HomeMy WebLinkAboutLimited Power of AttorneyEXHIBIT B
Limited Power of Attorney
[See Attached Pages]
BU Number 5800245
(BO142395.1)
AFTER RECORDATION, PLEASE RETURN TO:
Tower Development Corporalion
c/o ATTN: Christian. A. Farmalds, Esquire
Babst, Calland, Clements and Zomnir, P.C.
Two Gateway Center, 8a'Floor
Pittsburgh, PA 15222
(412)394-5400
LIMITED POWER OF ATTORNEY
This LIMITED POWER OF ATTORNEY is made and entered into by TO"R
DEVELOPMENT CORPORATION, a Maryland special purpose corporation ("TDC") in
favor of CROWN CASTLE USA INC., a Pennsylvania corporation ("Crown") and CROWN
CASTLE BP ATT LLC, a Delaware limited liability company ("Crown Subtenant"); and by
PR TDC LLC, a Delaware limited liability company ("PR TDC") in favor of CROWN
CASTLE PUERTO RICO CORP., a Puerto Rico corporation ("PR Crown") and CROWN
SUBTENANT. Crown, PR Crown and Crown Subtenant are also executing this Limited Power
of Attorney solely with respect to Sections 1, 3, 4, 5 and 6.
RECITALS
A. Effective as of May 29, 2009, Crown Castle International Corp., Crown, PR
Crown, TDC, PR TDC, Crown Subtenant and Berkshire Fund V1I, L.P. entered into that certain
Amended and Restated Tower Facility Development • and Acquisition Agreement. ("Tower
Facility Agreement");'-
B. Effective as of Match 30, 2009, TDC and Crown entered into that certain Tower
Site Management Services Agreement (the "Original Tower Management Agreement"), and
effective as of May 29, 2009, Crown, PR Crown, TDC and PR TDC entered into that certain.
Amendment to Tower Site Management Services Agreement (the "Amendment to Tower
ite
Management Services Agreement", and together with the Original Tower Management
Agreement, collectively, the "Tower Management Agreement");
C. Effective as of March 30, 2009, TDC and Crown Subtenant entered into that
certain Master Sublease (the "Original Master Sublease'), and effivas of May 29, Mast Sublease
09,
TDC, PR TDC and Crown Subtenant entered into thatAmendment
(the "Amendment to Master Lease", and together with the Original Master Sublease,
collectively, the "Master Sublease);
D. Pursuant to, and subject to the limitations set forth in, the Tower Facility
Agreement and the Tower Management Agreement, TDC agreed to grant to Crown limited
powers of attorney to review, negotiate and execute on behalf of TDC certain agreements and
documents, and PR TDC agreed to grant to PR Crown limited powers of attorney to review,
negotiate and execute on behalf of PR TDC certain agreements and documents;
E. By executing this Limited Power of Attorney, the parties desire to restate, confirm
and reaffirm Crown's rights set forth in the Tower Facility Agreement and Tower Management
Agreement to review, negotiate and execute on behalf of TDC certain agreements and
documents; and PR Crown's rights set forth in the Tower Facility Agreement and Tower
Management Agreement to review, negotiate and execute on behalf of PR TDC certain
agreements and documents; and
F. By executing this Limited Power of Attorney, TDC and PR TDC desire to grant
to Crown Subtenant an additional limited power of attorney to review, negotiate and execute
certain agreements and documents that will be created pursuant to the terms of the Master
Sublease.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained
herein and other good and valuable consideration paid to each other and the promises and
covenants hereinafter set forth, TDC, PR TDC, Crown, PR Crown and Crown Subtenant agree as
follows:
1. Incomoration of Recitals; Definitions. The foregoing recitals are true and correct
and are expressly incorporated herein by this reference. Unless otherwise specified herein, any
capitalized terms used herein and not otherwise defined herein shall have those meanings
referenced and set forth in the Tower Facility Agreement.
2. Limited Power of Attorne .
(a) With respect to the Tower Facility Agreement and Tower Mana ement
Agreement. TDC hereby makes, constitutes and appoints Crown as its true and lawful agent and
attorney -in -fact, to act, with full power and authority, in the name, place and stead and for and on
behalf of TDC with respect to the review, negotiation and execution of the following documents
and agreements set forth below in this Section 2(a) (but in each instance, only if Crown obtains
the prior written consent of TDC, if required to do so pursuant to the Tower Management
Agreement or Tower Facility Agreement, before such execution). Furthermore, PR TDC hereby
makes, constitutes and appoints PR Crown as its true and lawful agent and attorney -in -fact, to
act, with full power and authority, in the name, place and stead and for and on behalf of PR TDC
with respect to the review, negotiation and execution of the following documents and agreements
set forth below in this Section 2(a) (but in each instance, only if PR Crown obtains the prior
written consent of PR TDC, if required to do so pursuant to the Tower Management Agreement
or Tower Facility Agreement, before such execution).
