or hereinafter enacted Federal or state statute (other than any
such taxes on the net income of the Banks and any taxes, charges
or fees which are included in the LIBOR Reserve Percentage), the
Borrower will pay all such taxes, charges or fees, including
interest and penalties thereon, if any, and will indemnify and
hold harmless the Agent and the Banks against any liability in
connection therewith.
(b) The Borrower hereby indemnifies and holds
harmless the Agent and each Bank and their respective directors,
officers, employees, agents, counsel, subsidiaries and affiliates
(the "Indemnified Persons") from and against any and all claims,
losses, liabilities, obligations, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever (including reasonable attorneys fees) which may
be imposed on, incurred by, or asserted against any Indemnified
Person in any way relating to or arising out of this Agreement,
the Collateral Documents, the Transaction Documents, or any of
them, or the Loans made pursuant hereto or the Letters of Credit
issued pursuant hereto, or the use of the proceeds thereof, or
any of the transactions contemplated hereby or thereby or the
business, assets or operations of the Borrower or its
Subsidiaries or the ownership, maintenance, operation or
management of the Towers; provided, however, that the Borrower
shall not be liable to any Indemnified Person, if there is a
final non- appealable judicial determination that such claims,
losses, liabilities, obligations, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulted
solely from the gross negligence or willful misconduct of such
Indemnified Person.
12.4 Notices. Except as otherwise expressly provided
herein, all notices, demands and requests required or permitted
to be given under the provisions of this Agreement shall be in
<PAGE>
writing and shall be deemed to have been duly delivered and
received (a) on the date of personal delivery, (b) on the date of
receipt (as shown on the return receipt) if mailed by registered
or certified mail, postage prepaid and return receipt requested,
(c) on the next business day after delivery to a courier service
that guarantees delivery on the next business day if the
conditions to the courier's guarantee are complied with, or (d)
on the date of receipt (if such date is a Banking Day, otherwise
on the next Banking Day) by telecopy, in each case addressed as
follows:
TO THE AGENT:
Key Corporate Capital Inc.
127 Public Square
Cleveland, Ohio 44114-1306
Attn: Media and Telecommunications Finance
Division
Telecopy: 216-689-4666
With a copy (which shall not constitute
notice) to:
Timothy J. Kelley, Esq.
Dow, Lohnes & Albertson, PLLC
1200 New Hampshire Avenue, N.W.
Suite 800
Washington, D.C. 20036
Telecopy: 202-776-2222
TO THE BANKS, AT THE ADDRESSES LISTED ON THE
SIGNATURE PAGES HEREOF OR IN THE ASSIGNMENT
INSTRUMENT DELIVERED PURSUANT TO SECTION
12.7(b)
TO THE BORROWER:
Crown Atlantic Holding Sub LLC
510 Bering Drive
Suite 500
Houston, Texas 77057
Attn: Chief Financial Officer
Telecopy: 713-570-3150
with copies (which shall not constitute
notice) to:
Bell Atlantic Mobile
180 Washington Valley Road
Bedminster, New Jersey 07921
Attn: David Benson, CFO
Telecopy: 908-306-4350
and
<PAGE>
Robert C. Shearer, Esq.
Brown, Parker & Leahy, L.L.P.
1200 Smith Street, Suite 3600
Houston, Texas 77008
Telecopy: (713) 654-1871
or to such other address or addresses as the party to which such
notice is directed may have designated in writing to the other
parties hereto.
12.5 Waiver and Release by the Borrower. Neither the
Agent, nor any Bank, nor any Affiliate, officer, director,
employee, attorney or agent of the Agent or any Bank shall have
any liability with respect to, and the Borrower hereby waives,
releases and agrees not to sue any of them upon, any claim for
any special, indirect, incidental or consequential damages
suffered or incurred by the Borrower or any of its Subsidiaries
in connection with, arising out of, or in any way related to,
this Agreement or any of the Collateral Documents, or any of the
transactions contemplated by this Agreement or any of the
Collateral Documents, and the Borrower hereby releases the Agent
and each Bank from, and hereby waives, all claims for loss or
damage caused by any act or omission on the part of the Agent or
any Bank or their respective officers, attorneys, agents and
employees, except gross negligence and willful misconduct.
