Exhibit 10.1
$900,000,000
CROWN CASTLE INTERNATIONAL
CORP.
9.00% SENIOR NOTES DUE
2015
UNDERWRITING
AGREEMENT
January 22, 2009
January 22, 2009
To the Managers named in Schedule I
hereto
for the Underwriters named in Schedule II
hereto
Ladies and Gentlemen:
Crown Castle International Corp., a
Delaware corporation (the “ Company ”), proposes
to issue and sell to the several underwriters named in
Schedule II hereto (the “ Underwriters ”),
for whom you are acting as managers (the “ Managers
”), the principal amount of its debt securities identified in
Schedule I hereto (the “ Notes ”), to be
issued under the indenture specified in Schedule I hereto (the
“ Indenture ”) between the Company and the
Trustee identified in such Schedule (the “ Trustee
”). If the firm or firms listed in Schedule II hereto
include only the Managers listed in Schedule I hereto, then
the terms “Underwriters” and “Managers” as
used herein shall each be deemed to refer to such firm or
firms.
The Company has filed with the
Securities and Exchange Commission (the “ Commission
”) a registration statement, including a prospectus, (the
file number of which is set forth in Schedule I hereto) on
Form S-3, relating to securities (the “ Shelf
Securities ”), including the Notes, to be issued from
time to time by the Company. The registration statement as amended
to the date of this Agreement, including the information (if any)
deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A or Rule 430B under the
Securities Act of 1933, as amended (the “ Securities
Act ”), is hereinafter referred to as the “
Registration Statement, ” and the related prospectus
covering the Shelf Securities dated January 16, 2009, in the
form first used to confirm sales of the Notes (or in the form first
made available to the Underwriters by the Company to meet requests
of purchasers pursuant to Rule 173 under the Securities Act) is
hereinafter referred to as the “ Basic Prospectus
.” The Basic Prospectus, as supplemented by the prospectus
supplement specifically relating to the Notes in the form first
used to confirm sales of the Notes (or in the form first made
available to the Underwriters by the Company to meet requests of
purchasers pursuant to Rule 173 under the Securities Act) is
hereinafter referred to as the “ Prospectus ,”
and the term “ preliminary prospectus ” means
any preliminary form of the Prospectus. For purposes of this
Agreement, “ free writing prospectus ” has the
meaning set forth in Rule 405 under the Securities Act, “
Time of Sale Prospectus ” means the preliminary
prospectus together with the free writing prospectuses, if any,
each identified in Schedule I hereto, and “ broadly
available road show ” means a “bona fide electronic
road show” as defined in Rule 433(h)(5) under the Securities
Act that has been made available without restriction to any person.
As used herein, the terms “Registration Statement,”
“Basic Prospectus,” “preliminary
prospectus,” “Time of Sale
Prospectus” and “Prospectus”
shall include the documents, if any, incorporated by reference
therein. The terms “ supplement ,” “
amendment ,” and “ amend ” as used
herein with respect to the Registration Statement, the Basic
Prospectus, the Time of Sale Prospectus, any preliminary prospectus
or free writing prospectus shall include all documents subsequently
filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the “ Exchange Act
”), that are deemed to be incorporated by reference
therein.
1. Representations and Warranties
of the Company . The Company represents and warrants to and
agrees with each of the Underwriters that:
(a) The Registration Statement has
become effective; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or, to the knowledge of the Company,
threatened by the Commission. The Registration Statement is an
automatic shelf registration statement as defined in Rule 405 under
the Securities Act and the Company is a well-known seasoned issuer
(as defined in Rule 405 under the Securities Act) eligible to use
the Registration Statement as an automatic shelf registration
statement and the Company has not received notice that the
Commission objects to the use of the Registration Statement as an
automatic shelf registration statement.