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(i) Tenant Licenses and Tenant License Amendments (as such terms are
defined in the Tower Management Agreement) pursuant to the Tower Management Agreement;
provided that such Tenant Licenses and Tenant License Amendments do not contain any
substantive terms and conditions that materially vary from Crown's typical Tenant License
parameters utilized in its normal course of business consistent with past practices;
(ii) All non -material agreements and documents (e.g., corrective amendments,
memoranda of leases, estoppels, SNDAs, lease ratification documents, deeds of ratification,
access and utility agreements) relating to Wireless Sites (as defined in the Tower Management
Agreement) pursuant to Section 4(b) of the Original Tower Management Agreement and Section
2 of the Amendment to Tower Site Management Services Agreement;
aii) All Site Leases and amendments to, and assignments of, Site Leases
pursuant to Sections 4(c) and (d) of the Tower Management Agreement and Section 6.3.3 of the
Tower Facility Agreement; provided that such Site Leases, amendments to and assignments of,
Site Leases do not contain any substantive terms and conditions that materially vary from
Crown's typical Site Lease parameters utilized in its normal course of business consistent with
past practices;
(iv) All non -material agreements and documents (e.g., corrective amendments,
memoranda of leases, estoppels, SNDAs, lease ratification documents, deeds of ratification,
access and utility agreements) relating to the TDC Facilities pursuant to Section 6.3.3(e) of the
Tower Facility Agreement;
(v) Acquisition NDAs (as such term is defined in the Tower Facility
Agreement) pursuant to Section 6.3.4(a) of the Tower Facility Agreement;
(vi) Letters of Intent (as such term is defined in the Tower Facility Agreement)
pursuant to Section 6.3.4(b) of the Tower Facility Agreement; and
(vii) All Ancillary Acquisition Agreements (as such term is defined in the
Tower Facility Agreement) pursuant to Section 6.3.4(c) of the Tower Facility Agreement, such
Ancillary Acquisition Agreements include the following documents: master bills of sale and
assignment and assumption agreements, individual assignment documents required or requested
for recordation purposes, new site leases or easements needed in those instances when the selling
party owns the fee parcel but does not want to convey its entire parcel to TDC or PR TDC, non -
disturbance agreements, estoppel agreements, letters to landlords announcing that the TDC
Facility (as defined in the Tower Facility Agreement) has changed ownership, joint letters to be
signed by the selling party and TDC or PR TDC, as the case may be, informing customers that
the TDC Facility has changed ownership, settlement statements (so long as the amounts
contained therein materially conform to pre -approved amounts as ' contemplated by Section
6.3.4(c) of the Tower Facility Agreement), escrow agreements and title company affidavits and
related certificates.,
It is TDC's intention to vest in Crown and PR TDC's intention to vest in PR Crown full
power and authority to do and perform any and every act and thing whatsoever which may be
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necessary or advisable to carry out the intent and purpose of this Limited Power of Attorney, as
fully as TDC and PR TDC might or could do if acting on their own behalf, and the enumeration
of certain specific powers herein shall not be construed as limiting or restricting in any way the
general powers hereby granted by TDC to Crown, and PR TDC to PR Crown.