12.6 Right of Set Off. Upon the occurrence and during
the continuance of any Event of Default (but subject to the
provisions of Section 9 of the Tower Subsidiary Security
Agreement or any comparable provision of any other Security
Agreement), each Bank is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set-off
and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other
indebtedness at any time owing by such Bank or an Affiliate of
such Bank to or for the credit or the account of the Borrower or
any of its Subsidiaries against any and all of the obligations of
the Borrower and its Subsidiaries now or hereafter existing
hereunder or under any Collateral Document, irrespective of
whether or not such Bank or its Affiliate shall have made any
demand hereunder or under any Collateral Document and although
such obligations may be unmatured. The rights of the Banks under
this Section are in addition to other rights and remedies
(including without limitation, other rights of set-off) which the
Banks may have; provided, however, that all such other rights of
set-off shall be subject to Section 9 of the Tower Subsidiary
Security Agreement or Section 9 of the Borrower Security
Agreement or any comparable provision of any other Security
Agreement, as the case may be. The Borrower agrees, to the
fullest extent it may effectively do so under applicable law,
that any other holder of a participation in any Note may exercise
rights of set-off or counterclaim and other rights with respect
to such participation as fully as if such holder of a
<PAGE>
participation were a direct creditor of the Borrower or any of
its Subsidiaries in the amount of such participation.
12.7 Successors and Assigns; Participations.
(a) Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include
the successors and assigns of such party; provided, however, that
the Borrower shall not assign or transfer any of its rights or
obligations hereunder or under any Note without the prior written
consent of all of the Banks and the Agent.
(b) Each Bank may assign all or any part of any of
its Loans, its Notes, and its share of the Commitment and the
Letters of Credit with the consent of the Borrower and the Agent,
which consent shall not be unreasonably withheld; provided that
(i) no such consent by the Borrower shall be required (A) for any
such assignment by any Bank to an Affiliate of such Bank or to
another Bank or an Affiliate of another Bank, or (B) if, at the
time of such assignment, an Event of Default or Possible Default
has occurred and is continuing; (ii) any such partial assignment
shall be in an amount at least equal to $5,000,000; (iii) each
such assignment shall be made by a Bank in such manner that the
same portion of its Loans, its Notes, its share of the Commitment
and its participation in the Letters of Credit is assigned to the
assignee; and (iv) the assignee, if not already a Bank, shall
agree to become a party to the BAM Purchase Agreement. Upon
execution and delivery by the assignor and the assignee to the
Borrower and the Agent of an instrument in writing pursuant to
which such assignee agrees to become a "Bank" hereunder (if not
already a Bank) having the share of the Commitment, Loans and
Letters of Credit specified in such instrument, and upon consent
thereto by the Agent and the Borrower (to the extent required),
the assignee shall have, to the extent of such assignment (unless
otherwise provided in such assignment with the consent of the
Agent), the obligations, rights and benefits of a Bank hereunder
holding the share of the Commitment, Loans and Letters of Credit
(or portions thereof) assigned to it (in addition to the share of
the Commitment, Loans and Letters of Credit, if any, theretofore
held by such assignee) and the assigning Bank shall, to the
extent of such assignment, be released from the share of the
Commitment, the Letters of Credit and the obligations hereunder
so assigned.
(c) Upon its receipt of an assignment pursuant to
Section 12.7(b) above duly executed by an assigning Bank and the
assignee, together with any Note subject to such assignment and a
processing and recordation fee of $3,500, the Agent shall, if
such assignment has been completed, accept such assignment.
Within five business days after receipt of such notice, the
Borrower, at the Borrower's own expense, shall execute and
deliver to the Agent in exchange for each surrendered Note a new
Note to the order of the assignee in an amount equal to the share
of the Commitment, of the Loans and of the Letters of Credit
<PAGE>
assumed by the assignee and, if the assigning Bank has retained a
portion of the Commitment, the Loans and the Letters of Credit
hereunder, a new Note to the order of the assigning Bank in an
amount equal to the share of the Commitment and the Loans and the
Letters of Credit retained by it hereunder. Such new Notes shall
be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Notes, shall be dated the
effective date of such assignment and shall otherwise be in
substantially the form of Exhibit A hereto. Cancelled Notes shall
be returned to the Borrower.
