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Section 1: 6-K (FORM 6K)

Trilogy International Partners Inc.: Form 6-K - Filed by newsfilecorp.com

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 6-K

REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934

For the month of March, 2019

Commission File Number: 000-55716

Trilogy International Partners Inc.
(Translation of registrant's name into English)

155 - 108 Avenue NE, Suite 400, Bellevue, Washington 98004
(Address of principal executive offices)

Indicate by check mark whether the registrant files or will file annual reports under cover Form 20-F or Form 40-F.

[           ] Form 20-F   [ x ] Form 40-F

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): [           ]

Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): [           ]

Exhibit 99.1 to this report on Form 6-K shall be deemed to be filed and incorporated by reference into the registrant’s Registration Statement on Form S-8 (File No. 333-218631) and Registration Statement on Form F-10 (File No. 333-219429) and to be a part of each thereof from the date on which said exhibit is filed with this report, to the extent not superseded by documents subsequently filed or furnished.


SUBMITTED HEREWITH

Exhibits

99.1 Material Change Report dated February 25, 2019
99.2 Asset Purchase Agreement dated as of February 14, 2019
99.3 Master Lease Agreement dated as of February 15, 2019

 


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, thereunto duly authorized.

  TRILOGY INTERNATIONAL PARTNERS INC.
  (Registrant)
     
Date: March 12, 2019 By: /s/ Erik Mickels
    Erik Mickels
  Title: Senior Vice President and Chief Financial Officer

 


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Section 2: EX-99.1 (EXHIBIT 99.1)

Trilogy International Partners Inc. - Exhibit 99.1 - Filed by newsfilecorp.com

FORM 51-102F3
MATERIAL CHANGE REPORT

ITEM 1: NAME AND ADDRESS OF COMPANY
   
  Trilogy International Partners Inc. (“Trilogy” or the “Company”)
  155 108th Avenue NE, Suite 400
  Bellevue, Washington, 98004 USA
   
ITEM 2: DATE OF MATERIAL CHANGE
   
  February 15, 2019
   
ITEM 3:

NEWS RELEASE

   

A news release announcing the material change was issued on February 15, 2019 through Global Newswire and a copy was subsequently filed on SEDAR.

   
ITEM 4:

SUMMARY OF MATERIAL CHANGE

   

On February 15, 2019, the Company announced that its Bolivian subsidiary, NuevaTel entered into a definitive asset purchase agreement (the “Purchase Agreement”) to sell 633 of NuevaTel’s telecommunication towers located throughout Bolivia to a Bolivian subsidiary of Phoenix Tower International (“PTI”) for an aggregate cash consideration of approximately US$100 million subject to any necessary adjustments. The transactions contemplated under the Purchase Agreement are expected to close in stages and as a condition to the initial closing, the Company concurrently entered into a multi-year lease agreement on February 15, 2019 (the “Lease Agreement”) whereby PTI will provide NuevaTel with access to certain wireless communication towers and the right to use and operate such sites to support NuevaTel’s wireless network and rollout plans.

   
ITEM 5:

FULL DESCRIPTION OF MATERIAL CHANGE

   

On February 15, 2019, the Company announced that its Bolivian subsidiary, NuevaTel entered into the Purchase Agreement to sell 633 of NuevaTel’s telecommunication towers located throughout Bolivia to a Bolivian subsidiary of PTI for an aggregate cash consideration of approximately US$100 million subject to any necessary adjustments. The transactions contemplated under the Purchase Agreement are expected to close in stages subject to all conditions to closing being satisfied. The first closings are expected to occur in mid-February and are expected to include 400 towers and result in cash consideration to NuevaTel of approximately US$65 million subject to any necessary adjustments.

   

As a condition to the initial closing, the Company concurrently entered into the Lease Agreement on February 15, 2019 whereby PTI will provide NuevaTel with access to certain wireless communication towers and the right to use and operate such sites to support NuevaTel’s wireless network and rollout plans.

   

The Purchase Agreement and the Lease Agreement include customary representations, warranties and covenants of each respective party.




ITEM 6:

RELIANCE ON SUBSECTION 7.1(2) OF NATIONAL INSTRUMENT 51-102

 

 

 

Not applicable.

 

 

ITEM 7:

OMITTED INFORMATION

 

 

 

Not applicable.

 

 

ITEM 8:

EXECUTIVE OFFICER

 

 

For further information, please contact Ann Saxton, Investor Relations & Corporate Development, (425) 458-5900.

 

 

ITEM 9:

DATE OF REPORT

 

 

 

This Material Change Report is dated February 25, 2019.

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Section 3: EX-99.2 (EXHIBIT 99.2)

Trilogy International Partners Inc. - Exhibit 99.2 - Filed by newsfilecorp.com

Execution Version

 

 
ASSET PURCHASE AGREEMENT
 
AMONG
 
EMPRESA DE TELECOMUNICACIONES NUEVATEL PCS DE BOLIVIA S.A.,
 
WESTERN WIRELESS INTERNATIONAL BOLIVIA LLC,
 
SERVICIOS DE ALQUILERES PHOENIXTOWER S.A.,
 
PTI BOLIVIA II, LLC, AND
 
PTI BOLIVIA ISSUER, LLC
 

 

 

DATED AS OF FEBRUARY 14, 2019


TABLE OF CONTENTS

ARTICLE 1 DEFINITIONS   3
SECTION 1.1 Certain Defined Terms 3
SECTION 1.2 Construction 21
SECTION 1.3 Assignments; Transfers of Certain Assets and Liabilities. 22
     
ARTICLE 2 INITIAL CLOSING AND SUBSEQUENT CLOSINGS   22
SECTION 2.1 Initial Closing 22
SECTION 2.2 Subsequent Closings 24
SECTION 2.3 Items Excluded from Closings 26
SECTION 2.4 As Is, Where Is 27
SECTION 2.5 Initial Closing Place and Date. 27
SECTION 2.6 Subsequent Closings. 28
SECTION 2.7 Preparation of Closing Documents. 28
SECTION 2.8 Prorating of Expenses 28
SECTION 2.9 Signage. 30
SECTION 2.10 Tax Matters. 30
SECTION 2.11 Integrated Transactions. 31
     
ARTICLE 3 SITE DESIGNATIONS LISTS   31
SECTION 3.1 Signing Site Designations List 31
SECTION 3.2 Closing Site Designations Lists 32
SECTION 3.3 No Representations or Warranties 32
     
ARTICLE 4 OTHER PROCEDURES FOR PORTFOLIO SITES   33
SECTION 4.1 Site Designations 33
SECTION 4.2 Certain Procedures with Respect to Identifying and Curing Exceptions. 33
SECTION 4.3 Excluded Sites. 35
SECTION 4.4 Exception Sites. 35
SECTION 4.5 Payment of the Aggregate Net Amount. 37
SECTION 4.6 Dispute Resolution. 37
     
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF SELLER   39
SECTION 5.1 Organization 39
SECTION 5.2 Authority; Enforceability; No Conflicts. 39
SECTION 5.3 Title to Property 40
SECTION 5.4 Real Property. 40
SECTION 5.5 Other Property 40
SECTION 5.6 Material Agreements. 41
SECTION 5.7 Litigation; Orders 42
SECTION 5.8 Environmental Matters. 42
SECTION 5.9 Brokers, Finders, Etc 42
SECTION 5.10 Compliance with Laws and Governmental Approvals 43
SECTION 5.11 Taxes. 43
SECTION 5.12 Solvency 43
SECTION 5.13 Site Lease Payments; Accounts Receivable 44
SECTION 5.14 Insurance. 44
SECTION 5.15 Anti-Corruption Laws 44
SECTION 5.16 Certain Collocation Matters 44
SECTION 5.17 No Implied Representations 45
SECTION 5.18 Additional Matters with Respect to Representations and Warranties. 45
     
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF BUYER   45
SECTION 6.1 Organization 46
SECTION 6.2 Authority; Enforceability; No Conflicts. 46
SECTION 6.3 Governmental Approvals, Consents, Reports, Etc 46
SECTION 6.4 Litigation; Orders 47
SECTION 6.5 Brokers, Finders, Etc 47



SECTION 6.6 Financial Capability. 47
SECTION 6.7 Solvency 47
SECTION 6.8 Anti-Corruption Laws 47
SECTION 6.9 No Implied Representations 48
     
ARTICLE 7 COVENANTS   48
SECTION 7.1 Investigation of Portfolio Sites; Access to Properties and Records. 48
SECTION 7.2 Efforts to Close; Cooperation. 49
SECTION 7.3 Further Assurances 50
SECTION 7.4 Conduct of Collocation Operations and the Sale Sites. 50
SECTION 7.5 Public Announcements. 52
SECTION 7.6 Corporate Names 52
SECTION 7.7 Actions by Buyer and Seller Affiliates. 53
SECTION 7.8 Seller’s and its Affiliates’ Rights. 53
SECTION 7.9 Confidentiality 53
SECTION 7.10 Environmental Matters. 54
SECTION 7.11 Notices of Certain Events; Updates to Seller Disclosure Schedule. 54
SECTION 7.12 Payments Received After Initial Closing. 55
SECTION 7.13 Anti-Corruption Laws 55
SECTION 7.14 Build-To-Suit. 55
     
ARTICLE 8 CONDITIONS TO CLOSING   57
SECTION 8.1 Conditions to the Obligations of Each Party to Consummate Each Closing. 57
SECTION 8.2 Additional Conditions to Buyer’s Obligation to Consummate Each Closing 57
SECTION 8.3 Additional Conditions to Seller’s Obligations to Consummate Each Closing. 59
     
ARTICLE 9 INDEMNIFICATION; SURVIVAL   60
SECTION 9.1 Indemnification Obligations of Seller 60
SECTION 9.2 Indemnification Obligations of Buyer 60
SECTION 9.3 Indemnification Claim Procedure. 61
SECTION 9.4 Indemnity Period. 63
SECTION 9.5 Liability Limits 63
SECTION 9.6 Mitigation 65
SECTION 9.7 Exclusive Remedies 65
SECTION 9.8 Netting of Losses. 65
SECTION 9.9 Coordination with Tax Indemnity 65
SECTION 9.10 Tax Treatment of Indemnification Payments 65
     
ARTICLE 10 TERMINATION   66
SECTION 10.1 Termination of Agreement 66
SECTION 10.2 Effect of Termination. 67
     
ARTICLE 11 MISCELLANEOUS   67
SECTION 11.1 Counterparts 67
SECTION 11.2 Entire Agreement 67
SECTION 11.3 Fees and Expenses 67
SECTION 11.4 Notices 67
SECTION 11.5 Assignment; Successors and Assigns; Third Party Beneficiaries 68
SECTION 11.6 Amendment; Waivers; Etc 68
SECTION 11.7 Time of Essence 68
SECTION 11.8 Specific Performance 68
SECTION 11.9 Limitation of Liability 69
SECTION 11.10 Disclosure 69
SECTION 11.11 Governing Law 69
SECTION 11.12 Jurisdiction 69
SECTION 11.13 Dispute Resolution. 70
SECTION 11.14 Waiver of Jury Trial 71
SECTION 11.15 Severability. 71



SECTION 11.16 Interpretation. 72
SECTION 11.17 Language 72
SECTION 11.18 Buyer Guarantor Guarantee. 72


SCHEDULES (OTHER THAN DISCLOSURE SCHEDULES)

Schedule 1 Portfolio Site Information List
Schedule 2 Signing Site Designations List
Schedule 4.4 Exception Site Conditions
Schedule 11.4 Notice Parties

EXHIBITS

Exhibit A Form of MLA
Exhibit B Form of Management Agreement
Exhibit C Form of Transition Services Agreement
Exhibit D-1 Form of Consent Agreement
Exhibit D-2 Form of Notice
Exhibit E Form of Transfer Agreement
Exhibit F Form of Deed


ASSET PURCHASE AGREEMENT

            This ASSET PURCHASE AGREEMENT (this “Agreement”), dated as of February 14, 2019 (the “Signing Date”), is among Western Wireless International Bolivia LLC, a Delaware corporation (“Seller Parent”), Empresa de Telecomunicaciones Nuevatel PCS de Bolivia S.A., a Bolivian sociedad anónima and a direct or indirect subsidiary of Seller Parent (“Seller” and, together with Seller Parent, the “Seller Parties” and, individually, each a “Seller Party”), PTI Bolivia II, LLC, a Delaware limited liability company (“Buyer Parent”), Servicios de Alquileres Phoenix Tower S.A., a Bolivian sociedad anónima and a direct or indirect subsidiary of Buyer Parent (“Buyer” and, together with Buyer Parent, the “Buyer Parties” and, individually, each a “Buyer Party”), and, solely for purposes of Section 11.18, PTI Bolivia Issuer, LLC, a Delaware limited liability company (“Buyer Guarantor”). Each of the Seller Parties, Buyer Parties, and Buyer Guarantor may hereafter be referred to as a “Party” and, collectively, as the “Parties”. Initially capitalized terms used and not defined in this Agreement have the meanings ascribed to them in Article 1.

RECITALS

A.

Seller operates the Portfolio Sites, which consist of 633 telecommunication tower sites located throughout Bolivia.

   
B.

Buyer desires to purchase and acquire the Included Property of the Sale Sites or otherwise operate and manage the Sale Sites, in each case, on the terms and subject to the conditions set forth in this Agreement and the Collateral Agreements.

   
C.

At the Initial Closing, upon the terms and subject to the conditions set forth in this Agreement:


  (i)

Seller will cause to be contributed, conveyed, assigned, transferred and delivered to Buyer all of Seller’s right, title and interest in, to and under the Included Property of each Assignable Site pursuant to a Transfer Agreement and such other documents (including a Deed for each applicable Owned Site) as may be reasonably necessary to effectuate such transfer under applicable Law;

     
  (ii)

the Buyer Parties and the Seller Parties will enter into a master lease-back agreement for the Sale Sites (as amended, modified, and supplemented from time to time, the “MLA”), substantially in the form attached as Exhibit A hereto, pursuant to which Buyer will: (a) lease to Seller the Seller Collocation Space at the Assignable Sites; and (b) reserve and make the Seller Collocation Space at each Managed Site available for the exclusive use and possession of Seller until such time as such Managed Site becomes an Assignable Site;

     
  (iii)

the Buyer Parties and the Seller Parties will enter into a management agreement (as amended, modified, and supplemented from time to time, the “Management Agreement”), substantially in the form attached as Exhibit B hereto, pursuant to which Seller will grant to Buyer the right to operate each Managed Site (including the Included Property thereof) until such time as such Managed Site becomes an Assignable Site; and

     
  (iv)

the Buyer Parties and the Seller Parties will enter into a Transition Services Agreement (as amended, modified, and supplemented from time to time, the “Transition Services Agreement”), substantially in the form attached as Exhibit C hereto, pursuant to which Seller will provide certain services to Buyer for a transition period following the Initial Closing.



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E.

At each Subsequent Closing, upon the terms and subject to the conditions set forth in this Agreement:


  (i)

Seller will cause to be contributed, conveyed, assigned, transferred and delivered to Buyer all of Seller’s right, title and interest in, to and under the Included Property of each Portfolio Site that became an Assignable Site after the prior Closing (including any such Portfolio Site that was a Managed Site in the prior Closing) pursuant to a Transfer Agreement and such other documents (including a Deed for each applicable Owned Site) as may be reasonably necessary to effectuate such transfer under applicable Law;

     
  (ii)

the Buyer Parties and the Seller Parties will enter into, among others:


  (a)

an amendment to the MLA, pursuant to which, among other things: (1) Buyer will: (x) rent to Seller the Seller Collocation Space at the Assignable Sites included in such Subsequent Closing; and (y) reserve and make the Seller Collocation Space at each Managed Site included in such Subsequent Closing available for the exclusive use and possession of Seller until such time as such Managed Site becomes an Assignable Site; and (2) the MLA will be revised to reflect the conversion of any Managed Sites to Assignable Sites in connection with such Subsequent Closing;

     
  (b)

an amendment to the Management Agreement, pursuant to which, among other things: (1) Seller will grant to Buyer the right to operate each Managed Site (including the Included Property thereof) that was not included in a prior Closing until such time as such Managed Site becomes an Assignable Site; and (2) the Management Agreement will be terminated with respect to any Managed Sites that were converted to Assignable Sites in connection with such Subsequent Closing; and

     
  (c)

an amendment to the Transition Services Agreement, pursuant to which, among other things, the Portfolio Sites included in such Subsequent Closing will become subject to the Transition Services Agreement.

AGREEMENT

            In consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties agree as follows:


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ARTICLE 1

DEFINITIONS

            SECTION 1.1        Certain Defined Terms.

            As used in this Agreement, in addition to the terms defined elsewhere herein, the following terms shall have the following respective meanings when used in this Agreement with initial capital letters.

                   “Accounts Payable” means all Liabilities arising out of the operation, use or occupancy of the Included Property of any Sale Site in the ordinary course of business that would be shown as current accounts payable on a combined balance sheet for the Sales Sites prepared in accordance with GAAP, as of immediately prior to the applicable Closing Date for such Sale Site. Accounts Payable does not include (i) Liabilities which any Party or any party to any Collateral Agreement has agreed to pay or perform pursuant to this Agreement (other than Section 2.8) or such Collateral Agreement or (ii) payables and expenses in respect of events and for periods and portions thereof on and subsequent to the Closing Date for such Sale Site.

                   “Accounts Receivable” means all receivables arising out of the operation, use or occupancy of the Included Property of a Sale Site in the ordinary course of business that would be shown as current accounts receivable on a combined balance sheet for the Sales Sites prepared in accordance with GAAP, as of immediately prior to the applicable Closing Date for such Sale Site or, for purposes of Section 5.13(b), the date specified therein.

                   “Affiliate” (and, with a correlative meaning, “Affiliated”) means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. As used in this definition, “control” means the beneficial ownership (as such term is defined in Rules 13d-3 and 13d-5 of the Exchange Act) of 50% or more of the voting interests of the Person.

                   “Aggregate Proposed Closing Consideration” means an amount equal to $116,142,314, which amount includes the applicable VAT and is the aggregate sum of the Allocated Site Consideration for all Portfolio Sites (including any Excluded Sites).

                   “Agreement” has the meaning set forth in the Preamble and shall include, except where the context otherwise requires, all of the attached Schedules and Exhibits and the Seller Disclosure Schedule and the Buyer Disclosure Schedule.

                    “Allocated Site Consideration” means, for each Portfolio Site, the amount set forth under the heading “Allocated Site Consideration” with respect to such Portfolio Site on the Portfolio Site Information List, which amount is the sum of: (i) the “Portfolio Site Land Price” (if any); (ii) the “Portfolio Site Non-Land Price”; and (iii) the VAT; in each case, as set forth on the Portfolio Site Information List for such Portfolio Site.

                   “Allocated Site Holdback Consideration” means, for each Portfolio Site that is a Managed Site as of the Closing for such Portfolio Site, an amount equal to twenty-five percent (25%) of the sum of: (i) the “Portfolio Site Land Price” (if any); and (ii) the “Portfolio Site Non-Land Price”; in each case, as set forth on the Portfolio Site Information for such Portfolio Site.


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                   “Anti-Corruption Laws” means the FCPA and any other anti-corruption, anti-money laundering, anti-terrorism, economic sanctions, trade embargo, anti-boycott laws, and any other similar Laws (including any such Laws in the United States or Bolivia and any executive orders of the President of the United States).

                   “Assignable Site” has the meaning set forth in Section 4.1.

                   “Authorization” means, with respect to any Portfolio Site, each consent, approval, or waiver from, or a notice to or filing with, any Governmental Authority or other Person (including, if applicable, a consent from or notice to the Site Lessor under the Site Lease for such Portfolio Site), if any, required in order to consummate the transactions contemplated by this Agreement and the applicable Collateral Agreements.

                   “Available Space” as to any Sale Site, has the meaning set forth in the applicable MLA (as if the term “Site” therein has the same meaning as Sale Site as defined in this Agreement).

                   “Bankruptcy” means, as to any Person, a proceeding, whether voluntary or involuntary, under the federal, national, departmental, or other applicable bankruptcy Laws, a foreclosure, an assignment for the benefit of creditors, trusteeship, conservatorship or other proceeding or transaction arising out of the insolvency of a Person or any of its Affiliates or involving the complete or partial exercise of a creditor’s rights or remedies in respect of payment upon a breach or default in respect of any obligation, or any similar proceeding under foreign or state Law.

                   “Base Rent” has the meaning set forth in the MLA.

                   “Books and Records” means, with respect to each Sale Site, copies of the current books, files and records in the possession of Seller to the extent exclusively relating to the Included Property of such Sale Site or the operation of such Sale Site in respect of the Collocation Operations or, to the extent not so exclusively related, appropriate extracts thereof, in all cases with respect to periods prior to the applicable Closing for such Sale Site, including financial, operating and other data related to the Sale Sites and all Seller’s environmental reports, studies, audits, records, sampling data, site assessments, compliance reports and plans and all such other environmental reports or documents required by Law to be filed with a Governmental Authority; provided, however, that:

                     (i)        Books and Records shall not include (a) privileged documents or (b) any book, file or record, the disclosure of which is prohibited by (x) Law or (y) a non-disclosure arrangement entered into with a third party;

                     (ii)        if, to the Knowledge of Seller, there is any document, book, file or record relating to a Sale Site that are subject to the preceding clause (i), Seller will promptly notify Buyer of the existence of such document, book, file or record; and

                     (iii)        if requested by Buyer in writing, Seller shall, and shall cause its Affiliates to, use commercially reasonable efforts (without incurring any out of pocket costs or expenses that are not reimbursed by Buyer) to obtain any required consents and take such other actions (such as entry into a joint defense agreement or other arrangement to avoid loss of privilege) to permit the disclosure of such document, book, file or record.


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                   “BS” means Bolivian Bolivianos.

                   “BTS Agreement” has the meaning set forth in Section 7.14(a).

                   “BTS Tower” has the meaning set forth in Section 7.14(a)(i).

                   “Business Day” means any day other than a Saturday, a Sunday, a federal or national holiday or any other day on which banks in Bolivia, South America and New York, New York are authorized or obligated by Law to close.

                   “Buyer” has the meaning set forth in the Preamble.

                   “Buyer Disclosure Schedule” means the disclosure schedule delivered by Buyer to Seller prior to the execution and delivery of this Agreement.

                   “Buyer Guarantor” has the meaning set forth in the Preamble.

                   “Buyer Indemnified Parties” means the Buyer Parties and each of their respective Affiliates, together with their respective shareholders, members, managers, officers, directors, agents and Representatives.

                   “Buyer Material Adverse Effect” means any materially adverse change to the financial condition of the Buyer Parties and Buyer Guarantor, taken as a whole, that would prevent the performance of the Buyer Parties and the Buyer Guarantor of their respective obligations under this Agreement and any Collateral Agreement; provided, however, that no adverse change or event to the extent arising directly or indirectly from or otherwise relating directly or indirectly to any of the following shall be deemed either alone or in combination to constitute, and no such adverse change or event shall be taken into account in determining whether there has been a Buyer Material Adverse Effect: (i) changes to the wireless communications industry in Bolivia or the communications tower ownership, operation, leasing, management and construction business in Bolivia, (ii) the announcement or disclosure of the transactions contemplated by this Agreement, (iii) general economic, regulatory or political conditions in Bolivia or changes or developments in the financial or securities markets, (iv) changes in GAAP or their application, (v) acts of war, military action, armed hostilities or acts of terrorism, (vi) changes in Law or (vii) the taking of any action by any Person which is required to be taken pursuant to the terms of this Agreement, unless any of the facts, changes, effects, conditions, developments, or occurrences set forth in clauses (i), (iii) or (v) hereof disproportionately impacts or affects the Buyer Parties and Buyer Guarantor, taken as a whole, as compared to other participants in the industries and businesses in which the Buyer Parties and Buyer Guarantor operate.

                   “Buyer Parent” has the meaning set forth in the Preamble.

                   “Buyer Parties” has the meaning set forth in the Preamble.

                   “Cap” has the meaning set forth in Section 9.5(a).

                   “Casualty Site” means a Portfolio Site with respect to which physical damage has been suffered with respect to such Portfolio Site prior to the applicable Closing Date for such Sale Site as a result of which (i) the Tower on such Portfolio Site is unusable as a communications tower or (ii) (A) the ability of the Tower on such Portfolio Site to continue to be usable as a communications tower and (B) the value of such Portfolio Site is materially impaired.


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                   “Claimant” has the meaning set forth in Section 11.13(b).

                   “Claims” means any claims, demands, assessments, actions, suits, damages, obligations, fines, penalties, liabilities, losses, adjustments, costs and expenses (including reasonable fees and expenses of attorneys and other appropriate professional advisors).

                   “Closing” means, with respect to a Sale Site, the first Closing in which a Sale Site is included (either as a Managed Site or an Assignable Site). For the avoidance of doubt, the applicable Closing for a Sale Site may be the Initial Closing or a Subsequent Closing.

                   “Closing Consideration” means, with respect to each Closing, an amount determined as of such Closing and that is equal to the sum of the following: (i) the Allocated Site Consideration for each Assignable Site included in such Closing (excluding, for the avoidance of doubt, any such Assignable Site that is being converted from a Managed Site to an Assignable Site in such Closing); plus (ii) the Allocated Site Holdback Consideration for each Assignable Site that is being converted from a Managed Site in such Closing; plus (iii) the Allocated Site Consideration minus the Allocated Site Holdback Consideration for each Managed Site included in such Closing; plus (iv) solely with respect to the Closing related to the Final Closing Date, the Allocated Site Holdback Consideration for Portfolio Sites that will be Managed Sites after giving effect to such Closing.

                   “Closing Date” means, with respect to a particular Closing, the date on which such Closing occurs.

                   “Closing Site Designations List” has the meaning set forth in Section 3.2(a).

                   “Code” means the Bolivian Tax Code, Law No. 843 and related regulations.

                   “Collateral Agreements” means the following documents: (i) the MLA, (ii) the Management Agreement, (iii) the Transition Services Agreement, (iv) the Transfer Agreements, (v) the SLAs, (vi) the Confidentiality Agreement, and (vii) any other agreements, certificates and documents entered into in connection with the transactions contemplated by this Agreement or any other Collateral Agreement.

                   “Collocation Agreement” means an agreement (other than the MLA, the Comteco Collocation Agreements, and the Tigo Collocation Agreements) between or among Seller, on the one hand, and a third party, on the other hand, pursuant to which Seller leases, rents, or licenses to such third party space at any Sale Site (including space on a Tower, the ground, or rooftop), including all amendments, modifications, supplements, assignments, and guaranties related thereto as in effect from time to time prior to the applicable Closing for a Sale Site; it being understood that in the case of a Master Collocation Agreement, the Collocation Agreement shall be the applicable site lease agreement (including any rights, interests and provisions incorporated therein). For clarity, utility and power-sharing agreements between a Seller and a third party are not Collocation Agreements, but agreements between Seller and a Governmental Authority or other third party providing for the third party’s use of any Sale Site on a no-cost, in-kind or below market basis are Collocation Agreements.


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                   “Collocation Operations” means the operations of Seller of (i) marketing available capacity at any Sale Site, (ii) administering the Collocation Agreements and (iii) managing (as to compliance with the terms of any applicable Site Lease, Collocation Agreement, or Law) the use and occupancy of the Sale Sites by (a) Seller and (b) the Site Subtenants. For the avoidance of doubt, Collocation Operations does not include the provision of wireless or wireline voice, video, internet, data or any other communications, broadcast, or telecommunications services.

                   “Communications Equipment” has the meaning set forth in the MLA (as if the term “Site” therein has the same meaning as Sale Site as defined in this Agreement).

                   “Comteco” means Cooperativa de Telecomunicaciones Cochabamba.

                   “Comteco Collocation Agreements” means the collocation agreements by and between Comteco and Seller and that relate to the Comteco Sites.

                   “Comteco Sites” means any Portfolio Site that is subject to a Comteco Collocation Agreement. The “Comteco Sites” are identified on the Portfolio Site Information List.

                   “Confidentiality Agreement” means the Mutual Nondisclosure Agreement, dated as of September 12, 2018, by and between Trilogy International Partners LLC and Buyer Parent.

                   “Consent” means a Consent Agreement executed by the Site Lessor to which such Consent Agreement was executed without substantive change thereto, unless such change is approved in writing by Seller and Buyer.

                   “Consent Agreement” means an agreement provided to a Site Lessor with respect to a Site Lease, substantially in the form of Exhibit D-1 hereto.

                   “Data Room” means, collectively, those folders of the electronic data rooms hosted by Intralinks that were established by Seller for the transactions contemplated by this Agreement that contain the documents and data to which Buyer or any of its Representatives had access prior to any applicable Closing and all documents and data that were in the folders of such electronic data rooms at any time on or subsequent to the date on which Buyer or any of its Representatives first obtained access to the folders of such electronic data rooms.

                   “Deed” means, with respect to an Owned Site, a deed relating to the Owned Site Land, substantially in the form of Exhibit F hereto.

                   “Deferred Site” means, with respect to a Closing, a Portfolio Site that would otherwise be a Sale Site, but has been designated as a Deferred Site for such Closing in accordance with this Agreement (including, without limitation, Section 8.2(g)) so that, after giving effect to such Closing, the number of Special Status Sites that would be Sale Sites would not exceed the Special Status Site Cap.

                   “De Minimis Claim” has the meaning set forth in Section 9.5(a).

                   “Direct Claim” has the meaning set forth in Section 9.3(c).

                   “Direct Claim Notice” has the meaning set forth in Section 9.3(c).


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                   “Dispute” has the meaning set forth in Section 11.13(b).

                   “Environmental Condition” means a condition on or in the ground or water features of, or on or in any improvements located on, a Portfolio Site that requires environmental remediation under any Environmental Law regulating, relating to, or imposing liability as may now be in effect or which may become in effect prior to the applicable Closing Date or under the applicable Site Lease.

                   “Environmental Law” means any federal, national, departmental, state or local statute, Law, ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct concerning protection of the environment or public or workplace health and safety as may now or at any time hereafter be in effect, including the following, as the same may be amended or replaced from time to time, and all regulations promulgated under or in connection with Bolivian Environmental Law Nº 1333.

                   “Exception” means, subject to Section 4.6, with respect to any Portfolio Site designated as an Exception Site on the Closing Site Designations List for the Closing for such Portfolio Site, the outstanding actions that must be taken to cure the Exception Site Conditions expressly identified on such Closing Site Designations List. For the avoidance of doubt: (i) to the extent any specific Exception Site Condition is not expressly identified on the Signing Site Designations List for a Portfolio Site, this does not preclude Buyer from identifying any such Exception Site Condition on the Closing Site Designations List for the Closing for such Portfolio Site in accordance with the terms of this Agreement; (ii) to the extent any specific Exception Site Condition for a Portfolio Site is not expressly identified on the Closing Site Designations List for the Closing for such Portfolio Site or is identified after the preparation of the Closing Site Designations List for the Closing for such Portfolio Site, such Exception Site Condition will be ignored and will not be an Exception; and (iii) to the extent any Exception is cured for a Portfolio Site, it may not be listed on any future Closing Site Designations List.

                   “Exception Site” means any Portfolio Site (other than an Excluded Site) for which there remain uncured Exceptions. For the avoidance of doubt, an Exception Site is also a Managed Site or a Deferred Site.

                   “Exception Site Conditions” means the conditions set forth on Schedule 4.4.

                   “Exchange Act” means the Securities Exchange Act of 1934, as amended.

                   “Exchange Rate” means, as of a specified day, the BS to USD or USD to BS, as applicable, currency exchange rate in effect and published at http://www.bcb.bo by the Banco Central de Bolivia (or another Bolivian national bank if the Banco Central de Bolivia is no longer in existence or publishing the BS to USD conversion rate) as of such day (or, if such day is not a Business Day, the immediately preceding Business Day) or, in the absence of such published rate, a replacement rate of exchange agreed to by the Parties, acting reasonably.”

                   “Excluded Assets” includes the following:

                   (i)        all Excluded Sites and Deferred Sites and the proceeds thereof (including any condemnation or eminent domain proceeds);

                   (ii)        all Seller Communications Equipment and Seller Improvements (which, for the avoidance of doubt, may be removed from any Portfolio Site at any time by Seller in a manner that is consistent with the general standard of care and practices in the telecommunications industry in South America, and, if such removal is after the Closing for such Portfolio Site and such Portfolio Site is then subject to the MLA, such removal will be conducted in accordance with the terms of the MLA;


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                   (iii)        all of Seller’s right, title or interest in, to and under the Land, other than any right, title or interest in, to or under such Land expressly granted or transferred to Buyer pursuant to this Agreement and the Collateral Agreements;

                   (iv)        any and all Governmental Approvals of Seller or any of its Affiliates (including any such Governmental Approvals that relate to the Portfolio Sites);

                   (v)        with respect to each Sale Site, any Accounts Receivable or other receivables of Seller or any of its Affiliates under any Collocation Agreement accruing as to periods and portions thereof ending prior to the applicable Closing Date;

                   (vi)        any intellectual property of or used by Seller or its Affiliates;

                   (vii)        except as otherwise expressly provided in Section 2.8, any cash, cash equivalents or marketable securities and all rights to any bank accounts of Seller and its Affiliates;

                   (viii)        any Claims of Seller and its Affiliates in respect of any Excluded Asset or Excluded Liability;

                   (ix)        any and all contracts between Seller and third-parties relating to maintenance of Communications Equipment; and

                   (x)        any rights to refunds or credits of Taxes relating to the periods ending on or before the applicable Closing Date for a Sale Site or with respect to which Seller and its Affiliates have made any payments, in each case, to the extent the Taxes have not been indemnified by Buyer.

                   “Excluded Liabilities” means all Liabilities of Seller and its Affiliates other than Post-Closing Liabilities. Without limiting the generality of the foregoing, Excluded Liabilities shall include the following: (i) any Liability of Seller and its Affiliates to their employees in their capacity as employers or under any employee benefits or similar plans; (ii) any Liability to the extent based upon, resulting from, related to or arising out of (a) any Excluded Asset, the ownership of any Excluded Asset or the realization of the benefits of any Excluded Asset or (b) the operation, use or occupancy by Seller and its Affiliates of any properties or assets other than the Included Property of the Sale Sites or the conduct by Seller and its Affiliates of any business or operations other than the operation, use or occupancy of the Included Property of the Sale Sites; (iii) any Indebtedness of Seller or any of its Affiliates; (iv) except as otherwise expressly provided in this Agreement or the Collateral Agreements, any Liability for any fees or expenses incurred by Seller or its Affiliates (including the fees and expenses of legal counsel, any accountant, auditor, broker, financial advisor or consultant retained by them or on their behalf) in connection with the preparation, negotiation, execution and delivery of this Agreement or the Collateral Agreements or the consummation of any Closing; and (v) any Accounts Payable. Notwithstanding the foregoing, no Taxes other than Net Income Taxes shall be treated as Excluded Liabilities, as all of such Taxes are governed by and subject to Section 2.10.


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                   “Excluded Site” means, at any time of determination, any Portfolio Site designated as or deemed to be an Excluded Site in accordance with this Agreement or that is returned to Seller after the applicable Closing pursuant to Sections 4.4(c) or 4.6, in each case, in accordance with the terms of this Agreement.

                   “Excluded Site Collocation Payments” means, with respect to any Portfolio Site that is re-designated as or deemed to be an Excluded Site in accordance with this Agreement, any amounts paid to or received by Buyer or any of its respective Affiliates or assigns from and after the applicable Closing Date with respect to such Portfolio Site (including any payments received by Buyer or any of its respective Affiliates or assigns from and after the applicable Closing Date under this Agreement, any Collateral Agreement and any Collocation Agreement or the MLA).

                   “Excluded Site Consideration” means, with respect to each Excluded Site designated or deemed to be an Excluded Site in accordance with this Agreement prior to or at the applicable Closing or that is returned to Seller after the applicable Closing and on or prior to the Final Closing Date in accordance with Sections 4.4(c) or 4.6, the Allocated Site Consideration for such Portfolio Site; provided, however, that, with respect to any Excluded Site for which Seller has held back the Allocated Site Holdback Consideration in accordance with this Agreement at the Closing for such Excluded Site, the amount of the Excluded Site Consideration for such Excluded Site will be reduced by the Allocated Site Holdback Consideration.

                   “Excluded Site Lease Payments means, with respect to any Portfolio Site that is re-designated as or deemed to be an Excluded Site in accordance with this Agreement, any amounts paid by Buyer or any of its respective Affiliates or assigns from and after the Closing Date with respect to such Excluded Site.

                   “FCPA” means the United States Foreign Corrupt Practices Act of 1977, 18 U.S.C. 77dd-1 et seq., as amended.

                   “Final Closing Date” has the meaning set forth in Section 4.2(a).

                   “Final Closing Date Deadline” means the date that is ten (10) Business Days prior to the Final Closing Date.

                   “Financial Independent Consultant” means Deloitte or such other accounting firm or consulting firm as Seller and Buyer may mutually agree upon in writing.

                   “Financial Independent Consultant Proration Report” has the meaning set forth in Section 2.8(b).

                   “GAAP” means generally accepted accounting principles in Bolivia, South America, consistently applied.

                   “Governmental Approvals” means all licenses, permits, franchises, certifications, waivers, variances, registrations, consents, approvals, qualifications, determinations and other Authorizations to, from, or with any Governmental Authority.

                   “Governmental Authority” means, with respect to any Person or any Sale Site or other property, any foreign, domestic, federal, national, departmental, territorial, state, tribal or local governmental authority, administrative body, quasi-governmental authority, court, government or self-regulatory organization, commission, board, administrative hearing body, arbitration panel, tribunal or any regulatory, administrative or other agency or any political or other subdivision, department or branch of any of the foregoing, in each case having jurisdiction over such Person or such Sale Site or other property.


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                   “Guaranteed Obligations” has the meaning set forth in Section 11.18(a).

                   “Hazardous Material” means and includes petroleum products, flammable explosives, radioactive materials, asbestos or any material containing asbestos, polychlorinated biphenyls or any hazardous, toxic or dangerous waste, substance or material, in each case, defined as such (or any similar term) or regulated by, in or for the purposes of Environmental Laws.

                   “ICC Rules” has the meaning set forth in Section 11.13(b).

                   “Improvements”, as to any Sale Site, has the meaning set forth in the MLA (as if the term “Site” therein has the same meaning as Sale Site as defined in this Agreement).

                   “Included Property” means, with respect to each Sale Site: (i) the Land related to such Sale Site (including the applicable interest in any Site Lease); (ii) the Tower located on or at such Sale Site; (iii) the related Improvements (excluding Seller Improvements and any Site Subtenant’s Improvements, but including lightning rods, lightning conductors, and grounding rings that protect Communications Equipment at each Sale Site), the related Material Agreements and the Tower Related Assets with respect to such Sale Site; but excluding, in each case, any Excluded Assets and all Site Subtenant Communications Equipment.

                   “Indebtedness” means (i) all liabilities for borrowed money, whether current or funded, secured or unsecured, all obligations evidenced by bonds, debentures, notes or similar instruments, and all liabilities in respect of mandatorily redeemable or purchasable capital stock or securities convertible into capital stock; (ii) all liabilities for the reimbursement of any obligor on any letter of credit, banker’s acceptance or similar credit transaction securing obligations of a type described in clause (i) above to the extent of the obligation secured; and (iii) all liabilities as guarantor of obligations of any other Person of a type described in clauses (i) and (ii) above, to the extent of the obligation guaranteed.

                   “Indemnified Party” has the meaning set forth in Section 9.3(a).

                   “Indemnifying Party” has the meaning set forth in Section 9.3(a).

                   “Indemnity Period” means the period during which a claim for indemnification may be asserted pursuant to Article 9 by an Indemnified Party.

                   “Initial Closing” has the meaning set forth in Section 2.5.

                   “Initial Closing Date” means the date on which the Initial Closing occurs.

                   “Knowledge of Buyer” means the actual knowledge of those individuals set forth in Section 1 of the Buyer Disclosure Schedule and the knowledge that would be acquired by such individuals after reasonable inquiry of direct reports.


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                   “Knowledge of Seller” means the actual knowledge of those individuals set forth in Section 1.1(a) of the Seller Disclosure Schedule and the knowledge that would be acquired by such individuals after reasonable inquiry of direct reports.

                   “Land” means, with respect to each Sale Site, the rooftop or other similar space, the tracts, pieces or parcels of land constituting such Sale Site, together with all easements, rights of way and other rights appurtenant thereto.

                   “Law” means any federal, national, departmental, state, local, foreign or international law, statute, common law, rule, code, regulation, ordinance or Order of, or issued by, any Governmental Authority.

                   “Lease” means, with respect to the Included Property of a Sale Site, the act of leasing, subleasing, assigning, renting, transferring or otherwise granting by Buyer the right of Buyer to Seller to use such Included Property pursuant to the MLA or the Management Agreement, as applicable.

                   “Leased Sites” means all Sale Sites that are not Owned Sites or Usufruct Sites. For the avoidance of doubt, the Leased Sites include all the Sale Sites designated as “Leased” on the Portfolio Site Information List.

                   “Leased Sites Land” means, with respect to each Leased Site, the Land leased from the Site Lessor by Seller or Buyer, as the case may be, relating to such Leased Site.

                   “Legal Independent Consultant” means an independent Person with at least five (5) years of experience with negotiating and/or administering sale-leasebacks, collocation agreements, and/or other similar agreements in the cellular communications industry in a senior executive or similar capacity or as a legal or financial advisor, as may be mutually agreed upon in writing by Seller and Buyer.

                   “Liabilities” means, with respect to any Person, any and all debts (including interest thereon and any prepayment penalties applicable thereto), obligations, liabilities and Claims, whether fixed, contingent or absolute, matured or unmatured, liquidated or unliquidated, accrued or not accrued, known or unknown, whenever or however arising (including whether arising out of any contract or tort based on negligence or strict liability) and whether or not the same would be required by GAAP to be reflected in such Person’s consolidated financial statements or disclosed in the notes thereto.

                   “Liens” means, with respect to any asset, any mortgage, lien, pledge, security interest, charge, attachment, encumbrance, claim, equitable interest, option, deed of trust, or encroachment of any kind on Seller’s interest in respect of such asset.