(b) With Respect to -the Master Sublease. Each of TDC and PR TDC hereby
makes, constitutes and appoints Crown Subtenant as its lawful agent and attorney -in -fact, to act
with full power and authority, in the name, place and stead and for and on behalf of TDC and PR
TDC, as the case may be, with respect to the review, negotiation and execution -of all SSAs and
SSA Amendments (as such terms are defined in the Master Sublease) but in each instance, only
if (i) Crown Subtenant obtains the prior written approval of TDC or PR TDC, as the case may be,
if required to do so pursuant to Sections 5 and 6 of the Master Sublease, before such execution;
and (ii) the economic terms of the SSA (or SSA Amendment) are no worse than (and all other
terms of the SSA (or the SSA Amendment) materially conform with) the corresponding SLA (as
that term is defined in the Master Sublease) that is issued by the Tenant (as'that term is defined
in the Master Sublease), and the approval with respect thereto including the key terms and
conditions of the approval was provided by the Crown Capital Committee and the TDC
Representatives pursuant to the Tower Facility Agreement; provided that notwithstanding
Section 5 of the Master Sublease, the parties acknowledge and agree that TDC and PR TDC will
not be provided with a copy of the SLA (but will be presented with the Tenant's proposed
economic terms of the SLA) prior to the parties' approval of a corresponding SSA or SSA
Amendment at a Crown Capital Committee meeting or discussion. Crown Subtenant shall not
have the right to execute SSAs and SSA Amendments that fail to satisfy clauses (i) and (H)
above without first obtaining the written approval from TDC and PR TDC to do so. Upon
receipt of such approval, TDC and PR TDC hereby makes, constitutes and appoints Crown
Subtenant as its lawful agent and attorney -in -fact, to act with full power and authority, in the
name, place and stead and for and on behalf of TDC and PR TDC, as the case may be, with
respect to the review, negotiation and execution of such approved SSAs and SSA Amendments.
Crown Subtenant shall promptly provide to TDC and PR TDC complete documentation with
respect to each SSA (or SSA Amendment) executed by Crown Subtenant pursuant to this
Limited Power of Attorney, which documentation shall include complete documentation with
respect to the corresponding SLA.
It is TDC's and PR TDC's intention to vest in Crown Subtenant full power and authority
to do and perform any and every act and thing whatsoever which may be necessary or advisable
to carry out the intent and purpose of this Limited Power of Attorney as fully as TDC or PR TDC
might or could do if acting on their own behalf, and the enumeration of certain specific powers
herein shall not be construed as limiting or restricting in any way the general powers hereby
granted by TDC and PR TDC to Crown Subtenant. In the event any provision set forth in this
Section 2(b) is inconsistent with the provisions set forth in Sections 5 or 6 of the Master
Sublease, the terms of this Section 2(b) shall govern the interpretation of the inconsistency and
be binding on the parties.
I. No Additional Rights. Except for the new rights granted to Crown
Subtenant pursuant to Section 2(b), this Limited Power of Attorney is intended to restate,
confirm and reaffirm the rights afforded to Crown and PR Crown as set forth in the Tower
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Facility Agreement and the Tower Management Agreement. Except for the new rights granted
to Crown Subtenant pursuant to Section 2(b), nothing in this Limited Power of Attorney shall
modify, expand or limit any of the rights or obligations of the parties that are set forth in the
Tower Facility Agreement or the Tower Management Agreement. Without limiting the
foregoing, Crown and PR Crown acknowledge and agree that they are not entitled to execute
Main Acquisition Agreements (as' such term is defined in the Tower Facility Agreement)
pursuant to Section 6.3.4(c) of the Tower Facility Agreement (but are entitled to review and .
negotiate such Main Acquisition Agreements) which include the following documents: material
acquisition -related agreements and documents, including purchase agreements, resolutions and
certificates authorizing TDC or PR TDC, as the case may be, to consummate an Acquisition (as
such term is defined in the Tower Facility Agreement), employment agreements and non -solicit
and non -compete agreements restricting TDC's or PR TDC's post -closing activities.
4. Reliance on this Limited Power of Attorney. This Limited Power of Attorney
may be accepted and relied upon by any Person to whom it is presented until such time that it is
revoked in writing by TDC and PR TDC and such revocation has been communicated to the
Person otherwise entitled to rely hereon. The powers to execute documents and agreements
granted herein by TDC to Crown. and Crown Subtenant and by PR TDC to PR Crown and Crown
Subtenant may be revoked by TDC and PR TDC, as the case may be, at any_ time in a writing
delivered to Crown, PR Crown and Crown Subtenant, as the case may be. A revocation of the
powers granted herein shall not affect any Person's acceptance or reliance of this Limited Power
of Attorney prior to such revocation.
Any Person accepting and relying upon this Limited Power of Attorney shall be expressly
entitled to assume that Crown, PR Crown and Crown Subtenant, as the case may be, have
received from TDC or PR TDC, as the case may be, all necessary prior approvals that are
required to be obtained pursuant to the Tower Facility Agreement, the Tower Management
Agreement or the Master Sublease, it being specifically acknowledged that such Person has no
duty or obligation to investigate or inquire whether such prior approvals have been procured.
Any disputes regarding whether the necessary prior approvals have been obtained by Crown, PR
Crown or Crown Subtenant, as the case may be, shall be solely between TDC and Crown or
Crown Subtenant, or PR TDC and PR Crown or Crown Subtenant, as the case may be.
