AMENDMENT TO LEASE AND SUBLEASE
Exhibit 10.2
AMENDMENT TO LEASE AND SUBLEASE
This AMENDMENT TO LEASE AND SUBLEASE (the “Amendment”) made and entered into as of this 30th day of September, 2008 (the “Amendment Date”), is entered into by and between SPECTRASITE, LLC, a Delaware limited liability company, f/k/a SpectraSite Holdings, Inc., a Delaware corporation (“TowerCo Parent”), AMERICAN TOWER ASSET SUB II, LLC, a Delaware limited liability company, successor in interest to Southern Towers, Inc., a Delaware corporation (“TowerCo”), SBC WIRELESS, LLC, a Delaware limited liability company (“Wireless Guarantor”), and SBC TOWER HOLDINGS LLC, a Delaware limited liability company, for itself and as Agent for the SBC Group Members (“SBC”).
R E C I T A L S
| A. | On December 14, 2000, TowerCo and SBC entered into that certain Lease and Sublease, as previously amended by numerous letter agreements (as amended, the “Sublease”). |
| B. | The parties desire to further modify certain terms contained in the Sublease pertaining to SBC’s Withdrawal Right and the SBC Leaseback Charge. |
| C. | This Amendment, the Second Amendment to SLMA, the First Amendment to MLA and the ▇▇▇▇▇▇ Settlement (each as defined in paragraph 6(b) hereof) are being entered into as the result of discussions between TowerCo and SBC and each party’s affiliates to resolve issues which have arisen between the respective parties. |
NOW, THEREFORE, for and in consideration of the sum of One Dollar ($1.00) in hand paid and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree to and confirm the following:
1. Withdrawal.
Except with respect to the Sites listed on Exhibit A to this Amendment (the Sites listed on Exhibit A are hereby defined as “Withdrawal Eligible Sites”), the first sentence of Section 9(a) of the Sublease is hereby deleted in its entirety and replaced with the following:
“Notwithstanding anything to the contrary contained herein, SBC will have the Withdrawal Right for the benefit of itself and any SBC Affiliate, exercisable in respect of any Site on the date that is the last day of the 215th month following the applicable Site Commencement Date and on each five year anniversary of such date thereafter.”
With respect to the Withdrawal Eligible Sites, withdrawals completed on or after the 215th month following the applicable Site Commencement Date shall be subject to the provisions of the Sublease and will not require a Withdrawal Right Replacement Site as defined below.
With respect to the Withdrawal Eligible Sites, withdrawals completed before the 215th month are subject to the following:
(i) As of the Withdrawal Date, the SBC Leaseback Charge payable for each Withdrawal Eligible Site shall be deemed to equal [ ]*, which amount shall increase by [ ]* on January 1, 2012 and each January 1st thereafter, compounded annually.
(ii) The SBC Leaseback Charge under section (i) above shall continue to be due and payable monthly until the later of (i) the commencement of the designated Withdrawal Right Replacement Site or (ii) the date SBC submits an Equipment Notice under the DSEA. Provided that if SBC does not submit an Equipment
*Confidential Treatment Requested. Omitted portions filed with the Securities and Exchange Commission (the “Commission”).
Notice under the DSEA, the SBC Leaseback Charge under section (i) above shall continue to be due and payable monthly until the later of (i) the commencement of the designated Withdrawal Right Replacement Site or (ii) the date SBC provides notice of the removal of its Communications Equipment from the Site, at SBC’s sole cost, including the cost to repair any damage caused during such removal.
(iii) As used herein a “Withdrawal Right Replacement Site” means a Schedule Tower Space License for New Sites (w) executed by the Licensee (as defined in the MLA) and which commences on or after November 30, 2010, (x) subject to the terms of the MLA, (y) providing for a Commencement Date occurring on or after the Withdrawal Date of the Withdrawal Eligible Site and (z) having an initial monthly License Fee greater than or equal to [ ]*, which amount shall increase by [ ]* on January 1, 2012 and each January 1st thereafter, compounded annually (such License Fee to be determined in accordance with the terms of the MLA, and subsequent to the commencement of such Schedule shall escalate in accordance with the terms of the MLA). SBC shall designate such Withdrawal Right Replacement Site in substantial conformity to Exhibit B. Each Schedule commencing after the Withdrawal Date of a Site which meets the foregoing requirements of a Withdrawal Right Replacement Site is eligible for designation.