(d) A Bank may sell or agree to sell to one or
more other Persons (each, a "Participant") a participation in all
or any part of any Loans held by it, or in its share of the
Commitment and the Letters of Credit. Except as otherwise
provided in the last sentence of this Section 12.7(d), no
Participant shall have any rights or benefits under this
Agreement or any Note or any other Collateral Documents (the
Participant's rights against such Bank in respect of such
participation to be those set forth in the agreements executed by
such Bank in favor of the Participant). All amounts payable by
the Borrower to any Bank under Section 2 hereof in respect of
Loans held by it, and its share of the Commitment, shall be
determined as if such Bank had not sold or agreed to sell any
participations in such Loans and share of the Commitment, and as
if such Bank were funding each of such Loans and its share of the
Commitment in the same way that it is funding the portion of such
Loans and its share of the Commitment in which no participations
have been sold. In no event shall a Bank that sells a
participation agree with the Participant to take or refrain from
taking any action hereunder or under any other Collateral
Document except that such Bank may agree with the Participant
that it will not, without the consent of the Participant, agree
to any modification, supplement or waiver hereof or of any of the
other Collateral Documents to the extent that the same, under
Section 12.14 hereof, requires the consent of each Bank. The
Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.6 through 2.13 and Section 12.6 with
respect to its participating interest.
(e) In addition to the assignments and
participations permitted under the foregoing provisions of this
Section 12.7, any Bank may assign and pledge all or any portion
of its Loans and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A of the Board of
Governors of the Federal Reserve System and any Operating
Circular issued by such Federal Reserve Bank. No such assignment
shall release the assigning Bank from its obligations hereunder.
(f) A Bank may furnish any information concerning
the Borrower and its Subsidiaries in the possession of such Bank
from time to time to assignees and participants (including
prospective assignees and participants).
<PAGE>
(g) Anything in this Section 12.7 to the contrary
notwithstanding, except pursuant to the BAM Purchase Agreement,
no Bank may assign or participate any interest in any Loan held
by it hereunder to the Borrower or any of its Affiliates without
the prior written consent of each Bank.
12.8 Applicable Law. THIS AGREEMENT AND THE COLLATERAL
DOCUMENTS, AND THE DUTIES, RIGHTS, POWERS AND REMEDIES OF THE
PARTIES HERETO AND THERETO, SHALL BE CONSTRUED IN ACCORDANCE
WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF OHIO (WITHOUT
REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF), EXCEPT TO
THE EXTENT THAT ANY COLLATERAL DOCUMENT PROVIDES THAT THE LOCAL
LAW OF ANOTHER JURISDICTION GOVERNS THE GRANT, PERFECTION OR
ENFORCEMENT OF THE LIENS GRANTED PURSUANT TO SUCH COLLATERAL
DOCUMENT. THE PROVISIONS OF THIS SECTION HAVE BEEN FULLY
DISCUSSED BY THE BORROWER AND THE AGENT ON BEHALF OF THE BANKS
AND SHALL BE SUBJECT TO NO EXCEPTIONS. THE BORROWER HAS MADE THIS
CHOICE OF GOVERNING LAW KNOWINGLY AND WILLINGLY AND AFTER
CONSULTING WITH ITS COUNSEL. NONE OF THE AGENT, ANY BANK NOR THE
BORROWER HAS AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT
THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
12.9 ENFORCEMENT. THE BORROWER (A) HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE STATE COURTS OF THE STATE OF
OHIO AND TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO, FOR THE PURPOSE OF ANY SUIT,
ACTION OR OTHER PROCEEDING ARISING OUT OF OR BASED UPON THIS
AGREEMENT OR ANY COLLATERAL DOCUMENT OR THE SUBJECT MATTER HEREOF
OR THEREOF BROUGHT BY THE AGENT OR THE BANKS OR THEIR SUCCESSORS
OR ASSIGNS AND (B) HEREBY WAIVES, AND AGREES NOT TO ASSERT, BY
WAY OF MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT,
ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT SUBJECT PERSONALLY
TO THE JURISDICTION OF THE ABOVE-NAMED COURTS, THAT ITS PROPERTY
IS EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT THE SUIT,
ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT
THE VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT
THIS AGREEMENT OR ANY COLLATERAL DOCUMENT OR THE SUBJECT MATTER
HEREOF OR THEREOF MAY NOT BE ENFORCED IN OR BY SUCH COURT, AND
(C) HEREBY WAIVES AND AGREES NOT TO SEEK ANY REVIEW BY ANY COURT
OF ANY OTHER JURISDICTION WHICH MAY BE CALLED UPON TO GRANT AN
ENFORCEMENT OF THE JUDGMENT OF ANY SUCH OHIO STATE OR FEDERAL
COURT. THE BORROWER HEREBY CONSENTS TO SERVICE OF PROCESS BY
REGISTERED MAIL AT THE ADDRESS TO WHICH NOTICES ARE TO BE GIVEN.