S. Execution and Counterparts. This Limited Power of Attorney may be executed in
as many counterparts as may required and it shall not be necessary that the signature of, or on
behalf of, each party, appear on each counterpart; it shall be sufficient that the signature of, or on
behalf of, each party, appear on one or more of such counterparts.
6. Further Assurances• Recordation. The parties hereby covenant and agree to
execute and have executed all such further instruments and agreements and to take (or cause to
be taken) all such further actions as may reasonably be necessary or appropriate in order to
accomplish more fully and effectively the intent and purpose of this Limited Power of Attorney.
TDC, PR TDC, Crown, PR Crown and Crown Subtenant acknowledge that this Limited Power
of Attorney may need to be recorded in one or more jurisdictions, and each party shall cooperate
with each other and take all commercially reasonable steps to ensure that it is properly recorded
in all applicable jurisdictions. The parties acknowledge and agree that this Limited Power of
Attorney has been entered into as a result of a commercial transaction, and both parties hereto
are commercial entities.
Executed on August 18, 2009; but effective as of March 30, 2009.
[Remainder of page intentionally blank]
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IN WITNESS WHEREOF, the parties have executed this Limited Power of Attorney as of the
date written on the immediately preceding page.
ATTEST:
'POWER DEVELOPMENT CORPORATION
�c By:
Print Name: lil�l 1 Name: Eli eth L. Hof&nan
Title: Seeret_a*v/Clerk
NOTARIAL AFFIDAVIT
COMMONWEALTH OF MA.SSACHUSETTS :
SS:
COUNTY OF SUFFOLK
I, Kelley A. Morrissey, a Notary Public within and for the Commonwealth of Massachusetts, duly
commissioned and acting, do hereby certify that on this 18th day of August, 2009' personally appeared
before me, Elizabeth L. Hoffman, of Tower Development Corporation, a Maryland special purpose
corporation, to me personally known to be the person who signed the foregoing Limited Power of
Attorney, and who, being by me duly sworn and being informed of the contents of said instrument, stated
and acknowledged under oath that she is the Secretary/Clerk of said entity, and, as such, is a duly certified
individual who may enter into agreements on behalf of that entity. Moreover, she has acknowledged that
the entity has executed the same as its voluntary act and deed and was voluntarily executed by her, on
behalf of said entity, -for the uses, purposes and consideration therein mentioned and set forth.
WITNESS my hand and seal as such Notary Public the day and year above written -
My ]• Oil
Notary
Pu�Ulic� I My Commission Expires: 06/17/2016
[Signature Page to Limited Power of Attorney — Tower Development Corporation]
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IN WITNESS WHEREOF, the parties have executed this Limited Power of Attorney as of the
date written on the immediately preceding page.
ATTEST:
PR TDC LLC
By:
Print Name: �1 �l� Name: E zabethL.Ho an
Title: Secretary/Clerk
NOTARIAL AFFIDAVIT
COMMONWEALTH OF MASSACHUSETTS :
SS:
COUNTY OF SUFFOLK
. I, Kelley A. Morrissey, a Notary Public within and for the Commonwealth of Massachusetts, duly
commissioned and acting, do hereby certify that on this 18th day of August, 2009, personally appeared
before me, Elizabeth L. Hoffman, of PR TDC LLC, a Delaware limited liability company, to me
personally known to be the person who signed the foregoing Limited Power of Attorney, and who, being
by me duly sworn and. being informed of the contents of said instrument, stated and acknowledged under
oath that she is the Secretary/Clerk of said entity, and, as such, is a duly certified individual who may
enter into agreements on behalf of that entity. andrwa voluntarily exer, she has ecuted by heowledged ron behalf o€ said
at the entity has
executed the same as its voluntary act and deed
entity, for the uses, purposes and consideration therein mentioned and set forth.
WITNESS my hand and seal as such Notary Public the day and year above written.
`66��•
Notary Public My Commission Expires: 06/17/2016
[Signature page to Limited Power of Attorney — PR TDC LLq
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Solely with respect to, and as specified in,
Sections 1, 3, 4, 5 and 6
ATTEST: CROWN CASTLE USA INC.