(iv) As used herein, the “DSEA” means that certain Decommissioning Sites Equipment Agreement dated September 14, 2006, by and between American Towers, Inc., and Cingular Wireless LLC. The DSEA is hereby incorporated by reference, provided that for the purposes hereof all references in the DSEA to “Licensor” shall be deemed to refer to TowerCo, and all references to “Licensee” shall be deemed to refer to SBC. SBC and TowerCo acknowledge and agree that as of the Amendment Date the term of the DSEA has expired, and further that for the purpose of this Amendment only the terms of the DSEA shall be in full force and effect as though the DSEA has not expired and as though each Withdrawal Eligible Site were a DSA (as defined in the DSEA). SBC hereby acknowledges that, in addition to the other terms and conditions contained in the DSEA, the terms contained in paragraph 2(c) requiring the payment of the Equipment Fee (as defined therein) shall apply hereunder.
(v) Notwithstanding anything to the contrary herein or in the SLMA, if the Licensee (as defined in the SLMA) has not yet satisfied the Minimum Commitment as of the applicable Withdrawal Date then upon the election to treat a qualifying Schedule as a Withdrawal Right Replacement Site, such Schedule shall no longer be eligible to count towards Licensee’s satisfaction of the Minimum Commitment.
With respect to SBC’s exercise of its Withdrawal Right, both parties acknowledge that SBC has provided the required notices, as required under the Sublease, for the Withdrawal Eligible Sites.
2. SBC Leaseback Charge.
Notwithstanding anything to the contrary contained in Section 10(b) of the Sublease, except as otherwise provided under Section 10(f) of the Sublease (as amended by this Amendment), from and after the Amendment Date through and including the 154th month after the applicable Site Commencement Date, the SBC Leaseback payable to TowerCo with respect to each Site shall increase on each anniversary of the Effective Date (as such term is defined in the Sublease) by an amount equal to [ ]* of the SBC Leaseback Charge in effect for such Site immediately preceding such anniversary.
Section 10(f) of the Sublease is hereby deleted in its entirety and replaced with the following:
“Notwithstanding anything to the contrary contained herein, effective as of the date that is the first day of the month following the 155th month after the applicable Site Commencement Date, the then current SBC Leaseback Charge payable to TowerCo with respect to each Site shall automatically be modified to be the SBC Leaseback Charge in effect as of the last day of the 155th month after the applicable Site Commencement Date reduced by [ ]*.
*Confidential Treatment Requested. Omitted portions filed with the Commission.
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Subsequent to the foregoing modification, the SBC Leaseback Charge will no longer escalate pursuant to Section 10(b), but shall automatically increase on each anniversary of the Effective Date (as such term is defined in the Sublease) by an amount equal to [ ]* of the SBC Leaseback Charge in effect for such Site immediately preceding such anniversary.”
3. Ratification / Counterparts. Except as amended hereby, the Sublease remains in full force and effect and unchanged. As amended hereby, the Sublease is hereby ratified and confirmed by the parties hereto. This Amendment may be executed in any number of counterparts, each of which shall be an original, but all of which taken together shall constitute one instrument.
4. Authority. Each party hereto represents and warrants to the other that all necessary authorizations required for the execution and performance of this Amendment have been given and that the undersigned officer of a party is duly authorized to execute this Amendment and bind the party for which it signs.
5. Defined Terms. Any capitalized terms used herein but not defined herein shall have the meaning assigned to such term under the Sublease.
