Exhibit
10.7
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
”).
RECITALS
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A.
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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
”).
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B.
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The parties
desire to further modify certain terms contained in the Sublease
pertaining to SBC’s Withdrawal Right and the SBC Leaseback
Charge.
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C.
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This Amendment,
the Second Amendment to SLMA, the First Amendment to MLA and the
Dobson 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.
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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
215 th 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
215 th 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
215 th 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 1 st thereafter, compounded
annually.
*Confidential Treatment
Requested. Omitted portions filed with the Securities and
Exchange Commission (the “Commission”).
(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 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 1 st 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 154
th
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.
*Confidential Treatment
Requested. Omitted portions filed with the
Commission.
2
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 155
th
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 155 th month after the applicable Site
Commencement Date reduced by [ ]
*
.
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 Dobson 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 Dobson
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 t