                   “made available” means, with respect to any applicable document, such document has been made available to the Buyer on or prior to the Signing Date by means of posting such document to the Data Room. Within two (2) Business Days after the Signing Date, Seller will deliver to Buyer an electronic copy of such Data Room as of the Signing Date.

                   “Managed Site” means any Portfolio Site (other than an Excluded Site or a Deferred Site) that (i) is not an Assignable Site or (ii) is deemed not to be an Assignable Site in accordance with Section 4.4(b) or 4.6(a). For the avoidance of doubt, a Managed Site is also an Exception Site.


 


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                   “Minimum Consideration” has the meaning set forth in Section 8.2(h).

                   “MLA” has the meaning set forth in the Recitals.

                   “Names” means, collectively, all names, marks, trade names and trademarks, whether or not registered.

                   “Net Amount” means, with respect to an Excluded Site returned to Seller in accordance with Sections 4.4(c), or 4.6, the Excluded Site Consideration for such Portfolio Site, as adjusted for any Excluded Site Collocation Payments and any Excluded Site Lease Payments; provided, however, that, if Buyer or Buyer agree to any increases in the rent or other payments to Site Lessors prior to the date any Net Amount is paid in accordance with Section 4.5, then the Net Amount shall be calculated assuming the terms of the applicable Site Lease as of the applicable Closing Date for such Excluded Site were in effect through the date of such payment.

                   “Net Income Tax” means the Bolivian Corporate Income Tax imposed by Law Nº 843 and applicable regulations based on or measured by or with reference to taxable income as defined in the current version of applicable Law Nº 843 and applicable regulations.

                   “Non-Compliant Site” means a Portfolio Site that is subject to: (i) a Material Site Non-Compliance Issue immediately prior to the Closing for such Portfolio Site; or (ii) a Material Site Title Issue immediately prior to the Closing for such Portfolio Site.

                   “Non-Disturbance Agreement” means, as to a Site Lease for a Sale Site that is subject to a Site Lessor Mortgage, a non-disturbance agreement from the lender with respect to such Site Lessor Mortgage, in form and substance reasonably satisfactory to Buyer.

                   “Notice” means a notice provided to the Site Lessor with respect to a Site Lease, substantially in the form of Exhibit D-2 hereto.

                   “Notice of Dispute” has the meaning set forth in Section 4.6(a).

                   “OFAC” means the Office of Foreign Assets Control of the United States of America.

                   “Order” means an administrative, judicial, or regulatory injunction, order, decree, judgment, sanction, award or writ of any nature of any Governmental Authority.

                   “Owned Sites” means the Sale Sites with respect to which Seller or its Affiliates owns the Land which is part of such Sale Site and are designated as “Owned” on the Portfolio Site Information List.

                   “Owned Site Land” means the Land of an Owned Site.

                   “Party” or “Parties” has the meaning set forth in the Preamble.

                   “Permitted Liens” means, collectively: (i) any Lien or right created by Persons other than Seller or its Affiliates and not caused or consented to by Seller or its Affiliates unless such Lien or right causes a Portfolio Site to be a Taken Site or a Non-Compliant Site, (ii) any Lien with respect to any right, title or interest of any Person other than Seller or its Affiliates, so long as no foreclosure, distraint, sale or similar proceedings have been commenced with respect thereto unless there is a Non-Disturbance Agreement on record with respect to such Lien, (iii) Liens in respect of Property Taxes or similar assessments, governmental charges or levies that relate to the right, title or interest of any Site Lessor in a Sale Site, (iv) Liens of landlords, laborers, shippers, carriers, warehousemen, mechanics, materialmen, repairmen and other like Liens imposed by Law that relate to the right, title or interests of a Site Lessor or a Site Subtenant in a Sale Site or Seller with respect to any Owned Site, (v) subject to Section 2.8, Liens for current Taxes and assessments of Seller or its Affiliates not yet due and payable or which are being contested in good faith and, in connection therewith, appropriate and adequate reserves have been set aside on the appropriate party’s financial statements in accordance with GAAP, (vi) any easements, rights of public utility companies, rights-of-way, covenants, conditions, licenses, restrictions, reservations of mineral rights (with surface rights being waived) or similar non-monetary encumbrances that do not or could not reasonably be expected to, individually or in the aggregate, materially adversely affect the use or operation of the applicable Sale Site as a communications tower facility, including the rental of such Sale Site to Site Subtenants, (vii) rights of, or by, through or under, tenants in possession of the applicable Sale Site pursuant to Collocation Agreements, (viii) the Site Leases, (ix) Laws related to the use and operation of communications towers or similar structures, (x) Site Lessor Mortgages, (xi) Collocation Agreements, (xii) the Collateral Agreements, (xiii) any Lien constituting any uncured Exception, (xiv) any Lien or right otherwise caused or consented to by Buyer after the Signing Date, to the extent permitted by any applicable Site Lease or the Collateral Agreements, and (xv) without limiting the foregoing, such other matters filed in the public real estate records that do not materially impair the use or operation of such Sale Site as a communications tower site. The inclusion of any clause in this definition of Permitted Liens shall not be interpreted to limit the application or scope of any other clause in this definition.


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                   “Person” means any individual, corporation, limited liability company, partnership, association, trust or any other entity or organization, including a Governmental Authority.

                   “Portfolio Site Information List” means the list attached as Schedule 1 that identifies certain identifying and related information with respect to each Portfolio Site.

                   “Portfolio Sites” means the wireless communications sites identified on the Portfolio Site Information List and the Included Property related thereto.

                   “Post-Closing Liabilities” means all Liabilities, to the extent that they arise out of or relate to or are in connection with the ownership, operation, use, maintenance or occupancy of the Included Property of any Sale Site after the Closing Date for such Sale Site including all such payment and performance obligations under any Site Lease or Collocation Agreement, in each case, arising after the Closing Date for such Sale Site (including, without limitation, any Liabilities relating to duties or obligations to be performed after such Closing Date (e.g., an obligation to decommission a Sale Site after such Closing Date)). For the avoidance of doubt, Post-Closing Liabilities shall include, with respect to any Liabilities that relate to, arise out of or are in connection with the ownership, use, operation, maintenance or occupancy of the Included Property of any Sale Site after the Closing for such Sale Site, any additional Liabilities relating to, arising out of or that are in connection with such Pre-Closing Liabilities from the continued ownership, use, operation, maintenance or occupancy of the Included Property of such Sale Site after the Closing for such Sale Site (it being understood and agreed that such “additional Liabilities” shall not mean Liabilities unasserted prior to the Closing for such Sale Site), and Post-Closing Liabilities shall also include, with respect to any Portfolio Site that becomes an Excluded Site after the Closing for such Site and is rescinded in accordance with Sections 4.4(c) or 4.6, any such Liabilities with respect to periods after the Closing for such Sale Site and prior to the applicable date of such rescission to the extent caused by the intentional misconduct or gross negligence of Buyer or any of its respective Affiliates. Notwithstanding the foregoing, no Taxes shall be treated as Post-Closing Liabilities, as all of such Taxes are governed by and subject to Section 2.10.


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                   “Pre-Closing Claims Deductible” has the meaning set forth in Section 9.5(a).

                   “Pre-Closing Liabilities” means all Liabilities to the extent that they arise out of or relate to or are in connection with the ownership, operation, use, maintenance or occupancy of the Included Property of any Sale Site by Seller and its Affiliates prior to or on the Closing Date for such Sale Site (whether or not asserted as of or prior to or on such Closing Date), including all payments due under any Site Lease or Collocation Agreement prior to or on such Closing Date, except in each case to the extent taken into account in determining the proration of expenses pursuant to Section 2.8. For the avoidance of doubt: (i) with respect to any Liabilities that arise out of or relate to or are in connection with the operation, use, maintenance, or occupancy of the Included Property of any Sale Site by Seller or its Affiliates that exist at the Closing for such Sale Site, Pre-Closing Liabilities shall only include such Liabilities as of such Closing, and shall not include any additional Liabilities relating to, arising out of or that are in connection with such Liabilities from the continued ownership, use, operation, maintenance, or occupancy of the Included Property of the Sale Sites after such Closing (it being understood and agreed that such “additional Liabilities” shall not mean Liabilities unasserted prior to such Closing); and (ii) Pre-Closing Liabilities shall not include any Liabilities relating to duties or obligations to be performed after such Closing Date (e.g., an obligation to decommission a Sale Site after such Closing Date)). Notwithstanding the foregoing, no Taxes shall be treated as Pre-Closing Liabilities, as all of such Taxes are governed by and subject to Section 2.10.

                   “Property Taxes” means any and all of the following Taxes, assessed or imposed upon, against or with respect to real or personal property, including the Sale Site or any part thereof, or the use and occupancy of real or personal property, including the Sale Site or any part thereof, whether imposed directly by a Governmental Authority or indirectly through any other Persons, and including any penalties, fines and interest related thereto: (i) real property and personal property ad valorem Taxes; (ii) Taxes imposed by any Governmental Authority for improvements or betterments related to the Sale Site; (iii) sanitary Taxes, sewer or water Taxes; and (iv) any other Tax imposed solely as a result of the use or ownership of real or personal property that is similar to the Taxes described in (i) through (iii), however described or labeled.

                   “Proration Certificate” has the meaning set forth in Section 2.8(b).

                   “Proration Dispute Resolution Deadline” has the meaning set forth in Section 2.8(a).

                   “Regulatory Condition” has the meaning set forth in Section 7.2(a).

                   “Rent” has the meaning set forth in the MLA.

                   “Representations and Warranties Threshold” has the meaning set forth in Section 9.5(a).


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                   “Representatives” means, with respect to a Person, its directors, officers, employees, attorneys, accountants, consultants, bankers, financing sources, financial advisers and any other professionals or agents acting on behalf of any such Person.

                   “Sale Sites” means the Portfolio Sites set forth on the Portfolio Site Information List (including any Managed Sites), but excluding any Portfolio Sites designated as or deemed to be Excluded Sites or Deferred Sites following the Signing Date in accordance with the terms of this Agreement.

                   “Seller” has the meaning set forth in the Preamble. The Parties acknowledge and agree that any and all references in the Collateral Agreements to Nuevatel PCS de Bolivia S.A. shall be deemed to be references to Seller.

                   “Seller Collocation Space” has the meaning set forth in the MLA (as if the term “Site” therein has the same meaning as Sale Site as defined in this Agreement).

                   “Seller Communications Equipment” means any Communications Equipment at a Portfolio Site owned or leased and used by Seller or one or more of its Affiliates.

                   “Seller Disclosure Schedule” means the disclosure schedule delivered by Seller to Buyer prior to the execution and delivery of this Agreement.

                   “Seller Improvements”, as to any Sale Site, has the meaning set forth in the MLA (as if the term “Site” therein has the same meaning as Sale Site as defined in this Agreement).

                   “Seller Indemnified Parties” means the Seller Parties and each of their respective Affiliates, together with each of their respective shareholders, members, managers, officers, directors, agents and Representatives.

                   “Seller Material Adverse Effect” means any state of facts, change, effect, condition, development, event or occurrence that is, or could be reasonably expected to become, individually or in the aggregate, materially adverse to the assets, financial condition or results of operations of Seller and Seller Parent taken as a whole or the Included Property of the Sale Sites taken as a whole, after giving effect to the transactions contemplated by the MLA (as if such transactions were in effect on the Signing Date); provided, however, that no adverse change or event to the extent arising directly or indirectly from or otherwise relating directly or indirectly to any of the following shall be deemed either alone or in combination to constitute, and no such adverse change or event shall be taken into account in determining whether there has been or could reasonably be expected to become, a Seller Material Adverse Effect: (i) changes to the wireless communications industry in Bolivia or the communications tower ownership, operation, leasing, management and construction business in Bolivia; (ii) the announcement or disclosure of the transactions contemplated by this Agreement; (iii) general economic, regulatory or political conditions in Bolivia or changes or developments in the financial or securities markets; (iv) changes in GAAP or their application; (v) acts of war, military action, armed hostilities or acts of terrorism; (vi) changes in Law; or (vii) the taking of any action by any Person which is required to be taken pursuant to the terms of this Agreement, unless any of the facts, changes, effects, conditions, developments or occurrences set forth in clauses (i), (iii) or (v) hereof disproportionately impacts or affects the Included Property of the Sale Sites, taken as a whole, as compared to other similar portfolios of communications towers.


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                   “Seller Parent” has the meaning set forth in the Preamble.

                   “Seller Parties” has the meaning set forth in the Preamble.

                   “Signing Date” has the meaning set forth in the Preamble.

                   “Signing Site Designations List” means Schedule 2 hereto, which was prepared by Seller in accordance with and subject to Article 3 and identifies Seller’s good faith determination of the Site Designations for each Site and, to the extent applicable, any related Exceptions, as of the Signing Date.

                   “Site Designation” means, with respect to any Portfolio Site, the designation of such Portfolio Site into one or more of the following categories of Portfolio Sites: (i) an Assignable Site; (ii) a Managed Site; (iii) a Deferred Site; (iv) an Exception Site; and (v) an Excluded Site; and, in each case, where applicable, a reference to the specific provision of this Agreement (including the Exception Site Conditions) pursuant to which such Portfolio Site has been designated under such Site Designation. For the avoidance of doubt: (A) a Portfolio Site may have more than one designation; and (B) a Portfolio Site that is a Managed Site or a Deferred Site is also an Exception Site.

                   “Site Designation Dispute” has the meaning set forth in Section 4.6(a).

                   “Site Lease” means: (i) as to any Leased Site, the ground lease, rooftop lease, sublease, or any easement, license, marketing or development right, co-marketing or co-development right or other agreement or document pursuant to which Seller or Buyer holds a leasehold or subleasehold interest, leasehold or subleasehold estate, easement, license, sublicense, marketing or development right, co-marketing or co-development right or other interest in such Leased Site, together with any extensions of the term thereof (whether by exercise of any right or option contained therein or by execution of a new ground or rooftop lease or other instrument providing for the use of such Leased Site), and including all amendments, modifications, supplements, assignments and guarantees related thereto as in effect from time to time prior to the applicable Closing for such Lease Site; and (ii) as to any Usufruct Site, the usufruct pursuant to which Seller or Buyer has the right to operate such Usufruct Site.

                   “Site Lessor” means: (i) as to any Leased Site, the “lessor”, “sublessor”, “landlord”, “licensor”, “sublicensor”, or similar Person under the related Site Lease; or (ii) as to any Usufruct Site, the Governmental Authority that granted the usufruct with respect to such Usufruct Site.

                   “Site Lessor Mortgage” means any mortgage, deed of trust or similar Lien encumbering the interest of a Site Lessor that is superior to the interest of Seller or Buyer, as applicable, in a Leased Site and that exists prior to the Closing Date for such Leased Site.

                   “Site Subtenant” means, as to any Sale Site, any Person (other than Seller), that (i) is a “sublessee”, “licensee”, “sublicensee”, “tenant” or “subtenant” under any Collocation Agreement affecting the right to use Available Space at such Sale Site (prior to the applicable Closing); or (ii) subleases, licenses, sublicenses or otherwise acquires from Buyer the right to use Available Space at such Sale Site (from and after the applicable Closing).


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                   “Site Subtenant Communications Equipment” means any Communications Equipment owned or leased and used by a Site Subtenant.

                   “SLA” means, as to any Sale Site, a site lease agreement, which is a supplement to the MLA, in substantially the form attached thereto.

                   “Solvent” means, when used with respect to any Person, as of any date of determination, (i) the amount of the “fair value” of the “property” of such Person will, as of such date, exceed the value of all “debts” of such Person, as of such date, as such quoted terms are generally determined in accordance with applicable federal or national laws governing determinations of the insolvency of debtors, (ii) such Person will not have, as of such date, an unreasonably small amount of capital for the operation of the businesses in which it is engaged or about to be engaged following such date and (iii) such Person will be able to pay its liabilities, including contingent and other liabilities, as they mature.

                   “Special Status Site” means any Portfolio Site that is or, after giving effect to a Closing, would be: (i) a Managed Site; (ii) a Tigo Site; (iii) a Comteco Site; or (iv) identified as a “Unprofitable Rent” under the MLA Schedule 4(d) column on the Portfolio Site Information List; provided, however, that, to the extent that: (A) to the extent that a replacement collocation agreement is entered into in accordance with Section 4.2(f) with respect to a Tigo Site, then such Tigo Site will no longer be a Special Status Site; and (B) to the extent that a replacement collocation agreement is entered into in accordance with Section 4.2(g) with respect to a Comteco Site, then such Comteco Site will no longer be a Special Status Site.

                   “Special Status Site Cap” has the meaning set forth in Section 3.2(b).

                   “Specified Matters” means the matters disclosed in the following Sections of the Seller Disclosure Schedule: Sections 5.7, 5.8(1)-(2), and 5.10(1)-(7).

                   “Specified Renewal Sites” means any Portfolio Site for which term of the Site Lease was extended or renewed during the period commencing on January 1, 2019 and ending on the Initial Closing Date.

                   “Specified Representations and Warranties” means the representations and warranties set forth in Sections 5.1, 5.2(a), 5.2(b), 5.9, 5.11, 5.12, 5.15, 6.1, 6.2(a), 6.2(b) (other than Sections 6.2(b)(iii)), 6.5, 6.7, and 6.8.

                   “Subsequent Closing” has the meaning set forth in Section 2.6(a).

                   “Subsequent Closing Date” has the meaning set forth in Section 2.6(a).

                   “Subsidiary” means, with respect to any Person, any other Person (i) of which at least 50% of the securities or ownership interests having by their terms ordinary voting power to elect a majority of the board of directors or other persons performing similar functions is directly or indirectly owned or controlled by such Person or by one or more of its Subsidiaries or (ii) of which such Person is the general partner.

                   “Taken” means, as to any Portfolio Site, a condemnation, foreclosure, deed in lieu of foreclosure or similar proceeding, in each case, that is existing or pending as of the Initial Closing Date and involving a Lien or Site Lessor Mortgage that results in (i) the Tower on such Portfolio Site being unusable as a communications tower or (ii) the ability of the Tower on such Portfolio Site to continue to be usable as a communications tower being materially impaired and the value of such Portfolio Site being materially impaired.


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                   “Taken Site” means a Sale Site with respect to which a pending written notice from a Governmental Authority has been received prior to the Closing Date for such Sale Site by Seller or its Affiliates, which if the claims in such notice are determined to be accurate it would cause such Sale Site to be Taken.

                   “Target Date” means February 15, 2019.

                   “Tax” or “Taxes” means any and all impositions, fees (including license, documentation and registration fees), taxes (including income, capital gains, gross receipts, gross margin, ad valorem, excise, value-added, sales, use, transfer, franchise, capital stock, doing business, license, stamp, business and occupation, withholding, employment, or payroll tax), Property Taxes, levy or duty, or other charge, assessment, deduction or withholding of any nature whatsoever, together with any fee, assessment, penalty, fine, addition to tax or additional amount with respect to any of the foregoing, and interest on any of the foregoing, in each case imposed by any Governmental Authority (whether imposed directly by a Governmental Authority or indirectly through any other Person, or determined by reference to the Tax liability of another Person, as a transferee or successor, by contract or otherwise); provided, however, that Tax does not include any amount assessed as a result of any failure to comply with any Environmental Law.

                   “Tax Return” means any return, report, statement, schedule, estimate, claim for refund or other document filed or required to be filed with any Taxing Authority (including any amendment thereof or attachment thereto).

                   “Taxing Authority” means any Governmental Authority responsible for the imposition or administration of any Tax.

                   “Termination Date” has the meaning set forth in Section 10.1(b).

                   “Third Party Claim” has the meaning set forth in Section 9.3(a).

                   “Third Party Claim Notice” has the meaning set forth in Section 9.3(a).

                   “Tigo” means Telefonica Celular de Bolivia S.A.

                   “Tigo Collocation Agreements” means the collocation agreements by and between Tigo and Seller (which may be written or oral) and that relate to the Tigo Sites in effect as of the Signing Date.

                   “Tigo Sites” means any Portfolio Site that is subject to a Tigo Collocation Agreement. The “Tigo Sites” are identified on the Portfolio Site Information List.

                   “Tower” or “Towers” means the communications towers or other support structures on the Portfolio Sites from time to time.

                   “Tower Related Assets” means, with respect to each Tower: (i) to the extent such rights are assignable or leasable, as the case may be, all rights to any warranties held by any Seller or its Affiliates exclusively with respect to such Tower (or the related Sale Site), and (ii) all related Books and Records. For the avoidance of doubt, Tower Related Assets does not include any intellectual property or intangible rights or any Excluded Assets (including any Governmental Approvals).


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                   “Transfer Agreement” means the Transfer Agreement, substantially in the form attached as Exhibit E hereto.

                   “Transfer Taxes” means all sales, use, license, VAT, municipal transfer, documentary, stamp, gross receipts, registration, real estate transfer, conveyance, excise, recording and other similar Taxes and fees, including without limitation, with respect to the transfer of Assignable Sites to Buyer.

                   “Transition Services Agreement” has the meaning set forth in the Recitals.

                   Unindemnified Taxes shall mean all Taxes other than those for which Seller or its Affiliates is responsible under Section 2.10.

                   “USD” means United States Dollars.

                   “Usufruct Site” a Sale Site with respect to which Seller or its Affiliates holds a temporary real estate right of use and enjoyment by means of a usufruct contract and that is designated as “Usufruct” on the Portfolio Site Information List.

                   “VAT” means any and all applicable value-added and similar Taxes.

                   “Willful and Intentional Breach” means a breach or failure to perform that is a consequence of an act or omission undertaken by the breaching Party with the knowledge that the taking of, or failure to take, such act would, or could reasonably be expected to, cause a breach of this Agreement.

            SECTION 1.2        Construction.

            Unless the express context otherwise requires:

            (a)        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;

            (b)        the terms defined in the singular have a comparable meaning when used in the plural, and vice versa, and the singular forms of nouns, pronouns and verbs shall include the plural and vice versa;

            (c)        any references herein to “$” and to the payment of money are to USD (unless otherwise required by applicable Law);

            (d)        to the extent a payment is required to be made under this Agreement in USD with respect to an amount determined in accordance with BS or in BS with respect to an amount determined in accordance with USD, then, such amount will be converted to USD or BS, as applicable, using the applicable Exchange Rate in effect on the date that such payment is invoiced or becomes due and payable, as applicable;


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            (e)        any references herein to a specific Article, Section, Schedule or Exhibit shall refer, respectively, to Articles, Sections, Schedules or Exhibits of this Agreement;

            (f)        any references to any agreement, document or instrument means such agreement, document or instrument as amended or otherwise modified from time to time in accordance with the terms thereof and, if applicable, hereof;

            (g)        any use of the words “or”, “either” or “any” shall not be exclusive;

             (h)        wherever the word “include”, “includes”, or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation”; and

            (i)        any references to any agreement by, or obligation of, the Affiliates of a given Party to take any action pursuant to this Agreement shall be deemed to mean that such given Party will cause the Affiliates to take such action; and

            (j)        references herein to any gender include each other gender.

            SECTION 1.3        Assignments; Transfers of Certain Assets and Liabilities.

            (a)        Notwithstanding anything in this Agreement or any Collateral Agreement to the contrary, but without limiting any of Seller’s duties and obligations arising under this Agreement or any Collateral Agreement, neither this Agreement nor any Collateral Agreement shall constitute an assignment, sublease, transfer, or other conveyance of any claim, contract, license, lease, sublease, or commitment if an attempted assignment, sublease, transfer or other conveyance thereof, without the Authorization of a third-party thereto, would constitute a breach or violation thereof or in any way adversely affect the rights of Buyer thereunder, but only to the extent such Authorization has not been obtained.

            (b)        If any Authorization described in Section 1.3(a) is not obtained, or if any attempt at an assignment, sublease, transfer or other conveyance thereof would be ineffective or would affect the rights of Seller thereunder so that Seller or Buyer would not in fact receive all such rights (including all such rights under Collocation Agreements) or would affect the ability of Seller or Buyer to obtain the benefits and rights contemplated by this Agreement and the Collateral Agreements, then, the Buyer Parties and the Seller Parties shall either (i) enter into an amendment to the Management Agreement with respect to contracts or agreements applicable to any Sale Site for which an Authorization has not been obtained pursuant to Section 1.3(a) or (ii) use commercially reasonable efforts to implement alternative arrangements reasonably acceptable to the Parties designed to ensure that, after the applicable Closing, the Parties obtain all such benefits and rights and are in the same legal position as they would have been if such Authorization had been obtained.

ARTICLE 2

INITIAL CLOSING AND SUBSEQUENT CLOSINGS

            SECTION 2.1        Initial Closing.

            (a)        Closing Site Designations List for Initial Closing. Prior to the Initial Closing, Buyer will deliver to Seller the Closing Site Designations List for the Initial Closing, and, subject to Section 4.6, such Closing Site Designations List shall be accepted by Seller, in each case, in accordance with Section 3.2 below; provided, however, that, subject to Section 3.2(b), the Parties agree to use the Site Designations set forth on the Signing Site Designations List for purposes of the Closing Site Designations List for the Initial Closing and the first Subsequent Closing, unless, prior to the Initial Closing or the first Subsequent Closing, the Parties discover any Assignable Site should be designated as a Managed Site, in which case, the Parties will designate such Portfolio Site as a Managed Site.


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            (b)        Initial Closing. At the Initial Closing:

                          (i)        Subject to the adjustments and prorations described in Section 2.8, the Buyer Parties will pay to Seller (by wire transfer of immediately available funds to an account designated in writing by Seller at least two (2) Business Days prior to the Initial Closing Date) an amount equal to the Closing Consideration for the Initial Closing.

                          (ii)        With respect to the Assignable Sites set forth on the Closing Site Designations List for the Initial Closing, Seller will contribute, convey, assign, transfer, and deliver to Buyer, and Buyer will acquire, accept and assume from Seller, all of Seller’s right, title and interest in, to and under the Included Property of such Assignable Sites (including the related Material Agreements) and all Post-Closing Liabilities with respect to such Assignable Sites, in each case, subject to Section 8.2(g), free and clear of all Liens (other than Permitted Liens), and Seller will retain responsibility for all Excluded Liabilities and Pre-Closing Liabilities, in each case, in accordance with the terms and conditions of the Transfer Agreement and, with respect to each Assignable Site that is an Owned Site, such other Deeds, instruments of conveyance, and other transfer documents as may be necessary to effect such transactions, in each case, in form and substance reasonably satisfactory to Seller and Buyer.

                          (iii)        The Buyer Parties and the Seller Parties will execute and deliver the Management Agreement with respect to the Managed Sites set forth on the Closing Site Designations List for the Initial Closing, and Seller will assign and delegate to Buyer, and Buyer shall accept and assume, all Post-Closing Liabilities with respect to such Managed Sites, and Seller shall retain responsibility for all related Excluded Liabilities and Pre-Closing Liabilities with respect to such Managed Sites.

                          (iv)        The Buyer Parties and the Seller Parties will execute and deliver the MLA with respect to the Assignable Sites and the Managed Sites set forth on the Closing Site Designations List for the Initial Closing (and, subject to the terms of the MLA, the initial Base Rent payable under the MLA for any such Assignable Site or Managed Site will be the “Initial Rent Amount (Monthly) (Excluding VAT)” as set forth the Portfolio Site Information List with respect to such Assignable Site or Managed Site).

                          (v)        The Buyer Parties and the Seller Parties will execute and deliver the Transition Services Agreement.

                          (vi)        Seller will deliver to Buyer an updated Section 5.13(a) of the Seller Disclosure Schedule (calculated as of the last day of the month preceding the month in which the Initial Closing is occurring) for each Portfolio Site included in the Initial Closing.

                          (vii)        The Buyer Parties and the Seller Parties will duly execute and deliver: (A) the certificates and other contracts, documents and instruments required to be delivered under Article 8 to which they are a party, including the Collateral Agreements, or in accordance with Section 7.3; and (B) any such other contracts, documents, and instruments as may be reasonably requested by any Party to consummate the transactions contemplated or required by the Initial Closing.


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                          (viii)        Seller will instruct Sharefile to provide the Buyer with access to the Data Room that permits the Buyer Parties to print and download any documents and data that constitute Books and Records with respect to any Managed Sites and Assignable Sites included in the Initial Closing, which access shall not expire or terminate earlier than the Final Closing Date.

                          (ix)        Seller shall deliver to Buyer: (i) a recent certificate of good standing (Matrícula de Comercio actualizada) that confirms that the Seller is duly organized, validly existing and in good standing under the laws of Bolivia; and (ii) a recent certificate of good standing from the State of Delaware confirming that Seller Parent is validly existing and in good standing under the laws of the State of Delaware.

                          (x)        Buyer shall deliver to Seller: (i) a recent certificate of good standing (Matrícula de Comercio actualizada) that confirms that the Buyer is duly organized, validly existing and in good standing under the laws of Bolivia; (ii) a recent certificate of good standing from the State of Delaware confirming that Buyer Parent is validly existing and in good standing under the laws of the State of Delaware; and (iii) a recent certificate of good standing from the State of Delaware confirming that Buyer Guarantor is validly existing and in good standing under the laws of the State of Delaware.

                          (xi)        Buyer shall deliver to Seller a certificate dated as of the Initial Closing Date and signed by an authorized officer of each Buyer Party and Buyer Guarantor, certifying as appropriate as to: (i) copies of its organizational documents of the Buyer Parties and Buyer Guarantor as in effect on the Initial Closing Date certified by the appropriate governmental official where such documents are filed in a governmental office; (ii) all corporate or limited liability action taken by each Buyer Party and Buyer Guarantor in connection with this Agreement and the other Collateral Agreements; and (iii) the names of the authorized officers of each Buyer Party and Buyer Guarantor authorized to sign the Collateral Agreements and their true signatures; in each case, in form and substance reasonably satisfactory to Seller.

                          (xii)        Seller shall deliver to Buyer a certificate dated as of the Initial Closing Date and signed by an authorized officer of each Seller Party, certifying as appropriate as to: (i) copies of its organizational documents of the Seller Parties as in effect on the Initial Closing Date certified by the appropriate governmental official where such documents are filed in a governmental office; (ii) all corporate or limited liability action taken by each Seller Party in connection with this Agreement and the other Collateral Agreements; and (iii) the names of the authorized officers of each Seller Party authorized to sign the Collateral Agreements and their true signatures; in each case, in form and substance reasonably satisfactory to Buyer.

            SECTION 2.2        Subsequent Closings.

            (a)        Closing Site Designations List for Subsequent Closing. Prior to each Subsequent Closing, Buyer will deliver to Seller the Closing Site Designations List for such Subsequent Closing, and such Closing Site Designations List shall be accepted by Seller, in each case, in accordance with Section 3.2 below.

            (b)        Subsequent Closings. At each Subsequent Closing:


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                         (i)        Subject to the adjustments and prorations described in Section 2.8, the Buyer Parties will pay to Seller (by wire transfer of immediately available funds to an account designated in writing by Seller at least two (2) Business Days prior to such Subsequent Closing Date) an amount equal to the Closing Consideration for such Subsequent Closing.

                          (ii)        With respect to any Assignable Sites set forth on the Closing Site Designations List that are being converted from a Managed Site in such Subsequent Closing, Seller will contribute, convey, assign, transfer, and deliver to Buyer, and Buyer will acquire, accept and assume from Seller, all of Seller’s right, title and interest in, to and under the Included Property of such Assignable Sites (including the related Material Agreements) and all Post-Closing Liabilities with respect to such Assignable Sites, in each case, subject to Section 8.2(g), free and clear of all Liens (other than Permitted Liens), and Seller will retain responsibility for all Excluded Liabilities and Pre-Closing Liabilities, in each case, in accordance with the terms and conditions of the Transfer Agreement and, with respect to each such Assignable Site that is an Owned Site, such other Deeds, instruments of conveyance, and other transfer documents as may be necessary to effect such transactions, in each case, in form and substance reasonably satisfactory to Seller and Buyer.

                          (iii)        The Buyer Parties and the Seller Parties will enter into:

                          (A)        an amendment to the Management Agreement, pursuant to which, among other things: (1) Seller will grant to Buyer the right to operate each Managed Site (including the Included Property thereof) identified on the Closing Site Designations List for such Subsequent Closing that was not a Managed Site in a prior Closing until such time as such Managed Site becomes an Assignable Site; and (2) the Management Agreement will be terminated with respect to any Assignable Sites set forth on the Closing Site Designations List that are being converted from a Managed Site in such Subsequent Closing;

                          (B)        an amendment to the MLA, pursuant to which, among other things: (1) Buyer will: (x) lease to Seller the Seller Collocation Space at the Assignable Sites set forth on the Closing Site Designations List for such Subsequent Closing that were not included as Assignable Sites in a prior Closing; and (y) reserve and make the Seller Collocation Space at each Managed Site set forth on the Closing Site Designations List for such Subsequent Closing and that were not included as a Managed Site in a prior Closing available for the exclusive use and possession of Seller until such time as such Managed Site becomes an Assignable Site; and (2) the MLA will be revised to reflect the conversion of any Managed Sites to Assignable Sites in connection with such Subsequent Closing (and, subject to the terms of the MLA, the initial Base Rent payable under the MLA for any such Assignable Site or Managed Site will be the “Initial Rent Amount (Monthly) (Excluding VAT)” as set forth the Portfolio Site Information List with respect to such Assignable Site or Managed Site); and

                          (C)        an amendment to the Transition Services Agreement, pursuant to which, among other things, any new Portfolio Sites included in such Subsequent Closing will become subject to the Transition Services Agreement.

                          (iv)        The Buyer Parties and the Seller Parties shall duly execute and deliver: (A) the certificates and other contracts, documents and instruments required to be delivered under Article 8 to which they are parties, including the Collateral Agreements, or in accordance with Section 7.3; and (B) any such other contracts, documents, and instruments as may be reasonably requested by any Party to consummate the transactions contemplated or required by such Subsequent Closing.


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                          (v)        Seller will instruct Sharefile to provide Buyer with access to the Data Room that permits Buyer to print and download any documents and data that constitute Books and Records with respect to any Managed Sites and Assignable Sites included in such Subsequent Closing that were not included in a prior Closing, which access shall not expire or terminate earlier than the Final Closing Date.

                          (vi)        Seller shall deliver to Buyer: (i) a recent certificate of good standing (Matrícula de Comercio actualizada) that confirms that the Seller is duly organized, validly existing and in good standing under the laws of Bolivia; and (ii) a recent certificate of good standing from the State of Delaware confirming that Seller Parent is validly existing and in good standing under the laws of the State of Delaware.

                          (vii)        Buyer shall deliver to Seller: (i) a recent certificate of good standing (Matrícula de Comercio actualizada) that confirms that the Buyer is duly organized, validly existing and in good standing under the laws of Bolivia; (ii) a recent certificate of good standing from the State of Delaware confirming that Buyer Parent is validly existing and in good standing under the laws of the State of Delaware; and (iii) a recent certificate of good standing from the State of Delaware confirming that Buyer Guarantor is validly existing and in good standing under the laws of the State of Delaware.

                          (viii)        Buyer shall deliver to Seller a certificate dated as of such Subsequent Closing Date and signed by an authorized officer of each Buyer Party, certifying as appropriate as to: (i) copies of its organizational documents of the Buyer Parties as in effect on such Subsequent Closing Date certified by the appropriate governmental official where such documents are filed in a governmental office; (ii) all corporate or limited liability action taken by each Buyer Party in connection with this Agreement and the other Collateral Agreements; and (iii) the names of the authorized officers of each Buyer Party authorized to sign the Collateral Agreements and their true signatures; in each case, in form and substance reasonably satisfactory to Seller.

                          (ix)        Seller shall deliver to Buyer a certificate dated as of such Subsequent Closing Date and signed by an authorized officer of each Seller Party, certifying as appropriate as to: (i) copies of its organizational documents of the Seller Parties as in effect on such Subsequent Closing Date certified by the appropriate governmental official where such documents are filed in a governmental office; (ii) all corporate or limited liability action taken by each Seller Party in connection with this Agreement and the other Collateral Agreements; and (iii) the names of the authorized officers of each Seller Party authorized to sign the Collateral Agreements and their true signatures; in each case, in form and substance reasonably satisfactory to Buyer.

            SECTION 2.3        Items Excluded from Closings.

            (a)        Except for the Post-Closing Liabilities, neither Buyer nor its Affiliates shall assume any Liabilities of Seller or its Affiliates in any Closing.

            (b)        Notwithstanding anything to the contrary contained herein, as a result of the consummation of the transactions contemplated by this Agreement (including at any Closing), Buyer shall not lease, acquire or have any rights with respect to, or obligations to the extent relating to (i) the Excluded Assets, the Excluded Liabilities, or the Pre-Closing Liabilities, and (ii) any and all rights or obligations that accrue or shall accrue to Seller or its Affiliates under this Agreement or any Collateral Agreement, and neither Buyer nor its Affiliates shall be liable as between the Parties for any Excluded Liabilities or Pre-Closing Liabilities.


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            SECTION 2.4        As Is, Where Is.

            EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT (I) IT IS THE EXPLICIT INTENT OF EACH PARTY THAT THE PROPERTY BEING CONTRIBUTED, CONVEYED, ASSIGNED, TRANSFERRED AND DELIVERED BY SELLER IS BEING SO CONTRIBUTED, CONVEYED, ASSIGNED, TRANSFERRED AND DELIVERED “AS IS, WHERE IS,” WITH ALL FAULTS, AND THAT SELLER IS NOT MAKING ANY REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, OTHER THAN THOSE EXPRESSLY GIVEN IN THIS AGREEMENT (WHICH SHALL SURVIVE ONLY TO THE EXTENT SET FORTH IN SECTION 9.4), INCLUDING ANY IMPLIED WARRANTY OR REPRESENTATION AS TO THE VALUE, CONDITION, MERCHANTABILITY OR SUITABILITY AS TO ANY OF THE PORTFOLIO SITES OR THE TOWERS AND EQUIPMENT LOCATED THEREON (OR THE COLLOCATION AGREEMENTS) AND ANY REPRESENTATION OR WARRANTY AS TO THE ENVIRONMENTAL COMPLIANCE OR CONDITION OF THE PORTFOLIO SITES OR THE INCLUDED PROPERTY AND (II) PURSUANT TO CERTAIN COLLATERAL AGREEMENTS, BUYER SHALL ASSUME AND PAY, HONOR AND DISCHARGE WHEN DUE IN ACCORDANCE WITH THEIR TERMS ANY AND ALL POST-CLOSING LIABILITIES. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, NO REPRESENTATION OR WARRANTY CONTAINED IN THIS AGREEMENT IS INTENDED TO, OR DOES, COVER OR OTHERWISE PERTAIN TO ANY EXCLUDED ASSETS OR EXCLUDED LIABILITIES OR TAXES FOR WHICH SELLER OR ITS AFFILIATES ARE RESPONSIBLE UNDER SECTION 2.10.

            SECTION 2.5        Initial Closing Place and Date.

            (a)        The transactions described in Section 2.1(b) shall take place at a closing (the “Initial Closing”) on the Target Date or on such earlier date as Seller and Buyer shall agree on in writing; provided, however, that, if the applicable conditions set forth in Article 8 have not been satisfied on or prior to the Target Date, then, unless this Agreement is sooner terminated in accordance with Section 10.1, the Initial Closing shall take place on the fifth (5th) Business Day following the date that the applicable conditions set forth in Article 8 (other than conditions which are to be satisfied by delivery at the Initial Closing) have been duly satisfied or waived or such other date as Seller and Buyer may mutually agree in writing. The Initial Closing shall be held at the offices of Carlos Gerke Mendieta Estudio Juridico located at Av. Julio C. Patiño Nº 1377, Calacoto, La Paz, Bolivia, or such other place upon which Seller and Buyer may agree in writing.

            (b)        If either: (i) the Initial Closing has not taken place on or before the Target Date; or (ii) Seller has not received the wire transfers contemplated by Section 2.1(b)(i) with respect to the Initial Closing on or before February 22, 2019, in each case, for any reason other than as a result of a failure of a closing condition in Section 8.1 or Section 8.2, then, notwithstanding anything in this Agreement to the contrary, Buyer will be in material breach of this Agreement and Seller will have the right to pursue any and all of its rights and remedies under this Agreement and applicable Law with respect to such breach (including, without limitation, the right to specific performance).


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            (c)        If either: (i) the first Subsequent Closing have not taken place on or before February 22, 2019; or (ii) Seller has not received the wire transfers contemplated by Section 2.2(b)(ii) with respect to the first Subsequent Closing on or before February 22, 2019, in each case, for any reason other than as a result of a failure of a closing condition in Section 8.1 or Section 8.2, then, notwithstanding anything in this Agreement to the contrary, Buyer will be in material breach of this Agreement and will have until February 28, 2019 to cure such breach and: (A) if such breach is not cured on or before February 28, 2019, then Seller will have the right to pursue any and all of its rights and remedies under this Agreement and applicable Law with respect to such breach (including, without limitation, the right to specific performance); and (B) if such breach is cured on or before February 28, 2019, then, subject to satisfaction of the conditions precedent in Article VIII, the Parties will complete the first Subsequent Closing on or before February 28, 2019.

            SECTION 2.6        Subsequent Closings.

            The transactions described in Section 2.2(b) shall take place at one or more closings after the Initial Closing (each, a “Subsequent Closing”) on such dates as either Seller or Buyer may reasonably request in writing (but in no event shall a Subsequent Closing be held on a day that is not a Business Day or more frequently than once every 60 days or less frequently than every 90 days or after the Final Closing Date (unless otherwise agreed to in writing by Seller and Buyer)), subject to the requesting Party providing the other Parties with at least five (5) Business Days’ notice prior to the date of such Subsequent Closing (each, a “Subsequent Closing Date”); provided, however, that: (i) if the applicable conditions set forth in Article 8 have not been satisfied on or prior to the scheduled Subsequent Closing Date, then such Subsequent Closing shall take place on the fifth (5th) Business Day following the date that the applicable conditions set forth in Article 8 (other than conditions which are to be satisfied by delivery at such Subsequent Closing) have been duly satisfied or waived or such other date as Seller and Buyer may mutually agree in writing; (ii) the first Subsequent Closing will take place on or before February 22, 2019; and (iii) the Parties will conduct a Subsequent Closing as soon as practicable after the Final Closing Date. Each Subsequent Closing shall be held at the offices of Seller at the offices of Carlos Gerke Mendieta Estudio Juridico located at Av. Julio C. Patiño Nº 1377, Calacoto, La Paz, Bolivia, or such other place upon which Seller and Buyer may agree in writing.