THE BORROWER AGREES THAT ITS SUBMISSION TO JURISDICTION AND ITS
CONSENT TO SERVICE OF PROCESS BY MAIL IS MADE FOR THE EXPRESS
BENEFIT OF THE AGENT AND THE BANKS. FINAL JUDGMENT AGAINST THE
BORROWER IN ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE ENFORCED
IN OTHER JURISDICTIONS BY SUIT, ACTION OR PROCEEDING ON THE
JUDGMENT, OR IN ANY OTHER MANNER PROVIDED BY OR PURSUANT TO THE
<PAGE>
LAWS OF SUCH OTHER JURISDICTION; PROVIDED, HOWEVER, THAT THE
AGENT OR THE BANKS MAY AT THEIR OPTION BRING SUIT, OR INSTITUTE
OTHER JUDICIAL PROCEEDINGS, AGAINST THE BORROWER OR ANY OF ITS
ASSETS IN ANY STATE OR FEDERAL COURT OF THE UNITED STATES OR OF
ANY COUNTRY OR PLACE WHERE THE BORROWER, OR SUCH ASSETS, MAY BE
FOUND.
12.10 JURY TRIAL WAIVER. THE BORROWER, THE AGENT AND
THE BANKS EACH WAIVE IRREVOCABLY, TO THE EXTENT PERMITTED BY LAW,
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, BETWEEN THE
BANKS AND THE BORROWER ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN
THEM IN CONNECTION WITH THIS AGREEMENT OR THE NOTES OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO AND
THERETO. THE SCOPE OF THIS WAIVER IS INTENDED TO BE
ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY
COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS AGREEMENT AND
THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING WITHOUT
LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS,
AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THE BORROWER, THE
AGENT AND THE BANKS ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS
ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND
THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED
FUTURE DEALINGS. THE BORROWER, THE AGENT AND THE BANKS FURTHER
WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS
LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS
JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER
ORALLY OR IN WRITING (UNLESS EXPRESSLY MODIFIED IN WRITING BY ALL
PARTIES HERETO), AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, THE COLLATERAL DOCUMENTS AND TO ANY OTHER DOCUMENTS
OR AGREEMENTS RELATING TO THE LOANS. IN THE EVENT OF LITIGATION,
THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY
THE COURT.
12.11 Binding Effect and Entire Agreement; No Oral
Agreements. This Agreement shall inure to the benefit of, and
shall be binding upon, the respective successors and permitted
assigns of the parties hereto. This Agreement, the Schedules and
Exhibits hereto, which are hereby incorporated in this Agreement,
and the Collateral Documents constitute the entire agreement
among the parties on the subject matter hereof. There are no
unwritten or oral agreements among the Borrower, the Agent and
the Banks, and this written Agreement, the Notes, the other
Collateral Documents, and the instruments and documents executed
in connection herewith, represent the final agreement between the
parties and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the parties.
12.12 Counterparts. This Agreement may be executed in
any number of counterparts or duplicate originals, each of which
<PAGE>
shall be deemed to be an original, but all of which together
shall constitute one and the same instrument.
12.13 Survival of Agreements. All covenants,
agreements, representations and warranties made herein or in any
Collateral Document shall survive any investigation and the
Closing, and shall continue in full force and effect so long as
any of the Obligations remain to be performed or paid or the
Banks have any obligation to advance sums or issue Letters of
Credit hereunder or any Letter of Credit remains outstanding.