(b) (i) Each document, if any, filed
or to be filed pursuant to the Exchange Act and incorporated by
reference in the Time of Sale Prospectus or the Prospectus complied
or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, (ii) each part of the Registration
Statement, when such part became effective, did not contain, and
each such part, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, (iii) the Registration
Statement does not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading,
(iv) the Registration Statement, as of the date hereof
complies, and the Prospectus, as of its date will comply, and the
Registration Statement and the Prospectus, as amended or
supplemented, if applicable, will comply, as of the Closing Date,
in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder, (v) the
Time of Sale Prospectus does not, and at the time of each sale of
the Notes in connection with the offering when the Prospectus is
not yet available to prospective purchasers and at the Closing Date
(as defined in Section 5), the Time of Sale Prospectus, as
then amended or supplemented by the Company, if applicable, will
not, contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were
made,
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not misleading, (vi) each broadly available
road show, if any, when considered together with the Time of Sale
Prospectus, does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading and (vii) the Prospectus as of
its date will not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to
(A) statements or omissions in the Registration Statement, the
Time of Sale Prospectus or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Managers expressly for use therein or
(B) that part of the Registration Statement that constitutes
the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of 1939, as amended (the “ Trust Indenture
Act ”), of the Trustee.
(c) The Company is not an
“ineligible issuer” in connection with the offering
pursuant to Rules 164, 405 and 433 under the Securities Act. Any
free writing prospectus that the Company is required to file
pursuant to Rule 433(d) under the Securities Act has been, or will
be, filed with the Commission in accordance with the requirements
of the Securities Act and the applicable rules and regulations of
the Commission thereunder. Each free writing prospectus that the
Company has filed, or is required to file, in connection with the
offering of Notes pursuant to Rule 433(d) under the Securities Act
or that was prepared by or on behalf of or used or referred to by
the Company complies or will comply in all material respects with
the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Except for the free
writing prospectuses, if any, identified in Schedule I hereto
forming part of the Time of Sale Prospectus, and electronic road
shows, if any, each furnished to you before first use, the Company
has not prepared, used or referred to, and will not, without your
prior consent, prepare, use or refer to, any free writing
prospectus.
(d) Neither the Company nor any of
its subsidiaries has sustained, since the date of the latest
audited financial statements incorporated by reference into the
Registration Statement, the Time of Sale Prospectus or the
Prospectus, any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the Time of Sale Prospectus and the Prospectus or
as would not reasonably be expected, in the aggregate, to result in
a Material Adverse Effect (as defined below); and, since the
respective dates as of which information is given in the Time of
Sale Prospectus and the Prospectus, there has not been any change
in the capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a
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prospective material adverse change, except such
as are described in the Time of Sale Prospectus and the Prospectus
or such as would not be reasonably expected, in the aggregate, to
result in a material adverse effect on the condition (financial or
other), business, properties or results of operations of the
Company and the Material Subsidiaries (as defined in
Section 1(g)), taken as a whole (a “ Material Adverse
Effect ”).
(e) The Company and each of its
subsidiaries have good and marketable title to all real property
and good and marketable title to all personal property owned by
them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Time of Sale Prospectus
and the Prospectus or would not reasonably be expected, in the
aggregate, to have a Material Adverse Effect; and any real property
and buildings held under lease by the Company and its subsidiaries
are held by them under valid, subsisting and enforceable leases
with such exceptions as would not be reasonably expected, in the
aggregate, to result in a Material Adverse Effect.
(f) The Company is a corporation
duly incorporated and validly existing and in good standing under
the laws of the State of Delaware with all requisite corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Time of Sale Prospectus
and the Prospectus, and is duly registered and qualified to conduct
its business and is in good standing in each jurisdiction or place
where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the
failure so to register or qualify or to be in good standing would
not have a Material Adverse Effect; and each Material Subsidiary of
the Company has been duly incorporated or formed, as the case may
be, and is validly existing as a corporation, limited partnership,
limited liability company or other legal entity in good standing or
the equivalent under the laws of its jurisdiction of incorporation
or formation, as the case may be.
(g) Each subsidiary of the Company
that constitutes a “significant subsidiary,” as such
term is defined in Rule 405 of the rules and regulations under the
Securities Act, is included in the list of subsidiaries of the
Company set forth on Schedule III hereto (each such subsidiary
listed on Schedule III hereto, a “ Material Subsidiary
” and, collectively, the “ Material Subsidiaries
”).
(h) The Notes have been duly
authorized by the Company and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to
and paid for by the Underwriters in accordance with the terms of
this Agreement, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting
creditors’ rights generally and equitable principles of
general applicability, and will be entitled to the benefits of the
Indenture pursuant to which such Notes are to be issued.