            SECTION 2.7        Preparation of Closing Documents.

          (a)        Subject to the terms and conditions of this Agreement (including Section 4.3), Seller shall prepare (using, subject to the terms and conditions of this Agreement, the information set forth on the Portfolio Site Information List or the applicable Closing Site Designations List, as applicable, all the exhibits to the Collateral Agreements (except for the SLAs, which shall be prepared in accordance with Section 2.7(b)), and a closing statement and a flow of funds for each Closing, in a form reasonably acceptable to the Parties.

            (b)        The SLA applicable to each Sale Site shall be prepared in accordance with, and at the times required by the MLA.

            SECTION 2.8        Prorating of Expenses.

            (a)        Except as provided in the MLA and the Management Agreement, as of each Closing Date, for purposes of determining Pre-Closing Liabilities and Post-Closing Liabilities, prorations of receivables, payables, expenses, and revenue relating to the use, occupancy and operation of the Included Property of the applicable Portfolio Sites included in such Closing shall be made on an accrual basis in accordance with GAAP, with Seller being obligated to make any payments in respect of payables and expenses (including ground rent payments under Site Leases), and being entitled to retain any receivables and revenue (including collocation revenue under Collocation Agreements and prepaid rent), in respect of events, and for periods and portions thereof ending on or prior to such Closing Date, and the Buyer Parties being obligated to make any payments in respect of payables and expenses (including ground rent payments under Site Leases), and being entitled to receive any receivables and revenue (including collocation revenue under Collocation Agreements and prepaid rent), in respect of events, and for periods and portions thereof beginning subsequent to such Closing Date. The Parties shall work in good faith to determine and finalize any amounts due under this Section 2.8 prior to the applicable Closing Date. The net amount of the prorations set forth in this Section 2.8 shall be credited to (or debited from) the Closing Consideration payable by the Buyer Parties at the applicable Closing; provided, however, that, to the extent any such prorations are not finalized by the applicable Closing Date, the Parties shall work in good faith to finalize as promptly as practicable, but in no event later than sixty (60) days after the applicable Closing Date, (the “Proration Dispute Resolution Deadline”), and, subject to Section 2.8(b), the appropriate Party will pay the other Party or Parties such net amount at that time. Notwithstanding the foregoing, the Parties recognize that the terms and conditions of any Site Lease may contain reconciliation periods for operating expenses, Property Taxes, utilities or similar charge back item which may not be calculable by the Proration Dispute Resolution Deadline. In such case, the Proration Dispute Resolution Deadline shall be extended with respect to such Site Lease unless and until the reconciliation event has occurred; provided, however, that, in no event will the Proration Dispute Resolution Deadline be extended beyond one hundred eighty (180) days after the applicable Closing Date.


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            (b)        If any dispute regarding the prorations is not resolved in accordance with Section 2.8(a) and the Parties do not reach agreement on the disputed prorations on or prior to the Proration Dispute Resolution Deadline in accordance with Section 2.8(a), then, no later than ten (10) Business Days after the Proration Dispute Resolution Deadline: (i) each Party will prepare, execute and deliver to the Financial Independent Consultant its own certificate (each, a “Proration Certificate”) that sets forth, with respect to each disputed proration, the prorations proposed by such Party, and (ii) the Parties will submit all such disputed Prorations for resolution by the Financial Independent Consultant. For each disputed proration submitted to the Financial Independent Consultant, the Financial Independent Consultant must select either the proration proposed by Seller or the proration proposed by Buyer, each as set forth in the applicable Proration Certificate, which selection will be set forth in a report prepared by the Financial Independent Consultant (the “Financial Independent Consultant Proration Report”) and submitted to the Parties. The Financial Independent Consultant shall make its determination as promptly as may be reasonably practicable, and the Parties will instruct the Financial Independent Consultant to endeavor to complete such Financial Independent Consultant Report within a period of no more than sixty (60) days after the dispute is submitted to the Financial Independent Consultant. The Financial Independent Consultant may conduct such proceedings as the Financial Independent Consultant believes, in its sole discretion, will assist in making its determination; provided, however, that, all communications between any Party or any of their respective Representatives, on the one hand, and the Financial Independent Consultant, on the other hand, will, to the extent practicable, be in writing with copies simultaneously delivered to the non-communicating Parties and, if not practicable, may be by teleconference with a representative of each Party being present. The Financial Independent Consultant’s determination will be final, binding and conclusive on the Parties, effective as of the date the Financial Independent Consultant Report is received by the Parties.


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The Parties agree that: (A) the dispute resolution process conducted pursuant to this Section 2.8(b) is the exclusive mechanism for the resolution of disputes with respect to prorations; and (B) no action, suit or proceeding may be brought in any other forum with respect to any such matters. Each of the Buyer Parties, on the one hand, and Seller, on the other hand, will bear one-half of the fees and expenses of the Financial Independent Consultant. Within five (5) Business Days after receipt of the Financial Independent Consultant Proration Report the appropriate Party will pay the other Party or Parties the net amount of the prorations set forth therein by wire transfer of immediately available funds to an account designated in writing by the other Party.

            SECTION 2.9        Signage.

            Buyer shall, from and after the applicable Closing Date, have the right to place, at its sole cost and expense, signage on any Sale Site to put third parties on notice of its management or ownership interest, as applicable, in such Sale Site, subject to compliance with applicable Laws and any Site Lease applicable to such Sale Site in question.

            SECTION 2.10      Tax Matters.

            (a)        Taxes in General. Except as expressly provided in this Agreement or Section 19 of the MLA, Seller shall be responsible for, shall pay, and shall defend, indemnify and hold harmless Buyer for, all Taxes allocable to any period ending prior to the Closing for a Sale Site to the extent attributable to the ownership, operation, use, leasing, management, maintenance, or occupancy of the Sale Sites by Seller or any third party (other than Buyer or any Affiliate of Buyer). Except as expressly provided in this Agreement or Section 19 of the MLA, the Buyer Parties shall be responsible for, shall pay, and shall defend, indemnify and hold harmless Seller and its Affiliates for, all Taxes allocable to any period ending after the Closing for a Sale Site to the extent attributable to the ownership, operation, use, leasing, management, maintenance, or occupancy of the Sale Site. For the avoidance of doubt, each Party shall be responsible for Taxes imposed on its own net income and no Party shall be entitled to indemnification for Net Income Taxes.

            (b)        Tax Cooperation. The Parties will furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information and assistance relating to the Included Property transferred pursuant to this Agreement and the Collateral Agreements (including access to Books and Records) as is reasonably necessary for the filing of all Tax Returns, the making of any election relating to Taxes, the preparation for any audit by any Taxing Authority, and the prosecution or defense of any Claims relating to any Tax. Any expenses incurred in furnishing such information or assistance will be borne by the Party requesting it.

            (c)        Income Tax Treatment. Each of the Parties agrees that it shall (i) for purposes of determining Taxes (but not for any other purpose) and subject to any adjustments as a result of payments made in accordance with Section 2.8, Section 4.5, Section 4.6, or Section 9.10, allocate the Closing Consideration (including, for the avoidance of doubt, any Allocated Site Holdback Consideration) paid to Seller and any Post-Closing Liabilities the assumption of which by Buyer are properly treated as “purchase price” in accordance with applicable Law as set forth on the closing statement delivered in accordance with Section 2.7 for each Closing, (ii) prepare and file, and cause its Affiliates to prepare and file, its Tax Returns on a basis consistent with such allocation, and (iii) take no position, and cause its Affiliates to take no position, inconsistent with such allocation on any applicable Tax Return, except as otherwise required by Law or an Order. If such allocation is disputed by any Taxing Authority, then the Party receiving notice of such dispute shall promptly notify the other Parties of such dispute.


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            (d)        Transfer Taxes. All Transfer Taxes incurred in connection with this Agreement and the transactions contemplated at each Closing shall be borne by Seller, and Seller shall pay, and shall indemnify and hold harmless Buyer from, all such Transfer Taxes; provided, however, that, notwithstanding foregoing: (i) to the extent that a Portfolio Site becomes an Excluded Site after the Closing for such Portfolio Site, Buyer will pay all applicable Transfer Taxes in connection with returning the Portfolio Site to Buyer; and (ii) Buyer shall pay, and shall indemnify and hold harmless Seller from, all such Transfer Taxes.

            (e)        Withholding and VAT. Each Party shall be entitled to deduct and withhold any Taxes required by applicable Law to be withheld from any amounts payable to the other Parties pursuant to this Agreement and the Collateral Agreements. The applicable Party shall timely and directly pay to the applicable Governmental Authority, according to applicable Law, all VAT payments made by the other Parties pursuant to this Agreement and the Collateral Agreements and provide to the other Parties evidence of such payment of VAT to the applicable Governmental Authority promptly thereafter.

            (f)        Survival. Notwithstanding anything to the contrary contained herein, the agreements and indemnities contained in this Section 2.10 shall survive indefinitely after the consummation of the transactions contemplated by this Agreement or the termination of this Agreement.

            SECTION 2.11      Integrated Transactions.

            The Parties acknowledge and agree that: (i) the transactions contemplated by this Agreement and the Collateral Agreements are dependent upon one another; (ii) the Parties would not have entered into this Agreement and the Collateral Agreements unless this Agreement and all of the Collateral Agreements were being entered into as and when contemplated; and (iii) this Agreement and the Collateral Agreements are to be treated as a single integrated and indivisible agreement for all purposes, including the Bankruptcy of any Party. The Buyer Parties agree that the payment contemplated by Section 2.1(b)(i) and Section 2.2(b)(i) to be made by the Buyer Parties is non-refundable and that the Buyer Parties shall not have any right of abatement, reduction, setoff, counterclaim, rescission, recoupment, refund, defense or deduction with respect thereto, including in connection with any event of default by Seller or any casualty or condemnation, in each case except as otherwise expressly contemplated by the terms of this Agreement or the Collateral Agreements.

ARTICLE 3

SITE DESIGNATIONS LISTS

            SECTION 3.1        Signing Site Designations List.

            Seller has prepared in good faith and delivered to Buyer, and Buyer has reviewed, the Signing Site Designations List attached as Schedule 2 hereto, which categorically identifies, as of the Signing Date, Seller’s Site Designations for each Portfolio Site.


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            SECTION 3.2        Closing Site Designations Lists.

            (a)        Subject to Section 3.2(b) and Section 3.2(c), at least five (5) Business Days prior to each Closing Date, Buyer shall reasonably and in good faith prepare and deliver to Seller a list (each, a “Closing Site Designations List”) that categorically identifies, as of the date thereof, the Site Designations for each Portfolio Site in accordance with this Agreement. If there is any information that is discovered after the delivery of a Closing Site Designations List for a Closing and prior to the consummation of such Closing that would impact the Site Designations set forth on such Closing Site Designations List, the Parties will work together in good faith to update such Closing Site Designations List in accordance with this Agreement to reflect such new information. Any disputes with respect to a Closing Site Designations List for a Portfolio Site will be resolved in accordance with Section 4.6. For any Site Designations on a Closing Site Designations List that are different than the Site Designations on the Signing Site Designations List or the Closing Site Designations List from the immediately prior Closing (including any Exceptions for a Portfolio Site for which the Closing has not yet occurred and that were not identified on the Closing Site Designations List for the Initial Closing), as applicable, Buyer must deliver to Seller, no later than concurrently with delivery of the Closing Site Designations List or as otherwise required by this Agreement (including Article 4), documentation, to the extent available, that reasonably demonstrates that such Site Designations on such Closing Site Designations List are true and correct (which documentation shall include for each applicable Portfolio Site copies of all applicable Authorizations (including any Consent Agreements or Notices) or evidence of other matters that cured any applicable Exceptions to the extent Seller does not already have such copies or evidence). Notwithstanding anything to the contrary in this Agreement, after the Closing for a Portfolio Site, the Parties will not have any right or duty to identify any Exceptions that were not identified on the Closing Site Designations List for the Closing for such Portfolio Site.

            (b)        To the extent that, after giving effect to a Closing, the number of Special Status Sites that would constitute Sale Sites would exceed seventy-one (71) Sale Sites (the “Special Status Site Cap”) and, with respect to such Closing, the closing condition in Section 8.3(h) would not be satisfied, then Seller and Buyer will cooperate and work in good faith to designate as Deferred Sites the number and identity of Sale Sites that were not included in a prior Closing in order to eliminate any such excess above the Special Status Site Cap for such Closing and so that the closing condition in Section 8.3(h) would be satisfied for such Closing.

            (c)        Each Closing Site Designations List (and the related documentation) must be reasonably acceptable to Seller and countersigned by Seller. For the avoidance of doubt, all Site Designations will be made, and each Closing Site Designations List will be prepared, in accordance with the terms and conditions of this Agreement and the Collateral Documents for each Closing will be prepared in accordance with the Closing Site Designations List accepted by Seller. Any disputes with respect to a Site Designation for a Portfolio Site will be resolved in accordance with Section 4.6.

            SECTION 3.3        No Representations or Warranties.

            For the avoidance of doubt, the Parties agree that, except for Buyer’s and Seller’s covenants expressly set forth in this Article 3, the matters described in this Article 3 (and on the Signing Site Designations List and any Closing Site Designations List) shall not be considered as representations warranties of any Party under this Agreement.

ARTICLE 4


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OTHER PROCEDURES FOR PORTFOLIO SITES

            SECTION 4.1        Site Designations.

            Subject to the terms and conditions of this Agreement, with respect to each Portfolio Site (other than an Excluded Site), if at the Closing for such Portfolio Site: (i) there are no Exceptions with respect to such Portfolio Site or (ii) all of the Exceptions with respect to such Portfolio Site have been corrected, waived, or addressed, then, except as otherwise provided in this Article 4, such Portfolio Site will thereafter be deemed to be an “Assignable Site”, otherwise, such Portfolio Site will be a Managed Site or a Deferred Site (unless and until it becomes an Assignable Site) in accordance with this Agreement.

            SECTION 4.2        Certain Procedures with Respect to Identifying and Curing Exceptions.

            (a)        From and after the Signing Date until December 31, 2019 (the “Final Closing Date”), the Parties shall coordinate and cooperate in good faith to identify and cure any and all Exceptions (except for those Exceptions related to Excluded Sites) and to cause the conversion of any Managed Sites and Deferred Sites to Assignable Sites; provided, however, that, notwithstanding the foregoing, from and after the Closing for a Portfolio Site, the Parties will not have any right or duty to identify any Exceptions that were not identified on the Closing Site Designations List for the Closing for such Portfolio Site. Notwithstanding the foregoing: (i) Seller shall have principal responsibility, at its sole cost and expense (except as otherwise provided herein), for devising and implementing the strategy for curing any and all Exceptions, (ii) Seller shall prepare and deliver (and re-deliver) Consent Agreements and receive Consents from and after the Signing Date, and (iii) Seller shall, in the case of each Authorization that requires only notice to be delivered to a Person, use commercially reasonable efforts to deliver a Notice to each such Person as promptly as reasonably practicable after the Signing Date, provided, however, that any form of Consent or Notice that is not in substantially the form attached hereto as Exhibit D-1 or Exhibit D-2, respectively, shall be approved in writing by Buyer, which approval will not be unreasonably withheld, conditioned, or delayed. If, prior to the Closing for a Portfolio Site, Buyer or its Representatives receive communications from any Person regarding any of the foregoing matters or the transactions contemplated by this Agreement, Buyer and its Representatives (A) shall direct any such Person to contact Seller and (B) may respond to any unsolicited communications that are non-written, but only if Buyer receives approval in writing from Seller, which approval will not be unreasonably withheld, conditioned, or delayed. Buyer shall exercise its rights under this Section 4.2(a) in a manner that does not interfere with the business activities or relationships of Seller and its Affiliates. In no event will Seller agree to amend the terms of any Site Lease to the extent it relates to a period after the Closing Date for the applicable Portfolio Site in conjunction with obtaining a Consent Agreement without the prior written approval of Buyer, which approval will not be unreasonably withheld, conditioned or delayed. Notwithstanding anything to the contrary in this Agreement, Seller will not be obligated to pay any consent fee or other amount to any Site Lessor in order to obtain a Consent or cure an Exception under a Site Lease. In addition, for each Assignable Site, Buyer and Seller will cooperate to prepare, execute, and deliver to the applicable Site Lessor any notices required under, and in accordance with the terms of, the applicable Site Lease with respect to the transactions contemplated by this Agreement or the Collateral Agreements within ten (10) Business Days after the applicable Closing for such Assignable Site.


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            (b)        Except as otherwise provided in Section 4.2(a) or in the Management Agreement, and without increasing Buyer’s rights under Section 4.2(a), Buyer shall (i) not initiate contact (A) with any Site Lessor or (B) any other Person in connection with any notices or requests for consents to assignments, transfers, leases and subleases of Site Leases, in each case without first affording Seller a reasonable opportunity to participate in such contact, (ii) include Seller in any written communications with any such Person (including Notices and Consents), (iii) to the extent reasonably practicable, not engage in any telephone conversations with any such Person without a Representative of Seller having been invited to participate on such call, and if a Representative of Seller is not on such call, promptly following the conclusion of such call, notify Seller of any such telephone conversations, (iv) obtain approval from Seller for the content of any such communications, such approval not to be unreasonably withheld, delayed or conditioned, and (v) provide Seller with copies of all written or other communications from such Persons.

            (c)        Notwithstanding anything to the contrary contained in this Agreement, from and after the Final Closing Date, Seller and Buyer may, in their respective discretion, continue any efforts, from time to time, to cure any remaining Exceptions for any Sale Sites, and the Parties shall execute and deliver such documentation as the other Parties may prepare and as may be reasonably requested from time to time with respect thereto, including execution of the documents required for an additional Subsequent Closing. Buyer shall promptly reimburse Seller for its reasonable out-of-pocket costs and expenses related to providing assistance pursuant to this Section 4.2(c) after the Final Closing Date.

            (d)        Following the cure of any Exceptions with respect to a Portfolio Site, the Party that took the action that resulted in such cure shall promptly provide written notice to the other Parties, identifying the Portfolio Site together with the related Exceptions that were cured and containing a brief statement regarding how such Exceptions were cured, which notice shall include for each applicable Portfolio Site, copies of all applicable Authorizations (including any Consent Agreements or Notices) or other documentation that establish by clear and convincing evidence that any applicable Exceptions have been cured.

            (e)        From and after the Signing Date, Buyer shall not, and shall cause its Affiliates and its and their respective officers, directors, employees and Representatives not to, take any actions designed and a purpose of which is to cause third parties to provide notices or to take the position that any Portfolio Site is, may be, or should be a Managed Site or an Excluded Site.

            (f)        As soon as practicable after the Closing for the Tigo Sites, Seller and Buyer will use commercially reasonable efforts to negotiate with Tigo new replacement collocation agreements and such other related agreements with respect to the Tigo Collocation Agreements that: (i) are in form and substance satisfactory to Buyer; (ii) terminate the Tigo Collocation Agreements so that Tigo is no longer a subtenant of Seller on the Tigo Sites and instead has a direct landlord-tenant relationship with Buyer; (iii) are without regard to additional or supplementary possible sites and colocations by and between Buyer or its Affiliates, on one hand, and Tigo or its Affiliates, on the other hand; and (iv) are otherwise on market terms for similarly situated tower sites.

            (g)        As soon as practicable after the Closing for the Comteco Sites, Seller and Buyer will use commercially reasonable efforts to negotiate with Comteco new replacement collocation agreements and such other related agreements with respect to the Comteco Collocation Agreements that: (i) are in form and substance satisfactory to Buyer and Seller; (ii) terminate the Comteco Collocation Agreements so that Comteco is no longer a subtenant of Seller on the


 


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Portfolio Site to be an Exception Site and provide the other Party with reasonable specificity as to the reasons therefor (including section references to the applicable Exception Site Condition(s)) and the actions necessary to cure (if curable) the applicable Exception Site Condition(s) applicable to such Portfolio Site. Until the Final Closing Date Deadline, Seller shall use commercially reasonable efforts at its sole cost and expense, to cure the outstanding Exception Site Condition(s) identified on the Closing Site Designations List for the Closing for a Portfolio Site that cause such Portfolio Site (other than an Excluded Site) to be an Exception Site.

            (b)        Except as otherwise provided in this Agreement, if Seller or Buyer does not designate an Exception Site as an Excluded Site in accordance with Section 4.3 or such Exception Site is not designated as a Deferred Site in accordance with Section 3.2(b) or the definition of Deferred Site, then such Portfolio Site shall be deemed a Managed Site until such time as the Exception Site Conditions causing such Portfolio Site to be an Exception Site have been cured and Seller has provided reasonable supporting documentation evidencing the cure of such Exception Site Conditions or such Portfolio Site becomes an Excluded Site in accordance with this Agreement.

            (c)        Subject to Section 8.3(h), if Seller is unable to cure any Exception relating to a Managed Site or Deferred Site prior to the Final Closing Date Deadline, then:

  (i)

For each such Managed Site that is not subject to a Material Exception, such Managed Site will continue as a Managed Site after giving effect to the Closing relating to the Final Closing Date and, at such Closing, Buyer will pay to Seller the Allocated Site Holdback Amount for each such Managed Site.

     
  (ii)

For each such Deferred Site that is not subject to a Material Exception, such Deferred Site will become a Managed Site in such Closing (subject to Section 8.2(g)) and, at such Closing, Buyer will pay to Seller the Allocated Site Consideration for such Managed Site.

     
  (iii)

For each such Managed Site that is subject to a Material Exception, Buyer may elect, in its sole discretion, to (A) designate such Managed Site as an Excluded Site or (B) allow such Managed Site to continue as a Managed Site after giving effect to such Closing and, at such Closing, Buyer will pay to Seller the Allocated Site Holdback Consideration for such Managed Site.

     
  (iv)

For each such Deferred Site that is subject to a Material Exception, Buyer may elect, in its sole discretion, to (A) designate such Deferred Site as an Excluded Site or (B) convert such Deferred Site to a Managed Site in such Closing and, at such Closing, Buyer will pay to Seller the Allocated Site Consideration for such Managed Site.

Buyer will deliver written notice of its elections under this Section 4.4(c) to Seller no later than ten (10) Business Days after the Final Closing Date Deadline. If Buyer does not deliver such notice within such ten (10) Business Day period, then Seller may make such elections by delivering written notice thereof to Buyer within fifteen (15) Business Days after the Final Closing Date Deadline. If any Managed Site is so designed as an Excluded Site, then, at the Closing relating to the Final Closing Date, and (in addition to the other actions to be taken at such Closing with respect to any Managed Sites becoming Assignable Sites and Deferred Sites becoming Managed Sites or Assignable Sites) any Managed Site will become an Excluded Site and the Parties shall take all actions, make all payments and execute all documents reasonably necessary (and any necessary amendments to existing documentation as appropriate) to ensure that the Parties are in the same legal position as they would have been if such Managed Site was an Excluded Site at the Closing for such Managed Site, including rescinding the transaction that occurred with respect to such Managed Site at the Closing for such Managed Site under this Agreement and the Collateral Agreements and, in accordance with Section 4.5: Seller or Buyer, as applicable, paying the Net Amount for such Managed Site to Buyer or Seller, as applicable.


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            (d)        Any dispute regarding whether a Portfolio Site is an Exception Site will be resolved in accordance with Section 4.6. Without limiting Seller’s duties under this Section 4.4, Buyer shall coordinate with Seller prior to Buyer incurring any out-of-pocket costs and expenses in connection with any efforts to cause the circumstances causing any Portfolio Site to be an Exception Site to be cured. In the event that Seller approves the incurrence of such costs and expenses in writing, Seller shall be responsible for reimbursing, and shall promptly (but in any event no later than fifteen (15) days following request with reasonable detail therefor) reimburse, Buyer for all approved commercially reasonable out-of-pocket costs and expenses incurred by it in connection with any efforts to cause the Exception Site Condition(s) causing any Portfolio Site to be an Exception Site to be cured.

            SECTION 4.5        Payment of the Aggregate Net Amount.

            If applicable, Seller or Buyer, as applicable, is required to make payment to Buyer or Seller, as applicable, on the Final Closing Date (or, with respect to any Portfolio Site subject to a pending Site Designation Dispute as of the Final Closing Date Deadline, as soon as practicable thereafter and without duplication), of an amount equal to the aggregate Net Amount for each Portfolio Site that became an Excluded Site and was returned to Seller after the applicable Closing and on or prior to the Final Closing Date in accordance with Section 4.4(c) or 4.6. The amount of the Excluded Site Consideration included in such aggregate payment shall be treated as an adjustment to the Closing Consideration. In addition, if Buyer has paid or received any amounts that constitute a Net Amount after the applicable Closing Date for a Portfolio Site and prior to the Final Closing Date Deadline, then no later than five (5) Business Days following the Final Closing Date Deadline, Buyer will provide Seller with reasonable supporting documentation thereof, and the Parties will work reasonably and in good faith to mutually agree upon the aggregate Net Amount to be paid in accordance with this Section 4.5. In furtherance of the foregoing, the Parties shall execute and deliver, as applicable, (i) amended schedules and exhibits to the MLA; (ii) amended schedules and exhibits to the Management Agreement; and (iii) amended schedules or exhibits to all other applicable Collateral Agreements. For the avoidance of doubt, the sole and exclusive rights and remedies of the Parties with respect to adjustments to Closing Consideration, payment of the aggregate Net Amount and matters relating to Site Designation are set forth in this Article 4, and except as expressly provided otherwise in this Section 4.5 with respect to the calculation and the payment of the aggregate Net Amount, the Parties shall have no other rights or remedies with respect to such matters after the Final Closing Date. Dispute Resolution.

           SECTION 4.6        Dispute Resolution.

            (a)        The Parties intend to provide for an expedited dispute resolution process that shall resolve any and all disputes solely with respect to the Site Designation of any Portfolio Site (each a “Site Designation Dispute”). As such, any Site Designation Dispute shall be subject to the dispute resolution process provided in this Section 4.6. Should a Party wish to initiate a dispute resolution process with respect to any Site Designation Dispute, it shall first deliver to the other Parties a written notice (a “Notice of Dispute”) that specifies in reasonable detail the Site Designation Dispute that such Party wishes to have resolved; provided, however, that (i) to the extent practicable, any such notice must be delivered at least thirty (30) days prior to the Final Closing Date and (ii) any such dispute must be consistent with, and not conflict with, the terms and conditions of this Agreement relating to Site Designations and Exceptions (including, without limitation, the definition of Exception). Any Portfolio Site subject to a bona fide Site Designation Dispute will be deemed a Managed Site or a Deferred Site, as applicable, until such Site Designation Dispute is resolved in accordance with this Section 4.6.


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            (b)        If the Parties are not able to resolve a Site Designation Dispute within ten (10) days of a Party’s receipt of the applicable Notice of Dispute, then such Site Designation Dispute shall be promptly submitted to the Legal Independent Consultant for resolution and the Legal Independent Consultant shall determine the Site Designation of the Portfolio Site subject to such Site Designation Dispute. The Parties shall cooperate with the Legal Independent Consultant and shall proceed reasonably and in good faith to endeavor to cause the Legal Independent Consultant to resolve any Site Designation Dispute no later than ten (10) days after the Site Designation Dispute is submitted to the Legal Independent Consultant. Buyer, on the one hand, and Seller, on the other hand, each shall pay one-half of the fees and expenses of the Legal Independent Consultant. The Legal Independent Consultant’s resolution of the disagreement shall be reflected in a written report, which report shall be delivered promptly to Buyer and Seller and shall set forth the Legal Independent Consultant’s determination of the Site Designation for the Portfolio Site subject to the Site Designation Dispute. Judgment may be entered upon the Legal Independent Consultant’s report in any court having jurisdiction over the Party against which such report is to be enforced.

            (c)        The Legal Independent Consultant conducting any dispute resolution shall be bound by, and shall not have the power to modify, the provisions of this Agreement, any Collateral Agreement, or any other related agreements, instruments, and other documents. Unless otherwise provided in this Agreement, each Party shall pay its own costs, fees and expenses (including for counsel, experts and presentation of proof) in connection with any dispute resolution under this Section 4.6.

            (d)        Each Party agrees that the dispute resolution process conducted pursuant to this Section 4.6 is the exclusive mechanism for the resolution of disputes with respect to Site Designation Disputes and agrees that no action, suit or proceeding may be brought in any other forum relating to any such matters. All determinations of Site Designation in accordance with this Section 4.6 are final and conclusively binding on the Parties.

            (e)        With respect to all Site Designation Disputes resolved after the Closing Date for a Portfolio Site, on the date that is twenty (20) Business Days after the final date of such resolution, the Parties shall take all actions, make all payments and execute all documents reasonably necessary (and any necessary amendments to existing documentation as appropriate) to ensure that the Parties are in the same legal position as they would have been if the Site Designation(s) for such Portfolio Site(s) was properly determined at such Closing, including, if applicable: (i) rescinding the transaction(s) that occurred with respect to such Portfolio Site(s) at such Closing under this Agreement and the Collateral Agreements and, in accordance with Section 4.5, Buyer or Seller, as applicable, paying the Net Amount for such Portfolio Site(s) to Seller or Buyer, as applicable and (ii) executing and delivering, as applicable; (A) amended schedules and exhibits to the MLA; (B) amended schedules and exhibits to the Management Agreement; and (C) amended schedules or exhibits to all other applicable Collateral Agreements, in each case, in order to reflect the revised Site Designation(s).


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ARTICLE 5

REPRESENTATIONS AND WARRANTIES OF SELLER

            Except as disclosed in the corresponding sections or subsections of the Seller Disclosure Schedule (it being agreed that, notwithstanding the foregoing, disclosure of any item in any section of the Seller Disclosure Schedule shall be deemed disclosure of such item with respect to any other section of the Seller Disclosure Schedule to the extent that the relevance of such item to such other section is reasonably apparent from the face of such disclosure), and except for any uncured Exceptions specifically identified on the Signing Site Designations List and the applicable Closing Site Designations List for the Closing for each Portfolio Site, Seller represents and warrants to Buyer as follows:

            SECTION 5.1        Organization.

            Seller is a Bolivian corporation sociedad anónima duly organized, validly existing and in good standing under the Laws of Bolivia with the requisite corporate power and authority to carry on its business (including the ownership, lease and operation of the Included Property of the Sale Sites) as it is now being conducted. Seller Parent is a Delaware limited liability company duly organized, validly existing and in good standing under the Laws of Delaware with the requisite corporate power and authority to carry on its business.

            SECTION 5.2        Authority; Enforceability; No Conflicts.

            (a)        Each Seller Party has the requisite corporate or limited liability company power and authority to execute and deliver this Agreement, to perform its obligations under this Agreement and to consummate the transactions contemplated by this Agreement. The execution and delivery by each Seller Party of this Agreement and the consummation of the transactions contemplated by this Agreement have been duly authorized by all requisite corporate or limited liability company action of each Seller Party. Each Seller Party has duly executed and delivered this Agreement. On each Closing Date, each Seller Party shall have duly executed and delivered each of the Collateral Agreements to which it is a party (including, at any Subsequent Closing, any amended schedules and exhibits to the existing, or new, Collateral Agreements to which it is a party, as the case may be). Assuming the due execution and delivery of each such agreement by each party thereto other than each Seller Party, this Agreement is the legal, valid and binding obligation of each Seller Party, and on each Closing Date, each of the applicable Collateral Agreements to which each Seller Party is a party (as amended at such time and as theretofore amended) shall be the legal, valid and binding obligation of each Seller Party, in each case, enforceable against it in accordance with its respective terms, subject to the effect of Bankruptcy, insolvency, reorganization, moratorium or other similar Laws relating to or affecting the rights of creditors generally and to the effect of the application of general principles of equity.

            (b)        The execution, delivery and performance by each Seller Party of this Agreement and of each of the Collateral Agreements to which it is a party, and the consummation of the transactions contemplated hereby and thereby on their terms and conditions, do not (or would not if it were a party hereto) and shall not, with or without notice or lapse of time or both, result in (i) a breach or violation of, or a conflict with, any provision of the organizational documents of such Seller Party, (ii) subject to Section 1.3, a breach or violation of, or a conflict with, any provision of Law or a Governmental Approval (excluding any Governmental Approval from a Governmental Authority in its role as a Site Lessor under a Site Lease) to which such Seller Party or the Included Property is subject or (iii) subject to Section 1.3, a breach or violation of, or a conflict with, constitute a default under, or permit the acceleration of any Liability or result in the creation of any Lien, other than Permitted Liens, upon any of the properties or assets constituting Included Property of such Seller Party under, any Material Agreements (including any Material Agreement with a Governmental Authority in its role as a Site Lessor under a Site Lease).


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            SECTION 5.3        Title to Property.

            (a)        Seller: (i) holds: (A) a valid and existing leasehold, subleasehold, easement, license or sublicense, marketing or development right, co-marketing or co-development right, permit, possessory, or other similar valid interest in the Leased Sites Land related to each Sale Site (B) an ownership interest in the Owned Site Land; and (C) a valid usufruct with respect to each Usufruct Site; in each case free and clear of all Liens, except for Permitted Liens; and (ii) owns or has rights in all right, title and interest in, to and under all of the Included Property of each Sale Site (other than the Land related to such Sale Site), free and clear of any Liens, except for Permitted Liens.

            (b)        At the applicable Closing, with respect to each Assignable Site, such ownership interest in the Owned Site Land and such valid and existing leasehold, subleasehold, easement, license or sublicense, marketing or development right, co-marketing or co-development right, permit, usufruct, possessory or other similar valid interest in, to and under, and all other rights and interests of Seller in, or has rights in to and under, all of the Included Property of each Assignable Site shall pass to Buyer, in each case free and clear of all Liabilities except for Post-Closing Liabilities relating to such Assignable Site and except for Unindemnified Taxes, and free and clear of all Liens, except for Permitted Liens.

            SECTION 5.4        Real Property.

          (c)        (i) Seller is not a party to any agreement with any Person (other than this Agreement) to transfer or encumber all or any portion of any Sale Site (excluding, for these purposes, the rights of the Site Subtenants under the Collocation Agreements, immaterial dedications to Governmental Authorities, Permitted Liens and any Site Lessor’s reversionary interest in a Tower upon the termination of the respective Site Lease or right to use a portion of such Tower during the term of the Site Lease without additional payment) and (ii) as of the Closing Date for a Portfolio Site, none of the lenders of Seller has a security interest or mortgage on any Assignable Site.

            (d)        As of the applicable Closing for a Sale Site: (i) Seller has not received written notice that any condemnation proceedings have been instituted with respect to such Sale Site and (ii) no such proceedings are pending or, to the Knowledge of Seller, threatened with respect to such Sale Site.

           SECTION 5.5        Other Property.

            (a)        Each Sale Site includes a Tower that is operational, structurally sound and in satisfactory order and repair (consistent with industry standards for wireless communications tower sites in South America and other than ordinary wear and tear) and each Sale Site includes Tower Related Assets that are in satisfactory working order (consistent with industry standards for wireless communications tower sites in South America and other than ordinary wear and tear); provided, however, that Seller makes no representation with respect to any Excluded Assets. Each Sale Site includes a Tower and Tower Related Assets which are sufficient to conduct the operations of such Sale Site in a manner consistent with current operations of such Sale Site except that the Tower Related Assets do not include any Governmental Approvals relating to such Sale Site.


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            (b)        Each Sale Site includes the rights to install, maintain and use utilities for provision of electric power and access to a form of telecommunications service.

            (c)        Each Sale Site includes vehicular ingress and egress to public streets or private roads that is suitable for the purposes used by Seller in the ordinary course of business, and except for Sale Sites which are accessed by helicopter, all-terrain vehicle, or by other means of transportation in the ordinary course of maintenance and repair. The Sale Sites that are accessed by helicopter, all-terrain vehicle, or by other means of transportation in the ordinary course of maintenance and repair (and the means of such access) are set forth in Section 5.5(c) of the Seller Disclosure Schedule.

            (d)        The Included Property of the Sale Sites, taken as a whole, has been operated and maintained, in all material respects, in the ordinary course of business and consistent with past practice and in accordance with industry standards for wireless communications tower sites in South America.

            SECTION 5.6        Material Agreements.

            (a)        True, correct and complete (in all material respects) copies of all Material Agreements, the Comteco Collocation Agreements, and the Tigo Collocation Agreements (other than the oral Tigo Collocation Agreements, which are described in Section 5.6(a) of the Seller Disclosure Schedule) as in effect on the Signing Date have been made available to Buyer in the Data Room.

            (b)        Each Material Agreement (i) is in full force and effect (except with respect to Material Agreements that expire in accordance with their terms after the Signing Date or are terminated in accordance with their terms and, if terminated by Seller, in accordance with the terms of this Agreement after the Signing Date), (ii) has been duly authorized, executed and delivered by Seller, and (iii) is a legal, valid and binding obligation, enforceable against Seller, subject to the effect of Bankruptcy, insolvency, reorganization, moratorium or other similar Laws relating to or affecting the rights of creditors generally and to the effect of the application of general principles of equity.

            (c)        Seller is, in all material respects, in compliance with all Material Agreements. Seller is not and, to the Knowledge of Seller, no other party to a Material Agreement, is, as of the Signing Date, in breach of or default in any material respect under, any Material Agreement.

            (d)        Except for the Material Agreements, there is no other contract or agreement, other than any Collateral Agreement, that is material to the current ownership, operation or leasing of the Sale Sites, other than (i) those that will not be in effect with respect to the Sale Sites following the applicable Closing for such Sale Site; (ii) those for which Buyer will not have any Liability; or (iii) access agreements related to such Sale Sites.


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            (e)        Seller does not hold or have the right to obtain, as a security deposit or similar collateral or security under a Collocation Agreement, any cash, cash equivalents, letters of credit or marketable securities (except where Seller is the Site Lessor under the Collocation Agreement).

            (f)        Except for the Tigo Collocation Agreements, no Master Collocation Agreement provides reciprocal rights for Seller to collocate on a wireless communication tower owned or leased by a Site Subtenant or any of its Affiliates.

            (g)        As of December 31, 2018, Seller has not received any written notice of termination or non-renewal of any Collocation Agreement in accordance with the terms thereof. From and after the Signing Date until the applicable Closing for a Portfolio Site, Seller has provided or will provide to Buyer copies of all written notices of terminations or non-renewals of any Collocation Agreement received by Seller relating to such Portfolio Site.

            SECTION 5.7        Litigation; Orders.

            There is no action, suit or proceeding pending or, to the Knowledge of Seller, threatened in writing against Seller or its Affiliates, with respect to any Sale Site by or before any Governmental Authority or by any Person. There are no Orders pending or, to the Knowledge of Seller, threatened in writing against Seller or its Affiliates with respect to the Included Property of any of the Sale Sites or otherwise binding on any Included Property of any of the Sale Sites.

            SECTION 5.8        Environmental Matters.

            Seller has not received any written notification prior to the Signing Date from a Governmental Authority that any Sale Site is not in compliance with applicable Environmental Laws, and, as of the Signing Date, there are no other facts, circumstances or conditions, at or affecting any Sale Site, that could reasonably be expected to result in any liability for, or require any abatement or correction by, the Parties under applicable Environmental Law. Each Sale Site is currently and, during the three (3) year period prior to the Signing Date, has been in compliance in all material respects with all Environmental Laws and, during such two (2) year period, Seller has not received from any Person any written notice, request, or claim pursuant to an Environmental Law that relates to a Sale Site, which, in each case, either remains pending or unresolved. Seller is not a party in interest with respect to any judgment, order, writ, injunction or decree issued with respect to a Sale Site pursuant to any Environmental Law. Seller has provided or otherwise made available to Buyer in the Data Room any and all copies of Seller’s material environmental reports, studies, audits, records, sampling data, site assessments compliance reports and plans, and other similar documents, in each case, with respect to the Sale Sites and that relate to any material Environmental Condition. To the Knowledge of Seller, there has been no release of Hazardous Material in contravention of Environmental Law with respect to the Sale Sites. No Sale Site is subject to an Environmental Condition. Section 5.8 of the Seller Disclosure Schedule identifies every Sale Site on which a generator (temporary or permanent) or fuel, chemical or other storage tank is currently installed or in use and, to the extent known, includes the date of each such installation.

            SECTION 5.9        Brokers, Finders, Etc.

            Seller and its Affiliates have not employed any broker, finder, investment banker or other intermediary or incurred any liability for any investment banking fees, financial advisory fees, brokerage fees, finders’ fees or other similar fees for which Buyer or any of its Affiliates would be responsible in connection with the transactions contemplated by this Agreement or any of the Collateral Agreements.


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            SECTION 5.10      Compliance with Laws and Governmental Approvals.

            (a)        Except in connection with service outages, Seller is not operating, and has not operated during the two (2) year period prior to the Signing Date, any Sale Site and the related Tower and Improvements in violation, in any material respect, of any applicable Laws and Governmental Approvals. During the two (2) year period prior to the Signing Date, Seller has not received any notification that any Sale Site lacks any necessary Governmental Approvals that are material to the operation of such Sale Site or been provided with notice from a Governmental Authority that a Sale Site must be decommissioned.

            (b)        During the two (2) year period prior to the Signing Date, Seller has not received written notice of any claim, investigation, action, arbitration or proceeding from any Governmental Authority as to the condition, operation or use of any Sale Site that could reasonably be expected to adversely impact the ability to operate such Sale Site.

            SECTION 5.11      Taxes.

           (a)        Seller has duly and timely filed, or shall so file when due, with the appropriate Governmental Authorities (or there have been or shall be duly and timely filed on its behalf) all Bolivian national and other material Tax Returns required to be filed by Seller with respect to Taxes owing in respect of the Included Property, and all such Tax Returns are true, correct and complete in all material respects with respect to such Taxes. Except to the extent of any timely filed appeal or protest, all material Taxes with respect to the Included Property that are due and payable prior to the Closing Date for a Sale Site have been paid by Seller. There are no Liens relating to Taxes on the Sale Sites other than Permitted Liens.

            (b)        Seller (i) is not a party to any audit, action, suit or proceeding relating to the Sale Sites by any Taxing Authority or received notice of initiation thereof by any Taxing Authority for which the statute of limitations for the assessment of Taxes remains open; and (ii) is not a party to any allocation or sharing agreement with respect to Taxes with respect to the Sale Sites (except as may be set forth in the Material Agreements). To the Knowledge of Seller, there are no pending or threatened actions, suits or proceedings against Seller by any Taxing Authority with respect to the Sale Sites.