12.14 Modification. Any term of this Agreement or of
any Note may be amended and the observance of any term of this
Agreement or of any Note may be waived (either generally or in a
particular instance and either retroactively or prospectively)
only with the written consent of the Borrower and the Required
Banks, and any amendment or waiver effected in accordance with
this Section 12.14 shall be binding upon each holder of a Note at
the time outstanding, each future holder of a Note and the
Borrower; provided, however, that no such amendment or waiver or
other action shall, without the prior written consent of all of
the Banks or the holders of all of the Notes at the time
outstanding, (a) extend the maturity or reduce the principal
amount of, or reduce the rate or extend the time of payment of
interest on, or reduce the amount or extend the time of payment
of any principal installment of, any Note, (b) reduce the amount
or extend the time of payment of the commitment fees or the fees
shared by the Banks and payable in respect of Letters of Credit,
(c) change the Commitment or the Ratable Share of any Bank (other
than any change in Commitment or Ratable Share resulting from the
sale of a participation in or assignment of any Bank's interest
in the Commitment and Loans in accordance with Section 12.7), (d)
change the percentage referred to in the definition of "Required
Banks" contained in Section 1.1, or reduce the number of Banks
required to approve any consent, waiver, amendment or
modification, (e) amend this Section 12.14, (f) amend or waive
compliance with Section 2.5(b), or (g) release any collateral or
any guaranty for the Loans; and provided, further, that
notwithstanding the foregoing provisions of this Section 12.14,
this Agreement and the Notes may be amended or modified in the
manner contemplated by Section 12.7 for the purpose of permitting
any Bank to assign its interest, rights and obligations hereunder
to another Person, if the appropriate assignment agreement or
counterparts thereof are executed by the Borrower (to the extent
required), the Agent and the appropriate Bank assignor and
assignee. In addition, no amendment, waiver or consent to the
provisions of Section 11 shall be made without the written
consent of the Agent, and no amendment, waiver or consent to the
provisions of Section 2.1(d) shall be made without the written
consent of the Issuing Bank. Any amendment or waiver effected in
accordance with this Section 12.14 shall be binding upon each
holder of any Note at the time outstanding, each future holder of
any Note and the Borrower.
<PAGE>
12.15 Separability. If any one or more of the
provisions contained in this Agreement or any Collateral Document
should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of all remaining provisions
shall not in any way be affected or impaired. Any provision of
this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the
validity or enforceability of such provision in any other
jurisdiction.
12.16 Section Headings. The section headings contained
herein are for reference purposes only and shall not in any way
affect the meaning or interpretation of this Agreement.
12.17 Termination. This Agreement shall terminate when
all amounts due hereunder, under each Note and under each
Collateral Document shall have been indefeasibly paid in full in
cash and all other Obligations hereunder or thereunder shall have
been fully performed, so long as no Letters of Credit are then
outstanding and the Banks have no further obligation to advance
sums or issue Letters of Credit hereunder. Notwithstanding the
foregoing, this Agreement shall continue to be effective or be
reinstated and relate back to such time as though this Agreement
had always been in effect, as the case may be, if at any time any
amount received by the Agent or any Bank in respect of the
Obligations is rescinded or must otherwise be restored or
returned by such Bank upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of the Borrower, any
of its Subsidiaries, Holdco or any other Person or upon the
appointment of any intervenor or conservator of, or trustee or
similar official for, the Borrower, any of its Subsidiaries,
Holdco or any other Person or any substantial part of its
properties, or otherwise, all as though such payments had not
been made. Notwithstanding anything to the contrary contained
herein or in any Collateral Document, any indemnification or
expense reimbursement provision contained herein or in any
Collateral Document shall remain in full force and effect
notwithstanding the termination of this Agreement.
12.18 Interest Limitation. It is the intention of the
Borrower and the Banks to conform strictly to the respective
usury laws applicable to the Banks. Accordingly, if the
transactions contemplated hereby would be usurious under
applicable law as to any Bank, then, in that event,
notwithstanding anything to the contrary in the Notes or this
Agreement or in any other Collateral Document, it is agreed as
follows: (a) the aggregate of all consideration which
constitutes interest under law applicable to such Bank that is
contracted for, taken, reserved, charged or received under any
Note payable to such Bank or this Agreement or under any other
Collateral Document or otherwise in connection with such Note
shall under no circumstances exceed the maximum amount allowed by
<PAGE>
such law (or, if the principal amount of such Note shall have
been or would thereby be paid in full, refunded to the Borrower);
and (b) in the event that the maturity of any Note payable to a
Bank is accelerated or in the event of any required or permitted
prepayment, then such consideration that constitutes interest
under law applicable to such Bank may never include more than the
maximum amount allowed by such applicable law, and excess
interest, if any, provided for in this Agreement or otherwise
shall be cancelled automatically as of the date of such
acceleration or prepayment and, if theretofore paid, shall be
credited by such Bank on the principal amount of such Note (or,
if the principal amount of such Note shall have been or would
thereby be paid in full, refunded by such Bank to the Borrower).