6. Independence of Agreements; Condition Precedent; Board Approval Contingency.
(a) TowerCo and SBC acknowledge and agree that this Amendment, the Second Amendment to SLMA, First Amendment to MLA and the ▇▇▇▇▇▇ Settlement are each being entered into by TowerCo, SBC or each party’s respective affiliates as a resolution of discussions between such parties. The foregoing notwithstanding, TowerCo and SBC acknowledge and agree that each party’s performance under each of this Amendment, the Second Amendment to SLMA, the First Amendment to MLA and the ▇▇▇▇▇▇ Settlement is independent of such parties performance under any of the foregoing and that nonperformance by one party under any of the foregoing does not excuse the performance of the other party under any of the other agreements.
(b) This Amendment and the parties’ rights and obligations hereunder are contingent upon the delivery to TowerCo and SBC of fully executed original counterparts of the following documents to be executed contemporaneously with this Amendment: (i) the Second Amendment to the Site License Modification Agreement between American Towers, Inc. and Cingular Wireless, LLC dated October 31, 2005 (“Second Amendment to SLMA”) (ii) the First Amendment to the Master Tower Space License Agreement between American Towers, Inc. and Cingular Wireless, LLC dated October 31, 2005 (“First Amendment to MLA”), and (iii) the Settlement Agreement between American Tower, L.P. and ▇▇▇▇▇▇ Cellular Systems, Inc. (“▇▇▇▇▇▇ Settlement”).
(c) In addition to the foregoing contingency, this Amendment and the parties’ rights and obligations hereunder are contingent upon the approval of the transaction contemplated herein by TowerCo’s Board of Directors and SBC’s Board of Directors, if required pursuant to each company’s internal policies and procedures (the “Board Approval”). If such approval is required and TowerCo and/or SBC, as applicable, has not obtained the respective Board Approval by October 31, 2008, this Amendment shall automatically be null and void ab initio and be of no further force and effect. If such approval is required, TowerCo and/or SBC shall each notify the other party in writing that it has obtained such Board Approvals promptly after same are obtained. If such approval is not required, TowerCo and/or SBC shall each notify the other party in writing that it has made such determination by or before October 31, 2008.
7. Confidentiality. TowerCo and SBC hereby agree that the terms and conditions of this Amendment are confidential, and such terms and conditions shall not be disclosed by either party hereto without the prior written consent of the other party, provided however, that the restrictions contained herein shall not apply to the extent such disclosure may otherwise be required by law. In the event that disclosure is required by law, the party so
*Confidential Treatment Requested. Omitted portions filed with the Commission.
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required to disclose shall immediately (and prior to disclosure) notify the other party that based on legal advice received by such party from its counsel, such disclosure is required, and the parties agree to act reasonably and cooperate in good faith with each other to make such required disclosure on a mutually agreeable basis.
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*Confidential Treatment Requested. Omitted portions filed with the Commission.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date aforesaid.
TowerCo / TowerCo Parent:
| AMERICAN TOWER ASSET SUB II, LLC, a Delaware limited liability company, successor in interest to Southern Towers, Inc. |
SPECTRASITE, LLC, a Delaware limited liability company, f/k/a SpectraSite Holdings, Inc. By: American Tower Corporation, its sole member | |||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
| |||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ |
Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | |||
| Title: | President, US Tower Division |
Title: | President, US Tower Division | |||
| Date: | 9/30/2008 |
Date: | 9/30/2008
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| SBC / Wireless Guarantor: | ||||||
| SBC TOWER HOLDINGS LLC, a Delaware limited liability company, for itself and as Agent for the SBC Group Members |
New Cingular Wireless PCS, LLC (f/k/a SBC WIRELESS, LLC) By: AT&T Mobility Corporation, its Manager | |||||
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ |
By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
| |||
| Name: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ |
Name: | ▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: | Vice President |
Title: | Vice President, Corporate Development | |||
| Date: | 9/30/2008 |
Date: | 9/30/2008
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Approved as to form by American Tower Legal Department
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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*Confidential Treatment Requested. Omitted portions filed with the Commission.
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