            (c)        All Taxes relating to the Sale Sites that Seller is required to withhold or to collect for payment have been duly withheld and collected and timely paid to the proper Taxing Authority or third party.

            SECTION 5.12        Solvency.

            Seller is not entering into this Agreement or the Collateral Agreements with the intent to hinder, delay or defraud either present or future creditors of Seller. Immediately prior to each Closing, Seller shall be Solvent. Assuming the satisfaction of the conditions to the obligation of Seller to consummate each Closing, then, after giving effect to the transactions contemplated by this Agreement at such Closing, Seller shall be Solvent.


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            SECTION 5.13             Site Lease Payments; Accounts Receivable.

            (a)        The expense information relating to the Portfolio Sites set forth on Section 5.13(a) of the Seller Disclosure Schedule (as the same may be updated in accordance with Section 2.1(b)(vi)): (i) is true and correct in all material respects for the period(s) set forth therein; (ii) includes the amount of the payments made by Seller under each Site Lease for each Portfolio Site for such period; and (iii) was prepared based on the Books and Records and industry standards for wireless communications tower sites in South America.

            (b)        Section 5.13(b) of the Seller Disclosure Schedule sets forth a true, correct and complete list as of January 31, 2019 of the total outstanding Accounts Receivable and the aging of such Accounts Receivable based on the following schedule: 0-30 days, 31-60 days, 61-90 days and over 90 days, from such date. The Accounts Receivable identified in Section 5.13(b) of the Seller Disclosure Schedule are, to the Knowledge of Seller, subject to no defenses, counterclaims or rights of set-off (except as may be expressly provided in any of the Material Agreements or as may arise in the ordinary course of business).

            SECTION 5.14      Insurance.

            Section 5.14 of the Seller Disclosure Schedule sets forth a list of all pending claims and the current claims history under all policies or binders of fire, liability, product liability, umbrella liability, real and personal property, workers' compensation, vehicular, fiduciary liability and other casualty and property insurance maintained by Seller and relating to the Portfolio Sites since January 1, 2016.

            SECTION 5.15      Anti-Corruption Laws.

            Seller and its Affiliates, officers, directors, employees, and, to the Knowledge of Seller, agents have not, directly or indirectly, made any contribution, gift, bribe, rebate, payoff, influence payment, kickback, or other payment to any Person, private or public, regardless of form, whether in money, property, or services in violation of any applicable Law (including any Anti-Corruption Laws) or established or maintained any fund or asset that has not been recorded in the books and records of Seller or any Affiliate thereof for such purpose. Seller and its Affiliates are in compliance, and have for the past three (3) years complied, in all material respects, with all applicable Anti-Corruption Laws. None of Seller and its Affiliates, officers, directors, employees, and, to the Knowledge of Seller, agents: (a) is, or with respect to any such Persons that are not natural Persons, is owned by, a Person currently identified on the Specially Designated Nations and Blocked Persons List maintained by the OFAC or any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation; or (b) is a Person with whom a citizen of the United States is prohibited to engage in transactions by any Anti-Corruption Laws. Seller has established reasonable internal controls and procedures designed to ensure compliance with all applicable Anti-Corruption Laws. Notwithstanding anything to the contrary in this Section 5.15, the representations and warranties in this Section 5.15 are limited to the activities of the Seller and its Affiliates in Bolivia.

            SECTION 5.16 Certain Collocation Matters.

            (a)        With respect to the Tigo Sites listed in Section 5.16(a) of the Seller Disclosure Schedule that become Assignable Sites in a Closing, Seller has not made any outstanding offer to Tigo to provide collocation space on the ground and the related Tower at each such Tigo Site in excess of such collocation space provided to Tigo at each such Tigo Site as of such Closing pursuant to paragraph 21 of the Contrato de Acceso y Uso Compartido de Infrastructura: Co-Ubicacion y/o Cosite, dated April 19, 2016 (as the same may be amended, modified, and supplemented from time to time), that would, by its terms, apply to Buyer following such Closing for any such Tigo Site.


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            (b)        Except as provided in Section 5.16(a), Seller has not made any offer or is not otherwise obligated to provide collocation space to Tigo on the ground and related Towers on any Portfolio Site other than pursuant to:

  (i)

Seller’s Oferta Basica de Interconexion, dated February 2013 (as the same may be amended, modified, and supplemented from time to time), which is applicable to all communications facilities owned or operated by Seller (including, without limitation, the space on the ground and the related Tower at each Portfolio Site): and

     
  (ii)

Seller’s oral commitment to Tigo to provide collocation space on the ground and the related Tower at the Portfolio Sites listed on Section 5.6(a) of the Seller Disclosure Schedule.

            SECTION 5.17      No Implied Representations.

            EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES MADE BY SELLER IN THIS ARTICLE 5 OR ANY CERTIFICATE OR COLLATERAL AGREEMENT DELIVERED PURSUANT TO THIS AGREEMENT, SELLER AND ITS AFFILIATES ARE NOT MAKING ANY OTHER REPRESENTATION OR WARRANTY (INCLUDING WITH RESPECT TO ANY PROJECTIONS, ESTIMATES OR BUDGETS HERETOFORE DELIVERED TO OR MADE AVAILABLE TO BUYER RELATING TO FUTURE REVENUES, EXPENSES OR EXPENDITURES OR FUTURE RESULTS OF OPERATIONS).

            SECTION 5.18      Additional Matters with Respect to Representations and Warranties.

            For the avoidance of doubt: (a) no representation, warranty, or covenant is being made hereunder with respect to (i) any Portfolio Site which is an Excluded Site or a Deferred Site, (ii) any Excluded Assets or (iii) any Site Subtenant Communications Equipment; and (b) with respect to any representations and warranties relating to a Sale Site, such representations are only made as of the Signing Date and as of applicable Closing for such Sale Site.

ARTICLE 6

REPRESENTATIONS AND WARRANTIES OF BUYER

            Except as disclosed in the corresponding sections or subsections of the Buyer Disclosure Schedule (it being agreed that, notwithstanding the foregoing, disclosure of any item in any section of the Buyer Disclosure Schedule shall be deemed disclosure of such item with respect to any other section of the Buyer Disclosure Schedule to the extent that the relevance of such item to such other section is reasonably apparent from the face of such disclosure), Buyer represents and warrants to Seller as follows:


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            SECTION        6.1 Organization.

            Buyer is a corporation or other entity duly organized, validly existing and in good standing under the laws of Bolivia with the requisite corporate or other power and authority to carry on in all material respects its business as it is now being conducted. Each of Buyer Parent and Buyer Guarantor is a Delaware limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware with the requisite limited liability company power and authority to carry on in all material respects its business as it is now being conducted.

            SECTION        6.2 Authority; Enforceability; No Conflicts.

            (a)        Each Buyer Party and Buyer Guarantor has the requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations under this Agreement and to consummate the transactions contemplated by this Agreement, and each Buyer Party and Buyer Guarantor has the requisite corporate or limited liability company power and authority to execute and deliver each Collateral Agreement to which it is a party (if any), to perform its obligations thereunder and to consummate the transactions contemplated thereby. The execution and delivery by each Buyer Party and Buyer Guarantor of this Agreement and the consummation of the transactions contemplated by this Agreement have been, and the execution and delivery by each Buyer Party and Buyer Guarantor of the Collateral Agreements to which it is a party (if any) and the consummation of the transactions contemplated thereby have been duly authorized by all requisite corporate or limited liability company action of such Buyer Party and Buyer Guarantor. Each Buyer Party and Buyer Guarantor (i) has duly executed and delivered this Agreement, and (ii) on each Closing Date shall have duly executed and delivered each of the Collateral Agreements to which it is a party. Assuming the due execution and delivery of each such agreement by each party thereto other than each Buyer Party and Buyer Guarantor, this Agreement is the legal, valid and binding obligation of each Buyer Party and Buyer Guarantor, and on each Closing Date, each of the Collateral Agreements to which it is a party (as amended at such time and as theretofore amended) shall be the legal, valid and binding obligation of each Buyer Party and Buyer Guarantor, in each case, enforceable against it in accordance with its respective terms, subject to the effect of Bankruptcy, insolvency, reorganization, moratorium or other similar Laws relating to or affecting the rights of creditors generally and to the effect of the application of general principles of equity.

            (b)        The execution, delivery and performance by each Buyer Party and Buyer Guarantor of this Agreement and each of the Collateral Agreements to which it is a party (if any), and the consummation of the transactions contemplated hereby and thereby on their terms and conditions, do not and shall not, with or without notice or lapse of time or both, result in (i) a breach or violation of, or a conflict with, any provision of the organizational documents of each Buyer Party or Buyer Guarantor or (ii) subject to Section 1.3, a breach or violation of, or a conflict with, any provision of Law or a Governmental Approval applicable to either Buyer Party or Buyer Guarantor or (iii) subject to Section 1.3, a breach or violation of, or a conflict with, or constitute a default under, or permit the acceleration of any Liability or result in the creation of any Lien upon any of the properties or assets of either Buyer Party or Buyer Guarantor under, any contract or agreement binding on either Buyer Party or Buyer Guarantor.

            SECTION 6.3        Governmental Approvals, Consents, Reports, Etc.

            Section 6.3 of the Buyer Disclosure Schedule contains a list of all Governmental Approvals and other filings, applications or notices required to be made, filed, given or obtained by Buyer or any of its Affiliates with, to or from any Governmental Authorities or other Persons in connection with the consummation of the transactions contemplated by this Agreement, except (a) those that become applicable solely as a result of the specific regulatory status of Seller, and (b) those approvals, filings, applications and notices the failure to make, file, give or obtain could not, individually or in the aggregate, reasonably be expected to prevent, materially delay or materially impair the ability of either Buyer Party to consummate the transactions contemplated by this Agreement and each of the Collateral Agreements to which it is a party.


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            SECTION 6.4        Litigation; Orders.

            There is no action, suit or proceeding pending or, to the Knowledge of Buyer, threatened in writing against Buyer or its Affiliates that would reasonably be likely to prevent, delay, or impair the ability of either Buyer Party or Buyer Guarantor to consummate or fulfill its obligations with respect to the transactions contemplated by this Agreement by or before any Governmental Authority or by any Person. There are no Orders pending or, to the Knowledge of Buyer, threatened in writing against Buyer or its Affiliates with respect to transactions contemplated by this Agreement.

            SECTION 6.5        Brokers, Finders, Etc.

            Buyer and its Affiliates have not employed any broker, finder, investment banker or other intermediary or incurred any liability for any investment banking fees, financial advisory fees, brokerage fees, finders’ fees or other similar fees for which Seller or its Affiliates would be responsible in connection with the transactions contemplated by this Agreement or any of the Collateral Agreements.

            SECTION 6.6        Financial Capability.

            Buyer has, as of the Signing Date, and shall have on each Closing Date, access to sufficient funds to enable Buyer and its Affiliates to consummate the transactions contemplated hereby, including payment of the Closing Consideration and fees and expenses of Buyer and its Affiliates relating to the transactions contemplated hereby.

            SECTION 6.7        Solvency.

            Neither Buyer Party nor Buyer Guarantor is entering into this Agreement with the intent to hinder, delay or defraud either present or future creditors of such Buyer Party or Buyer Guarantor. Assuming the satisfaction of the conditions to the obligation of Buyer to consummate each Closing, then, after giving effect to each Closing, each Buyer Party and Buyer Guarantor will be Solvent immediately following the consummation of such Closing.

            SECTION 6.8        Anti-Corruption Laws.

            Buyer and its Affiliates, officers, directors, employees, and, to the Knowledge of Buyer, agents have not, directly or indirectly, made any contribution, gift, bribe, rebate, payoff, influence payment, kickback, or other payment to any Person, private or public, regardless of form, whether in money, property, or services in violation of any applicable Law (including any Anti-Corruption Laws) or established or maintained any fund or asset that has not been recorded in the books and records of Buyer or any Affiliate thereof for such purpose. Buyer and its Affiliates are in compliance, and have for the past three (3) year complied, in all material respects, with all applicable Anti-Corruption Laws. None of Buyer and its Affiliates, officers, directors, employees, and, to the Knowledge of Buyer, agents: (a) is, and with respect to any such Persons that are not natural Persons is owned by, a Person currently identified on the Specially Designated Nations and Blocked Persons List maintained by the OFAC or any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation; or (b) is a Person with whom a citizen of the United States is prohibited to engage in transactions by any Anti-Corruption Laws. Buyer has established reasonable internal controls and procedures designed to ensure compliance with all applicable Anti-Corruption Laws. Notwithstanding anything to the contrary in this Section 6.8: (i) the representations and warranties in this Section 6.8 are limited to the activities of the Buyer and its Affiliates in Bolivia; and (ii) in no event is Buyer making such representations or warranties with respect to activities of Buyer and its Affiliates outside of Bolivia.


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            SECTION 6.9        No Implied Representations.

            EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES MADE BY BUYER IN THIS ARTICLE 6 OR IN ANY CERTIFICATE OR COLLATERAL AGREEMENT DELIVERED PURSUANT TO THIS AGREEMENT, BUYER AND ITS AFFILIATES ARE NOT MAKING ANY OTHER REPRESENTATION OR WARRANTY.

ARTICLE 7

COVENANTS

            SECTION 7.1        Investigation of Portfolio Sites; Access to Properties and Records.

            (a)        Prior to the Closing for a Portfolio Site, but subject to (i) contractual and legal restrictions applicable to Seller and (ii) applicable Law (including Laws relating to the exchange of information), Seller shall, upon reasonable advance notice from Buyer to Seller, make its personnel reasonably available to Representatives of Buyer and afford to such Representatives reasonable access during normal business hours to the Portfolio Sites and its properties and Books and Records that, to the Knowledge of Seller, are available or reasonably can be made available (it being understood that the foregoing shall in no event require Seller and its Affiliates to create any Books and Records). In no event shall Buyer take or permit any action in its investigation of any Portfolio Site, including the accessing of Books and Records, which impairs or otherwise interferes with the use of any Portfolio Site or operations being conducted at a Portfolio Site. All requests for access shall be made to a Representative of Seller or its Affiliates as designated by Seller from time to time, who shall be responsible for coordinating all such requests and all access permitted under this Agreement and who may arrange for personnel to accompany Buyer on any actual inspections. Buyer shall indemnify Seller, its Affiliates, and their respective Representatives for any claims, losses or causes of action as a result of physical or tangible damages caused by any action by Buyer and its Representatives in connection with such access or Buyer’s and its Representatives’ other due diligence activities occurring prior to the Closing Date for a Portfolio Site; provided, however, that Buyer shall not provide any such indemnity for any claim, loss or cause of action caused by (A) the gross negligence or willful misconduct of any Seller, its Affiliates, and their respective Representatives, or (B) any physical condition existing on any Portfolio Site prior to Buyer’s or its Representative’s entry thereon (except for any incremental damage or exacerbation of any existing condition caused by Buyer or its Representatives with respect to any such physical condition), except in the case of clause (B) with respect to any claim brought by a Representative or invitee of Buyer and its Affiliates. Prior to conducting any physical inspection at any Portfolio Sites, Buyer shall obtain, and during the period of such inspection shall maintain, at its expense, commercial general liability


 


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consents, approvals and Authorizations that are required by this Agreement or any Collateral Agreement to be obtained under any Law, (C) lift or rescind any Order adversely affecting the ability of the Parties to consummate the transactions contemplated by this Agreement and the Collateral Agreements, (D) effect all necessary registrations and filings, including filings and submissions of information requested or required by any Governmental Authority, (E) fulfill all conditions to the other Parties’ obligation to consummate the transactions contemplated by this Agreement and (F) respond as promptly as reasonably practical to any request for documents or information, formal or informal investigation, and/or other voluntary or compulsory process issued or initiated by a Governmental Authority. With respect to any threatened or pending preliminary or permanent injunction or other Order or Law that would adversely affect the ability of the Parties to promptly consummate the transactions contemplated by this Agreement and the Collateral Agreements, the Parties shall use their commercially reasonable efforts to prevent the entry, enactment or promulgation thereof, or to seek the removal, vacate or nullification thereof, as the case may be. In no event, however, shall Seller and its Affiliates be obligated to divest or hold separate any business or assets in connection with the consummation of the transactions contemplated by this Agreement or any Collateral Agreement, agree to any condition, restriction or limitation with respect to Seller and its Affiliates or any of their respective assets or operations, exclude any Portfolio Site from the transactions contemplated by this Agreement and the Collateral Agreements or, except as otherwise expressly provided in this Agreement or any Collateral Agreement, pay any money to any Person or to offer or grant other financial or other accommodations to any Person in connection with their obligations under this Section 7.2 (any such obligation, agreement offer or grant, being a “Regulatory Condition”). Notwithstanding anything to the contrary in this Section 7.2 or otherwise, nothing in this Agreement or any Collateral Agreement shall prevent or restrict Seller or its Affiliates in any manner from engaging in any merger, acquisition or business combination transaction or any sale, disposition or transfer of any assets (other than a sale, disposition or transfer of any Sale Site, Included Property, or any related Collocation Agreements to any Person other than Buyer) or any other corporate transaction.

           (b)        Without limiting the generality or effect of the foregoing, in the event that a Party determines in good faith that any filing or other documentation is required by applicable Law in connection with this Agreement or the consummation of the transactions contemplated hereby, the Parties shall cooperate to make such filings and use commercially reasonable efforts to provide such other documentation such that the transactions contemplated hereby can be consummated as promptly as possible after the Signing Date.

            SECTION 7.3        Further Assurances.

            From time to time, whether before, at or after the applicable Closing Date for a Portfolio Site, each of Seller and its Affiliates and Buyer and its Affiliates shall execute and deliver such further instruments of conveyance and assignment and take such other reasonable actions as may be necessary, proper or advisable to carry out the purposes and intent of this Agreement and the transactions contemplated by this Agreement and the Collateral Agreements.

            SECTION 7.4        Conduct of Collocation Operations and the Sale Sites.

            (a)        From the Signing Date until the Closing Date with respect to each Sale Site, except as expressly permitted or required by this Agreement or set forth in Section 7.4(a) of the Seller Disclosure Schedule, Seller and its Affiliates shall conduct, operate, manage, maintain and repair (as applicable) the Collocation Operations and the Sale Sites (including the Included Property and any actions or activities relating to Site Leases) in compliance with all applicable Laws in all material respects, in accordance with industry standards for wireless communication tower sites in South America and in the ordinary course of business consistent in all material respects with past practice.


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            (b)        From the Signing Date until the Closing Date with respect to each Sale Site, except as contemplated by this Agreement or set forth in Section 7.4(b) of the Seller Disclosure Schedule, Seller and its Affiliates shall not, without the consent of Buyer (which consent will not be unreasonably withheld, conditioned, or delayed):

                          (i)        sell, dispose of, transfer, lease, license or encumber any of their interests in such Sale Site (including the Included Property), other than Liens that will be terminated prior to such Closing Date and Permitted Liens and replacements of worn, outmoded or defective equipment, in each case, in the ordinary course of business consistent in all material respects with past practice;

                          (ii)        manage, operate or maintain such Sale Site in a manner that would diminish its expected residual value in any material respect or shorten its expected remaining economic life in any material respect;

                          (iii)        enter into, modify, accelerate, amend, renew, terminate, cancel or grant any waiver or release under any Material Agreement related to such Sale Site;

                          (iv)        accelerate or delay collection of accounts receivable or payment of any accounts payable related to such Sale Site in advance of or beyond their regular due dates or the dates when the same would have been collected or paid, as applicable, except in the ordinary course of business consistent with past practice;

                          (v)        authorize, commit to, resolve or agree, whether in writing or otherwise, to take any of the actions set forth in this Section 7.4(b) and not otherwise permitted by such Section or this Agreement or the Collateral Agreements;

                          (vi)        make any changes to its accounting practices or procedures relating to the Sale Sites; or

                          (vii)        file or make any change to any material Tax election or any Tax Return relating solely to, or that otherwise could reasonably be expected to adversely affect, the Sale Sites except as required by Law.

           (c)        Notwithstanding this Section 7.4, nothing in this Agreement or any Collateral Agreement shall be construed or interpreted to restrict Seller and its Affiliates in their sole discretion from (i) engaging in any activity not related to the Sale Sites, (ii) taking any action with respect to any Sale Sites expressly contemplated under Article 4 or this Agreement, including designating a Sale Site as an Excluded Site and curing any Exception, subject to the limitations contained in Article 4 and the other terms of this Agreement, (iii) removing Excluded Assets from, or modifying Excluded Assets located at, the Sale Sites in a manner that does not adversely impact the condition of any Sale Site in any material respect, or (iv) taking any action with respect to any Excluded Site that does not adversely impact or affect any Sale Site in any material respect.

            (d)        Prior to the Closing for a Sale Site, Seller shall, at its sole cost and expense, use commercially reasonable efforts to discharge any Lien on Seller’s interest in the Sale Sites and the related Included Property of such Sale Sites that are not Permitted Liens; provided, however, that, notwithstanding the foregoing, if any such Lien is not discharged prior to the Closing for a Sale Site, then: (i) prior to or at the Closing for such Sale Site, Buyer will have the right to make the election specified in the proviso of Section 8.2(g); and (ii) from and after such Closing until the Final Closing Date, Seller will continue to use its commercially reasonable efforts to discharge such Lien.


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            (e)        From the Signing Date and until the Closing Date for a Sale Site, Seller shall, at its sole cost and expense, maintain, or cause to be maintained, in full force and effect all of its insurance policies relating to such Sale Site, except as required by applicable Law or as modified in the ordinary course of business.

            (f)        With respect to the Tigo Sites listed in Section 5.16(a) of the Seller Disclosure Schedule that become Assignable Sites in a Closing, if, between the Signing Date and the Closing for such Tigo Site, Seller makes any offer to Tigo to (or Tigo notifies Seller that it requests that Seller) provide collocation space on the ground and the related Tower at each such Tigo Site in excess of such collocation space provided to Tigo at each such Tigo Site as of the Signing Date pursuant to paragraph 21 of the Contrato de Acceso y Uso Compartido de Infrastructura: Co-Ubicacion y/o Cosite, dated April 19, 2016 (as the same may be amended, modified, and supplemented from time to time), that would, by its terms, apply to Buyer following such Closing for any such Tigo Site, then, Seller will notify Buyer in writing within three (3) Business Days after making such an offer.

            SECTION 7.5        Public Announcements.

            Except as otherwise agreed to by the Parties, the Parties shall not (and shall cause their respective Affiliates not to) publish any report, statement or press release or otherwise make any public statements with respect to this Agreement, any Collateral Agreement or the transactions contemplated hereby or thereby, except as may be required by Law or by the rules of a national securities exchange, and in any event a Party shall, to the extent practicable, consult with the other Party a reasonable time in advance of such required disclosure, including furnishing (to the extent practicable) a draft thereof to the other Parties in advance of publication or release and considering in good faith any comments of such other Party.

            SECTION 7.6        Corporate Names.

            Buyer acknowledges and agrees that Seller and its Affiliates have the absolute and exclusive proprietary rights, by ownership or license, to use all Names incorporating each of “NuevaTel PCS de Bolivia S.A.” by itself or in combination with any other Name and the corporate design logo associated with each of “NuevaTel” and its respective color scheme, and that none of the rights thereto or goodwill represented thereby or pertaining thereto are being Leased, or otherwise assigned or transferred, hereby or in connection herewith. Buyer shall not, nor shall Buyer permit any of its Affiliates to, use any Name, phrase or logo incorporating either “NuevaTel PCS de Bolivia S.A.” or “NuevaTel” or the respective corporate design logo or color scheme in or on any of its literature, sales materials, agreements or products or otherwise in connection with the sale of any products or services or in the operation of the Sale Sites. Notwithstanding the foregoing, Buyer may use the Name “NuevaTel PCS de Bolivia S.A.” as necessary to transition the ownership or operation of a Sale Site to the Buyer, to establish the chain of title to a Sale Site or to identify the Sale Site as being subject to this Agreement or the Collateral Agreements, but only insofar as such activities are otherwise expressly authorized by this Agreement or a Collateral Agreement.


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            SECTION 7.7        Actions by Buyer and Seller Affiliates.

            Buyer and Seller shall ensure that each of their respective Affiliates (including any Subsidiaries, if any) takes all actions necessary to be taken by such Affiliate in order to fulfill their respective obligations under this Agreement and the Collateral Agreements.

            SECTION 7.8        Seller’s and its Affiliates’ Rights.

            Notwithstanding any other provision in this Agreement or any Collateral Agreement, the Parties acknowledge and agree that, except with respect to the Sale Sites and then only to the extent expressly set forth herein or therein, nothing in this Agreement or any Collateral Agreement is intended to create any prohibition or restriction on Seller’s or its Affiliates’ ability to construct, lease or otherwise obtain the right to use (and lease tower space to third parties on) wireless communications tower sites, including any Excluded Sites.

            SECTION 7.9        Confidentiality.

            (a)        Except (i) as required to fulfill the obligations of Buyer and its Affiliates under this Agreement or any Collateral Agreement, (ii) to the extent necessary to assert any right or defend against any Claim arising under this Agreement or any Collateral Agreement or (iii) in connection with any financing related to the transactions contemplated by this Agreement, Buyer and its Representatives shall treat all nonpublic information obtained in connection with this Agreement and the Collateral Agreements and the transactions contemplated hereby and thereby as confidential in accordance with the terms of the Confidentiality Agreement, which is incorporated in this Agreement by reference. The Confidentiality Agreement shall terminate with respect to any Portfolio Site at the Closing for such Portfolio Site; if this Agreement is, for any reason, terminated prior to the Initial Closing, then the Confidentiality Agreement shall survive as provided in Section 10.2.

            (b)        Seller shall keep confidential, and shall cause Seller’s Subsidiaries and instruct its and Seller’s Subsidiaries’ respective Representatives to keep confidential, all material information relating to the Sale Sites or the Included Property of the Sale Sites, this Agreement and the Collateral Agreements and the transactions contemplated hereby and thereby, (i) except as required to be disclosed by Law, stock exchange rule, governmental request, court order, subpoena, regulation or other process of Law, provided, however, that the Party required to disclose such information shall have, to the extent practicable, (x) promptly notified Buyer of any such disclosure obligation prior to such disclosure and (y) used commercially reasonable efforts to cooperate with Buyer to protect all such information from such disclosure, including seeking a protective order, (ii) except for information that is available to the public on the Closing Date for a Sale Site or with respect to the transactions contemplated by this Agreement or thereafter becomes available to the public other than as a result of a breach of this Section 7.9(b), (iii) except as required to fulfill any of their obligations under this Agreement or any Collateral Agreement, (iv) except as becomes available to Seller or its Affiliates after the applicable Closing Date on a non-confidential basis from a source other than Buyer or its Affiliates, provided, however, that such other source is not known by Seller and its Affiliates after reasonable inquiry to be bound by a confidentiality obligation to Buyer or its Affiliates, (v) except for information independently developed by Seller and its Affiliates after the applicable Closing Date for a Sale Site a without use of any information relating to such Sale Site or the Included Property of such Sale Sites in their possession prior to the applicable Closing Date, (vi) except in the ordinary course of business or (vii) to the extent necessary to assert any right or defend against any Claim arising under this Agreement or any Collateral Agreement. The covenant set forth in this Section 7.9(b) shall terminate with respect to a Sale Site three (3) years after the Closing for such Sale Site.


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            SECTION 7.10      Environmental Matters.

            (a)        Prior to the Closing for a Portfolio Site, to the extent permitted by the Site Lease for such Portfolio Site, Buyer may commission, at Buyer’s cost and expense, an environmental assessment of such Portfolio Site; provided, however, the completion of such environmental assessment for such Portfolio Site shall not delay the Closing for such Portfolio Site. Buyer shall indemnify Seller, its Affiliates, and their respective Representatives for any Claims resulting from or arising out of the activities undertaken to conduct any environmental assessments of any Portfolio Site by or on behalf of the Buyer; provided, however, that Buyer shall not provide such indemnity for any Claim to the extent caused by (i) the gross negligence or willful misconduct of Seller or its Affiliates or (ii) any environmental condition existing on any Portfolio Site prior to Buyer’s or its agent’s entry thereon (except for any incremental damage, release or exacerbation of an existing condition caused by Buyer or its agents with respect to any such environmental condition), except in the case of clause (ii) with respect to any Claim brought by a Representative or invitee of Buyer and its Affiliates.

            (b)        If requested by Seller, Buyer shall promptly provide (at Seller’s cost and expense) to Seller copies of any and all environmental assessment reports commissioned by Buyer on any Portfolio Site. Unless otherwise required by applicable Law, none of such reports or any information contained in such reports or otherwise generated by Buyer under this Agreement shall be released to any Person without the prior written consent of Buyer and Seller, which shall not be unreasonably withheld, except that any of Buyer or Seller may provide such reports, on a confidential basis, to their respective Affiliates, Representatives and financing sources or in connection with any merger or other corporate transaction of Buyer or Seller or its Affiliates, or disposition of assets, that includes the Portfolio Sites to which the reports apply (or any Liability with respect thereto). For the avoidance of doubt, subject to Section 7.9(b), the foregoing shall in no way restrict the ability of Seller or its Affiliates from, prior to the Closing for a Portfolio Site or the termination of this Agreement pursuant to Section 10.1, disclosing any information generated by Seller or its Affiliates. If this Agreement is terminated pursuant to Section 10.1 or if any Portfolio Site becomes an Excluded Site, then Buyer shall, if requested by Seller promptly turn over to Seller (at Seller’s sole cost and expense) all copies of all reports, documents, data and other writings and information, including copies and, if available, electronic format thereof, relating to any and all environmental assessments conducted pursuant to Section 7.9(a) with respect to environmental conditions or compliance associated with such (or all, in the event of termination of this Agreement) Portfolio Sites, provided, however, that Seller and its Affiliates may not rely thereon and Buyer shall have no obligations or liability with respect thereto.

            SECTION 7.11      Notices of Certain Events; Updates to Seller Disclosure Schedule.

            (a)        Each Party shall promptly notify the other Parties of any material fact, circumstance, changes, events or actions discovered by such Party and occurring between the Signing Date and any Closing (i) with respect to any written notice or other written communication from any Governmental Authority in connection with an Authorization related to the consummation of the transactions contemplated by this Agreement, (ii) with respect to any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement, (iii) with respect to any actions, suits or proceedings commenced or, to the Knowledge of such Party, threatened against, relating to or involving or otherwise affecting the Portfolio Sites that, if pending on the Signing Date, would have been required to have been disclosed pursuant to any of the representations and warranties in this Agreement or that relates to the consummation of the transactions contemplated by this Agreement, (iv) that has resulted in, or could reasonably be expected to result in, any representation or warranty made by such Party not being true and correct, (v) which has resulted in, or could reasonably be expected to result in, the failure of any of the conditions set forth in Article 8 to be satisfied and (vi) the existence, occurrence or taking of which has had, or could reasonably be expected to have, individually or in the aggregate, a Seller Material Adverse Effect or Buyer Material Adverse Effect, as applicable.


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           (b)        A Party’s receipt of information pursuant to this Section 7.11(a) shall not operate as a waiver or otherwise affect any representation, warranty or agreement given or made by any Party in this Agreement and shall not be deemed to amend or supplement the Seller Disclosure Schedule or the Buyer Disclosure Schedule, as applicable.

            SECTION 7.12      Payments Received After Initial Closing.

            From and after the Closing for a Sale Site: (i) if Seller or its Affiliates receive or collect any funds that constitute Included Property relating to such Sale Site or the proceeds thereof, Seller and its Affiliates shall remit such funds to Buyer within thirty (30) days after its receipt thereof and (ii) if Buyer or its Affiliates receive or collect any funds that constitute Excluded Assets or the proceeds thereof, Buyer and its Affiliates shall remit such funds to Seller within thirty (30) days after their receipt thereof.

            SECTION 7.13      Anti-Corruption Laws.

            Each Party agrees to conduct its actions, manners, and affairs relating to the transactions contemplated by this Agreement and the Collateral Agreements in compliance with all applicable Anti-Corruption Laws. In carrying out its duties and obligations under the Agreement, neither Party will take any action, or refrain from taking any action, that would cause a breach of the representations and warranties set forth in Section 5.15 and Section 6.8, as applicable, and each Party will cause its respective Affiliates, officers, directors, employees, and agents not to take any action, or refrain from taking any action, that would cause a breach of such representations and warranties. In the event any Party has reasonable evidence that a breach of this Section 7.13 has occurred or is reasonably likely to occur, such Party shall have the right to reasonably request such information from the other Party or Parties in connection with such purported breach to satisfy itself that no breach has occurred. Each Party shall fully cooperate in any such information request. In no event shall any Party be obligated under this Agreement to take any action or omit to take any action, which action or omission such Party believes, reasonably and in good faith (based on written opinion of counsel), would cause it to be in violation of any Law, including the Anti-Corruption Laws. Notwithstanding anything to the contrary in this Section 7.13, this Section 7.13 is limited to the activities in Bolivia of the Buyer and its Affiliates and Seller and its Affiliates, as applicable. In no event is either Party making the foregoing covenant with respect to activities of such Party and its Affiliates outside of Bolivia.

            SECTION 7.14      Build-To-Suit.

            (a)        Promptly after the execution of this Agreement, Buyer and Seller will negotiate in good faith the terms and conditions of a build to suit agreement for wireless communications


 


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right with respect to such sites); and (B) by Tigo related to Seller’s existing oral agreement with Tigo for reciprocal collocation on towers, monopoles, rooftop installations and poles in rural areas.

            (b)        During the period commencing on the Signing Date and ending on the twelve (12) month anniversary thereof, Seller will not, and shall not authorize or permit any of its Affiliates or any of its or their respective representatives to, directly or indirectly: (i) solicit, initiate or submit any expression of interest, proposal or offer from any Person relating to the construction, build-to-suit, development or acquisition of any BTS Towers described in Section 7.14(a)(i) above; or (ii) enter into an agreement with any Person relating to the construction, build-to-suit, development or acquisition of: (A) any BTS Tower described in Section 7.14(a)(i) above; or (B) any wireless communications site subject to the right of first refusal described in Section 7.14(a)(ii) above unless, with respect to any site, Buyer has not exercised its right of first refusal in accordance with Section 7.14(a)(ii).

ARTICLE 8

CONDITIONS TO CLOSING

            SECTION 8.1        Conditions to the Obligations of Each Party to Consummate Each Closing.

            The respective obligation of each Party to consummate each Closing on the applicable Closing Date is subject to the satisfaction or waiver (to the extent permitted under applicable Law) on or prior to such Closing Date of there being, at such Closing, no Order in effect (a) prohibiting the closing of the transactions contemplated by this Agreement and the Collateral Agreements or (b) that imposes any Regulatory Condition on Seller or any of its Affiliates in connection with the transactions contemplated in this Agreement to take place in connection with such Closing.

            SECTION 8.2        Additional Conditions to Buyer’s Obligation to Consummate Each Closing.

            Buyer’s obligation to consummate each Closing is subject to the satisfaction or waiver by Buyer (to the extent permitted under applicable Law) on or prior to the applicable Closing Date of each of the following conditions:

            (a)        (i) The representations and warranties made by Seller in Section 5.12 shall be true and correct in all respects and Section 5.15 shall be true and correct in all material respects (disregarding all references to materiality in such representation and warranty), in each case as of such Closing Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be so true and correct as of such earlier date); and (ii) all other representations and warranties made by Seller in this Agreement (disregarding all references to materiality or Seller Material Adverse Effect) shall be true and correct in all respects as of such Closing Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be so true and correct as of such earlier date); provided, however, that notwithstanding anything herein to the contrary, the condition set forth in this Section 8.2(a)(ii) shall be deemed to have been satisfied even if any representations and warranties made by Seller are not true and correct unless the failure of such representations and warranties made by Seller to be true and correct, individually or in the aggregate, has had or could reasonably be expected to have a Seller Material Adverse Effect. For the avoidance of doubt, and notwithstanding anything to the contrary in this Agreement, Seller only makes its representations and warranties with respect to a specific Portfolio Site in connection with the Closing for such Sale Site and at no other Closing.


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            (b)        The covenants and agreements of the Seller Parties to be performed on or before such Closing Date in accordance with this Agreement shall have been duly performed in all material respects, provided that, with respect to covenants and agreements that are qualified by materiality, the Seller Parties shall have performed such covenants and agreements, as so qualified, in all respects.

            (c)        Buyer shall have received a certificate, dated as of such Closing Date, from Seller signed on behalf of Seller by an authorized officer thereof to the effect set forth in Sections 8.2(a) and (b) above and Section 8.2(f) below.

            (d)        The Seller Parties shall have executed and delivered to Buyer all Collateral Agreements and such other agreements and documents to which it is a party contemplated by, for the Initial Closing, Section 2.1, and, for each Subsequent Closing, Section 2.2.

            (e)        No suit, action or other proceeding relating to the transactions contemplated by this Agreement and the Collateral Agreements shall be pending before or threatened by any Governmental Authority in which a Governmental Authority seeks or threatens to impose any conditions, liabilities, restrictions or requirements (including the taking of, or requirement to omit the taking of, actions) on (i) Buyer Parties or Buyer Guarantor, that could, individually or in the aggregate, reasonably be expected to be material and adverse to Buyer Parties and Buyer Guarantor, taken as a whole, or (ii) Seller or its Affiliates or the Sale Sites included in such Closing, that could, individually or in the aggregate, reasonably be expected to be material and adverse to Seller and its Affiliates, taken as a whole, or such Sale Sites, taken as a whole. For purposes of this Section 8.2(e), no suit, action or other proceeding shall be deemed threatened unless the threat has been expressed either in writing or to one or more Representatives of Buyer and Seller at a meeting or telephone conference at which one or more Representatives of Buyer and Seller shall have been present.

            (f)        Since the Signing Date, there shall have been no Seller Material Adverse Effect.

            (g)       Buyer shall have received duly executed payoff letters or duly executed or filed lien releases, dated on or before such Closing Date, evidencing the release of any Liens, if any, on Seller’s interest in an Assignable Sites included in such Closing and the related Included Property that are not Permitted Liens; provided, however, that, notwithstanding the foregoing: (i) if, with respect to any such Assignable Site and the related Included Property, there is a Lien that is not a Permitted Lien that has not been released on or prior to such Closing, then, without limiting Seller’s duties under Section 7.4(d)(ii) with respect to such Lien prior to the Final Closing Date, Buyer may elect to designate such Sale Site as a Deferred Site; and (ii) nothing in this Section 8.2(g) is intended to relieve Seller from any liability under this Agreement (including Section 9.1(a)(ii)) for transferring an Assignable Site subject to a Lien (other than Permitted Lien) under Section 2.1(b)(ii) or Section 2.2(b)(ii).

            (h)        Solely with respect to the Initial Closing, the amount of Closing Consideration to be paid to Seller at the Initial Closing in accordance with Section 2.1(b)(i) shall be at least $30,000,000 (the “Minimum Consideration”); provided, however, that the Minimum Consideration shall be reduced by an amount equal to the aggregate Allocated Site Consideration for all of the Portfolio Sites that are designated as Excluded Sites at or prior to the Initial Closing in accordance with this Agreement. For the avoidance of doubt, Seller shall not be in breach of this Agreement for the failure of the conditions in this Section 8.2(h) to be satisfied or waived.


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            SECTION 8.3        Additional Conditions to Seller’s Obligations to Consummate Each Closing.

            Seller’s obligation to consummate each Closing is subject to the satisfaction or waiver by Seller (to the extent permitted under applicable Law) on or prior to the applicable Closing Date of each of the following conditions:

            (a)        (i) The representations and warranties made by Buyer in Section 6.7 shall be true and correct in all respects and Section 6.8 shall be true and correct in all material respects (disregarding all references to materiality in such representation and warranty), in each case as of such Closing Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be so true and correct as of such earlier date); and (ii) all other representations and warranties made by Buyer in this Agreement (disregarding all references to materiality or Buyer Material Adverse Effect) shall be true and correct in all respects as of such Closing Date as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be so true and correct as of such earlier date); provided, however, that notwithstanding anything herein to the contrary, the condition set forth in this Section 8.3(a)(ii) shall be deemed to have been satisfied even if any representations and warranties made by Buyer are not true and correct unless the failure of such representations and warranties made by Buyer to be true and correct, individually or in the aggregate, has had or could reasonably be expected to have a Buyer Material Adverse Effect.

            (b)        The covenants and agreements of the Buyer Parties to be performed on or before such Closing Date in accordance with this Agreement shall have been duly performed in all material respects, provided that, with respect to covenants and agreements that are qualified by materiality, the Buyer Parties shall have performed such covenants and agreements, as so qualified, in all respects.

            (c)        Seller shall have received a certificate, dated as of such Closing Date, from Buyer signed on behalf of Buyer by an authorized officer of Buyer with respect to itself to the effect set forth in Sections 8.3(a) and (b) above and Section 8.3(f) below.

            (d)        The Buyer Parties shall have executed and delivered to Seller all Collateral Agreements and such other agreements and documents to which it is a party contemplated by, for the Initial Closing, Section 2.1, and, for each Subsequent Closing, Section 2.2.

            (e)        No suit, action or other proceeding relating to the transactions contemplated by this Agreement and the Collateral Agreements shall be pending before or threatened by any Governmental Authority in which a Governmental Authority seeks or threatens to impose any conditions, liabilities, restrictions or requirements (including the taking of, or requirement to omit the taking of, actions) on Seller or its Affiliates, that could, individually or in the aggregate, reasonably be expected to be material and adverse to Seller and its Affiliates, taken as a whole. For purposes of this Section 8.3(f), no suit, action or other proceeding shall be deemed threatened unless the threat has been expressed either in writing or to one or more Representatives of Buyer and Seller at a meeting or telephone conference at which one or more Representatives of Buyer and Seller shall have been present.


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            (f)        Since the Signing Date, there shall have been no Buyer Material Adverse Effect.

            (g)        Solely with respect to the Initial Closing, the amount of Closing Consideration to be paid to Seller at the Initial Closing in accordance with Section 2.1(b)(i) shall be at least equal to the Minimum Consideration. For the avoidance of doubt, Seller shall not be in breach of this Agreement for the failure of the conditions in this Section 8.3(h) to be satisfied or waived.