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(i) The Indenture has been duly
authorized by the Company, and when executed and delivered by the
Company (assuming due authorization, execution and delivery by the
Trustee) will constitute a valid and binding agreement of the
Company, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting
creditors’ rights generally and equitable principles of
general applicability; on the Closing Date, the Indenture will
conform in all material respects to the requirements of, and has
been duly qualified under, the Trust Indenture Act of 1939, as
amended (the “ Trust Indenture Act ”), and the
rules and regulations of the Commission applicable to an indenture
that is qualified thereunder.
(j) No “nationally recognized
statistical rating organization” (as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act) (i) has
imposed (or has informed the Company that it is considering
imposing) any condition (financial or otherwise) on the Company or
any of its subsidiaries relating to any rating assigned to the
Company or any such subsidiary or to any securities of the Company
or any such subsidiary, or (ii) has indicated to the Company
or any of its subsidiaries that it is considering (A) the
downgrading, suspension, or withdrawal of, or any review for a
possible change that does not indicate the direction of the
possible change in, any rating so assigned, or (B) any change
in the outlook for any rating of the Company or any of its
subsidiaries or any securities of the Company or any such
subsidiary.
(k) The execution and delivery by
the Company of, and the performance by the Company of its
obligations under, this Agreement, the Indenture and the Notes will
not conflict with or result in a breach or violation of any of the
terms or provisions of or, with the giving of notice or the lapse
of time or both, constitute a default under, (A) any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, (B) the
provisions of the charter, by-laws or other constitutive documents
of the Company or any of its subsidiaries or (C) any statute
or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets except in the
cases of clause (A) or (C), such breaches, violations or
defaults that in the aggregate would not have a Material Adverse
Effect; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the performance by the
Company of its obligations under, this Agreement, the
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Indenture and the Notes, except where the
failure to obtain or make such consents, approvals, authorizations,
registrations or qualifications would not, individually or in the
aggregate, have a Material Adverse Effect.
(l) Neither the Company nor any of
its subsidiaries (A) is in violation of its charter, by-laws
or other constitutive documents, (B) is in default and no
event has occurred which, with notice or lapse of time or both,
would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any
material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which it is a party or by which it
is bound or to which any of its properties or assets is subject or
(C) is in violation of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets
may be subject or has failed to obtain any material license,
permit, certificate, franchise or other governmental authorization
or permit necessary to the ownership of its property or to the
conduct of its business, except for, in the cases of clause
(B) or (C), such defaults, violations or failures to obtain
that in the aggregate would not have a Material Adverse
Effect.
(m) The statements contained in
(A) the Time of Sale Prospectus and the Prospectus under the
captions “Description of Notes” and “Material
United States Federal Income Tax Consequences” and
(B) the Prospectus under the caption
“Underwriting,” insofar as they are descriptions of
contracts, agreements or other legal documents, or refer to
statements of law or legal conclusions, are accurate in all
material respects and present fairly the information purported to
be described therein.
(n) Other than as set forth in the
Time of Sale Prospectus and the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect;
and, to the best of the Company’s knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(o) Each preliminary prospectus
filed as part of the registration statement as originally filed or
as part of any amendment thereto, or filed pursuant to
Rule 424 under the Securities Act, complied when so filed in
all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder.
(p) The Company is not, and after
giving effect to the offering and sale of the Notes and the
application of the proceeds thereof as described in the Prospectus
will not be, required to register as an “investment
company” as such term is defined in the Investment Company
Act of 1940, as amended.
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(q) There has been no storage,
disposal, generation, manufacture, refinement, transportation,
handling or treatment of toxic wastes, medical wastes, hazardous
wastes or hazardous substances by the Company or any of its
subsidiaries (or, to the knowledge of the Company, any of their
predecessors in interest) at, upon or from any of the property now
or previously owned or leased by the Company or any of its
subsidiaries in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would
require remedial action under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any
violation or remedial action which would not have, or could not be
reasonably likely to have, singularly or in the aggregate, a
Material Adverse Effect; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of
any kind onto such property or into the environment surrounding
such property of any toxic wastes, medical wastes, solid wastes,
hazardous wastes or hazardous substances due to or caused by the
Company or any of its subsidiaries or with respect to which the
Company or any of its subsidiaries has knowledge, except for any
such spill, discharge, leak, emission, injection, escape, dumping
or release which would not have or would not be reasonably likely
to have, singularly or in the aggregate, a Material Adverse Effect;
and the terms “hazardous wastes,” “toxic
wastes,” “hazardous substances” and
“medical wastes” shall have the meanings specified in
any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
(r) KPMG LLP, who have certified
certain financial statements of the Company and its subsidiaries,
are independent public accountants as required by the Securities
Act and the rules and regulations of the Commission
thereunder.