By:
Name: avid J. T zos
Print Name: Mi helie Saris Tide:, Vice Presi nt National Site Development
Print Namh:a�HyDi�guardi��
NOTARIAL AF IDAVIT
COMMONWEALTH OF PENNSYLVANiA : SS:
COUNTY OF WASHINGTON
I, Sheila Osborne, a Notary Public within and for the Commonwealth of personally a a, duly
eared
commissioned and acting, do hereby certify that on this l8th day of August, 2009, p y PP
Inc., a Pennsylvania corporation, to me personally
before me, David Tanczos, of Crown Castle USA
known to be the person who signed the foregoing Limited Power of Attorney, and who, being by me duly
sworn and being informed of the contents of said instrument, stated and acknowledged under oath that he
is the Vice President, National Site Development, of said entity, and, as such, is a duly certified individual
who may enter into agreements on behalf of that entity. Moreover, he has acknowledged that the entity
has executed the same as its voluntary act and deed and was voluntarily executed by him, on behalf o£
said entity, for the uses, purposes and consideration therein mentioned and set forth.
WITNESS my hand and seal as such Notary Public the day and year above written.
Notary Public My Commission Expires: 11/13/10
COMMONWEALTH OF p6NNn
Notarial Seal
la Osborne, Notary P
FCan�ombutgft0,VVa$hWMC'0U*Mymission �ttpiima N00
Member, Pennrylv�nl� AnreolaUon of NotrAas
[Signature Page to Limited Power of Attorney — Crown Castle USA Inc.]
ATTEST:
Print Name: Michelle Salisbury
Print Name: ally Dioguardi
Solely with respect to, and as specified in,
Sections 1, 3, 4, S and 6
CROWN CASTLE PUERTO RICO CORP.
By
Name: David J. an zos
Title: Vice President, National Site Development
NOTARIAL AFk'1DAET—
COMMONWEALTH OF PENNSYLVANIA :
: SS:
COUNTY OF WASHINGTON
L Sheila Osborne, a Notary Public within and for the Commonwealth of Pennsylvania, duly
commissioned and acting, do hereby certify that on this 18th day of August, 2009, personally appeared.
before me, David Tanczos, of Crown Castle Puerto Rico Corp., a Puerto Rico corporation, to me
personally known to be the person who signed the foregoing Limited Power of Attorney, and who, being
by me duly sworn and being informed of the contents of..said instrument, stated and acknowledged under
oath that he is the Vice President, National Site Development, of said entity, and, as such, is he has
duly
certified individual who may enter. into agreements on behalf of that entity. Moreover,
acknowledged that the entity has executed the same as its voluntary act and deed and was voluntarily
executed by him, on behalf of said entity, for the uses, purposes and consideration therein mentioned and
set forth.
WITNESS my hand and seal as such Notary Public the day and year above written.
�(9- ��
Notary Public My Commission Expires: 11/13/10
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Sheila Osborne, Notary Public
Canonsburg Boro, Washington County
My Comml&sion l!*res Nov 13, 2010
Member, Pennsovanle Aeaoolallon of Noterles
[Signature Page to Limited Power of Attorney — Crown Castle Puerto Rico Corp.]
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ATTEST:
1 SG���
Print Name: Michelle Salisbury
Print Nam ally Di guardi
Solely with respect to, and as specified in,
Sections 1, 3, 4, 5 and 6
CROWN CASTLE BP ATT LLC
By:
Name: David an
Title. Vice Pr' ident National Site Develoument
NOTARIAL AFFXDAVXT
COMMONWEALTH OF PENNSYLVANIA :
. SS:
COUNTY OF WASTE NGTON
I, Sheila Osborne, a Notary Public within and fof the Commonwealth of Pennsylvania, duly
commissioned and acting, do hereby certify that on this 18th day of August, 2009, personally appeared
before me, David Tanczos, of Crown Castle BP ATT LLC, a Delaware limited liability company,
me
personally known to be the person who signed the foregoing Limited Power of Attorney, and who, being
by me duly sworn and being informed of the contents of said instrument, stated and acknowledged under
oath that he is the Vice President, National Site Development of said entity, and,. as such, is has
certified individual who may enter into agreements on behalf of that entity. Moreover, he
acknowledged that the entity has executed the same as its voluntary act and deed and was voluntarily
executed by him, on behalf of said entity, for the uses, purposes and consideration therein mentioned and
set forth.
WITNESS my hand and seal as such Notary Public the day and year above written.
M Commission Expires: 11/13/10
Notary Public y
COMMONWEALTH OF PENNSYLVANIA
NpWai Seal
Sheila Osbome, Notary Public
Canonsburg S=, Washhlgton CoM
My Commleaelon bores NoV,13, 2010
Member, Pennsy)YAM r aasoal0on 91 Notaries
[Signature Page to Limited Power of Attorney — Crown Castle BP ATT LLq
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