            (h)        Subject to Section 3.2(b), after giving effect to such Closing, the number of Special Status Sites that would be Sale Sites would not exceed the Special Status Site Cap.

ARTICLE 9

INDEMNIFICATION; SURVIVAL

            SECTION 9.1       Indemnification Obligations of Seller.

            (a)        Without limiting the other obligations of Seller under this Agreement and any Collateral Agreement, from and after the Initial Closing, Seller shall defend, indemnify and save and hold harmless each of the Buyer Indemnified Parties from and against all Claims (other than Claims relating to Taxes that are covered by Section 2.10) to the extent resulting from, arising out of or relating to:

                          (i)        any breach or inaccuracy of any representation or warranty, made by Seller or its Affiliates in this Agreement (it being agreed that for purposes of determining the amount of any Claim with respect thereto any representations and warranties that are qualified as to materiality or by reference to a Seller Material Adverse Effect shall be deemed not to be so qualified);

                          (ii)        any breach or nonperformance of any covenant or agreement made by Seller or its Affiliates in this Agreement;

                          (iii)        any Pre-Closing Liabilities;

                          (iv)        any Excluded Liabilities; or

                          (v)        the Specified Matters.

            (b)        The rights of the Buyer Indemnified Parties to indemnification under this Agreement shall not be affected by any investigation conducted or actual or constructive knowledge acquired at any time by a Buyer Indemnified Party, whether before or after the Signing Date or any Closing Date.

            SECTION 9.2        Indemnification Obligations of Buyer.

            (a)        Without limiting Buyer’s other obligations under this Agreement or any Collateral Agreement, from and after the Initial Closing, Buyer shall pay, defend, indemnify and save and hold harmless each of the Seller Indemnified Parties from and against all Claims to the extent resulting from, arising out of or relating to:


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                          (i)        any breach or inaccuracy of any representation or warranty, made by Buyer or its Affiliates in this Agreement (it being agreed that for purposes of determining the amount of any Claim with respect thereto, any representations and warranties that are qualified as to materiality or by reference to a Buyer Material Adverse Effect shall be deemed not to be so qualified);

                          (ii)        any breach or nonperformance of any covenant or agreement made by Buyer or its Affiliates in this Agreement; or

                          (iii)        any Post-Closing Liabilities.

            (b)        The rights of the Seller Indemnified Parties to indemnification under this Agreement shall not be affected by any investigation conducted or actual or constructive knowledge acquired at any time by a Seller Indemnified Party, whether before or after the Signing Date or any Closing Date.

            SECTION 9.3        Indemnification Claim Procedure.

            (a)        If any Party asserting a claim for indemnification (an “Indemnified Party”) shall desire to assert any claim for indemnification provided for under this Article 9 or under Section 2.10 in respect of, arising out of or involving a claim or demand made by any Person (other than a Party) against, or a Tax payable by, an Indemnified Party (a “Third Party Claim”), then such Indemnified Party shall notify the Party or Parties alleged to be obligated to indemnify the Indemnified Party (the “Indemnifying Party”) in writing of such Third Party Claim, describing in reasonable detail the amount or the estimated amount of Claims sought thereunder, any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Third Party Claim Notice”) promptly within thirty (30) days after receipt by such Indemnified Party of written notice of the Third Party Claim; provided, however, that any failure to provide or delay in providing a Third Party Claim Notice shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure or delay. To the extent permitted by applicable Law, the Indemnified Party shall deliver to the Indemnifying Party, promptly within thirty (30) days after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim; provided, however, that any failure to deliver or delay in delivering such copies shall not affect the indemnification provided hereunder except to the extent the Indemnifying Party’s ability to defend such claim shall have been actually prejudiced as a result of such failure or delay.

            (b)        If a Third Party Claim is made against an Indemnified Party, the Indemnifying Party will be entitled to participate in the defense thereof and, if it so chooses, to assume the defense thereof with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party by delivering notice to the Indemnified Party in writing within twenty (20) Business Days after receiving the Third Party Claim Notice that it elects to assume such defense and pay its defense costs in connection therewith (including attorneys’ fees and expenses). If the Indemnifying Party declines to indemnify, fails to respond to the Third Party Claim Notice or fails to assume the defense (or cause its insurer to assume defense) of the Third Party Claim within such twenty (20) Business Day period, then the Indemnified Party may control the defense of such Third Party Claim. Should the Indemnifying Party elect to assume the defense of a Third Party Claim, the Indemnifying Party will not be required to indemnify the Indemnified Party for legal expenses subsequently incurred by the Indemnified Party in connection with the defense thereof, unless the Third Party Claim involves conflicts of interest or substantially different defenses for the Indemnified Party and the Indemnifying Party. If the Indemnifying Party assumes such defense, the Indemnified Party shall have the right to participate in defense thereof and to employ counsel, at its cost and expense (except as provided in the immediately preceding sentence), separate from the counsel employed by the Indemnifying Party. If the Indemnifying Party chooses to defend any Third Party Claim, all the Parties shall cooperate in the defense or prosecution thereof. Such cooperation shall include using commercially reasonable efforts to retain and (upon the Indemnifying Party’s request) provide to the Indemnifying Party records and information that are reasonably relevant to such Third Party Claim, to the extent required to maintain privilege, using commercially reasonable efforts to enter into a joint defense or similar agreement and using commercially reasonable efforts to make employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Whether or not the Indemnifying Party shall have assumed the defense of a Third Party Claim, the Indemnified Party shall not admit any Liability with respect to, or settle, compromise or discharge, such Third Party Claim without the Indemnifying Party’s prior written consent, which consent shall not be unreasonably delayed, conditioned, or withheld. The Indemnifying Party shall not consent to a settlement or compromise of, or the entry of any judgment arising out of or in connection with any Third Party Claim without the written consent of the applicable Indemnified Party; provided, however, that the Indemnified Party shall not withhold its consent if (i) contemporaneously with the effectiveness of such settlement, compromise or consent, the Indemnifying Party pays in full any obligation imposed on the Indemnified Party by such settlement, compromise or consent, which as a condition to such settlement, compromise or consent releases each relevant Indemnified Party completely and unconditionally in connection with such settlement, compromise or consent and without any finding or admission of any violation of Law or admission of any wrongdoing and (ii) such settlement, compromise or consent does not contain any equitable Order or term which in any manner affects, restrains or interferes with the business of the Indemnified Party or any of the Indemnified Party’s Affiliates.


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            (c)        If an Indemnified Party shall desire to assert any claim for indemnification provided for under this Article 9 other than a claim in respect of, arising out of or involving a Third Party Claim (a “Direct Claim”), then such Indemnified Party shall within thirty (30) days after becoming aware of such Direct Claim notify the Indemnifying Party in writing of such Direct Claim, describing in reasonable detail the specific provisions of this Agreement claimed to have been breached, the factual basis supporting the contention that such provisions were breached, the amount or the estimated amount of damages sought thereunder, any other remedy sought thereunder, any relevant time constraints relating thereto and, to the extent practicable, any other material details pertaining thereto (a “Direct Claim Notice”); provided, however, that any failure to provide or delay in providing such notification shall not affect the indemnification provided for hereunder except to the extent the Indemnifying Party shall have been actually prejudiced as a result of such failure or delay. The Indemnifying Party shall have a period of twenty (20) Business Days within which to respond to any Direct Claim Notice, stating whether it disputes the existence or scope of an obligation to indemnify the Indemnified Party under this Article 9. If the Indemnifying Party does not so respond within such twenty (20) Business Day period stating that the Indemnifying Party disputes its liability for such claim, the Indemnifying Party will be deemed to have accepted such claim, such claim shall be conclusively deeded a liability of the Indemnifying Party and the Indemnifying Party shall pay the amount of such claim to the Indemnified Party as promptly as reasonably practicable after demand therefore or, in the case of any Direct Claim Notice in which the amount of the claim (or any portion thereof) is estimated, as promptly as reasonably practicable after such later date when the amount of such claim (or such portion thereof) becomes finally determined. If the Indemnifying Party disputes all or any part of such claim, the Indemnified Party and the Indemnifying Party shall attempt in good faith for twenty (20) Business Days to resolve such claim. If no such agreement can be reached through good faith negotiation within twenty (20) Business Days, either the Indemnified Party or the Indemnifying Party may act to resolve such dispute in accordance with Section 11.13.


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            (d)        Seller shall control the defense of all Claims related to Pre-Closing Liabilities. Buyer shall control the defense of all Claims related to Post-Closing Liabilities.

            SECTION 9.4        Indemnity Period.

            Except with respect to fraud by or on behalf of the Indemnifying Party, the obligations of any Indemnifying Party to indemnify any Indemnified Party:

            (a)        pursuant to: (i) Sections 9.1(a)(i) and 9.2(a)(i) shall terminate on the date that is twelve (12) months following the applicable Closing Date for a Sale Site at which such representations and warranties were made; and (ii) Section 9.1(a)(v) shall terminate on the date that is eighteen (18) months following the applicable Closing Date for a Sale Site; provided, however, that: (A) the obligations of any Indemnifying Party to indemnify any Indemnified Party from, against and in respect of any and all Claims that arise out of or relate to any breach or inaccuracy of any Specified Representation and Warranty (other than with respect to the representations and warranties under Section 5.11) shall survive indefinitely; (B) the obligations of Seller to indemnify any Indemnified Party from, against and in respect of any and all Claims that arise out of or relate to any breach or inaccuracy of any representations and warranties under Section 5.11 will terminate three (3) months after the date of any applicable statute of limitations relating thereto; and (C) the obligations of Seller to indemnify any Indemnified Party from, against and in respect of any and all Claims that arise out of or relate to any breach or inaccuracy of any representations and warranties under Section 5.8 will terminate five (5) years after the Closing for a Sale Site.

           (b)        pursuant to Sections 9.1(a)(ii) or 9.2(a)(ii) shall survive until the time period stated in the covenant that is the subject of such Claim or until the expiration of the applicable statute of limitations if unstated; and

            (c)        pursuant to Sections 9.1(a)(iii), 9.1(a)(iv), and 9.2(a)(iii) shall survive indefinitely.

            Notwithstanding anything to the contrary in this Agreement, notices for Claims must be delivered before expiration of any applicable survival period specified in this Section 9.4; provided, however, that if prior to the close of business on the last day of the applicable Indemnity Period, an Indemnifying Party has been properly notified of a Claim for losses under this Agreement and such Claim has not been finally resolved or disposed of at such date, such Claim shall continue to survive and shall remain a basis for indemnity under this Agreement until such Claim is finally resolved or disposed of in accordance with the terms of this Agreement.

            SECTION 9.5        Liability Limits.

            (a)        Notwithstanding anything to the contrary in this Agreement (except Section 9.5(d)), Seller shall have no obligation to indemnify (including any obligation to make


 


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            (d)        Sections 9.5(a), (b) and (c) shall not apply to Claims for Taxes.

            SECTION 9.6        Mitigation.

            Each Party shall take commercially reasonable actions to mitigate its damages, including by pursuing insurance claims, and shall reasonably consult and cooperate with the other Parties with a view toward mitigating Claims upon and after becoming aware of any event or condition which could reasonably be expected to give rise to any Claims that are indemnifiable hereunder; provided, however, that the foregoing shall not require any Party to incur costs to remedy a breach which gives rise to any Claim.

            SECTION 9.7        Exclusive Remedies.

            After the Initial Closing, except with respect to fraud or criminal activity by or on behalf of the Indemnifying Party and except as expressly provided in Section 1.3, Section 2.8, Article 4, and Sections 7.1(a) and 7.10(a), the Parties acknowledge and agree that the indemnification provisions of this Article 9 shall be the sole and exclusive monetary remedy for any Claims to the extent resulting from or arising out of the matters described in Section 9.1 and Section 9.2; provided, however, that this Section 9.7 shall not prevent any party from pursuing any Claim or remedy that may arise under any Collateral Agreement to which it is a party. Notwithstanding the foregoing, (i) neither Buyer nor any of its Affiliates shall assume any Liability for any Excluded Liabilities or Pre-Closing Liabilities, which shall be solely for the account of and shall remain with Seller, (ii) each Party remains obligated to provide indemnification as provided in Section 2.10 (including with respect to Taxes, Seller’s liabilities arising under “bulk sale” laws and Seller’s and Buyer’s liabilities with respect to Transfer Taxes, in each case, as set forth in such Section 2.10), and (iii) nothing contained herein shall impair the rights of any Person to seek and obtain equitable relief to which such Person shall otherwise be entitled.

            SECTION 9.8        Netting of Losses.

            The amount of any indemnified Claim under this Article 9 shall take into account (i) any amounts actually recovered by the Indemnified Party pursuant to any indemnification by, or indemnification agreement with, any third party, (ii) any insurance proceeds or other cash receipts or sources of reimbursement actually collected by the Indemnified Party in connection with the Claim. Any amount paid by the Indemnifying Party for an indemnified Claim that is in excess of the amount owed after applying the netting amounts described above shall be reimbursed promptly by the Indemnified Party.

            SECTION 9.9        Coordination with Tax Indemnity.

            Sections 9.4, 9.6 and 9.7 shall not apply to any indemnification with respect to Taxes.

            SECTION 9.10      Tax Treatment of Indemnification Payments.

            All indemnification payments made under this Agreement shall be treated by the Parties as an adjustment to the Closing Consideration for Tax purposes, unless otherwise required by applicable Law.


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ARTICLE 10

TERMINATION

            SECTION 10.1        Termination of Agreement.

            This Agreement may be terminated and the transactions contemplated by this Agreement may be abandoned at any time prior to the Initial Closing Date or, in accordance with Section 10.1(b), within two (2) Business Days after the Terminate Date, as follows:

            (a)        By mutual written consent of Seller and Buyer;

            (b)        By Seller or Buyer if the Initial Closing shall not have occurred on or prior to February 15, 2019 (such date, the “Termination Date”); provided, however, that, notwithstanding the foregoing: (i) a Party shall not have the right to terminate this Agreement pursuant to this Section 10.1(b) if such Party or any of its Affiliates is then in material breach or violation of any of its covenants, agreements, representations, warranties or other obligations arising under this Agreement; and (ii) for purposes of this Section 10.1(b), the Parties agree that the Initial Closing shall be deemed to have occurred on the date that Buyer initiates the wire transfers contemplated by Section 2.1(b)(i) so long as: (A) such wire transfers are initiated by Buyer during banking hours in Bolivia on or prior to the Termination Date; and (B) Buyer receives such wire transfers on or before February 22, 2019.

            (c)        By Seller, if there has been a breach of or failure to perform any representation, warranty, covenant or agreement made by the Buyer Parties or Buyer Guarantor in this Agreement, or any such representation and warranty shall have become untrue after the Signing Date, such that the conditions set forth in Section 8.3(a) or Section 8.3(b) would not be satisfied by the Termination Date and such breach or condition is not capable of being cured by the Termination Date or, if capable of being cured, shall not have been cured by the earlier of (i) sixty (60) days after the delivery of written notice of such breach or failure to perform and (ii) the Termination Date; provided, however, that Seller may not terminate this Agreement pursuant to this Section 10.1(c) if Seller is then in material breach of any of its covenants or representations or warranties under this Agreement in a manner that would cause the failure of a closing condition;

            (d)        By Buyer, if there has been a breach of or failure to perform any representation, warranty, covenant or agreement made by the Seller Parties in this Agreement, or any such representation and warranty shall have become untrue after the Signing Date, such that the conditions set forth in Section 8.2(a) or Section 8.2(b) would not be satisfied by the Termination Date and such breach or condition is not capable of being cured by the Termination Date or, if capable of being cured, shall not have been cured by the earlier of (i) sixty (60) days after the delivery of written notice of such breach or failure to perform and (ii) the Termination Date; provided, however, that Buyer may not terminate this Agreement pursuant to this Section 10.1(d) if Buyer is then in material breach of any of its covenants or representations or warranties under this Agreement in a manner that would cause the failure of a closing condition; and

            (e)        By either Seller or Buyer, if any permanent injunction, decree or judgment of any Governmental Authority preventing consummation of the transactions contemplated by this Agreement and the Collateral Agreements shall have become final and nonappealable or any Law shall make consummation of the transactions contemplated by this Agreement and the Collateral Agreements illegal or otherwise prohibited.


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            SECTION 10.2        Effect of Termination.

            If terminated pursuant to Section 10.1, this Agreement shall terminate and become null and void and have no effect, without any liability on the part of any Party or its Affiliates, directors, officers or stockholders, except that: (i) Section 6.6, the fourth and fifth sentences of Section 7.1(a), Section 7.5, Section 7.6, the second sentence of Section 7.9(a), the second sentence of Section 7.9(b), this Article 10, and Article 11 shall survive any termination and (ii) any provisions not covered by clause (i) requiring the payment or reimbursement of any costs or expenses relating to, or incurred during, the period from the Signing Date to the Initial Closing Date shall survive any termination until paid in full; provided, however, that, no such termination shall relieve any Party from liability for any Willful and Intentional Breach of this Agreement by such Party prior to such termination or fraud.

ARTICLE 11

MISCELLANEOUS

            SECTION 11.1        Counterparts.

            This Agreement may be executed in any number of counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute the same agreement. Any signature pages of this Agreement transmitted by telecopier or by electronic mail in portable document format shall have the same legal effect as an original executed signature page.

            SECTION 11.2        Entire Agreement.

            This Agreement (including any exhibits hereto), the Seller Disclosure Schedule, the Buyer Disclosure Schedule and the Collateral Agreements constitute the entire agreement between the Parties with respect to the subject matter of this Agreement, and supersede all other prior agreements, understandings, representations and warranties both written and oral, among the Parties, with respect to the subject matter hereof.

            SECTION 11.3        Fees and Expenses.

            Except as otherwise expressly set forth in this Agreement, whether the transactions contemplated by this Agreement are or are not consummated, all legal and other costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the Party incurring such costs and expenses.

            SECTION 11.4        Notices.

            All notices, requests, demands, waivers and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been delivered (i) the next Business Day when sent overnight by a nationally recognized overnight courier service, (ii) upon transmission of an e-mail (followed by delivery of an original via nationally recognized overnight courier service), or (iii) upon delivery when personally delivered to the receiving Party. All such notices and communications shall be sent or delivered as set forth on Schedule 11.4 hereto or to such other person(s), e-mail address or address(es) as the receiving Party may have designated by written notice to the other Party. All notices delivered by Seller or its Affiliates shall be deemed to have been delivered on behalf of Seller and its Affiliates, and all notices delivered to Buyer and its Affiliates. All notices shall be delivered to the relevant Party at the address set forth on Schedule 11.4 hereto.


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            SECTION 11.5        Assignment; Successors and Assigns; Third Party Beneficiaries.

            This Agreement shall not be assignable (a) by Seller or its Affiliates without the express prior written consent of Buyer or (b) by Buyer its Affiliates without the express prior written consent of Seller, and any such assignment in violation of the foregoing shall be null and void, provided, however, that, the Buyer Parties shall be permitted to: (i) assign their respective rights and obligations under this Agreement to an Affiliate of Buyer; and (ii) grant a security interest in their respective rights and obligations under this Agreement and the Collateral Agreements to Buyer’s or its Affiliates’ lenders as collateral security of Buyer’s and/or its Affiliates’ obligations to such lenders; except that, in each case, such assignment or grant of security interest will not relieve the Buyer Parties from their obligations arising under this Agreement. This Agreement shall be binding upon and inure to the benefit of each Party and its successors, heirs, legal representatives and permitted assigns. Except as provided in Article 9, this Agreement is not intended to confer upon any Person other than the Parties any rights or remedies hereunder.

            SECTION 11.6        Amendment; Waivers; Etc.

            No amendment, modification or discharge of this Agreement, and no waiver hereunder, shall be valid or binding unless set forth in writing and duly executed by the Party against which enforcement of the amendment, modification, discharge or waiver is sought. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the Party granting such waiver in any other respect or at any other time. The waiver by a Party of a breach of or a default under any of the provisions of this Agreement or to exercise any right or privilege hereunder, shall not be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. The rights and remedies herein provided are cumulative and none is exclusive of any other, or of any rights or remedies that any party may otherwise have at law or in equity.

            SECTION 11.7        Time of Essence.

            Time is of the essence in this Agreement, and whenever a date or time is set forth in this Agreement, the same has entered into and formed a part of the consideration for this Agreement.

            SECTION 11.8        Specific Performance.

            Each Party recognizes and agrees that, in the event of any failure or refusal by any Party to perform its obligations required by this Agreement, remedies at Law would be inadequate, and that in addition to such other remedies as may be available to it at Law, in equity or pursuant to this Agreement, each Party may seek injunctive relief and may enforce its rights under, and the terms and provisions of, this Agreement by an action for specific performance to the extent permitted by applicable Law. Each Party hereby waives any requirement for security or the posting of any bond or other surety in connection with any temporary or permanent award of injunctive, mandatory or other equitable relief. Except as expressly provided otherwise in this Agreement, nothing in this Agreement will be construed as prohibiting any Party from pursuing any other remedies available to it pursuant to the provisions of this Agreement or applicable Law for such failure or refusal or threatened failure or refusal, including the recovery of damages.


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            SECTION 11.9        Limitation of Liability.

            Notwithstanding anything in this Agreement or the Collateral Agreements to the contrary, no Party shall be liable to any other Party for indirect, incidental, special or consequential damages, loss of anticipated profits or punitive damages that arise out of or relate to this Agreement or the performance or breach hereof or any liability retained or assumed hereunder, in each case except as may be payable to a claimant in a Third-Party Claim; provided, however, that, notwithstanding the foregoing: (i) except with respect to breaches of the representations and warranties in Section 5.13(a), nothing in this Section 11.9 shall limit recovery for diminution in value of an asset or regulatory penalties; and (ii) the Parties agree that if there is a breach of the representations and warranties in Section 5.13(a), the amount of the Claims for such breach will be equal to the product of: (A) the amount by which the annualized payments made by Seller under each Site Lease for each Sale Site was understated in such Section 5.13(a); multiplied by (B)               (      ).

            SECTION 11.10      Disclosure.

            Disclosure of any fact or item in the Seller Disclosure Schedule or the Buyer Disclosure Schedule, by reference to a particular Article or Section in this Agreement shall, should the existence of the fact or item be reasonably apparent on its face to relate to any other Article or Section of this Agreement, be deemed to be disclosed with respect to such other Article or Section of this Agreement to which it relates.

            SECTION 11.11      Governing Law.

            This Agreement shall be governed by and construed in accordance with the laws of the State of New York of the United States of America (regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof) as to all matters, including matters of validity, construction, effect, performance and remedies; provided, however, that, notwithstanding the foregoing, to the extent that, under Bolivian law, any matters relating to this Agreement are mandatorily governed by Bolivian law notwithstanding the New York choice of law provision in this Section 11.11, then such matters (and only such matters) shall be governed by Bolivian law (the “Mandatory Bolivian Law Matters”). For the avoidance of doubt, the provisions of Section 4.4 of this Agreement are intended to supersede the application to this Agreement of any Law that establishes a default rule for the allocation of risk of loss following a casualty or condemnation.

            SECTION 11.12      Jurisdiction.

            (a)        If a Party determines that it is necessary to obtain any preliminary measure and/or injunctions (i) before the implementation of the dispute resolution and arbitration procedures described in Section 11.13, (ii) in order to enforce the specific execution of any provision of this Agreement, (iii) in order to enforce any arbitration decision or award, or any decision or resolution of a disagreement or dispute by the Financial Independent Consultant or the Legal Independent Consultant, or (iv) in order to enforce the dispute resolution and arbitration procedures described in Section 11.13, the Parties may apply to the Secretariat of the ICC International Court of Arbitration pursuant to the Emergency Arbitrator Provisions set forth in Article 29 of the ICC Rules and Appendix V thereof.


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            (b)        With respect to the Mandatory Bolivian Law Matters, each Party hereby irrevocably and unconditionally: (i) submits to the jurisdiction of the courts of Bolivia authorized to adjudicate such suit, action, or proceeding (and appellate courts having jurisdiction of appeals from any of the foregoing); (ii) consents that any such suit, action, or proceeding may and shall be brought in such courts and waives any objection that it may now or hereafter have to the venue or jurisdiction of any such suit, action, or proceeding in any such court or that such suit, action, or proceeding was brought in an inconvenient court and agrees not to plead or claim the same; and (iii) agrees that service of any court paper may be made in such manner as may be provided under applicable Laws or court rules governing service of process.

            (c)        With respect to enforcement or execution of any arbitration decision (including any final arbitration award) obtained in accordance with this Agreement, each Party hereby irrevocably and unconditionally: (i) submits to the non-exclusive jurisdiction of the courts of the State of New York sitting in New York County, and of the United States District Court of the Southern District of New York (and appellate courts having jurisdiction of appeals from any of the foregoing); (ii) consents that any such suit, action, or proceeding may and shall be brought in such courts and waives any objection that it may now or hereafter have to the venue or jurisdiction of any such suit, action, or proceeding in any such court or that such suit, action, or proceeding was brought in an inconvenient court and agrees not to plead or claim the same; and (iii) agrees that service of any court paper may be made in such manner as may be provided under applicable Laws or court rules governing service of process.

            SECTION 11.13      Dispute Resolution.

            (a)        Except as expressly provided otherwise in this Agreement, the sole and exclusive method for resolving all disputes, controversies, and claims arising out of or relating to this Agreement will be the procedures set forth in this Section 11.13. Without limiting any of the provisions of this Section 11.13, Buyer Parent hereby agrees to take such actions as may be necessary to cause its Affiliates to comply with the provisions of this Section 11.13, Section 11.11, Section 11.12, and Section 11.14.

            (b)        Any Party seeking relief (the “Claimant”) may serve a demand for arbitration in accordance with the Rules of the Center of Arbitration of the International Chamber of Commerce, as amended and in effect from time to time (the “ICC Rules”). THIS SECTION IS INTENDED TO BE VALID AS A BINDING COMMITMENT CLAUSE FOR THE PURPOSES SET FORTH BY THE FIRST PARAGRAPH OF ARTICLE 4 OF LAW NO. 9,307/96. The place of arbitration pursuant hereto will be New York, New York, and the language of such arbitration will be English (provided, that, the award or decision of such arbitration may be translated into Spanish if necessary for such award or decision to be enforced). Three arbitrators will be chosen for the arbitration of any dispute, controversy, or claim hereunder (each, a “Dispute”); the Claimant, on the one hand, and the opposing Party(ies), on the other hand, shall each choose one arbitrator pursuant to the applicable ICC Rules and the third arbitrator will be selected by the mutual agreement of the two arbitrators previously designated above, provided that, if the two arbitrators designated by the Parties do not reach an agreement as to their appointment of the third arbitrator within twenty (20) days following the date the second arbitrator is appointed hereunder, then such third arbitrator will be appointed in accordance with the ICC Rules. The arbitration proceedings shall be conducted in accordance with the ICC Rules, and the Laws applicable to the arbitrators’ resolution of the Dispute shall be those Laws governing this Agreement as provided in Section 11.11. The decision of the arbitrators will be final and binding on the Parties to the maximum extent permitted under applicable Law, and a final judgment may be entered on the arbitration award in any court of competent jurisdiction.


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            (c)        The costs and expenses of the arbitration proceeding (including reasonable attorneys’ fees, arbitrators’ fees and expenses) pursuant to Section 11.13(b), shall be borne by Seller, on the one hand, and Buyer, on the other hand, in inverse proportion as they may prevail on matters resolved in arbitration, which proportionate allocations shall also be determined by the arbitrators, provided that if such arbitrators do not render a decision with respect to such costs and expenses, the costs and expenses of the arbitration panel shall be borne equally by the disputing Parties and each respective disputing Party shall otherwise bear its own costs and expenses.

            (d)        Notwithstanding the preceding provisions of this Section 11.13, and pursuant to Section 11.12, each Party shall remain entitled to demand to any court of competent jurisdiction for the execution of any arbitration decision, including any final arbitration award.

            (e)        It is the intention of the Parties and their Affiliates that, except as expressly provided otherwise in this Agreement, all disputes, controversies or claims of any nature between them, whenever arising, in regard to this Agreement, be decided by arbitration as provided in this Section 11.13 and that no Party or Affiliate shall litigate in any other forum any such disputes, controversies, or claims. Except as provided expressly provided otherwise in this Agreement, no action shall be filed by any Party or its Affiliates other than before an arbitration panel pursuant to this Section 11.13, and the Parties agree that any such action, if filed, shall be dismissed upon application and shall be referred to arbitration hereunder with costs and attorneys’ fees to the prevailing Party.

            SECTION 11.14      Waiver of Jury Trial.

            EACH PARTY TO THIS AGREEMENT WAIVES ITS RIGHT TO A JURY TRIAL IN ANY COURT ACTION ARISING AMONG ANY OF THE PARTIES HEREUNDER, WHETHER UNDER OR RELATING TO THIS AGREEMENT, AND WHETHER MADE BY CLAIM, COUNTERCLAIM, THIRD-PARTY CLAIM OR OTHERWISE.

            SECTION 11.15      Severability.

            If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law or public policy, the Parties shall negotiate in good faith to modify this Agreement so as to (i) effect the original intent of the Parties as closely as possible and (ii) to ensure that the economic and legal substance of the transactions contemplated by this Agreement to the Parties is not materially and adversely affected as a result of such provision being invalid, illegal or incapable of being enforced, in each case, in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible. If following the modification(s) to this Agreement described in the foregoing sentence, the economic and legal substance of the transactions contemplated by this Agreement are not affected in any manner materially adverse to any Party, all other conditions and provisions of this Agreement shall remain in full force and effect.


72

            SECTION 11.16      Interpretation.

            (a)        The table of contents and headings herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof.

            (b)        The Parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.

            SECTION 11.17      Language.

            The Parties shall execute this Agreement in English on the Signing Date and shall use commercially reasonable efforts to prepare, within sixty (60) days from the Signing Date, a translated version of this Agreement in Spanish; provided, however, that in all cases, the English version shall prevail, control and govern the interpretation and enforcement of the mutual agreements among the Parties hereunder. For that purpose, not later than forty-five (45) days from the Signing Date, Seller shall send a draft of a Spanish translation version of this Agreement to Buyer, which shall not later than fifteen (15) days from receipt of such draft, meet with Seller so as to use commercially reasonable efforts to agree on the final terms of the Spanish translation version of this Agreement for execution by the Parties within the sixty (60) day period set forth herein. Buyer shall reimburse Seller for 50% of its reasonable, actual, documented out-of-pocket costs related to the translation of this Agreement into Spanish.

            SECTION 11.18      Buyer Guarantor Guarantee.

            (a)        Buyer Guarantor unconditionally guarantees to the Seller Parties the full and timely payment and performance of the obligations of the Buyer Parties under Sections 2.1(b)(i), 2.2(b)(i), 2.8, 2.10, and 10.3(a) of this Agreement (collectively, the "Guaranteed Obligations"). Buyer Guarantor agrees that if the Buyer Parties breaches or defaults or fails to perform any of the Guaranteed Obligations, Buyer Guarantor shall faithfully perform and fulfill all of such Guaranteed Obligations and shall pay to the applicable beneficiary all reasonable attorneys' fees, court costs and other expenses, costs and disbursements incurred by the applicable beneficiary with respect to such Guaranteed Obligations and on account of the enforcement of the guaranty in this Section 11.18.

            (b)        The foregoing guaranty obligation of Buyer Guarantor shall be enforceable by any Seller Party in an action against Buyer Guarantor without the necessity of any suit, action or proceeding by the applicable beneficiary of any kind or nature whatsoever against the Buyer Parties, without the necessity of any notice to Buyer Guarantor of the Buyer Parties’ default, breach, or failure to perform the Guaranteed Obligations, and without the necessity of any other notice or demand to Buyer Guarantor to which Buyer Guarantor might otherwise be entitled, all of which notices Buyer Guarantor hereby expressly waives. Buyer Guarantor hereby agrees that the validity of the guaranty in this Section 11.18 and the obligations of Buyer Guarantor hereunder shall not be terminated, affected, diminished or impaired by reason of the assertion or the failure to assert by any Seller Party against any Buyer Party any of the rights or remedies reserved to such Seller Party pursuant to the provisions of this Agreement or otherwise or any other remedy or right which such Seller Party may have at law or in equity or otherwise.


73

            (c)        Buyer Guarantor covenants and agrees that the guaranty in this Section 11.18 is an absolute, unconditional, irrevocable and continuing guaranty. The liability of Buyer Guarantor hereunder shall not be affected, modified or diminished by reason of any assignment, renewal, modification, extension or termination of this Agreement or any modification or waiver of or change in any of the covenants and terms of this Agreement by agreement of the Seller Parties and the Buyer Parties, or by any unilateral action of either a Seller Party or a Buyer Party, or by an extension of time that may be granted by a Seller Party to a Buyer Party or any indulgence of any kind granted to any Buyer Party, or any dealings or transactions occurring between a Seller Party and a Buyer Party, including any adjustment, compromise, settlement, accord and satisfaction or release, or any bankruptcy, insolvency, reorganization or other arrangements affecting the Seller Parties. Buyer Guarantor does hereby expressly waive any suretyship defenses it might otherwise have.

            (d)        All of the Seller Parties’ rights and remedies under the guaranty in this Section 11.18 are intended to be distinct, separate and cumulative and no such right and remedy herein is intended to be to the exclusion of or a waiver of any other. Buyer Guarantor hereby waives presentment demand for performance, notice of nonperformance, protest notice of protest, notice of dishonor and notice of acceptance. Buyer Guarantor further waives any right to require that an action be brought against the Buyer Parties or any other Person or to require that resort be had by a beneficiary to any security held by such beneficiary.

* * * Remainder of Page Blank – Signature Pages Follow * * *


SELLER PARTIES’ SIGNATURE PAGE

            IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each of the Parties as of the Signing Date.

  Empresa de Telecommunicaciones NuevaTel PCS de Bolivia S.A.


 

  By: “Bradley J. Horwitz”
    Name:  Bradley J. Horwitz
    Title:    Chairman of the Board of Directors


 

  Western Wireless International Bolivia LLC


 

  By: “Bradley J. Horwitz”
    Name:  Bradley J. Horwitz
    Title:    President and Chief Executive Officer


BUYER PARTIES’ AND BUYER GUARANTOR’S SIGNATURE PAGE

            IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each of the Parties as of the Signing Date.

  Servicios de Alquileres PhoenixTower S.A.


 

  By: “Michelle Brea”
    Name:  Michelle Brea
    Title:    President of Board of Directors


 

  PTI Bolivia II, LLC


 

  By: “Tim Culver”
    Name:  Tim Culver
    Title:    Executive Chairman


 

  Solely with respect to Section 11.18:
   
  PTI Bolivia Issuer, LLC


 

  By: “Tim Culver”
    Name:  Tim Culver
    Title:    Executive Chairman

[Signature Page to APA]


Schedule 1

Portfolio Site Information List

 

[Omitted]


Schedule 2

Signing Site Designations List

 

[Omitted]


Schedule 4.4

Exception Site Conditions

If a Portfolio Site is subject to any of the Exception Site Conditions listed below prior to the Closing for such Portfolio Site, such Portfolio Site is designated in writing as an Exception Site on the Closing Site Designations List for the Closing for such Portfolio Site, and such Exceptions Site Conditions are expressly identified on such Closing Site Designations List in accordance with the Asset Purchase Agreement (as amended, modified, and supplemented from time to time, the “APA”), then, except as otherwise provided in the APA, such Portfolio Site will be deemed an Exception Site (and, consequently, a Managed Site or a Deferred Site) unless and until: (i) all such Exception Site Conditions are waived by Buyer or cured (and, consequently, such Portfolio Site becomes an Assignable Site); or (ii) such Portfolio Site becomes an Excluded Site in accordance with the APA:

1.1

Site Lessor Authorization. There is an Authorization that must be obtained (and has not been obtained) from the Site Lessor for such Portfolio for (A) Seller to contribute, convey, assign, transfer or deliver the Site Lease for such Portfolio Site to Buyer; or (B) Buyer to rent the Seller Collocation Space to Seller pursuant to the MLA. For the avoidance of doubt, the Parties agree that any Authorization that is a notice to a Site Lessor (and not a consent from the Site Lessor) will not form the basis of an Exception, but such notices will be subject to the last sentence of Section 4.2(a) of the APA.

   
1.2

Enforceable Site Lease. The Site Lease for such Portfolio Site is not a valid, binding and enforceable agreement (whether by written agreement or the operation of law), subject to the effect of Bankruptcy, insolvency, reorganization, moratorium or other similar Laws relating to or affecting the rights of creditors generally and to the effect of the application of general principles of equity.

   
1.3

No Default Under Site Lease. Seller is in default, in any material respect, under any term of the applicable Site Lease and Seller has received actual or constructive notice of the existence of any event which, with the passage of time or the giving of notice or both, would constitute a material default by Seller under the Site Lease.

   
1.4

Non-Compliant Site. The Portfolio Site is a Non-Compliant Site.

   
1.5

Taken Site. The Portfolio Site is a Taken Site.

   
1.6

Casualty Site. The Portfolio Site is a Casualty Site.

   
1.7

Environmental Site. The Portfolio Site has a material Environmental Condition.



Schedule 11.4

Notice Parties

If to Seller or its Affiliates:

  Empresa de Telecomunicaciones Nuevatel PCS de Bolivia S.A.
  Calle Capitan Ravelo 2289
  Edificio Multicentro Torre C
  La Paz – Bolivia
  Attn: Leonardo Saunero
  Email: Leonardo.Saunero@nuevatel.com
   
  and
   
  Trilogy International Partners LLC
  155 108th Ave NE, Suite 400
  Bellevue WA 98004
  Attention: Scott Morris
  Email: scott.morris@trilogy-international.com
   
  with copies not constituting notice to:
   
  Lape Mansfield Nakasian + Gibson, LLC
  9980 Brewster Lane, Suite 150
  Powell, OH 43065
  Attention: Rick J. Gibson
  E-mail address: rjgibson@lmng-law.com

If to Buyer or its Affiliates to:

  Ferrere Abogados
  Attn: Michelle Brea
  Edf. Ambassador Business Center
  Piso 18, Av. San Martin No 155
  Equipetrol, Santa Cruz, Bolivia
  E-Mail Address: mbrea@phoenixintnl.com
   
  with a copy to:
   
  Phoenix Tower International
  999 Yamato Road, Suite 100
  Boca Raton, FL 33431
  Attention of: Mr. Dagan Kasavana
  Telecopier No.: 561-257-0558
  E-Mail Address: dkasavana@phoenixintl.com
   
  with a copy to (which shall not constitute notice to Purchaser):



  Choate, Hall & Stewart LLP
  Two International Place
  Boston, MA 02110
  Attention: Sarah Camougis
  Telecopier No: 617-502-5025
  E-Mail Address: scamougis@choate.com


Exhibit A

Form of MLA

 

[Omitted]


Exhibit B

Form of Management Agreement

 

[Omitted]


Exhibit C

Form of Transition Services Agreement

 

[Omitted]


Exhibit D-1

Form of Consent Agreement

 

[Omitted]


Exhibit D-2

Form of Notice

 

[Omitted]


Exhibit E

Form of Transfer Agreement

 

[Omitted]


Exhibit F

Form of Deed

 

[Omitted]


(Back To Top)

Section 4: EX-99.3 (ECHIBIT 99.3)

Trilogy International Partners Inc. - Exhibit 99.3 - Filed by newsfilecorp.com

Execution Version

 

 

 
MASTER LEASE AGREEMENT
 
AMONG
 
EMPRESA DE TELECOMUNICACIONES NUEVATEL PCS DE BOLIVIA S.A.,
 
WESTERN WIRELESS INTERNATIONAL BOLIVIA LLC,
 
SERVICIOS DE ALQUILERES PHOENIXTOWER S.A.
 
PTI BOLIVIA II, LLC, AND
 
PTI BOLIVIA ISSUER, LLC
 

 

 

DATED AS OF FEBUARY 15, 2019


Table of Contents

1. RENTAL OF NT COLLOCATION SPACE. 1
     
2. TERM. 2
     
3. RENT AND FEES. 3
     
4. TOWER OWNER’S PROPERTY INTEREST. 4
     
5. USE OF NT COLLOCATION SPACE. 7
     
6. ACCESS TO NT COLLOCATION SPACE. 7
     
7. USE OF EASEMENTS AND UTILITIES. 7
     
8. OWNERSHIP OF IMPROVEMENTS. 8
     
9. NT COLLOCATION SPACE. 8
     
10. NOTICE TO PROCEED; MODIFICATION; ACCESS. 15
     
11. LIMITATIONS ON NT COMMUNICATIONS EQUIPMENT. 16
     
12. MAINTENANCE, MODIFICATIONS AND COMPLIANCE WITH LAW. 16
     
13. INTERFERENCE. 18
     
14. INDEMNIFICATION. 19
     
15. INSURANCE. 20
     
16. ENVIRONMENTAL. 21
     
17. CASUALTY. 21
     
18. CONDEMNATION. 22
     
19. TAXES. 22
     
20. TERMINATION. 23
     
21. REMOVAL OF NT COMMUNICATIONS EQUIPMENT; WAIVER OF TOWER OWNER’S LIEN. 23
     
22. DEFAULT AND REMEDIES. 24
     
23. LIMITATION OF LIABILITY. 27
     
24. BINDING ON SUCCESSORS AND ASSIGNS; THIRD-PARTY BENEFICIARIES. 28
     
25. ASSIGNMENT; SUBLEASING. 28
     
26. SUBORDINATION AND NONDISTURBANCE. 30
     
27. ESTOPPEL CERTIFICATES. 30
     
28. SURVIVAL. 30
     
29. RECORDING. 31
     
30. QUIET ENJOYMENT. 31
     
31. INTEGRATION. 31
     
32. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL. 31
     
33. DISPUTE RESOLUTION 32
     
34. NOTICES. 33
     
35. MISCELLANEOUS 34
     
36. NT PARENT GUARANTY. 34


Table of Contents

37. TOWER OWNER PARENT GUARANTY. 35
     
38. LANGUAGE. 36

SCHEDULES AND EXHIBITS

Schedule 3 – Site List Showing Base Rent, Tigo Sites and Comteco Sites
Schedule 3(b) – Sample Rent Calculation
Schedule 4(d)(i) – List of 4(d)(i) Sites
Schedule 4(d)(ii)(A) – List of 4(d)(ii)(A) Sites
Schedule 4(d)(ii)(B) -- List of 4(d)(ii)(B) Sites
Schedule 4(d)(iii) – List of 4(d)(iii) Sites
Schedule 9 – Sites with Reserved Microwave Antennas and Dishes
Schedule 9(b) – NT Reserved Amount of Tower Equipment Configuration
Exhibit A – Definitions
Exhibit B – Form of Site Location Agreement (SLA)
Exhibit C – List of Sites (Assignable Sites and Managed Sites)
Exhibit D – List of Managed Sites
Exhibit E – Pricing List
Exhibit F -- Sample Wind Calculations


Execution Version

MASTER LEASE AGREEMENT

            This MASTER LEASE AGREEMENT ("MLA"), dated as of February 15, 2019 (the “Effective Date”), is by and among PTI Bolivia II, a Delaware limited liability company (“Tower Owner Parent”), Servicios de Alquileres Phoenix Tower S.A., a Bolivian sociedad anonima and a direct or indirect subsidiary of Tower Owner Parent (“Tower Owner” and, together with Tower Owner Parent, the “Tower Owner Parties” and, individually, each a “Tower Owner Party”), and, solely for purposes of Section 37, PTI Bolivia Issuer, LLC, a Delaware limited liability company (“Tower Owner Guarantor”), Western Wireless International Bolivia LLC, a Delaware limited liability company (“NT Parent”) and Empresa de Telecomunicaciones Nuevatel PCS de Bolivia S.A., a Bolivian corporation (“NT Collocator” and together with NT Parent, the “NT Parties”). Each of the NT Parties, the Tower Owner Parties and Tower Owner Guarantor may hereafter be referred to as a “Party” and together as the “Parties”. Initially capitalized terms used and not defined in this MLA will have the meaning assigned such terms in Exhibit A hereto.