All calculations made to compute the rate of interest that is
contracted for, taken, reserved, charged or received under any
Note payable to any Bank or under this Agreement or under any
other Collateral Document or otherwise in connection with such
Note for the purpose of determining whether such rate exceeds the
maximum amount allowed by law applicable to such Bank shall be
made, to the extent permitted by such applicable law, by
amortizing, prorating, and spreading in equa parts during the
period of the full stated term of the Loan or Loans evidenced by
such Note all interest at any time contracted for, taken,
reserved, charged or received by such Bank in connection
therewith.
12.19 Confidentiality. In handling any information
which the Borrower has identified to the Agent and the Banks as
being confidential, the Agent and the Banks shall exercise the
same degree of care that they exercise with respect to their own
proprietary information of the same types to maintain the
confidentiality of any non-public information thereby received or
received pursuant to this Agreement except that disclosure of
such information may be made (a) to the subsidiaries or
affiliates of the Agent or any Bank in connection with their
present or prospective business relations with the Borrower or
any of its Subsidiaries, (b) to the Agent's or any Bank's
business and legal advisors, (c) to prospective transferees or
purchasers of any interest in the Loans, provided that they have
agreed to abide by confidentiality restrictions similar to those
set forth in this Section, (d) as required by law, regulation,
rule or order, subpoena, judicial order or similar order and (e)
as may be required in connecction with the examination, audit or
similar investigation of the Agent or any Bank.
12.20 Non-Recourse to CCIC; Limited Recourse to BAM.
Notwithstanding anything to the contrary contained herein or in
any Collateral Document, neither the Agent nor any Bank shall
have any recourse hereunder or thereunder against CCIC or any of
its assets or properties. Except as provided in the Collateral
Documents, neither the Agent nor any Bank shall have any recourse
hereunder or under the Collateral Documents against BAM or any of
its Affiliates or any of their respective assets or properties.
<PAGE>
TO WITNESS THE ABOVE, the Borrower, the Banks, the
Issuing Bank and the Agent have caused this Loan Agreement to be
executed by their respective representatives thereunto duly
authorized as of the date first above written.
BORROWER:
CROWN ATLANTIC HOLDING SUB LLC
By: /s/ Brian D. Jacks
Name: Brian D. Jacks
Title: President
AGENT:
KEY CORPORATE CAPITAL INC.
By: /s/ Jason R. Weaver
Name: Jason R. Weaver
Title: Vice President
ISSUING BANK:
KEY CORPORATE CAPITAL INC.
By: /s/ Jason R. Weaver
Name: Jason R. Weaver
Title: Vice President
BANKS:
KEY CORPORATE CAPITAL INC.
By: /s/ Jason R. Weaver
Name: Jason R. Weaver
Title: Vice President
Address: 127 Public Square
Cleveland, Ohio 44114-1306
Attn: Media and Telecommunications Finance Division
<PAGE>
LIST OF SCHEDULES AND EXHIBITS
Schedule 1.1 List of Banks and Ratable Shares
Exhibit A Form of Note
Exhibit B Financial Statements
Exhibit C Projections
Exhibit D Capitalization and
Subsidiaries
Exhibit E Proceedings, Litigation and
Non-Compliance with Law
Exhibit F Liens and Indebtedness
Exhibit G List of Contracts, Commitments
and Licenses
Exhibit H ERISA Liabilities and Plans
Exhibit I Real Property List
Exhibit J Form of Compliance Certificate
Exhibit K Form of Monthly Tower List
Exhibit L Procedure for Calculating Test
Operating Cash Flow at Closing
Exhibit M Environmental Conditions