(s) The Company has all requisite
corporate power and authority to execute and deliver this Agreement
and to otherwise perform its obligations under this Agreement. This
Agreement has been duly authorized, executed and delivered by the
Company.
(t) The Company’s consolidated
historical financial statements, together with the related notes
thereto, included in the Form 10-K and Form 10-Q which are
incorporated into the Time of Sale Prospectus and the Prospectus,
comply as to form in all material respects with the applicable
requirements of Regulation S-X under the Securities Act. Such
historical financial statements fairly present the financial
position of the Company at the respective dates indicated and the
results of operations and cash flows for the respective periods
indicated, in each case in accordance with generally accepted
accounting principles consistently applied throughout such periods.
The other financial and statistical information and data
incorporated or included in the Registration Statement, the Time of
Sale Prospectus and the Prospectus are, in all material respects,
fairly presented and prepared on a basis consistent with the
financial statements and the books and records of the
Company.
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(u) The Company and each of the
Material Subsidiaries has such permits, licenses, franchises,
registrations and other approvals or authorizations of any
governmental or regulatory authority (“ Permits
”), including, without limitation, any permits required by
the Federal Communications Commission (“ FCC ”)
or the Federal Aviation Administration (“ FAA
”), as are necessary under applicable law to own their
respective properties and to conduct their respective businesses in
the manner described in the Time of Sale Prospectus and the
Prospectus, except to the extent that the failure to have such
Permits would not have a Material Adverse Effect. The Company and
the Material Subsidiaries have fulfilled and performed, in all
material respects, all their respective obligations with respect to
the Permits, and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination
thereof or results in any other impairment of the rights of, or
imposition of a penalty on, the holder of any such Permit, subject
in each case to such qualification as may be set forth in the Time
of Sale Prospectus and the Prospectus and except to the extent that
any such revocation, termination, impairment or penalty would not
have a Material Adverse Effect. Except as described in the Time of
Sale Prospectus and the Prospectus, none of the Permits contains
any restriction that has not previously been satisfied and that is
materially burdensome to the Company or any of the Material
Subsidiaries.
(v) For each existing tower of the
Company not yet registered with the FCC where registration will be
required, the FCC’s grant of an application for registration
of such tower will not have a significant environmental effect as
defined under Section 1.1307(a) or (b) of the FCC’s
rules.
(w) The consummation of the
transactions contemplated by this Agreement, the Indenture and the
Notes shall not cause any third party to have any rights of first
refusal with respect to the acquisition of towers of the Company or
any of its subsidiaries under any agreement filed as an exhibit to
any document incorporated by reference in the Prospectus (the
“ Material Agreements ”) that has not already
been described in the Time of Sale Prospectus and the Prospectus as
to which the Company and any of the Material Subsidiaries or any of
their property or assets may be subject.
(x) The Company and each of the
Material Subsidiaries owns or possesses all patents, trademarks,
trademark registrations, service marks, service mark registrations,
trade names, copyrights, licenses, inventions, trade secrets and
rights described in the Time of Sale Prospectus and the Prospectus
as being owned by any of them or necessary for the conduct of their
respective businesses, and neither the Company nor any of the
Material Subsidiaries is aware of any
8
claim to the contrary or any challenge by any
other person to the rights of the Company or any of the Material
Subsidiaries with respect to such rights that, if determined
adversely to the Company or any such Material Subsidiary, would
individually or in the aggregate have a Material Adverse
Effect.
(y) Neither the Company nor any of
its subsidiaries is involved in any strike, job action or labor
dispute with any group of employees, and, to the knowledge of the
Company and its subsidiaries, no such action or dispute is
threatened.
(z) The Company and each of its
subsidiaries are in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and
published interpretations thereunder (“ ERISA
”); no “reportable event” (as defined in ERISA)
has occurred with respect to any “pension plan” (as
defined in ERISA) for which the Company would have any liability;
the Company has not incurred and does not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any “pension plan” or
(ii) Sections 412 or 4971 of the Internal Revenue Code of
1986, as am