RECITALS

A.

NT Collocator operated the Sites, which include rooftops, Towers and related equipment, and NT Collocator either owned, leased, or otherwise had an interest, as applicable, in the Rooftop Sites or the Land for the Tower Sites.

   
B.

Pursuant to that certain Asset Purchase Agreement (as the same may be amended, modified, and supplemented from time to time, the “APA”), dated as of February 14, 2019, by and between NT Collocator, and Tower Owner, NT Collocator has contributed, conveyed, assigned, transferred and delivered its interest in the Sites or its right to operate the Sites to Tower Owner.

   
C.

Tower Owner desires to lease or grant to NT Collocator the right to use and operate a portion of each of the Sites, and NT Collocator desires to lease or obtain from Tower Owner the right to use and operate a portion of each of the Sites, in each case, pursuant to the terms and conditions of this MLA.

   
D.

NT Collocator operates a significant portion of NT Collocator’s wireless network through equipment located at the Sites and would not have entered into the APA and consummated the transaction contemplated therein if Tower Owner did not agree to the terms and conditions set forth herein.

AGREEMENT

            In consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties agree as follows:

            1.        RENTAL OF NT COLLOCATION SPACE.

                   (a)        Grant. Subject to the terms and conditions of this MLA, as of the Effective Date (i) as to the Initial Assignable Sites, and thereafter as of the applicable Subsequent Closing Date as to each Managed Site converted to an Assignable Site in connection with a Subsequent Closing, Tower Owner hereby rents to NT Collocator, and NT Collocator hereby rents from Tower Owner, the NT Collocation Space of all of the applicable Assignable Sites, and (ii) as to each Managed Site, until the applicable Subsequent Closing Date, with respect to such Managed Site (if any), Tower Owner hereby reserves and makes the NT Collocation Space at the applicable Managed Site available for the exclusive use and possession of NT Collocator except as otherwise provided herein, whether or not such NT Collocation Space is now or hereafter occupied. Notwithstanding anything to the contrary herein, no leasehold, subleasehold or other real property interest is granted pursuant to this MLA in the NT Collocation Space at any Managed Site until the Subsequent Closing at which such Managed Site is converted to an Assignable Site. Tower Owner and NT Collocator acknowledge and agree that this single MLA is indivisible, intended to cover all of the Sites and is not a separate rental agreement with respect to individual Sites, and in the event of a Bankruptcy of any Party, all Parties intend that this MLA be treated as a single indivisible MLA.


2

                   (b)        Site Location Agreements (SLAs). Within one hundred eighty (180) days after the Effective Date, for each Site, Tower Owner and NT Collocator shall enter into an SLA with such Site specific changes as may be mutually agreed to by Tower Owner and NT Collocator. Each SLA shall be prepared by and at the expense of Tower Owner with the assistance of NT Collocator. Each SLA shall be delivered by Tower Owner to NT Collocator for review and comment within one hundred twenty (120) days after the Effective Date, and the Parties agree to identify in the SLA the NT Ground Space, the NT Tower Space and all such other information required by the form of the SLA attached as Exhibit B hereto and such SLA will be dated as of the date of execution thereof. Prior to the execution and delivery of an SLA with respect to a Site, and if an SLA is not entered into with respect to a Site, the Parties shall still have all of the rights and obligations with respect to such Site as provided in this MLA. The form of the SLA may not be changed without the mutual agreement of Tower Owner and NT Collocator. The terms and conditions of this MLA shall govern and control in the event of a discrepancy or inconsistency with the terms and conditions of any SLA, except to the extent otherwise expressly provided in an SLA that has been duly executed and delivered by an authorized representative of NT Collocator and Tower Owner. Notwithstanding the foregoing, any specific requirements relating to the design or construction of the NT Communications Equipment or NT Improvements imposed by a state or local government or otherwise set forth in the "Special Provisions" section of an SLA, shall control over any terms in this MLA that directly conflict with such specific requirements. As to each Assignable Site and Managed Site subject to a Subsequent Closing, Tower Owner and NT Collocator shall enter into the SLA for such Site on the applicable Subsequent Closing Date (or the 180th day after the Effective Date if the applicable Subsequent Closing Date occurs within 180 days after the Effective Date).

            2.        TERM.

                  (a)        Term of MLA and SLAs. This MLA shall have a term commencing on the Effective Date and continuing until the termination or expiration of the term of every SLA. Each SLA shall have an initial term of ten (10) years commencing (i) on the Effective Date as to each Site that is subject to this MLA on the Effective Date or (ii) on the applicable Subsequent Closing Date for each Deferred Site that first becomes subject to this MLA after the Effective Date (the “Initial Term”). Each SLA with respect to each Site may be extended for up to the number of renewal terms set forth on Schedule 3 for such Site (with each such renewal term being for a period of five (5) years), unless NT terminates an SLA by giving Tower Owner written notice not less than ninety (90) days prior to the expiration of the Initial Term or any renewal term. Notwithstanding the foregoing or anything to the contrary in this MLA or the SLA for any Site, in all cases the term of this MLA with respect to the applicable Site and the applicable SLA as to any Site other than an Owned Site shall automatically expire on the Site Expiration Date for such Site, unless terminated earlier pursuant to a termination right exercised in accordance with this MLA.

                   (b)        NT Termination Right. Notwithstanding anything to the contrary contained herein, NT Collocator shall have the right to terminate an SLA for any Site and this MLA as it relates to such Site without penalty or further liability (i) on the tenth (10th) anniversary of the Effective Date or on the last day of each successive five (5) year period thereafter, or (ii) on any date after the tenth (10th) anniversary of the Effective Date if NT Collocator is unable (after exercising commercially reasonable efforts) to obtain or maintain any necessary permit to, from or with any Governmental Authority necessary to operate the NT Communications Equipment at such Site (each such date, a “Termination Date” and such rights, collectively, the “NT Termination Right”); provided, however, that NT Collocator may not assert an NT Termination Right under paragraph (ii) if NT Collocator (A) cannot maintain or obtain or otherwise forfeits a necessary permit from a Governmental Authority as a result of the violation of any Laws by NT Collocator or its Affiliates or any enforcement action or proceeding brought by any Governmental Authority against NT Collocator or its Affiliates because of any alleged wrongdoing by NT Collocator or its Affiliates or (B) does not have such necessary permit from a Governmental Authority on the Effective Date and such necessary permit from a Governmental Authority was required on the Effective Date. To exercise an NT Termination Right with respect to any Site, NT Collocator shall give Tower Owner written notice of such exercise (the


 


4

not available for issuance by the Banco Central de Bolivia (or another Bolivian national bank if the Banco Central de Bolivia is no longer in existence or publishing the BOB to USD conversion rate) at the time an installment of monthly Rent or other amount is due under this MLA and (y) upon five (5) days’ notice to Tower Owner prior to the date on which payment of Rent is due, Tower Owner is unable or elects not to arrange a swap of Bolivanos to USD for the account of NT Collocator, NT Collocator may pay Tower Owner the monthly Rent or other amount in an amount of Bolivian Bolivianos equal to the Rent or other amount that is due in United States Dollars converted to Bolivianos at the BOB to USD currency exchange rate in effect and published at http://www.bcb.bo by the Banco Central de Bolivia (or another Bolivian national bank if the Banco Central de Bolivia is no longer in existence or publishing the BOB to USD conversion rate) as of the third day prior to date such monthly Rent installment or other amount is due and payable to Tower Owner pursuant to the terms and conditions of this MLA, provided, however, in no event may NT Collocator pay Tower Owner the monthly rent or other amount due in Bolivian Bolivanos more one time in a calendar year.

                   (c)        Holdover Rent. If NT Collocator continues to occupy the NT Collocation Space after termination or expiration of the SLA without express written agreement by Tower Owner, NT Collocator shall pay Rent at a rate equal to (i) one hundred fifteen percent (125%) of the Rent in effect immediately prior to such termination or expiration of the SLA for the first six (6) months that NT Collocator holds over after termination or expiration of the SLA, and (ii) two hundred percent (200%) of the Rent in effect immediately prior to such termination or expiration of the SLA for any period that NT Collocator holds over after such 6-month period.

                   (d)        NT Right to Cure Site Rent Defaults. If Tower Owner does not pay all or any portion of the Site Rent when due and payable with respect to any Leased Site and if Tower Owner is not contesting the payment of such Rent in a manner that precludes the Tower Owner from being deemed in default for not making such payment, then NT Collocator may seek to cure such payment default under any applicable Site Lease by making payment of the unpaid Site Rent to the applicable Lessor under the Site Lease if (i) NT Collocator has given written notice to Tower Owner requesting that Tower Owner pay such Site Rent, and (ii) Tower Owner has failed to pay the Site Rent within ten (10) days following NT Collocator’s notice to Tower Owner or the date that Tower Owner’s failure to pay gives rise to a right of termination under the Site Lease. Tower Owner shall reimburse NT Collocator for all such payments of Site Rent made by NT Collocator within ten (10) days following any receipt of an invoice for such payment(s) of Site Rent.

                   (e)        Sunset Clause. No claim, action or proceeding for any unpaid Rent, bills or expenses, including but not limited to utility expenses or tax bills, may be brought later than two (2) years from the date the Rent became due, and three (3) years from the date the utility expenses were incurred and/or from receipt of a tax bill at the time it is sent by the taxing jurisdiction (as distinguished from the time sent by Tower Owner or NT Collocator), in each case, subject to applicable law governing the statutes of limitations thereof.

            4.        TOWER OWNER’S PROPERTY INTEREST.

                   (a)        Site Lease. Except as herein otherwise expressly provided, all of the terms, covenants and provisions in each applicable Site Lease are hereby incorporated into and made a part of each individual SLA as if fully set forth therein. In the event of any conflict between the Site Lease and this MLA or the applicable SLA, the terms and conditions of the Site Lease shall govern and control.

                   (b)        Tower Owner’s Covenants. Tower Owner shall, at its sole cost and expense, timely comply with all terms and conditions of the Site Lease throughout the term of the applicable SLA. Tower Owner shall not take any action, and shall cause each Tower Subtenant not to take any action, that would cause a default under or result in early termination of the Site Lease. Upon the receipt by Tower Owner of any notice of default under such Site Lease, Tower Owner shall immediately provide a copy of same to NT Collocator. Tower Owner shall not amend the Site Lease in any way that materially and adversely affects NT Collocator’s quiet enjoyment of the NT Collocation Space or any rights of NT Collocator under this MLA and the applicable SLA without the prior written consent of NT Collocator, which shall not be unreasonably withheld, conditioned or delayed.


5

                   (c)        Exercise of Existing Site Lease Extensions. Prior to the expiration of the applicable Site Lease, Tower Owner shall, at its sole cost and expense, duly exercise any and all renewal or extension options existing under the Site Lease to maximize the term of the applicable SLA. Notwithstanding the foregoing, Tower Owner shall not be required to exercise any Site Lease renewal or extension option if (i) the then remaining term of such Site Lease (determined without regard to such extension option) shall extend beyond the term of the SLA as to such Site taking into account all renewal or extension options that may be exercised by NT Collocator under this MLA or (ii) NT Collocator has given a Termination Notice relating to such Site the effective date of which precedes the expiration date of the Site Lease (determined without regard to such extension option).

                   (d)        Tower Owner’s Covenants Upon Expiration of Site Lease.

                                 (i)        With respect to each Site listed on Schedule 4(d)(i) attached hereto, in addition to its obligation to exercise the Site Lease extension or renewal options that exist as of the Effective Date pursuant to Section 4 (c), Tower Operator shall be obligated to obtain new extensions or renewals of the applicable Site Lease as may be necessary to keep such Site Lease in effect throughout the remaining term of the SLA for such Site (taking into account each renewal or extension option that is exercised by NT Collocator).

                                 (ii)        With respect to each Site that is listed on Schedule 4(d)(ii)(A) and on Schedule 4(d)(iii) attached hereto, Tower Owner shall provide NT Collocator with a written notice (each, a “Tower Owner Expiration Notice”) on such date (the “Notice Date”) that is not more than three hundred sixty (360) days and not less than three hundred thirty (330) days prior to the expiration of any Site Lease that does not include provisions of extension or renewal beyond the scheduled expiration date, provided, however, that notice of expiration of any Site Lease that does not include provisions of extension or renewal beyond the scheduled expiration date shall not be required for the Site Leases set forth on Schedule 4(d)(ii)(B) which are scheduled to expire in the period commencing on the Effective Date and ending on the first anniversary of the Effective Date. The Tower Owner Expiration Notice shall set forth (A) Tower Owner’s intent to negotiate an extension or renewal of such Site Lease that will remain in effect for the remaining term of the applicable SLA taking into account the extension or renewal options that may be exercised by NT Collocator under this MLA (each such extension or renewal of a Site Lease being a “Qualified Site Lease Extension”) (in which case Tower Owner shall provide subsequent notification of relevant progress of such negotiations, including the successful completion of the negotiations), or (B) Tower Owner’s intent to pursue an alternative site that is in all material respects suitable for NT Collocator’s use at no additional cost to NT Collocator (in which case such notice shall also describe Tower Owner’s plans to relocate NT Communications Equipment in a manner that shall result in no costs to NT Collocator and no interruption of NT Collocator’s operations in respect to such Site).

            If the Tower Owner Expiration Notice indicates that Tower Owner desires to pursue an alternative site, and such alternative site is satisfactory to NT Collocator, NT Collocator shall enter into a lease or sublease agreement with Tower Owner with respect to such alternative site and the NT Communications Equipment shall be relocated to such alternative site.

            With respect to each Site listed on Schedule 4(d)(ii)(A) or Schedule 4(d)(iii) attached hereto, If the Tower Owner Expiration Notice indicates that Tower Owner desires to negotiate a Qualified Site Lease Extension, Tower Owner shall use commercially reasonable efforts to successfully complete such negotiations within thirty (30) days after NT Collocator’s receipt of the Tower Owner Expiration Notice. If Tower Owner is unable to secure the applicable Qualified Site Lease Extension within thirty (30) days after NT Collocator’s receipt of the Tower Owner Expiration Notice, Tower Owner shall deliver to NT Collocator a binding offer to secure the applicable Qualified Site Lease Extension subject to NT Collocator agreeing to amend the terms of the applicable SLA to (A) increase the then current term of such SLA for the shorter of the duration of the proposed term of the new Site Lease extension or renewal to be negotiated by Tower Owner or 10 years, (B) provide for the payment of Rent for the Site through the extended SLA term or to adjust the Rent of the Site for the balance of the extended SLA term to the higher of (i) Bolivian fair market value rent for the tower use specified in the SLA (“FMV”), and (ii) the then applicable Rent for such Site and (C) to include that the annual escalation of the Base Rent (as adjusted to FMV, if applicable) for such Site is three percent (3%) (collectively, the “Revised Terms”).


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            Within thirty (30) days of receiving written notice of the Revised Terms, NT Collocator shall notify Tower Owner in writing that it is thereby electing to (A) accept all of the Revised Terms, in which case the Parties shall enter into an amendment to the SLA in accordance with the Revised Terms and Tower Owner shall secure the applicable Qualifed Site Lease Extension; (B) reject the Revised Terms, in which case the term of the applicable SLA shall terminate as of the Site Expiration Date determined without regard to the proposed Qualifed Site Lease Extension; or (C) propose a different FMV from that offered by Tower Owner in its Revised Terms but accept the other Revised Terms, in which case (i) the Parties shall promptly enter into an amendment to the SLA in accordance with the Revised Terms as amended by NT Collocator’s FMV proposal (if Tower Owner accepts NT Collocator’s FMV proposal) or in accordance with the Revised Terms except for an FMV (which will be determined in accordance with the immediately following paragraph) and (ii) Tower Owner shall secure the applicable Qualified Site Lease Extension.

            If NT Collocator disputes the FMV, NT Collocator and Tower Owner shall use good faith efforts to agree upon the FMV within fifteen (15) days after NT Collocator delivers written notice of its notice of dispute to Tower Owner. If NT Collocator and Tower Owner are unable to reach an agreement on the FMV within such 15-day negotiation period, then Tower Owner and NT Collocator shall each, within fifteen (15) days of the end of the 15-day negotiation period, appoint an independent appraiser with at least 10 years of experience in the appraisal of commercial property in the same geographical area as the Site in question (each, a “Qualified Appraiser”), and each shall notify the other Party of the name, address and qualifications of said appraiser within such 15-day period. In the event either Party fails or refuses to appoint an appraiser or to notify the other Party of the name, address and qualifications of said appraiser within such 15-day period, then the single appraiser that was timely appointed and disclosed shall constitute the sole appraiser for the purpose of determining the FMV. If both Parties timely appoint an appraiser in accordance with the procedures set forth above, the two appraisers shall immediately proceed to determine the FMV and shall complete their assessments within thirty (30) days after their appointment. If the higher of the two appraisals is no more than 110% of the lower appraisal, then the FMV shall be average of the two appraisals. If the higher of the two appraisals is more than 110% of the lower appraisal, the two appraisers shall together within fifteen (15) days thereafter appoint a third Qualified Appraiser to determine the FMV and the FMV for purposes of the Revised Terms shall be the average of the FMV determinations made by each three Qualified Appraisers.

                          (iii)        With respect to each Site that is listed on Schedule 4(d)(iii) attached hereto, if the Site applicable to such Site Lease is an Unprofitable Site as of such Notice Date, or will become an Unprofitable Site during the term of the SLA, including any of its extensions, Tower Owner shall have no obligation to take further action under this Section 4(d) with respect to such Site unless NT Collocator shall make a binding offer to Tower Owner to amend the terms of the SLA with respect to such Site to (i) increase the then current term of such SLA for 10 years, (ii) increase the Rent for such Site to such amount as is necessary to cause such Site to no longer be an Unprofitable Site, and (iii) to include that the annual escalation of the Base Rent for such Site is three percent (3%) (collectively, the “Limited Revised Terms”). If NT Collocator makes a binding offer to amend the terms of the SLA to include the Limited Revised Terms, Tower Owner shall use commercially reasonable efforts to negotiate a Qualifed Site Lease Extension for such Site. Upon the completion of the negotiation of the Qualifed Site Lease Extension for such Site, NT Collocator and Tower Owner will execute an amendment to the applicable SLA to incorporate the Limited Revised Terms effective as of the commencement of such renewed or extended term of the Site Lease for such Site. It is the expectation and understanding of NT Collocator and Tower Owner that a Qualified Appraiser, in determining FMV, will consider such inputs as market comparables as well as underlying site expenses, including rent of the Site Lease.


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                          (iv)        Subject to Section 12(a), Tower Owner shall not take any action that would result in early termination of any Site Lease (that is attributable to the action of Tower Owner and not the action of NT Collocator, either prior to or after the Effective Date) during the term of the applicable SLA. If Tower Owner or an Affiliate of Tower Owner acquires the interest of the Lessor in the NT Collocation Space or Site, the merger of the Site Lease will not cause a termination of the SLA.

            5.        USE OF NT COLLOCATION SPACE.

            NT Collocator shall be entitled to use the NT Collocation Space at each Site, at no cost in addition to Rent, for the purpose of constructing, installing, maintaining, expanding, repairing, modifying, replacing and/or operating the NT Communications Equipment. Notwithstanding anything to the contrary in this MLA, NT Collocator shall be permitted to use the radio frequency signal and spectrum received and generated by the NT Communications Equipment to provide third parties with customary, industry standard roaming or mobile virtual network services. Notwithstanding the immediately preceding sentence, NT Collocator shall be permitted to engage in RAN Sharing if (a) it is approved in writing by Tower Owner, which approval shall not be unreasonably withheld, conditioned or delayed, or (b) required by a Governmental Authority, provided that NT Collocator shall provide notice to Tower Owner of any such legal requirement proposed to be imposed by a Governmental Authority so that Tower Owner shall have the opportunity to intervene, comment on, and/or challenge such legal requirement of such Governmental Authority, provided that in the case of (a) and (b), the then current Base Rent portion of Rent will be increased by 50% commencing as of the date the RAN Sharing commences.

            6.        ACCESS TO NT COLLOCATION SPACE.

                       (a)        Access to Ground-Based Facilities. Subject to any conditions in the applicable Site Lease existing before the Effective Date, and except as set forth in Section 6(b), NT Collocator and its employees, agents and contractors may enter each Site to obtain entry to the NT Collocation Space, twenty-four (24) hours per day, seven (7) days per week, at no charge, by giving prior written notice to Tower Owner twenty-four (24) hours in advance except in case of an emergency, in which case notice shall be given as promptly as reasonably practicable.

                      (b)        Access to Tower. NT Collocator may enter and access the Tower at no charge at any time with written notice to Tower Owner given twenty-four (24) hours in advance or pursuant to an entry and access plan previously agreed to by Tower Owner and NT Collocator. In the case of emergency, however, NT Collocator shall only be required to give Tower Owner notice as promptly as reasonably practicable.

                      (c)        Elimination of Obstructions. Tower Owner shall use commercially reasonable efforts to prevent and eliminate obstructions on each Site that prevent NT Collocator from having access to repair and replace all of the NT Communications Equipment and NT Improvements (including related Cables) or from being able to fully open any equipment cabinet doors in such space and repair and replace equipment therein. Tower Owner shall use commercially reasonable efforts to eliminate obstructions (including all natural obstructions such as snow, branches and/or mud) that prevent or materially hinder NT Collocator from utilizing access roads, driveways or easements to a Site within twenty-four (24) hours after email notice from NT Collocator (or such longer period of time, if applicable, as may be commercially reasonable under the circumstances).

                      (d)        Email Notification. Tower Owner shall provide NT Collocator with an email address for purposes of receiving notification of the matters set forth in this Section 6.

            7.        USE OF EASEMENTS AND UTILITIES.

            Subject to any conditions in the applicable Site Lease and in any applicable easements, NT


 


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other NT Communications Equipment that was installed as of the Effective Date or for which NT Collocator is paying additional rent to Tower Owner pursuant to the Pricing List; provided, however, in no event shall the NT Tower Space be less than a single RAD Center. At such time as Tower Owner has obtained a commitment or received a request (that PTI intends to fulfill) from a third party to lease space on a Tower that does not have an open RAD Center available to lease to such prospective Tower Subtenant, if the Effective Date Tower Space is occupying more than one RAD Center, then Tower Owner may deliver a written request (each, a “Consolidation Request”) to NT Collocator to relocate the NT Communications Equipment, at Tower Owner’s cost and expense, so as to make any RAD Center available for lease by Tower Owner to such prospective Tower Subtenant. Upon receiving a duly issued Consolidation Request, if NT Collocator determines it can relocate the NT Communications Equipment so as to make available a RAD Center without causing interference or a degradation in the telecommunications services provided by NT Collocator, NT Collocator shall notify Tower Owner of the RAD Center at such Site from which it will vacate and relocate the NT Communications Equipment, and which Tower Owner will thereafter be free to lease to such prospective Tower Subtenant (each, a “Vacated RAD Center”). Upon Tower Owner notifying NT Collocator that it has received a commitment from a prospective Tower Subtenant to lease the Vacated RAD Center, NT Collocator shall as soon as practicable vacate the Vacated RAD Center by causing the NT Communications Equipment located therein to be relocated to another RAD Center being occupied by NT Collocator. Upon NT Collocator removing the NT Communications Equipment from the Vacated RAD Center, Tower Owner shall reimburse NT Collocator for the third party costs and expenses incurred to relocate the NT Communications Equipment and the NT Tower Space shall no longer include the Vacated RAD Center;

                          (iii)        Any ground or rooftop space needed for the Cables necessary to provide Backhaul Services to NT Collocator or other Tower Subtenants at the Site existing as of the Effective Date, subject to the applicable application and amendment process set forth in Section 9(f) and Section 10 for any such changes to the Cables, and any ground space needed for metering of utility service provision according to the requirements of the utility distribution companies, provided, however, that any ground or rooftop space needed for the Cables necessary to provide Backhaul Services will not exceed the NT Ground Space; and

                          (iv)        Any additional Tower space in which Additional Equipment is installed in accordance with Section 9(d) or Additional Ground Space that Tower Owner leases, licenses or otherwise grants a right to use to NT Collocator in accordance with Section 9(c).

            (b)        Reserved Amount of Tower Equipment in NT Collocation Space. As to each Tower Site, NT Collocator shall have the right to construct, install, maintain, repair, modify, replace and operate in the NT Tower Space on the Tower any NT Communications Equipment consisting of the greater of

            (i)        the following (plus all related mounts, collectively, the “NT Effective Date Amount of Tower Equipment”):

            (A)        antennas (including, without limitation, microwave antennas and dishes), remote radio units and other Tower mounted equipment (excluding mounts and Cables) having an aggregate Wind Load Surface Area equal to the aggregate Wind Load Surface Area of the antennas within the primary RAD center or secondary RAD center, if applicable (including, without limitation, microwave antennas and dishes), remote radio units and other Tower mounted equipment (excluding mounts and Cables) of NT Collocator located on the applicable Tower as of the Effective Date plus the Reserved Microwave Antennas and Dishes; and

            (B)        the quantity of Cables of NT Collocator located on the applicable Tower as of the Effective Date; and

            (ii)        the standard equipment configuration set forth on Schedule 9(b) (the “NT Reserved Amount of Tower Equipment”).


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NT Collocator’s right to place in the NT Collocation Space on a Tower, antennas (including, without limitation, microwave antennas and dishes), RRUs, other Tower mounted equipment or Cables in excess of the NT Reserved Amount of Tower Equipment will be subject to (x) any increase in Rent or any additional rent or amount set forth on the Pricing List attached hereto as Exhibit E; and (y) NT Collocator’s compliance with Tower Owner’s standard application and amendment process set forth in Section 9(f) and Section 10 for any such change (other than as provided in Section 10(b)). Exhibit F attached hereto contains sample calculations of the Wind Load Surface Area for hypothetical configurations of NT Communications Equipment.

                   (c)        Additional Ground Space. Without limitation of NT Collocator’s rights under Section 9(a)(i) and Section 9(a)(ii), if NT Collocator deems it necessary to obtain additional ground or rooftop space (“Additional Ground Space”) at any Site, NT Collocator and Tower Owner shall cooperate to determine the availability of such space and negotiate in good faith the lease of such space on such Site and shall follow the application and amendment process set forth in Section 9(f) and Section 10. For the avoidance of doubt, if Additional Ground Space is then available with respect to such Site and Tower Owner and NT Collocator successfully negotiate the lease of such Additional Ground Space, then Tower Owner and NT Collocator shall enter into an amendment to the applicable SLA setting forth the terms under which NT Collocator shall lease any Additional Ground Space, including, but not limited to, any additional rent to be paid by NT Collocator if the Additional Ground Space is on a Rooftop Site or, as to any Tower Site, includes space in excess of the Effective Date Ground Space in accordance with the Pricing List.

                   (d)        Additional NT Communications Equipment in the NT Collocation Space. NT Collocator may install, maintain, and operate Communications Equipment in excess of the NT Effective Date Amount of Tower Equipment or outside the NT Tower Space (individually or collectively “Additional Equipment”); provided that there is sufficient structural load capacity and Available Space at the time NT Collocator applies to install such Additional Equipment. The application shall be processed and an amendment to the subject SLA shall be executed to document any Additional Equipment or any changes to existing equipment as of the Effective Date in accordance with Section 9(f) and to set forth the additional rent to be paid by NT Collocator for the Additional Equipment in accordance with the Pricing List.

                   (e)        NT Collocator’s Right to Enhance Structural Capacity of Tower With Insufficient Capacity as of the Effective Date. With respect to any Site for which the structural capacity of the Tower is not sufficient as of the Effective Date to support the NT Effective Date Amount of Tower Equipment, Tower Owner shall, upon request by NT Collocator and at NT Collocator’s cost and expense, make any Modifications to a Tower that it reasonably deems necessary to increase the structural capacity of such Tower to support the NT Effective Date Amount of Tower Equipment installed as of the Effective Date; provided that the costs of such Modifications shall be assumed by NT Collocator. The structural loading capacity of a Tower and the structural loading thereon shall be determined based on a structural report obtained by Tower Owner at NT Collocator’s cost.

                   (f)        Application and Amendment Process. Except as otherwise provided in Section 10(b)(i) below, NT Collocator’s rights to install and operate any NT Communications Equipment at a Site in addition to or in replacement of the NT Communications Equipment existing at the Site as of the Effective Date shall not become effective, and installation of such additional NT Communications Equipment or modification of the existing NT Communications Equipment at a Site shall not commence, until the following conditions are satisfied:

                                 (i)        Tower Owner has received any written consent required under the Site Lease to allow Tower Owner to permit such installation or modification;

                                 (ii)        NT Collocator has submitted to Tower Owner and Tower Owner has approved NT Collocator’s application for such installation or modification (a “Site Engineering Application”), which approval shall not be unreasonably withheld, conditioned or delayed;


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                                 (iii)        Tower Owner has received and approved NT Collocator’s drawings showing the installation or modification of the NT Communications Equipment, which approval shall not be unreasonably withheld, conditioned or delayed;

                                 (iv)        Tower Owner has received a structural report obtained by NT Collocator at NT Collocator’s cost;

                                 (v)        Tower Owner has reviewed and approved all permits obtained by NT Collocator for its installation or modification of the NT Communications Equipment and all required Governmental Approvals of NT Collocator’s proposed installation or modification at the Site, which approval shall not be unreasonably withheld, conditioned or delayed;

                                 (vi)        an amendment to the SLA has been executed to set forth the conditions of the installation or modification of the NT Communications Equipment; and

                                 (vii)        Tower Owner has issued a Notice to Proceed pursuant to Section 10(a) with respect to the proposed installation or modification, which issuance shall not be unreasonably withheld, conditioned or delayed.

                   If any applicable condition set forth above is not satisfied within one hundred eighty (180) days of the date of the approval of the Site Engineering Application or within such other period as may be specified in the subject amendment of the SLA, Tower Owner and NT Collocator shall each have the right to terminate the subject amendment of the subject SLA. The terminating party shall provide written notice to the other party in the event that the amendment of the subject SLA is terminated due to failure to satisfy the above conditions. Tower Owner and NT Collocator shall cooperate to obtain, prompt satisfaction of any of the above conditions.

                   (g)        Lease; Appurtenant Rights. Except as otherwise expressly provided herein, NT Collocator and Tower Owner expressly acknowledge that the NT Collocation Space at each Site shall be deemed rented to, reserved for or otherwise be made available to NT Collocator pursuant to this MLA, in each case at each Site for the exclusive possession and use by NT Collocator, whether or not such NT Collocation Space is now or hereafter occupied. NT Collocator shall have the right to occupy the portions of Land or rooftop, the Improvements and Tower occupied as of the Effective Date and any additional space constituting NT Collocation Space and to construct, install, maintain, expand, repair, modify, replace and operate any NT Communications Equipment, NT Improvements and Ancillary Facilities therein or thereon subject to the terms provided in this MLA. Tower Owner also grants to NT Collocator as to each Site, and NT Collocator reserves and shall at all times retain (for the benefit of NT Collocator), subject to the terms of this MLA, the Site Leases, easements with third parties, the rights of Tower Subtenants and applicable Laws:

                                 (i)        Site Access. A non-exclusive right and easement for Site access as provided for in Section 6(a);

                                 (ii)        Tower Access. The right to access the Towers as provided in Section 6(b);

                                 (iii)        Storage. The right, exercisable during periods in which NT Collocator is actively performing work at a Site, to use any unoccupied portion of the ground space or rooftop at the applicable Site for purposes of temporary location and storage of any of its equipment and for performing any repairs or replacements and so long as these portions of ground remain unoccupied. NT Collocator’s right to occupy such area shall cease upon receipt of a notice from Tower Owner requesting NT Collocator to remove its equipment if these spaces are leased or otherwise occupied by other Tower Subtenants;


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                                 (iv)        Utility Lines. A non-exclusive right and easement for the use, construction, installation, maintenance, expansion, repair, modification, replacement and operation of all utility lines, Cables and all equipment and appurtenances located on the Site and providing electrical, gas and any other utility service (including Backhaul Services) to NT Collocator’s Communications Facility on the Site, which right and easement includes the right of NT Collocator and its agents, employees and contractors to enter upon the Site to install, repair, maintain, expand and replace such utility facilities. NT Collocator shall have the absolute right to contract with any utility service providers it elects, from time to time, for utility services that solely serve the NT Collocator’s Communications Facility at the Site. Notwithstanding anything in this Section 9(g)(iv) to the contrary, Tower Owner will at its expense repair and maintain each utility line from the “tap-in” point where the utility service provider is no longer responsible for the line supplying the applicable utility service to the point at which such utility line crosses into the NT Collocation Space; and

                                 (v)        Full Use and Enjoyment. Any and all rights pursuant to Section 9(b), Section 9(d), Section 9(h), and Section 9(i) and all appurtenant rights reasonably inferable to permit NT Collocator’s full use and enjoyment of the NT Collocation Space including the rights specifically described in this Section 9, all in accordance with this Section 9.

                   (h)        Maintenance. NT Collocator shall, at all times during the Term as to any Site, at NT Collocator’s sole cost and expense, keep and maintain NT Communications Equipment and NT Improvements in a structurally safe and sound condition, in accordance with the general standard of care in the telecommunications industry, subject to Tower Owner’s obligations with respect to the maintenance and repair of the Site and Tower hereunder. For the avoidance of doubt, NT Collocator is not obligated to make repairs to or conduct maintenance on the Towers under the terms of this MLA.

                   (i)        No Obligation With Respect to NT Collocator’s Communications Facility. In addition to, and not in limitation of any right of NT Collocator under Section 2, and notwithstanding anything in this MLA to the contrary, without limiting or diminishing NT Collocator’s payment obligations hereunder in any manner, including its obligation to pay Rent, NT Collocator shall have no obligation to occupy or to operate NT Collocator’s Communications Facility in the NT Collocation Space of any Site, and NT Collocator shall have the right, exercisable at any time during the Term as to any Site, to cease occupying or operating NT Collocator’s Communications Facility in the NT Collocation Space of such Site, and retain its right to such NT Collocation Space unless such cessation would be a violation of any permits granted by any Governmental Authorities to NT Collocator with respect to such Site and neither Tower Owner nor any other Tower Subtenant has been issued a permit by any Governmental Authority with respect to such Site; provided, however, if (i) NT Collocator is no longer occupying or operating NT Communications Equipment at a Site, (ii) Tower Owner is required to decommission the Tower at such Site as a result of requirements of a Governmental Authority, and (iii) within thirty (30) days of written notice thereof from Tower Owner, NT Collocator elects in a written notice to Tower Owner to relinquish its rights to such Site under this MLA and the applicable SLA, then NT Collocator shall no longer have any right to use such Site and NT Collocator shall have no right to assert any claim (including, but not limited to, a claim for damages) against the Tower Owner. For the avoidance of doubt, the Parties hereto agree that an amendment to an SLA is not necessary to effectuate the intent of this Section 9(i).

                   (j)        Waiver. Tower Owner agrees to and does hereby waive and relinquish any lien of any kind and any and all rights, statutory or otherwise, including levy, execution and sale for unpaid rents, that Tower Owner may have or obtain on or with respect to any NT Communications Equipment, Ancillary Facilities or NT Improvements which shall be deemed personal property for the purposes of this MLA, whether or not the same is real or personal property under applicable Law.

                   (k)        Right of Substitution of NT Collocation Space.

                                 (i)        If NT Collocator desires to move all of the NT Communications Equipment and related NT Improvements located on a Tower at an existing Site to a different location on the Tower at the same Site, then within fifteen (15) Business Days after receiving a written request from NT Collocator, Tower Owner shall notify NT Collocator in writing whether there is any Available Space at the subject Site. If any such Available Space then exists at such Site, then NT Collocator may, subject to Tower Owner’s consent, which consent shall not to be unreasonably withheld, conditioned or delayed and shall be deemed given if Tower Owner fails to respond within fifteen (15) Business Days, have a Right of Substitution as to such Available Space at such Site upon completing Tower Owner’s standard application and amendment procedures, as described in Section 9(f), Section 9(i)(ii) and Section 10.


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                                 (ii)        If NT Collocator elects to exercise (with Tower Owner’s consent) its Right of Substitution, then the Parties will promptly execute and deliver an amendment to the applicable SLA with respect to the Available Space where NT Collocator desires to relocate all of the NT Collocation Space on the Tower at such Site, which amendment will substitute the previously existing NT Collocation Space on the Tower with the applicable Available Space at such Site, but the other terms and conditions (including Rent and remaining term of the SLA) will not be amended, and, thereafter, upon completion of the relocation of the NT Communications Equipment and NT Improvements at such Site (at NT Collocator’s expense): (A) the previously existing NT Collocation Space on the Tower shall automatically be released by NT Collocator and become a part of the Available Space at the applicable Site; (B) NT Collocator shall deliver such previously existing NT Collocation Space in good condition, repair and order, reasonable wear and tear excepted and shall remove all NT Communications Equipment and NT Improvements from such previously existing NT Collocation Space at the applicable Site and restore any damage thereto caused by, through or under NT Collocator or any of its Affiliates; and (C) NT Collocator shall no longer have any rights or obligations with respect to such previously existing NT Collocation Space under this MLA or the applicable SLA. Subject to the terms of this MLA, and concurrently with the execution and delivery of such amendment, the Available Space on such Site to which the NT Communications Equipment and NT Improvements have been relocated shall automatically become and constitute part of the NT Collocation Space at such Site.

                   (l)        Right of Relocation to a New Site.

                                 (i) Subject to Section (iii), if the term of this MLA shall, in accordance with the terms and provisions herein, terminate with respect to any Site as a result of the expiration or earlier termination of the applicable Site Lease, a casualty or a condemnation (each, an “Early Termination”) and prior to the expiration of the last scheduled renewal term available to NT Collocator as of the Effective Date under this MLA (assuming such Early Termination had not occurred), then NT Collocator may notify Tower Owner in writing of its desire, at NT Collocator’s sole expense, to relocate the NT Collocation Space at such existing Site (each, a “Relocation Request”) to a new site (each, a “Relocation Site”) that has been or will be acquired or is or will be owned or maintained by Tower Owner at the time of such Early Termination (or such later date as Tower Owner may agree) and is in the same market area as such existing Site that was terminated (assuming available tower space, structural capacity and ground or rooftop space at such Relocation Site) on the same terms and conditions as set forth in this MLA and the applicable SLA (including with respect to the amount of Rent to be paid by NT Collocator at the Relocation Site) for the remainder of the term of this MLA and the SLA for such existing Site; provided, however, that the SLA shall be amended to be consistent with the Site Lease for the Relocation Site. The Relocation Request shall specify the Relocation Site in reasonable detail. For the avoidance of doubt, in no event shall Tower Owner be obligated to construct or acquire a Relocation Site. NT Collocator may offer an alternative site for sale to Tower Owner and if Tower Owner, in its sole discretion, elects to purchase such alternative site from NT Collocator or a third party, then NT Collocator and Tower Owner shall enter into a rental agreement with respect to such alternative site, on substantially the same terms as set forth in this MLA. Within fifteen (15) Business Days after receiving NT Collocator’s Relocation Request, Tower Owner shall deliver a written response to NT Collocator (i) granting the Relocation Request; (ii) informing NT Collocator that the Relocation Site does not have Available Space but offering to grant the Relocation Request on condition that NT Collocator pay for such structural and other enhancements to the Relocation Site as are reasonably required to create Available Space; or (iii) denying the Relocation Request on the ground that no Relocation Site is available, or that Tower Owner does not intend to construct or acquire a Relocation Site, or that the Relocation Site has no Available Space and that Available Space cannot reasonably be created by structural enhancements. If Tower Owner offers to grant the conditional Relocation Request pursuant to clause (ii) of the preceding sentence, NT Collocator shall have fifteen (15) Business Days after receiving Tower Owner’s response to accept the Tower Owner’s offer by confirming in writing that it will pay for the cost of creating Available Space. In the event that NT Collocator provides a timely acceptance of the Tower Owner’s offer to grant the Relocation Request pursuant to clause (ii) above, Tower Owner and NT Collocator shall work in good faith on the plans necessary to create the Available Space on the Relocation Site requested by NT Collocator and the costs to complete the work necessary to carry out such plans. NT Collocator will have the right to submit a Relocation Request anytime during the period commencing one hundred eighty (180) days prior to the date of the Early Termination and ending one hundred eighty (180) days after the date of the Early Termination by delivering written notice of such Relocation Request to Tower Owner and completing Tower Owner’s standard application and amendment procedures, as described in Section 9(f), Section 9(l)(ii) and Section 10. Notwithstanding anything in this MLA to the contrary, NT Collocator may submit no more than five (5) Relocation Requests to Tower Owner during the term of this MLA.


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                                 (ii) If NT Collocator elects to exercise its Right of Relocation, then, the Parties will promptly execute and deliver an amendment to the applicable SLA, which amendment will substitute the NT Collocation Space at such existing Site with the applicable Available Space at the Relocation Site, but the other terms and conditions (including Rent and remaining term of the SLA) will not be amended other than for consistency with the Site Lease for the Relocation Site, and, upon the earlier of the Site Expiration Date for the existing Site or NT Collocator’s completion of the relocation of the NT Communications Equipment and NT Improvements at the Relocation Site (at NT Collocator’s expense): (A) NT Collocator shall deliver such previously existing NT Collocation Space at such existing Site in good condition, repair and order, reasonable wear and tear excepted and shall remove all NT Communications Equipment and NT Improvements from such previously existing NT Collocation Space at such existing Site and restore any damage thereto caused by, through or under NT Collocator or any of its Affiliates; and (B) NT Collocator shall no longer have any rights or obligations with respect to such previously existing NT Collocation Space under this MLA or the applicable SLA (including, without limitation, any duty to pay Rent). Subject to the terms of this MLA, and concurrently with the execution and delivery of such amendment, the Relocation Site will be substituted for such existing Site and the Available Space on such Relocation Site to which the NT Communications Equipment and NT Improvements have been relocated shall automatically become and constitute the applicable NT Collocation Space. For the avoidance of doubt, the Parties hereby acknowledge that once NT Collocator has moved the NT Communications Equipment and NT Improvements from an existing Site to a Relocation Site, then: (i) the SLA for the existing Site shall be terminated effective as of the date of removal of the NT Communications Equipment and NT Improvements from the existing Site; (ii) NT Collocator shall not have a right to move the NT Communications Equipment and NT Improvements back to the existing Site; and (iii) NT Collocator expressly relinquishes any and all rights to use and/or occupy any portion of the NT Collocation Space at the existing Site as of the date of removal of the NT Communications Equipment and NT Improvements from the existing Site.

                                 (iii) The provisions of this Section 9(l) are subject to Tower Owner’s right to require that NT Collocator accept an alternative site upon an Early Termination that (x) is within a Search Ring provided by NT Collocator, and (y) has materially equivalent radio signal coverage as the existing Site that was terminated and on the same terms and conditions as set forth in this MLA and the applicable SLA; provided, that Tower Owner, at its cost, provides NT Collocator with a cell on wheels or other temporary solution to provide the necessary coverage to prevent an interruption in NT Collocator’s service coverage prior to NT Collocator being able to use such alternative site. Notwithstanding anything in this MLA to the contrary, Tower Owner may may require NT Collocator to accept an alternative site pursuant to this subparagraph in no more than five (5) instances during the term of this MLA.


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              10.        NOTICE TO PROCEED; MODIFICATION; ACCESS.

                          (a)        Notice to Proceed. Subject to the terms and conditions of Section 10(b), before NT Collocator makes any Material Modification of the NT Communications Equipment in the NT Collocation Space, NT Collocator shall submit a request to Tower Owner for a written authorization from Tower Owner to proceed with the work (each, a “Notice to Proceed”). The request for a Notice to Proceed shall include: (i) NT Collocator’s proposed plans for modifications to the NT Communications Equipment, including a structural analysis of modifications to the NT Communications Equipment on the Tower, the cost of which shall be borne by NT Collocator; (ii) evidence that NT Collocator has obtained all approvals required by any federal, state or local governmental authority (collectively the “Governmental Approvals”) for the NT Communications Equipment modification; and (iii) other documentation reasonably required by Tower Owner. Within thirty (30) days after Tower Owner’s receipt of a request for a Notice to Proceed, Tower Owner shall promptly review and respond to NT Collocator’s request for a Notice to Proceed and shall provide NT Collocator with either; (x) its comments, questions and/or changes, (y) with a Notice to Proceed or (z) the rejection of the proposed modification that must be reasonably justified. NT Collocator shall provide Tower Owner (using the contact information provided on the Notice to Proceed) with at least forty-eight (48) hours advance written or email notice of the commencement of work.

                          (b)        Changes to NT Communications Equipment.

                                 (i)        NT Communication Equipment Maintenance. Subject to notice provisions set forth in Sections 6(a) and 6(b), NT Collocator may proceed with: (y) the maintenance, repair, removal or replacement of the NT Communications Equipment existing as of the Commencement Date and any other previously approved NT Communications Equipment, including without limitation a “swap” (a Like-for-Like Equipment Replacement) of NT Communications Equipment, if such work does not materially change the structural impact of such NT Communications Equipment on the Tower; or (z) the installation of NT Communications Equipment on the ground that does not extend beyond the NT Ground Space.

                                 (ii)        NT Communication Equipment Modification. NT Collocator shall request a Notice to Proceed as delineated in Section 10(a) of this MLA, for any modification to the NT Communications Equipment that either: (y) materially increases the structural impact of NT Communications Equipment on the Tower; or (z) increases the footprint of the NT Communications Equipment beyond the NT Ground Space (“Material Modification”). If a modification is not a Material Modification as defined in this section, NT Collocator may proceed as indicated in Section 10(b)(i) of this MLA.

                          (c)        Access by Authorized Persons. Upon request by Tower Owner, NT Collocator will submit in writing the identity of all personnel of NT Collocator, contractors, subcontractors, consultants and engineers who are expected to work on NT Communication Equipment. Only employees, contractors, subcontractors, consultants and engineers of NT Collocator or persons under their direct supervision who have been given prior approval by Tower Owner (such approval not to be unreasonably withheld, conditioned or delayed) for Tower access and work will be permitted to access the Tower, pursuant to the terms regarding Site access set forth in this MLA.

                          (d)        Submission of “As-Built” Plans and Tower Owner Review. After installation of the New NT Communications Equipment and/or NT Improvements or modification of the NT Communications Equipment and/or NT Improvements, other than a modification made pursuant to Section 10(b)(i) or a Like-for-Like Equipment Replacement, NT Collocator shall submit one set of “as-built” drawings for the NT Communications Equipment, NT Improvements and Ancillary Facilities to Tower Owner. Tower Owner shall have thirty (30) business days to deliver written notice to NT Collocator, pursuant to Section 34 of this MLA, of any discrepancies between the approved equipment and improvements and the actual equipment and improvements. Tower Owner’s failure to object to the “as-built” drawings within such period shall constitute approval of the “as-built” drawings and a waiver of any right to charge NT Collocator for any New NT Communications Equipment shown on the “as-built” drawings, even if such equipment was not included in the plans previously approved by Tower Owner.


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              11.        LIMITATIONS ON NT COMMUNICATIONS EQUIPMENT.

                          (a)        Height Limitation. NT Collocator may not install any portions of the New NT Communications Equipment above the existing height of the Tower except in any space above the top of the Tower that is part of the NT Tower Space, or extend the height of the Tower without Tower Owner’s prior written consent, which consent shall be in Tower Owner’s reasonable discretion. If an extension of the Tower is necessary to accommodate the New NT Communications Equipment and Tower Owner consents to such extension: (i) Tower Owner and NT Collocator shall cooperate in the design, permitting and construction of the extension; (ii) Tower Owner shall undertake the construction; and (iii) the costs related to the extension shall be assumed by NT Collocator.

                          (b)        No Harm to Tower or Rooftop. NT Collocator may not use materials at a Site in a manner that will cause corrosion, rust or harm to the Tower structure, Rooftop Site or their respective appurtenances in a manner that is inconsistent with the general standard of care and practices in the telecommunications industry. In addition, NT Collocator may not use any materials or any contractor at a Rooftop Site that would invalidate or impair any rooftop warranties.

                          (c)        Code Compliance. NT Collocator’s structural modification design for any extensions or enhancements to the Tower, if any, must meet applicable structural code requirements.

                          (d)        Fencing. NT Collocator may install a chain link or similar security fence around the portion of the NT Collocation Space consisting of NT Collocator Primary Ground Space and any Additional Ground Space under the applicable SLA and any amendments thereto, not including any access easement, and subject to any requirements and restrictions in the applicable Site Lease.

                          (e)        Legal Compliance. NT Collocator shall give any applicable notices and comply with all Laws applicable to NT Collocator’s work on the Site.

                          (f)        Safety. NT Collocator and its Affiliates shall take all precautions reasonably necessary to protect Persons and materials at the Site from injury or damage caused by its activities at the Site. NT Collocator shall have no: (i) duty to oversee the work or actions of other Persons who are present on the Site during the performance of work by NT Collocator, its Affiliates and/or their respective agents, provided such Persons are not engaged by or on behalf of NT Collocator, its Affiliates and/or their respective agents; or (ii) responsibility for work performed by other Persons not engaged by or on behalf of NT Collocator, its Affiliates and/or their respective agents.

            12.        MAINTENANCE, MODIFICATIONS AND COMPLIANCE WITH LAW.

                          (a)        Tower Owner Obligations. Tower Owner shall have sole responsibility for maintaining, repairing and replacing (subject to Section 17) each Site and Tower, including, but not limited to, repairing utilities, maintaining landscaping, snow removal in accordance with Section 6(c) as requested by NT Collocator, repairing stealthing and installing and maintaining bird excluders, and installing, maintaining, repairing, and replacing lightning rods, lightning conductors and grounding rings sufficient for all Communication Equipment maintaining at the Site. Tower Owner shall keep each Site and Tower, excluding the NT Communications Equipment, NT Improvements and Ancillary Facilities, in good condition, reasonable wear and tear and casualty excepted. Tower Owner shall keep the Site and Tower, excluding the NT Communications Equipment, in compliance with all applicable Laws (including, but not limited to, taking all such actions and precautions within its reasonable control as are appropriate for obtaining and maintaining all required permits and making any improvements to the Tower or Site necessary to obtain any required permit or Governmental Approval it may be seeking with regards to its operations and Communications Equipment at the applicable Site which shall include but not be limited to:


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(1) municipal licenses; (2) environmental licenses; (3) Height Certification issued by the Civil Aviation General Directorate; and, if appropriate (4) social licenses (the “Tower Permits”). It is acknowledged that pursuant to the current Laws and regulations the Tower Owner may not be authorized to directly obtain and maintain some or all of the Tower Permits; therefore, in consideration for entering into this MLA, NT Collocator shall, during the term of the SLA for a Site, take such actions (at Tower Owner’s expense) as are appropriate to obtain, maintain, and renew all Tower Permits (other than Tower Permits that Tower Owner can obtain directly) necessary to operate the Site as operated immediately prior to the Effective Date. Such cooperation may include but not be limited to NT Collocator providing Tower Owner with an appropriate and defined Power of Attorney related to the Tower Permits to maintain and continue them as necessary. Tower Owner shall reimburse NT Collocator all reasonable and customary third party costs and governmental required fees and expenses related to the Tower Permits including but not limited to outside counsel and consultant fees, travel, filing fees and document production and delivery related to such activity. Without limiting the foregoing, Tower Owner shall, to the extent possible, comply (or if required by applicable law or otherwise, NT Collocator shall comply) with all rules, regulations and orders of any Governmental Authority with regard to the lighting, marking and painting of towers. Notwithstanding anything to the contrary in the preceding sentence, with respect to each Assignable Site (but not with respect to each Managed Site), for which at such time Tower Owner holds its own Tower Permits and Governmental Approvals (and is not relying on permits or Governmental Approvals held by NT Collocator), Tower Owner shall be deemed as having satisfied its applicable compliance with Law covenants set forth in such preceding sentence, if Tower Owner complies in all material respects. Tower Owner shall not be deemed to be in default of its obligations under this Section 12(a) to comply with all Laws (or to comply in all material respects with all Laws, as applicable) if such failure to comply with Laws arises out of or relates to any event, condition or occurrence, including the entering into this MLA and applicable SLA, that existed or occurred prior to the Effective Date (each, a “Pre-Existing Condition”) unless (A) (i) Tower Owner receives written notice of noncompliance with the Laws or administrative resolutions from a Governmental Authority with respect to such Pre-Existing Condition, and (ii) such failure to comply with laws or administrative resolutions has not been resolved or cured or the Tower Owner shall have not commenced such resolution or cured such failure on the later of (x) the first anniversary of the Effective Date and (y) six (6) months after receipt of notice of noncompliance from a Governmental Authority, or (B) (i) any claim, demand, assessment, action, suit, fine, levy or other penalty has been asserted or threatened against or imposed on NT Collocator or any of its Affiliates by any Governmental Authority as a result of Tower Owner’s failure to cure such non-compliance and (ii) such non-compliance has not been resolved or cured or the Tower Owner shall have not commenced such resolution or cured such failure on the later of (x) six (6) months after the Effective Date and (y) one (1) month after receipt of notice of such claim, demand, assessment, action, suit, fine, levy or other penalty from such NT Collocator. Notwithstanding the foregoing, Tower Owner will not be deemed to be in default of its obligations hereunder (x) if the claim associated with such Pre-Existing Condition requires NT Collocator to take certain actions as a condition to curing such Pre-Existing Condition and NT Collocator has failed to take action(s) as necessary to satisfy such condition or (y) such Pre-Existing Condition is not capable of being cured by NT Collocator or Tower Owner. Furthermore, NT Collocator shall use its best efforts provide Tower Owner with all notice of noncompliance with the Laws, regulations or administrative resolutions issued by a Governmental Authority with respect to such Pre-Existing Condition and any time requirements contained herein shall not commence until receipt by Tower Owner of such notice.

                          (b)        NT Collocator Obligations. NT Collocator will have no responsibility to maintain or repair the Site or Tower or, to ensure that the Site or Tower complies with applicable Laws, except as expressly provided in the APA or the Transition Services Agreement and except for the obligations related to filing and maintaining permits that NT Collocator is required to obtain and maintain under applicable Law as provided above ; provided, however, NT Collocator shall be solely responsible for damages caused by NT Collocator, its Affiliates and/or their respective contractors, subcontractors, invitees and agents during the term of the applicable SLA. NT Collocator will maintain the NT Communications Equipment, the NT Improvements and Ancillary Facilities in good condition, reasonable wear and tear and casualty excepted, and in compliance with Law. NT Collocator shall keep the NT Communications Equipment, NT Improvements and Ancillary Facilities and operations on the NT Collocation Space in compliance with all applicable Laws, rules and regulations of the ATT and all applicable codes and regulations of the applicable municipality, borough and state government. Tower Owner shall have no responsibility for the licensing, compliance, operation and/or maintenance of NT Communications Equipment, NT Improvements and/or Ancillary Facilities.


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                          (c)        Cooperation. NT Collocator’s ability to use the NT Collocation Space is dependent upon obtaining and maintaining all Governmental Approvals. Tower Owner shall obtain and maintain all Governmental Approvals (including permits) required to be maintained by Tower Owner and cooperate with NT Collocator’s efforts to obtain and maintain Governmental Approvals required to be maintained by NT Collocator. In regard to the Governmental Approvals, neither NT Collocator nor Tower Owner shall take any action concerning the Communications Equipment on the Site that would adversely affect the status of the Site or Land with respect to the proposed use by Tower Owner or NT Collocator. NT Collocator will reasonably cooperate with Tower Owner to the extent the reasonable cooperation of NT Collocator is required for Tower Owner to comply with Law.

                          (d)        Tower Owner Relationship Manager. So long as the MLA is in effect, Tower Owner will designate and maintain a relationship manager, which relationship manager will have authority and the primary responsibility to: (i) communicate with NT Collocator and its applicable officers, employees, agents, contractors, and other representatives with respect to all matters relating to the Sites, the MLA, the APA, or any other Collateral Agreement; and (ii) resolve any and all related issues raised by NT Collocator, provided, that if such issues are not resolved within five (5) Business Days, then such issues shall be escalated to Shylesh Moras, SVP of Operation on behalf of Tower Owner and Daniel Bustos Valdivieso, CTO on behalf of NT Collocator, who will work together in good faith to resolve such issues. Nothing in this Section 12(d) shall be construed to diminish any other rights and remedies of NT Collocator or Tower Owner under this MLA.

                          (e)        Anti-Corruption Laws. Each Party agrees to conduct its actions, manners and affairs relating to the transactions, Tower Permits and all other actions contemplated by this MLA in compliance with all applicable Anti-Corruption Laws. Furthermore, each Party shall at the request of the other provide all customary and necessary certifications, information and accounting to allow the other party to confirm compliance with Anti-Corruption Laws.

            13.        INTERFERENCE.

                          (a)        No Interference. The NT Communications Equipment installed subsequent to the Effective Date shall not cause electronic or physical interference, as defined by the relevant governmental regulator of telecommunications in Bolivia, with any lawfully installed and properly operated equipment or operations located on the Tower or Site prior in time to such installation or modification of the NT Communications Equipment. Tower Owner shall not use, nor shall Tower Owner permit its Tower Subtenants, licensees, employees, invitees or agents to use, any portion of the Site in any way that interferes, electronically or physically, with NT Collocator’s operations or the NT Communications Equipment that is lawfully installed and properly operated. Written notice of such interference (whether by NT Collocator or a Tower Subtenant) shall be provided to the purported interfering party by Tower Owner, and the purported interfering party shall use its best efforts to determine the cause of such interference and, if responsible, immediately eliminate the interference at such party’s sole expense, but in no event later than seventy-two (72) hours from the receipt of such notice. If such interference has not ceased within such seventy-two (72) hours, Tower Owner shall require the interfering party to suspend its operations. Interference shall be deemed to have ceased if the interfering party powers its Communications Equipment down (except for intermittent testing) and such interference no longer occurs.

                          (b)        Other Licenses. Tower Owner shall include substantially similar noninterference language in any license, lease or other agreements with other Tower Subtenants, licensees, lessees or other users at or for the Site entered into after the Effective Date. Tower Owner will not approve any other antenna facilities or Communications Equipment that interfere with the NT Communications Equipment. If any Communications Equipment or antenna facilities of another user that are installed after the installation of the NT Communications Equipment cause interference with NT Communications Equipment, the provisions of Section 13(a) above will apply.


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                          (c)        Enforcement. The Parties acknowledge that there will not be an adequate remedy at law for noncompliance with the provisions of this Section 13, and therefore, either Party shall have the right to specifically enforce the provisions of this Section 13 in a court of competent jurisdiction or seek injunctive relief. Furthermore, if such interference is not remedied after the notice and cure periods provided in Section 13(a) and NT Collocator continues to experience such interference, then: (i) subject to the notice requirements set forth in Section 34, NT Collocator may elect to terminate the applicable SLA and (A) if NT Collocator was not the party that caused such interference, then, any obligation of NT Collocator to pay Rent or any other amounts under this MLA and related to such Site shall cease as of the date of such termination; and (B) if NT Collocator was the party that caused such interference, then, the obligation of NT Collocator to pay Rent or any other amounts under this MLA and related to such Site shall continue until the expiration of the then applicable term (without giving effect to any applicable unexercised renewal terms).

            14.        INDEMNIFICATION.

                          (a)        Each Party shall defend, indemnify and hold the other Party and their respective parents, affiliates, subsidiaries, officers, directors, employees, managers, equity holders, agents, lenders and representatives (collectively, “Indemnified Parties”) harmless from and against any injuries, claims, liabilities, damages, penalties (including any penalties assessed by a Governmental Authority), losses and/or expenses imposed upon or incurred by or asserted against the other Party and the other Parties’ Indemnified Parties, including, but not limited to, reasonable attorneys’ fees and costs, for personal injury, property damage or other claims asserted against (a) the other Party and the other Party’s Indemnified Parties, or (b) third parties, resulting from or arising out of: (i) breach of a Site Lease, the applicable SLA or this MLA by the indemnifying Party or the parents, affiliates, subsidiaries, officers, directors, employees, managers, equity holders, agents, lenders, representatives and Tower Subtenants, if any, of the indemnifying Party (collectively, the “Indemnifying Parties”); (ii) the conduct of the Indemnifying Parties’ business, including, but not limited to, any work conducted at a Site; (iii) a violation of any applicable Laws by the Indemnifying Parties, or (iv) any negligent act or omission, or willful misconduct of the Indemnifying Parties; in all cases, except to the extent caused by the negligent act or omission, or willful misconduct of the Indemnified Parties. The foregoing shall not, however, constitute a waiver by the Indemnifying Parties of any immunity from claims by employees under any applicable industrial insurance or workers’ compensation act. For the avoidance of doubt, in no event will Indemnified Parties include Tigo or Comteco.

                          (b)        Any Indemnified Party shall promptly notify the alleged Indemnifying Party or Indemnified Parties in writing of any relevant pending or threatened Claim by a third party (a “Third Party Claim”) describing in reasonable detail the facts and circumstances with respect to the subject matter of the Claim; provided, however, that delay in providing such notice shall not release the Indemnifying Party from any of its obligations under Section 14(a) or Section 16 except to the extent (and only to the extent) the delay actually and materially prejudices the Indemnifying Party’s ability to defend such Claim. The Indemnifying Party may assume and control the defense of any Third Party Claim with counsel selected by the Indemnifying Party that is reasonably acceptable to the Indemnified Party by accepting its obligation to defend in writing and agreeing to pay defense costs (including attorney’s fees and expenses) within 30 days of receiving notice of a Third Party Claim. If the Indemnifying Party declines, fails to respond to the notice, or fails to assume defense of the Third Party Claim within such 30 day period, then the Indemnified Party may control the defense and the Indemnifying Party shall pay all defense costs as incurred by the Indemnified Party. The Party that is not controlling the defense of the Third Party Claim shall have the right to participate in the defense and to retain separate counsel at its own expense. The Party that is controlling the defense shall use reasonable efforts to inform the other Party about the status of the defense. The Parties shall cooperate in good faith in the defense of any Third Party Claim. Notwithstanding the foregoing, the Indemnifying Party shall not consent to a settlement of, or the entry of a judgment arising out of or in connection with any Third Party Claim, without the consent of any Indemnified


 


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property insurance covering its Tower and an umbrella insurance policy with the coverage set forth in Section 15(e) above.

                          (i)        Insurer Qualifications. All of the above-required insurance coverages/policies shall be written by insurance companies licensed to issue policies in Bolivia.

                          (j)        Waiver of Subrogation. Tower Owner and NT Collocator hereby mutually release each other (and their directors, officers, employees, agents, successors or assigns) from liability and waive all right of recovery against the other for any loss or damage: (i) covered by their respective first party property insurance policies for all perils insured thereunder; or (ii) within any deductible or self-insured retention, it being the intent of the Parties that each shall first look solely to its own insurance to protect itself from loss to its own property. In the event of such insured loss, neither Party’s insurance company shall have a subrogated claim against the other.

            16.        ENVIRONMENTAL.

            NT Collocator and its Affiliates shall not use or store any Hazardous Materials (defined below) of any kind on the Site except in accordance with applicable Law. NT Collocator shall, at its sole cost, remove, dispose and remediate all Hazardous Materials transported, manufactured, used, stored or released after the commencement of this MLA on any applicable Site by NT Collocator, its Affiliates or any of their respective agents, employees or independent contractors. NT Collocator shall defend, indemnify and hold Tower Owner, its agents and its employees harmless from and against any and all claims, costs and liabilities, including, but not limited to, reasonable attorneys’ fees and costs, arising out of or in connection with the introduction, use, manufacture, storage or release of Hazardous Materials on any Site caused by any act or omission of NT Collocator after the commencement of this MLA. Tower Owner and its Affiliates shall not use or store or permit any Tower Subtenant to use or store any Hazardous Materials of any kind on the Site except in accordance with applicable Law. Tower Owner shall be solely responsible for and shall defend, indemnify and hold NT Collocator, its agents and its employees harmless from and against any and all claims, costs and liabilities, including, but not limited to, reasonable attorneys’ fees and costs, arising out of or in connection with the introduction, use, manufacture, storage or release of Hazardous Materials on any Site caused by any act or omission of Tower Owner, its Affiliates, Tower Subtenants or any of their respective agents, employees or independent contractors. The indemnification obligations of this Section 16 shall be subject to the provisions of Section 14.

            17.        CASUALTY.

            In the event of damage by fire or other casualty to the NT Collocation Space that cannot reasonably be expected to be repaired or replaced within forty-five (45) days following same or, if the Site is damaged by fire or other casualty so that such damage to the NT Collocation Space or the Site may reasonably be expected to substantially disrupt NT Collocator’s operations at the NT Collocation Space for more than forty-five (45) days, then NT Collocator may, at any time following such fire or other casualty (provided Tower Owner has not completed within such forty-five (45) days the restoration required to permit NT Collocator to resume its operation at the NT Collocation Space), terminate the applicable SLA upon fifteen (15) days’ prior written notice to Tower Owner. Any such notice of termination shall cause such SLA to expire with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of the applicable SLA, and the Parties shall make an appropriate adjustment, as of such termination date, with respect to payments due to the other under the SLA. In the event of damage or destruction that substantially disrupts NT Collocator’s operations (regardless of whether such damage or disruption is expected to be repaired or replaced within forty-five (45) days following the same), NT Collocator, at its sole expense but without any increase in Rent or payment of additional rent to Tower Owner, shall have the immediate right to place a temporary antenna facility and related facilities (including, but not limited to, a generator) on the Site from the date of such damage and during such repair and reconstruction to enable NT Collocator to continue operations without interruption and such right shall continue until the resumption of NT Collocator’s normal operations at the Site or the SLA is terminated pursuant to the first sentence of this Section. Notwithstanding the foregoing, all Rent shall abate from the date of such damage until the temporary antenna facility, if applicable, is removed, or the resumption of NT Collocator’s operations at the NT Collocation Space if NT Collocator resumes operations at the NT Collocation Space on an earlier date.


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            18.        CONDEMNATION.

            In the event of any condemnation of all or any portion of a Site, NT Collocator may terminate the applicable SLA upon fifteen (15) days’ prior written notice to Tower Owner if such condemnation may reasonably be expected to substantially disrupt NT Collocator’s operations at the NT Collocation Space for more than forty-five (45) days. NT Collocator may on its own behalf make a claim in any condemnation proceeding involving the NT Collocation Space for losses related to the NT Communications Equipment, NT Improvements, Ancillary Facilities, its relocation costs and its damages and losses (but not for the loss of its license/leasehold interest). Any such notice of termination shall cause the SLA to expire with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of the SLA, and the Parties shall make an appropriate adjustment as of such termination date with respect to payments due to the other under the SLA.

            19.        TAXES.

                          (a)        NT Collocator’s Obligations. Tower Owner shall timely and directly pay to the applicable Governmental Authority, according to applicable Law, throughout the term of each applicable SLA, all Tax on the rental payments (it being anticipated that only VAT will be applicable) made by NT Collocator to Tower Owner, which Tax will be remitted to Tower Owner by NT Collocator through the payment of Rent to Tower Owner in accordance with Section 3. Tower Owner shall promptly make available evidence of payment of Tax on the rental payments to the applicable Governmental Authority upon request by NT Collocator. NT Collocator shall pay any personal property and real estate Taxes assessed on the NT Communications Equipment, NT Improvements and Ancillary Facilities. Nothing in this Section 19(a) shall, or is intended to, override Section 2.10 of the APA. The Parties agree to reasonably cooperate to minimize the application of any Taxes to the transaction under this MLA to the fullest extent of the law.

                          (b)        Tower Owner’s Obligations. Except as set forth in Section 19(a), Tower Owner shall timely pay all Taxes imposed on or against the Site or Tower, and shall pay all net or gross income Taxes, excise Taxes, gross receipts Taxes, business and occupation (and similar) Taxes, and license Taxes, in each case upon Tower Owner’s operations, business or income. If personal property and/or real estate Taxes assessed on the NT Communications Equipment, NT Improvements and/or Ancillary Facilities are billed to Tower Owner under local Tax Laws or regulations, Tower Owner shall promptly upon receipt of such Tax bills notify NT Collocator of such Taxes and provide a calculation of the Taxes on the NT Communications Equipment, NT Improvements and/or Ancillary Equipment and copies of such bills to NT Collocator. Tower Owner shall provide the foregoing items to NT Collocator within fifteen (15) days of the date of the Tax bill. NT Collocator shall pay Tower Owner any Taxes on the NT Communications Equipment, NT Improvements and/or Ancillary Facilities within thirty (30) days following receipt of the Tax bill. In the event that Tower Owner fails to pay when due any Taxes attributable to the Site or Tower, NT Collocator shall have the right, but not the obligation, to pay such Taxes, provided that if NT Collocator decides to exercise its right to pay such Taxes, NT Collocator shall send a prior notice to Tower Owner requesting it to pay the Taxes. NT Collocator shall be entitled to pay such Taxes if Tower Owner has not cured the payment default within thirty (30) days after receipt of NT Collocator’s notification. In such event and to the extent that the Taxes paid by NT Collocator are not personal property and/or real estate Taxes assessed on the NT Communications Equipment, NT Improvements and/or Ancillary Facilities, Tower Owner shall reimburse NT Collocator for such Tax expenditures within thirty (30) days following receipt of an invoice therefor and if Tower Owner fails to timely reimburse NT Collocator, NT Collocator may, in its discretion, deduct any portion of such unreimbursed Tax expenditures from any Rent due under the applicable SLA.


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                          (c)        Contest of Taxes. Subject to any requirements or restrictions in the Site Lease for a Site, NT Collocator shall have the right, at its sole option and at its sole cost and expense, to appeal, challenge or seek modification of any tax assessment or billing for which NT Collocator is wholly or partly responsible for payment. Tower Owner shall reasonably cooperate with NT Collocator in filing, prosecuting and perfecting any appeal or challenge to such Taxes, including but not limited to executing any consent, appeal or other similar document. In the event that, as a result of any appeal or challenge by NT Collocator, there is a reduction, credit or repayment received by Tower Owner for any Taxes previously paid by NT Collocator, Tower Owner agrees to promptly reimburse to NT Collocator the amount of said reduction, credit or repayment together with any interest paid or credited thereon. Upon Tower Owner’s request, NT Collocator shall repay Tower Owner the amounts paid over pursuant to this Section 19(c) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such reduction, credit or repayment is subsequently denied by or required to be repaid to such Governmental Authority.

            20.        TERMINATION.

                          (a)        Termination Events. Except upon expiration of the term of an SLA, the Site Expiration Date of a Site Lease or as otherwise provided in this MLA, a Party may only terminate an SLA as follows:

                                        (i)        At any time after the Initial Term, NT Collocator may terminate an SLA without penalty or further liability, upon ninety (90) days’ written notice to Tower Owner that the NT Collocation Space, or the NT Communications Equipment, are or have become unacceptable under NT Collocator’s design or engineering specifications for the NT Communications Equipment or the communications system to which the NT Communications Equipment belong;

                                        (ii)        In accordance with Section 2 pursuant to a termination right exercised by NT Collocator;

                                        (iii)        In accordance with Section 13(c) in the event of uncured interference;

                                        (iv)        In accordance with Section 17 in the event of damage or destruction;

                                        (v)        In accordance with Section 18 in the event of condemnation; or

                                        (vi)        In accordance with Section 22 for default by NT Collocator, NT Collocator Parent, Tower Owner or Tower Owner Parent.

                          (b)        Effect of Termination. No termination of an SLA shall cause a termination of any other SLA or this MLA (except with respect to the Site subject to the terminated SLA), and this MLA (except with respect to the Site subject to the terminated SLA) and any other SLA shall remain in full force and effect. Upon the termination of an SLA for a Site, the rights, duties and obligations of NT Collocator and Tower Owner in this MLA and the SLA with respect to such Site shall terminate as of the date of such termination (including, without limitation, NT Collocator’s obligation to pay Rent and its rights to the NT Collocation Space for such Site), except the rights, duties and obligations with respect to such Site that expressly survive the termination of this MLA and the SLA with respect to such Site.

            (c)        Termination Notices. A Party shall exercise any right to terminate by following the notice requirements of Section 34 and providing the basis under this Section 20 for such termination. Upon such termination the Parties shall have no further obligations to each other with respect to such SLA, except as to any outstanding liabilities as of the date of termination and as otherwise provided herein.

            21.        REMOVAL OF NT COMMUNICATIONS EQUIPMENT; WAIVER OF TOWER OWNER’S LIEN.


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                          (a)        Removal. Within ninety (90) days after termination or expiration of an SLA, NT Collocator shall remove the NT Communications Equipment, NT Improvements (except the NT Improvements that also support, shelter, protect, enclose or provide power or back-up power to any Tower Subtenant Communications Equipment) and Ancillary Facilities (unless agreed to otherwise by Tower Owner or if otherwise required by a Site Lease or a Governmental Authority). Notwithstanding the foregoing, NT Collocator shall not be required to remove any foundations, pavement, utility installations or any structural enhancements to or extensions of the Tower. If NT Collocator fails to remove such NT Communications Equipment, NT Improvements (except the NT Improvements that also support, shelter, protect, enclose or provide power or back-up power to any Tower Subtenant Communications Equipment) and Ancillary Facilities within such period, Tower Owner may, at its sole discretion, remove and store same at NT Collocator’s sole cost. If the personal property is not retrieved from storage within ninety (90) days of removal, then said property shall be deemed abandoned. With respect to any Site that has been terminated early through no fault of NT Collocator, no holdover rent shall be due and payable pursuant to Section 3(c) unless NT Collocator fails to remove the NT Communications Equipment, NT Improvements and Ancillary Facilities within 90 days after the SLA for such Site is terminated, in which case, NT Collocator shall be liable for holdover rent pursuant to Section 3(c) from the end of such 90-day period until such time as the NT Communications Equipment, NT Improvements and Ancillary Facilities has been removed from such Site in accordance with the terms and conditions of this MLA. For all other Sites, the holdover rent specified in Section 3 (c) shall be paid by NT Collocator for the period commencing the day after the termination or expiration of the applicable SLA until the day the NT Communications Equipment, NT Improvements and Ancillary Facilities have been removed from such Site in accordance with the terms and conditions of this MLA.

                          (b)        Waiver of Tower Owner’s Lien. Tower Owner subordinates any and all lien rights it may have, statutory or otherwise, concerning the NT Communications Equipment, NT Improvements and Ancillary Facilities or any portion thereof to NT Collocator’s mortgagee. Subject to Section 8 and Section 9(i), NT Collocator and NT Collocator’s mortgagee shall have the right to remove all or any portion of the NT Communications Equipment, NT Improvements (except the NT Improvements that also support, shelter, protect, enclose or provide power or back-up power to any Tower Subtenant Communications Equipment) and Ancillary Facilities from the NT Collocation Space from time to time, whether before or after termination of this MLA or the applicable SLA, in NT Collocator’s and/or such mortgagee’s sole discretion and without Tower Owner’s consent. Except as set forth in Section 8 and Section 9(i), the NT Communications Equipment, NT Improvements and Ancillary Facilities constitute the personal property of NT Collocator and NT Collocator shall have the right to remove such NT Communications Equipment, NT Improvements (except the NT Improvements that also support, shelter, protect, enclose or provide power or back-up power to any Tower Subtenant Communications Equipment) and Ancillary Facilities whether or not said items are considered fixtures or attachments to real property under applicable Law.

            22.        DEFAULT AND REMEDIES.

                          (a)        NT Collocator Default. Any one or more of the following events shall constitute a default by NT Collocator (each, an “NT Collocator Default”):

                                        (i)        The failure to pay Rent or make other payments set forth in this MLA and/or in the applicable SLA when such failure continues for ten (10) Business Days after the date Tower Owner provides written notice thereof to NT Collocator, provided that (a) prior to March 31, 2020, Tower Owner will not be obligated to provide written notice more than twice a year with respect to a given Site and for subsequent failures to pay Rent or make other payments with respect to such Site, NT Collocator will be in default as from the date such payment was due, and (b) on or after March 31, 2020, Tower Owner will not be obligated to provide written notice more than twice a year and for subsequent failures to pay Rent or make other payments, NT Collocator will be in default as from the date such payment was due;

                                        (ii)        The failure to perform any other material obligations of NT Collocator under this MLA or an SLA, and such failure continues for thirty (30) days from the date Tower Owner provides written notice thereof to NT Collocator (unless another time period is specified for a particular default under a Site Lease, this MLA or the SLA); provided, however, that in the event that more than thirty (30) days are required in order to cure any such non-monetary NT Collocator Default, NT Collocator shall have a reasonable period of time necessary to cure such a default if NT Collocator shall have commenced and is continuously and diligently pursuing corrective action within such initial thirty (30) days;


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                                 (iii)        an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (A) relief in respect of NT Collocator, or of a substantial part of the property or assets of NT Collocator, under federal bankruptcy, insolvency, receivership or similar applicable Law, (B) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for NT Collocator or for a substantial part of the property or assets of NT Collocator or (C) the winding-up or liquidation of NT Collocator; and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered;

                                 (iv)        NT Collocator shall (A) voluntarily commence any proceeding or file any petition seeking relief under federal bankruptcy, insolvency, receivership or similar applicable Law, (B) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in clause (iii) above, (C) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for NT Collocator or for a substantial part of the property or assets of NT Collocator, (D) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (E) make a general assignment for the benefit of creditors, (F) become unable, admit in writing its inability or fail generally to pay its debts as they become due or (G) take any action for the purpose of effecting any of the foregoing; or

                                 (v)        The occurrence of a default by NT Parent of its obligations under Section 36 of this MLA.

                   (b)        Tower Owner’s Remedies. In the event of an NT Collocator Default, Tower Owner shall have the right to terminate the applicable SLA(s) at issue (after the expiration of any applicable cure periods set forth above) but not this MLA, in addition to all other remedies available at law or equity, provided, however, if a NT Collocator Default occurs and is then continuing beyond any applicable notice and cure period under Section 22(a)(i) or Section 22(a)(ii) with respect to more than five percent (5%) of the Sites during the Term, the Tower Owner may terminate this MLA with respect to all Sites. In the event that Tower Owner should, as a result of an NT Collocator Default, incur any costs or expenses on behalf of NT Collocator or in connection with NT Collocator’s Default, such sums shall be due to Tower Owner within thirty (30) days after rendering of an invoice and reasonably sufficient documentation of such costs to NT Collocator as an additional fee hereunder. In addition, in the event NT Collocator is in default of payment of the Rent or other amounts set forth in the MLA or in any SLA, NT Collocator shall be obligated to pay interest on the past due amounts at an interest rate equal to the greater of (i) the Prime Rate or (ii) 10% per annum.

                   (c)        Tower Owner Default. Any one or more of the following events shall constitute a default by Tower Owner (“Tower Owner Default”):

                                 (i)        The breach of or failure to perform any of the material obligations of Tower Owner under this MLA and/or SLA and such breach or failure continues for thirty (30) days from the date NT Collocator provides written notice thereof to Tower Owner (unless another time period is specified for a particular default under a Site Lease, this MLA or the SLA); provided, however, that in the event that more than thirty (30) days are required in order to cure any non-monetary Tower Owner Default, Tower Owner shall have a reasonable period of time to cure such a default if Tower Owner shall have commenced and is continuously and diligently pursuing corrective action within such initial thirty (30) days;


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                                        (ii)        The occurrence of a default by Tower Owner Parent of its obligations under Section 37 of this MLA;

                                        (iii)        an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (A) relief in respect of Tower Owner or Tower Owner Parent, or of a substantial part of the property or assets of Tower Owner or Tower Owner Parent, under federal bankruptcy, insolvency, receivership or similar applicable Law, (B) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Tower Owner or Tower Owner Parent or for a substantial part of the property or assets of Tower Owner or Tower Owner Parent or (C) the winding-up or liquidation of Tower Owner or Tower Owner Parent; and such proceeding or petition shall continue undismissed for sixty (60) days or an order or decree approving or ordering any of the foregoing shall be entered; or

                                        (iv)        Tower Owner or Tower Owner Parent shall (A) voluntarily commence any proceeding or file any petition seeking relief under federal bankruptcy, insolvency, receivership or similar applicable Law, (B) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in clause (ii) above, (C) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Tower Owner or Tower Owner Parent or for a substantial part of the property or assets of Tower Owner or Tower Owner Parent, (D) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (E) make a general assignment for the benefit of creditors, (F) become unable, admit in writing its inability or fail generally to pay its debts as they become due or (G) take any action for the purpose of effecting any of the foregoing.

                          (d)        NT Collocator’s Remedies. In the event of a Tower Owner Default, NT Collocator shall have all remedies available at law or in equity, including without limitation, damages, injunctive relief and the following:

                                        (i)        In addition to such remedies or any remedies available under this MLA, NT Collocator may terminate the applicable SLA, in which case, NT Collocator shall (subject to the right of set-off in Section 3(e)) pay Tower Owner any Rent or fees due for the period up to the termination of the applicable SLA, but shall not owe Rent for any subsequent period. Any advance payments made for periods after the termination of the SLA will be reimbursed to NT Collocator.

                                        (ii)        In addition to any other rights and remedies that NT Collocator may have, if NT Collocator is not able to use or occupy the NT Collocation Space at a Site for the current or future business activities that it conducts at such Site as a result of a Tower Owner Default, NT Collocator shall have the right to abate the Rent applicable to such Site until such Tower Owner Default is cured.

                                        (iii)        In the event Tower Owner fails to cure a default under Section 4(b) of this MLA within the time frame provided under an applicable Site Lease and either (A) Tower Owner is not diligently and in good faith contesting the same (to the extent and in the manner permitted under the applicable Site Lease) or (B) any material portion of such Site is subject to imminent danger of loss or forfeiture, including by reason of a termination of the Site Lease with respect to such Site, as a result of the same, then, in addition to any other rights or remedies, including, without limitation, those set forth in Section 3(d), NT Collocator may cure such default and send written notice of such cure to Tower Owner, and Tower Owner shall reimburse NT Collocator for its reasonable out-of-pocket costs related to curing such default.

                                        (iv)        In addition to any other rights and remedies that NT Collocator may have, if Tower Owner in violation of this MLA fails to take any action or make any repairs to any Site: (x) within the time frame required by any Governmental Authority; (y) as necessary to comply with applicable Laws or the terms of any Site Lease; or (z) that results in or relates to an Emergency, then NT Collocator may take action or make the repairs at Tower Owner’s sole cost; provided, however, that, prior to NT Collocator taking such action or making repairs to the Site (including, but not limited to, repairs to the Tower), then, other than in the case of an Emergency, NT Collocator shall provide Tower Owner written notice that NT Collocator is exercising its right under this Section 22(d)(iv). An amount equal to 105% of the reasonable costs thereof incurred by NT Collocator shall be due and payable by Tower Owner within thirty (30) days of Tower Owner’s receipt of an invoice and reasonably sufficient documentation of such costs. NT Collocator’s right to repair Sites pursuant to this Section 22(d)(iv) is granted solely to protect NT Collocator’s interests and property and NT Collocator shall have no duty to undertake repairs. The undertaking of repairs will not create a duty to protect the interests of Tower Owner or to third parties.


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                          (e)        No Effect on other Provisions of the MLA or SLA. No default by any Party relating to an SLA, whether pursuant to this Section 22, by operation of law or otherwise (except as expressly provided herein), nor any termination of an SLA and removal of NT Collocator’s property from the NT Collocation Space, shall relieve either Party of its obligations or liabilities under the MLA or any other SLA, all of which shall survive such default, termination and/or removal. A default by any Party will not constitute or serve as a basis for a default by any other Party, and a default under any SLA will not constitute or serve as a basis for a default under any other SLA or this MLA as a whole.

                          (f)        No Waiver. All of the rights, powers and remedies provided for in this MLA, or in any SLA, or now or hereafter existing at law or in equity, or by statute or otherwise, shall be deemed to be separate, distinct, cumulative and concurrent and shall not be deemed to be in the exclusion of, or a waiver of, any other rights, powers or remedies provided for in this MLA. The exercise or enforcement of any one or more of such rights, powers or remedies shall not preclude the simultaneous or later exercise or enforcement of any or all of such other rights, powers or remedies.

                          (g)        Attorneys’ Fees. The substantially prevailing party in any litigation arising hereunder shall be entitled to its reasonable attorneys’ fees and court costs, including appeals, if any.

                          (h)        Force Majeure. In the event that either Party shall be delayed, hindered in or prevented from the performance of any act required hereunder by reason of events of Force Majeure, duly evidenced, then the performance of such act (and any related losses and damages caused by the failure of such performance) shall be excused for the period of delay and the period for performance of any such act shall be extended for a period equivalent to the period of such delay. Notwithstanding anything to the contrary in this MLA except as set forth in Section 17, if an event of Force Majeure prevents NT Collocator from maintaining, operating or using the NT Communications Equipment at a Site for its intended purpose for more than 45 days, NT Collocator shall be deemed to have an NT Termination Right with respect to such Site under Section 2(b) and a Right of Relocation with respect to such Site under Section 9(i).

            23.        LIMITATION OF LIABILITY.

            Notwithstanding anything in this MLA to the contrary, except for (i) indemnity claims pursuant to Section 14, (ii) indemnity claims pursuant to Section 16, and (iii) grossly negligent or intentionally wrongful acts, neither Party shall have any liability under this MLA or any SLA, except as actually paid to a claimant in a Third Party Claim, for: (y) any punitive or exemplary damages; or (z) any special, consequential, incidental or indirect damages, including without limitation lost profits, lost data, lost revenues and loss of business opportunity, whether or not the other Party was aware or should have been aware of the possibility of these damages. Notwithstanding anything to the contrary in this MLA, if any fines are imposed by any Governmental Authority in connection with any Site, Tower Owner will be responsible for the fines to the extent such fines are imposed as a result of the acts or omissions of Tower Owner or any Tower Subtenant regardless of who holds the applicable permits for such Site and NT Collocator shall be responsible for the fines to the extent the fines are imposed as a result of the acts or omissions of NT Collocator.


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            24.        BINDING ON SUCCESSORS AND ASSIGNS; THIRD-PARTY BENEFICIARIES. This MLA and any SLA shall bind the successors and permitted assignees of the Parties. Any successor or permitted assignee of Tower Owner shall take each Site subject to the rights of NT Collocator under this MLA and the applicable SLA.

            25.        ASSIGNMENT; SUBLEASING.

                          (a)        NT Collocator may, without any approval or consent of Tower Owner, sublease, license, sublicense or grant concessions or other rights for the occupancy or use of any portion of the NT Collocation Space to any of NT Collocator’s Affiliates. NT Collocator may, without any approval or consent of Tower Owner, sell, convey, assign or transfer all or any portion of its rights and obligations under this MLA or any SLA: (i) to any of NT Collocator’s Affiliates, (ii) to any Person that acquires all or substantially all of NT Collocator’s assets in any market defined by the ATT, (iii) to any Person that acquires all or substantially all of the assets of NT Collocator, or (iv) to a successor Person that, directly or indirectly, acquires more than a 50% ownership interest in NT Collocator, effected through a transaction or series of transactions (including by way of merger, consolidation, business combination, other reorganization or similar transaction or by operation of law), provided that (i) the assignee has creditworthiness, equal or greater than NT Collocator to perform the obligations of the assigning party under the MLA and the SLAs and (ii) the assignee owns directly or indirectly the right to use the applicable spectrum/frequency. Except as set forth in this Section 25(a), NT Collocator may not, directly or indirectly, sell, convey, assign or transfer (by change of control, operation of law or otherwise) its rights or obligations under this MLA and the applicable SLAs without the written consent of Tower Owner, which consent shall not be unreasonably withheld, conditioned or delayed. Nothing in this MLA or any SLA shall prohibit the use of any Site, any NT Communications Equipment or NT Collocator’s communications network by third parties as expressly permitted under Section 5. If NT Collocator effects a sale, conveyance, assignment or transfer to a transferee that has a creditworthiness equal to or in excess of the NT Parties or provides a guaranty for the benefit of Tower Owner from a guarantor with a creditworthiness equal to or in excess of the NT Parties (a “Qualifying Transferee”), then the obligations of the NT Parties with respect to each Site that is the subject of such sale, conveyance, assignment or transfer shall cease and terminate, and Tower Owner shall look only and solely to the Qualifying Transferee and its guarantor for performance of all of the duties and obligations of NT Collocator under this MLA from and after the date of such sale, conveyance, assignment or transfer. Otherwise, in the event of any such sale, conveyance, assignment or transfer, NT Collocator shall remain liable under this MLA for the performance of NT Collocator’s duties and obligations hereunder with respect to the applicable Sites.

                          (b)        Notwithstanding anything to the contrary in this MLA, with respect to each Tigo Site, for the period from the Effective Date until the NT-Tigo SLA Expiration Date, (i) NT Collocator hereby agrees to pay to Tower Owner the Additional Tigo Sublease Rent, (ii) NT Collocator and Tower Owner shall enter into a second SLA with respect to each Tigo Site showing the location of the Tigo equipment at such Site and listing the Additional Tigo Sublease Rent to be paid by NT Collocator to Tower Owner for such Tigo Site (each, a “NT-Tigo SLA”), (iii) NT Collocator and Tower Owner acknowledge and agree that Tigo will be a permitted sub lessee of NT Collocator (and not a Tower Subtenant), and (iv) Tower Owner hereby grants to NT Collocator any additional rights necessary to permit Tigo to continue to occupy and use the Tigo Sites (and maintain, replace, modify, and install equipment at such Sites) pursuant to the Tigo Sublease Rights, provided, further, that if pursuant to the Tigo Sublease Rights, Tigo adds equipment at a Tigo Site in excess of the Tigo equipment located at such Tigo Site as of the Effective Date, the Additional Tigo Sublease Rent for such Tigo Site will automatically be increased by an amount equal to the additional rent that Tigo is obligated to pay NT Collocator pursuant to its exercise of such Tigo Sublease Rights (and that the adjustments to Sublease Rent specified in Exhibit E will not apply to such equipment). Upon the occurrence of the NT-Tigo SLA Expiration Date, the applicable NT-Tigo SLA and the rights and obligations of NT Collocator and Tower Owner under the applicable NT-Tigo SLA shall terminate, including, but not limited to, right of NT Collocator to use and sublease to Tigo the NT Collocation Space described in the applicable NT-Tigo SLA and the obligation of NT Collocator to pay Additional Tigo Sublease Rent with respect to such Site, provided, however, that in the event that the direct collocation agreement between Tigo and Tower Owner for collocation by Tigo at such Site provides for rent that is less than the Additional Sublease Rent in effect on such Site, the Base Rent payable by NT Collocator on such Site will be increased by the amount of the difference between the rent under the direct collocation agreement between Tigo and Tower Owner for collocation by Tigo at such Site and the Additional Sublease Rent in effect on such Site. Notwithstanding the generality of the immediately preceding sentence, the termination of the NT-Tigo SLA in accordance with the immediately preceding sentence shall not affect the rights and obligations of NT Collocator and Tower Owner under the primary SLA for such Site (i.e., the non-NT-Tigo SLA for such Site) other than the increase of Base Rent required by the foregoing. Furthermore, the Parties agree that in no event will Tower Owner be default in its obligations under this Section 25(b) for failing to comply with Tigo Sublease Rights that (i) have not been disclosed to Tower Owner or (ii) impose greater obligations on Tower than obligations under this MLA (unless NT Collocator has provide written notice to Tower Owner of such obligations to Tower Owner).


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                          (c)        Notwithstanding anything to the contrary in this MLA, with respect to each Comteco Site, for the period from the Effective Date until the Comteco SLA Expiration Date, (i) NT Collocator hereby agrees to pay to Tower Owner the Additional Comteco Sublease Rent, (ii) NT Collocator and Tower Owner shall enter into a second SLA with respect to each Comteco Site showing the location of the Comteco equipment at such Site and listing the Additional Comteco Sublease Rent to be paid by NT Collocator to Tower Owner for such Comteco Site (each, a “NT-Comteco SLA”), (iii) NT Collocator and Tower Owner acknowledge and agree that Comteco will be a permitted sub lessee of NT Collocator (and not a Tower Subtenant), and (iv) Tower Owner hereby grants to NT Collocator any additional rights necessary to permit Comteco to continue to occupy and use the Comteco Sites (and maintain, replace, modify, and install equipment at such Sites) pursuant to the rights the Comteco Sublease Rights provided, further, that if pursuant to the Comteco Sublease Rights, Comteco adds equipment at a Comteco Site in excess of the Comteco equipment located at such Comteco Site as of the Effective Date, the Additional Comteco Sublease Rent for such Comteco Site will automatically be increased by an amount equal to the additional rent that Comteco is obligated to pay NT Collocator pursuant to its exercise of such Comteco Sublease Rights (and that the adjustments to Sublease Rent specified in Exhibit E will not apply to such equipment). Upon the occurrence of the NT-Comteco SLA Expiration Date, the applicable NT-Comteco SLA and the rights and obligations of NT Collocator and Tower Owner under the applicable NT-Comteco SLA shall terminate, including, but not limited to, right of NT Collocator to use and sublease to Comteco the NT Collocation Space described in the applicable NT-Comteco SLA and the obligation of NT Collocator to pay Additional Comteco Sublease Rent with respect to such Site, provided, however, that in the event that the direct collocation agreement between Comteco and Tower Owner for collocation by Comteco at such Site provides for rent that is less than the Additional Sublease Rent in effect on such Site, the Base Rent payable by NT Collocator on such Site will be increased by the amount of the difference between the rent under the direct collocation agreement between Comteco and Tower Owner for collocation by Comteco at such Site and the Additional Sublease Rent in effect on such Site. Notwithstanding the generality of the immediately preceding sentence, the termination of the NT-Comteco SLA in accordance with the immediately preceding sentence shall not affect the rights and obligations of NT Collocator and Tower Owner under the primary SLA for such Site (i.e., the non-NT-Comteco SLA for such Site) other than the increase of Base Rent required by the foregoing. Furthermore, the Parties agree that in no event will Tower Owner be default in its obligations under this Section 25(c) for failing to comply with Comteco Sublease Rights that (i) have not been disclosed to Tower Owner or (ii) impose greater obligations on Tower than obligations under this MLA (unless NT Collocator has provide written notice to Tower Owner of such obligations to Tower Owner).

                          (d)        Tower Owner may assign this MLA or any SLA (whether directly or indirectly by change of control, operation of law or otherwise) upon notice to, but without the prior written consent of NT Collocator, including without limitation, the right to assign its rights and obligations under this MLA or any SLA as collateral security to Tower Owner’s senior lenders. In the event such assignment is in connection with the sale of assets or equity of the Tower Owner, Tower Owner shall only be permitted to assign this MLA or any SLA to an assignee that meets the Assumption Requirements (as defined below). Prior to such sale, Tower Owner shall provide prior written notice thereof to NT Collocator and shall provide to NT Collocator documentation reasonably required by NT Collocator to demonstrate that assignee meets the Assumption Requirements. “Assumption Requirements” means, with respect to an assignment by Tower Owner in connection with the sale of assets or equity of the Tower Owner, that (i) the applicable assignee is a tower company that is experienced (or is a company that has a retained a management team that is experienced) in the management of five hundred (500) or more communications towers, (ii) the applicable assignee has creditworthiness, reasonably sufficient to perform the obligations of the assigning party under this MLA and the applicable SLA(s) or that the assigning party remains liable for such obligations notwithstanding such assignment, and (iii) the assignee assumes and agrees to perform all of the obligations of the assigning party hereunder.


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            26.        SUBORDINATION AND NONDISTURBANCE.

            At Tower Owner’s option, this MLA and each applicable SLA shall be subordinate to any mortgage or other security interest by Tower Owner that from time to time may encumber all or part of the Site; provided, however, every such mortgage or other security interest shall recognize the validity of this MLA and applicable SLA in the event of a foreclosure of Tower Owner’s interest and also NT Collocator’s right to remain in occupancy of and have access to the NT Collocation Space as long as NT Collocator is not in default of this MLA and the applicable SLA beyond any applicable grace or cure periods. NT Collocator shall execute whatever instruments may reasonably be required to evidence this subordination clause. In the event a Site is encumbered by a mortgage or other security interest created by Tower Owner, Tower Owner, immediately after this MLA and the applicable SLA are executed, will, upon NT Collocator’s request, use commercially reasonable efforts to obtain and furnish to NT Collocator, a non-disturbance agreement for each such mortgage or other security interest in recordable form. In the event Tower Owner defaults in the payment and/or other performance of any mortgage or other security interest encumbering the Site, NT Collocator may, at its sole option and without obligation, cure or correct Tower Owner’s Default and, upon doing so, NT Collocator shall be subrogated to any and all rights, titles, liens and equities of the holders of such mortgage or security interest, and Tower Owner shall reimburse NT Collocator within ten (10) days of an invoice for all sums paid by NT Collocator to cure or correct such defaults, including any taxes incurred by NT Collocator in connection therewith.

            27.        ESTOPPEL CERTIFICATES.

            Either Party shall within fifteen (15) business days’ prior written notice from the other, execute, acknowledge and deliver to the other a written statement to the extent the following are true: (i) certifying that this MLA and any SLA are unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that the MLA and SLA, as so modified, are in full force and effect) and the date to which the Rent and other charges have been paid; and (ii) acknowledging that there are not, to such Party’s actual knowledge, any uncured defaults on the part of the other Party hereunder, or specifying such defaults if any are claimed. Any such statement may be conclusively relied upon by any prospective purchaser or encumbrancer of the Site.

            28.        SURVIVAL.

            The provisions of this MLA relating to indemnification from one Party to the other Party shall survive any termination or expiration of the applicable SLA. Additionally, any provisions of this MLA that indicate survival subsequent to termination or expiration, require performance subsequent to the termination or expiration of this MLA, or survive in accordance with applicable Law, shall also survive such termination or expiration of the applicable SLA.


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            29.        RECORDING.

            The Parties shall not record this MLA or any SLA.

             30.        QUIET ENJOYMENT.

              Tower Owner covenants that NT Collocator shall peaceably and quietly have, hold and enjoy the NT Collocation Space free from interference of all others, including all Tower Subtenants, as provided in this MLA and each SLA during the term of the applicable SLA subject to NT Collocator’s obligation to maintain permits on such Sites.

            31.        INTEGRATION.

            This MLA, in conjunction with each SLA, contains all agreements, promises and understandings between the Parties pertaining to the subject matter of these documents, and no verbal or oral agreements, promises or understandings shall be binding upon any Party in any dispute, controversy or proceeding at law. Any addition, variation or modification to this MLA or any SLA shall be void and ineffective unless made in writing signed by the Parties. In the event any provision of this MLA or any SLA is found to be invalid or unenforceable, such finding shall not affect the validity and enforceability of the remaining provisions of this MLA or applicable SLA. The failure of any Party to insist upon strict performance of any of the terms or conditions of this MLA or any SLA or to exercise any rights under this MLA or any SLA shall not waive such rights, and such Party shall have the right to enforce such rights at any time and take such action as may be lawful and authorized under this MLA or any SLA, either in law or in equity.

            32.        GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.

                          (a)        Governing Law. This MLA and each SLA shall be governed by and construed in accordance with the laws of the State of New York of the United States of America (regardless of the laws that might otherwise govern under applicable principles of conflicts of law thereof) as to all matters, including matters of validity, construction, effect, performance and remedies; provided, however, that notwithstanding the foregoing, to the extent that, under Bolivian law, any matters relating to this Agreement are mandatorily governed by Bolivian law notwithstanding the New York choice of law provision in this Section 32, then such matters (and only such matters) shall be governed by Bolivian law (the “Mandatory Bolivian Law Matters”).

                          (b)        Jurisdiction.

                                        (i)        If a Party determines that it is necessary to obtain any preliminary measure and/or injunctions (i) before the implementation of the dispute resolution and arbitration procedures described in Section 33, (ii) in order to enforce the specific execution of any provision of this MLA and each SLA, (iii) in order to enforce any arbitration decision or award, or any decision or resolution of a disagreement or dispute by the Financial Independent Consultant or the Legal Independent Consultant, or (iv) in order to enforce the dispute resolution and arbitration procedures described in Section 33, the Parties may apply to the Secretariat of the ICC International Court of Arbitration pursuant to the Emergency Arbitrator Provisions set forth in Article 29 of the ICC Rules and Appendix V thereof.

                                        (ii)        With respect to the Mandatory Bolivian Law Matters, each Party hereby irrevocably and unconditionally: (i) submits to the jurisdiction of the courts of Bolivia authorized to adjudicate such suit, action, or proceeding (and appellate courts having jurisdiction of appeals from any of the foregoing); (ii) consents that any such suit, action, or proceeding may and shall be brought in such courts and waives any objection that it may now or hereafter have to the venue or jurisdiction of any such suit, action, or proceeding in any such court or that such suit, action, or proceeding was brought in an inconvenient court and agrees not to plead or claim the same; and (iii) agrees that service of any court paper may be made in such manner as may be provided under applicable Laws or court rules governing service of process.


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                                        (iii)        With respect to enforcement or execution of any arbitration decision (including any final arbitration award) obtained in accordance with this Agreement, each Party hereby irrevocably and unconditionally: (i) submits to the non-exclusive jurisdiction of the courts of the State of New York sitting in New York County, and of the United States District Court of the Southern District of New York (and appellate courts having jurisdiction of appeals from any of the foregoing); (ii) consents that any such suit, action, or proceeding may and shall be brought in such courts and waives any objection that it may now or hereafter have to the venue or jurisdiction of any such suit, action, or proceeding in any such court or that such suit, action, or proceeding was brought in an inconvenient court and agrees not to plead or claim the same; and (iii) agrees that service of any court paper may be made in such manner as may be provided under applicable Laws or court rules governing service of process.

                          (c)        Waiver of Jury Trial. EACH PARTY TO THIS MLA WAIVES ITS RIGHT TO A JURY TRIAL IN ANY COURT ACTION ARISING AMONG ANY OF THE PARTIES HEREUNDER, WHETHER UNDER OR RELATING TO THIS MLA, AND WHETHER MADE BY CLAIM, COUNTERCLAIM, THIRD-PARTY CLAIM OR OTHERWISE.

            33.        DISPUTE RESOLUTION.

                          (a)        Except as expressly provided otherwise in this MLA, the sole and exclusive method for resolving all disputes, controversies, and claims arising out of or relating to this MLA will be the procedures set forth in this Section 33. Without limiting any of the provisions of this Section 33, Tower Owner Parent hereby agrees to take such actions as may be necessary to cause its Affiliates to comply with the provisions of this Section 33 and Section 32.

                          (b)        Any Party seeking relief (the “Claimant”) may serve a demand for arbitration in accordance with the Rules of the Center of Arbitration of the International Chamber of Commerce, as amended and in effect from time to time (the “ICC Rules”). THIS SECTION IS INTENDED TO BE VALID AS A BINDING COMMITMENT CLAUSE FOR THE PURPOSES SET FORTH BY THE FIRST PARAGRAPH OF ARTICLE 4 OF LAW NO. 9,307/96. The place of arbitration pursuant hereto will be New York, New York, and the language of such arbitration will be English (provided, that, the award or decision of such arbitration may be translated into Spanish if necessary for such award or decision to be enforced). Three arbitrators will be chosen for the arbitration of any dispute, controversy, or claim hereunder (each, a “Dispute”); the Claimant, on the one hand, and the opposing Party(ies), on the other hand, shall each choose one arbitrator pursuant to the applicable ICC Rules and the third arbitrator will be selected by the mutual agreement of the two arbitrators previously designated above, provided that, if the two arbitrators designated by the Parties do not reach an agreement as to their appointment of the third arbitrator within twenty (20) days following the date the second arbitrator is appointed hereunder, then such third arbitrator will be appointed in accordance with the ICC Rules. The arbitration proceedings shall be conducted in accordance with the ICC Rules, and the Laws applicable to the arbitrators’ resolution of the Dispute shall be those Laws governing this Agreement as provided in Section 32(a). The decision of the arbitrators will be final and binding on the Parties to the maximum extent permitted under applicable Law, and a final judgment may be entered on the arbitration award in any court of competent jurisdiction.

                          (c)        The costs and expenses of the arbitration proceeding (including reasonable attorneys’ fees, arbitrators’ fees and expenses) pursuant to Section 33(b), shall be borne by Tower Owner, on the one hand, and NT Collocator, on the other hand, in inverse proportion as they may prevail on matters resolved in arbitration, which proportionate allocations shall also be determined by the arbitrators, provided that if such arbitrators do not render a decision with respect to such costs and expenses, the costs and expenses of the arbitration panel shall be borne equally by the disputing Parties and each respective disputing Party shall otherwise bear its own costs and expenses.


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                          (d)        Notwithstanding the preceding provisions of this Section 33, and pursuant to Section 32(b), each Party shall remain entitled to demand to any court of competent jurisdiction for the execution of any arbitration decision, including any final arbitration award.

                          (e)        It is the intention of the Parties and their Affiliates that, except as expressly provided otherwise in this MLA, all disputes, controversies or claims of any nature between them, whenever arising, in regard to this MLA, be decided by arbitration as provided in this Section 33 and that no Party or Affiliate shall litigate in any other forum any such disputes, controversies, or claims. Except as provided expressly provided otherwise in this MLA, no action shall be filed by any Party or its Affiliates other than before an arbitration panel pursuant to this Section 33, and the Parties agree that any such action, if filed, shall be dismissed upon application and shall be referred to arbitration hereunder with costs and attorneys’ fees to the prevailing Party.

            34.        NOTICES.

            All notices, requests, demands, waivers and other communications required or permitted under this MLA shall be in writing, reference a particular Site number or address, if applicable, and shall be deemed to have been delivered (i) the next Business Day when sent overnight by a nationally recognized overnight courier service or certified or priority mail (provided such delivery is actually effected or rejected), (ii) upon transmission of an e-mail (followed by delivery of an original via nationally recognized overnight courier service), or (iii) upon delivery when personally delivered to the receiving Party. All such notices and communications shall be sent or delivered as set forth below or to such other person(s), e-mail address or address(es) as the receiving Party may have designated by written notice to the other Party. All notices shall be delivered to the relevant Party at the address set forth below.

  If to Tower Owner or its Affiliates: Ferrere Abogados
    Edf. Ambassador Business Center
    Piso 18, Av. San Martin No 155
    Equipetrol, Santa Cruz, Bolivia
    Attn: Carlos Pinto
    Email: cpinto@ferrere.com
     
    With a copy to:
     
    Servicios de Alquileres PhoenixTower, S.A.
    999 Yamato Road, Suite 100
    Boca Raton, FL 33431
    Attn: Mr. Dagan Kasavana/ Tim Culver
    Email: dkasavana@phoenixintl.com
                     tculver@phoenixintnl.com
     
     
    with copies not constituting notice to:
     
    Choate, Hall & Stewart LLP
    Two International Place
    Boston, MA 02110
    Attn: Sarah Camougis
    Email: scamougis@choate.com


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  If to NT Collocator or its Affiliates: Empresa de Telecomunicaciones Nuevatel PCS
    de Bolivia S.A.
    Calle Capitan Ravelo 2289
    Edificio Multicentro Torre
    La Paz – Bolivia
    Attn: Leonardo Saunero
    Email: Leonardo.Saunero@nuevatel.com
     
     
    with a copy not constituting notice to:
     
    Lape Mansfield Nakasian Gibson, LLC
    9980 Brewster Lane, Suite 150
    Powell, OH 43065
    Attention: William E. Nakasian
    E-mail address: wenakasian@lmng-law.com

            35.        MISCELLANEOUS.

            Each of the Parties hereto warrants to the other that the Party executing this MLA and each SLA has the full right, power and authority to enter into and execute the same on such Party’s behalf and that no consent (except as may be required under an applicable Site Lease) from any other person or entity is necessary as a condition precedent to the legal effect of this MLA and any SLA executed pursuant to it. The captions contained in this MLA are inserted for convenience only and are not intended to be part of the MLA. They shall not affect or be utilized in the construction or interpretation of the MLA. The recitals in this MLA are hereby incorporated in this MLA as if set forth fully in this Section 35.

            36.        NT PARENT GUARANTY.

                          (a)        NT Parent unconditionally guarantees to the Tower Owner Indemnitees the full and timely payment of all obligations of NT Collocator under Section 3 and any corresponding obligations of NT Collocator or any Affiliate of NT Collocator under any SLA (collectively, the “NT Collocator Obligations”). NT Parent agrees that if NT Collocator (all references to NT Collocator in this Section 36 shall be deemed to include any Affiliate of NT Collocator that is a party to any SLA) defaults at any time during the Term of this MLA or the term of any SLA in the performance of any of the NT Collocator Obligations, NT Parent shall faithfully perform and fulfill all NT Collocator Obligations and shall pay to the applicable beneficiary all reasonable attorneys’ fees, court costs and other expenses, costs and disbursements incurred by the applicable beneficiary on account of any default by NT Collocator and on account of the enforcement of this guaranty.

                          (b)        The foregoing guaranty obligation of NT Parent shall be enforceable by any Tower Owner Indemnitee in an action against NT Parent without the necessity of any suit, action or proceeding by the applicable beneficiary of any kind or nature whatsoever against NT Collocator, without the necessity of any notice to NT Parent of NT Collocator’s default or breach under this MLA or any SLA, and without the necessity of any other notice or demand to NT Parent to which NT Parent might otherwise be entitled, all of which notices NT Parent hereby expressly waives. NT Parent hereby agrees that the validity of this guaranty and the obligations of NT Parent hereunder shall not be terminated, affected, diminished or impaired by reason of the assertion or the failure to assert by any Tower Owner Indemnitee against NT Collocator any of the rights or remedies reserved to such Tower Owner Indemnitee pursuant to the provisions of this MLA, any SLA or any other remedy or right which such Tower Owner Indemnitee may have at law or in equity or otherwise.

                          (c)        NT Parent covenants and agrees that this guaranty is an absolute, unconditional, irrevocable and continuing guaranty. The liability of NT Parent hereunder shall not be affected, modified or diminished by reason of any assignment, renewal, modification, extension or termination of this MLA or any SLA or any modification or waiver of or change in any of the covenants and terms of this MLA or any SLA by agreement of a Tower Owner Indemnitee and NT Collocator, or by any unilateral action of either a Tower Owner Indemnitee or NT Collocator, or by an extension of time that may be granted by a Tower Owner Indemnitee to NT Collocator or any indulgence of any kind granted to NT Collocator, or any dealings or transactions occurring between a Tower Owner Indemnitee and NT Collocator, including any adjustment, compromise, settlement, accord and satisfaction or release, or any Bankruptcy, insolvency, reorganization or other arrangements affecting NT Collocator. NT Parent does hereby expressly waive any suretyship defenses it might otherwise have.


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                          (d)        All of the Tower Owner Indemnitees’ rights and remedies under this guaranty are intended to be distinct, separate and cumulative and no such right and remedy herein is intended to be to the exclusion of or a waiver of any other. NT Parent hereby waives presentment demand for performance, notice of nonperformance, protest notice of protest, notice of dishonor and notice of acceptance. NT Parent further waives any right to require that an action be brought against NT Collocator or any other Person or to require that resort be had by a beneficiary to any security held by such beneficiary.

            37.        TOWER OWNER PARENT GUARANTY.

                          (a)        Tower Owner Parent unconditionally guarantees to the NT Indemnitees the full and timely payment of all obligations of Tower Operator under this MLA and any corresponding obligations of Tower Owner or any Affiliate of Tower Owner under any SLA (collectively, the “Tower Owner Obligations”). Tower Owner Parent agrees that if Tower Owner (all references to Tower Owner in this Section 37 shall be deemed to include any Affiliate of Tower Owner that is a party to any SLA) defaults at any time during the Term of this MLA or the term of any SLA in the performance of any of the Tower Owner Obligations, Tower Owner Parent shall faithfully perform and fulfill all Tower Owner Obligations and shall pay to the applicable beneficiary all reasonable attorneys’ fees, court costs and other expenses, costs and disbursements incurred by the applicable beneficiary on account of any default by Tower Owner or any Affiliate of Tower Owner and on account of the enforcement of this guaranty.

                          (b)        The foregoing guaranty obligation of Tower Owner Parent shall be enforceable by any NT Indemnitee in an action against Tower Owner Parent without the necessity of any suit, action or proceeding by the applicable beneficiary of any kind or nature whatsoever against Tower Owner, without the necessity of any notice to Tower Owner Parent of Tower Owner’s default or breach under this MLA or any SLA, and without the necessity of any other notice or demand to Tower Owner Parent to which Tower Owner Parent might otherwise be entitled, all of which notices Tower Owner Parent hereby expressly waives. Tower Owner Parent hereby agrees that the validity of this guaranty and the obligations of Tower Owner Parent hereunder shall not be terminated, affected, diminished or impaired by reason of the assertion or the failure to assert by any NT Indemnitee against Tower Owner any of the rights or remedies reserved to such NT Indemnitee pursuant to the provisions of this MLA, any SLA or any other remedy or right which such NT Indemnitee may have at law or in equity or otherwise.

                          (c)        Tower Operator Parent covenants and agrees that this guaranty is an absolute, unconditional, irrevocable and continuing guaranty. The liability of Tower Owner Parent hereunder shall not be affected, modified or diminished by reason of any assignment, renewal, modification, extension or termination of this MLA or any SLA or any modification or waiver of or change in any of the covenants and terms of this MLA or any SLA by agreement of a NT Indemnitee and Tower Owner, or by any unilateral action of either a NT Indemnitee or Tower Owner, or by an extension of time that may be granted by a NT Indemnitee to Tower Owner or any indulgence of any kind granted to Tower Owner, or any dealings or transactions occurring between a NT Indemnitee and Tower Owner, including any adjustment, compromise, settlement, accord and satisfaction or release, or any Bankruptcy, insolvency, reorganization or other arrangements affecting Tower Owner. Tower Owner Parent does hereby expressly waive any suretyship defenses it might otherwise have.


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                          (d)        All of the NT Indemnitees’ rights and remedies under this guaranty are intended to be distinct, separate and cumulative and no such right and remedy herein is intended to be to the exclusion of or a waiver of any other. Tower Owner Parent hereby waives presentment demand for performance, notice of nonperformance, protest notice of protest, notice of dishonor and notice of acceptance. Tower Owner Parent further waives any right to require that an action be brought against Tower Owner or any other Person or to require that resort be had by a beneficiary to any security held by such beneficiary.

            38.        LANGUAGE.

            The Parties shall execute this MLA in English on the Effective Date and shall use commercially reasonable efforts to prepare, within sixty (60) days from the Effective Date, a translated version of this MLA in Spanish; provided, however, that in all cases, the English version shall prevail, control and govern the interpretation and enforcement of the mutual agreements among the Parties hereunder. For that purpose, not later than forty-five (45) days from the Effective Date, Seller shall send a draft of a Spanish translation version of this MLA to Buyer, which shall not later than fifteen (15) days from receipt of such draft, meet with Seller so as to use commercially reasonable efforts to agree on the final terms of the Spanish translation version of this MLA for execution by the Parties within the sixty (60) day period set forth herein. Buyer shall reimburse Seller for 50% of its reasonable, actual, documented out-of-pocket costs related to the translation of this MLA into Spanish.

* * * Remainder of Page Blank – Signature Page Follows * * *


NT Parties Signature Page to Master Lease Agreement

            IN WITNESS WHEREOF, the Parties have caused this MLA to be executed and sealed by their duly authorized representatives, all effective as of the day and year first written above.

  NT COLLOCATOR:
   
EMPRESA DE TELECOMMUNICACIONES NUEVATEL PCS DE BOLIVIA S.A.

 

  By: “Bradley J. Horwitz”
    Print: Bradley J. Horwitz
    Its:     Chairman of the Board of Directors

 

  NT PARENT:
   
  WESTERN WIRELESS INTERNATIONAL BOLIVIA LLC

 

  By: “Bradley J. Horwitz”
    Print: Bradley J. Horwitz
    Its:     President and Chief Executive Officer


Tower Owner Parties Signature Page to Master Lease Agreement

            IN WITNESS WHEREOF, the Parties have caused this MLA to be executed and sealed by their duly authorized representatives, all effective as of the day and year first written above.

  TOWER OWNER:
   
  SERVICIOS DE ALQUILERES PHOENIXTOWER S.A.

 

  By: “Michelle Brea”
    Print: Michelle Brea
    Its:     President of Board of Directors

 

  TOWER OWNER PARENT:
   
  PTI BOLIVIA II, LLC

 

  By: “Tim Culver”
    Print: Tim Culver
    Its:     Executive Chairman

 

  TOWER OWNER GUARANTOR:
   
  PTI BOLIVIA ISSUER, LLC

 

  By: “Tim Culver”
    Print: Tim Culver
    Its:     Executive Chairman


SCHEDULE 3

List of Sites Designating Base Rent, Tigo Sites, Comteco Sites, Additional Tigo Sublease Rent and Additional Comteco Sublease Rent

 

[Omitted]


SCHEDULE 3(b)

Sample Rent Calculation for Monthly Fiscal Invoice

 

[Omitted]


SCHEDULE 4(d)(i)

List of Schedule 4(d)(i) Sites

 

[Omitted]


SCHEDULE 4(d)(ii)(A)

List of Schedule 4(d)(ii)(A) Sites

 

[Omitted]


SCHEDULE 4(d)(ii)(B)

List of Schedule 4(d)(ii)(B) Sites

 

[Omitted]


SCHEDULE 4(d)(iii)

List of Schedule 4(d)(iii) Sites

 

[Omitted]


SCHEDULE 9

Sites with Reserved Microwave Antennas and Dishes

 

[Omitted]


SCHEDULE 9(b)

NT Reserved Amount of Tower Equipment Configuration

 

[Omitted]


EXHIBIT A

DEFINED TERMS

            Certain Defined Terms. In addition to the terms defined elsewhere in this MLA, the following terms shall have the following respective meanings when used in this MLA with initial capital letters:

            “Additional Equipment” has the meaning set forth in Section 9(d).

            “Additional Ground Space” has the meaning set forth in Section 9(c).

            Additional Comteco Sublease Rent” means, with respect to each Comteco Site, an amount equal to the sum of (a) the monthly rent set forth on Schedule 3 for such Comteco Site, (b) any additional amounts that are owing to NT Collocator by Comteco as a result of Comteco adding equipment to the Comteco Site after the Effective Date, and (c) the applicable Value Added Tax that is required to be paid on the Additional Comteco Sublease Rent.

            “Additional Tigo Sublease Rent” means, with respect to each Tigo Site, an amount equal to the sum of (a) the monthly rent set forth on Schedule 3 for such Tigo Site, (b) any additional amounts that are owing to NT Collocator by Tigo as a result of Tigo adding equipment to the Tigo Site after the Effective Date, and (c) the applicable Value Added Tax that is required to be paid on the Additional Tigo Sublease Rent.

             “Affiliate” (and, with a correlative meaning, “Affiliated”) means, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such Person. As used in this definition, “control” means the beneficial ownership (as such term is defined in Rules 13d-3 and 13d-5 of the Securities Exchange Act of 1934, as amended) of 50% or more of the voting interests of the Person.

            “Ancillary Facilities” shall have the meaning set forth in Section 7.

            “Anti-Corruption Laws” means the FCPA and any other anti-corruption or similar Laws (including any such Laws in the United States or Bolivia).

            “APA” has the meaning set forth in Recital B.

            “Assignable Site” means the (i) Initial Assignable Sites, (ii) any Managed Site subject to this MLA that is converted to an Assignable Site pursuant to a Subsequent Closing, and (iii) any Deferred Site that is converted to an Assignable Site pursuant to a Subsequent Closing.

            “Assumption Requirements” has the meaning set forth in Section 25.

            “ATT” means the Bolivian Authority of Regulation and Control of Transports and Telecommunications, or any successor Governmental Authority performing a similar function.

            “Available Space” means, as to any Site or Relocation Site, the portion of the Tower and Land or rooftop not constituting NT Collocation Space that is available for lease to or collocation by any Tower Subtenant and all rights appurtenant to such portion, space or area. For the avoidance of doubt, any portion of the Tower, Land or rooftop subject to a pending application with an existing or prospective Tower Subtenant shall not be considered Available Space.

Exhibit A-1


            “Backhaul Services” means, with respect to a Site, the transmission of voice, video, internet or data by, from or to NT Collocator, any NT Communications Equipment, any Tower Subtenant, or any Tower Subtenant Communications Equipment (including any base station appurtenant to such Site).

            “Backhaul Services Space” means any NT Collocation Space relating to the provision of Backhaul Services.

            “Bankruptcy” means, as to any Person, a proceeding, whether voluntary or involuntary, under the federal bankruptcy Laws, a foreclosure, an assignment for the benefit of creditors, trusteeship, conservatorship or other proceeding or transaction arising out of the insolvency of a Person or any of its Affiliates or involving the complete or partial exercise of a creditor’s rights or remedies in respect of payment upon a breach or default in respect of any obligation, or any similar proceeding under foreign or state Law.

            “Business Day” means any day other than a Saturday, Sunday or any other day on which national banks in New York, New York and/or Bolivia are authorized or obligated by Law to close.

            “Buyer” has the meaning set forth in Recital B.

            “Cables” means co-axial cabling, electrical power cabling, ethernet cabling, fiber-optic cabling or any other cabling or wiring necessary for operating Communications Equipment together with any associated conduit piping necessary to encase or protect any such cabling.

            “CERCLA” means The Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended.

            “Chosen Courts” has the meaning set forth in Section 32.

            “Collateral Agreements” has the meaning set forth in the APA.

            “Collocation Agreement” means an agreement, including master leases, between an NT Collocator or any of its Affiliates (prior to the Effective Date) or Tower Owner (on or after the Effective Date), on the one hand, and a third party (provided that if such agreement is with NT Collocator or any of its Affiliates, such third party is not an Affiliate of NT Collocator or any such Affiliate on the Effective Date), on the other hand, pursuant to which NT Collocator or such Affiliate or Tower Owner, as applicable, rents or licenses to such third party space at any Site (including space on a Tower or a rooftop), including all amendments, modifications, supplements, assignments, guaranties, side letters and other documents related thereto.

            “Communications Equipment” means, as to any Site, all equipment now or hereafter installed at (i) the NT Collocation Space with respect to NT Collocator or any Affiliate thereof and (ii) any other portion of the Site with respect to a Tower Subtenant, for the provision of current or future communication services, including voice, video, cable, broadcast television, internet and other data services (including Backhaul Services), and any other services permitted under Section 5. Such equipment shall include, among other things, switches, antennas, including microwave antennas, panels, fiber, backboards, conduits, flexible transmission lines, Cables, radios, amplifiers, filters, interconnect transmission equipment and all associated software and hardware, and will include any modifications, replacements and upgrades to such equipment.

            “Communications Facility” means, as to any Site, (i) the NT Collocation Space, together with all NT Communications Equipment and NT Improvements at such Site (with respect to NT Collocator) or (ii) any other portion of the Site leased to or used or occupied by a Tower Subtenant, together with all of such Tower Subtenant Communications Equipment and such Tower Subtenant Improvements at such Site (with respect to a Tower Subtenant).

            “Comteco” means Cooperativa de Telecomunicaciones Cochabamba.

Exhibit A-2


            “Comteco Sites” means each Site identified on Schedule 3(b) as being a Site on which Comteco occupies a portion of the Site as of the Effective Date.

            “Comteco Sublease Rights” means the rights of Comteco under that certain Contrato de Prestacion de Servicios de Apoyo, dated August 10, 2009 and NT Collocator’s Oferta Basica de Interconexion, dated February 2013.

            “Consolidation Request” has the meaning set forth in Section 9(a)(i).

            “Deferred Site” has the meaning set forth in the APA..

            “Early Termination” has the meaning set forth in Section 9(l).

            “Easement Site” has the meaning set forth in the APA.

            “Effective Date” has the meaning set forth in the Preamble.

            “Effective Date Ground Space” has the meaning set forth in Section 9(a)(i).

            “Effective Date Tower Space” has the meaning set forth in Section 9(a)(iii).

            “Emergency” means any event that causes, has caused or is reasonably likely to imminently cause (i) any bodily injury, personal injury or material property damage or (ii) any service outage at a Site or immediate outage that cannot be avoided or any other material adverse effect on the ability of NT Collocator to operate the NT Communications Equipment at any Site.

            “Environmental Law” or “Environmental Laws” means any federal, state or local statute, Law, ordinance, code, rule, regulation, order or decree, regulating, relating to or imposing liability or standards of conduct concerning protection of the environment or public or workplace health and safety as may now or at any time hereafter be in effect, including the following, as same may be amended or replaced from time to time, and all regulations promulgated under or in connection with the Bolivian Environmental Law N°1333.

            “Excluded Backhaul Assets” has the meaning set forth in the APA.

            “FCPA” means the United States Foreign Corrupt Practices Act of 1977, 18 U.S.C. 77d-1 et seq., as amended.

            “Force Majeure” means strike, riot, act of God (including, but not limited to, wind, lightning, rain, ice, earthquake, floods, or rising water), war, civil disturbance, act of the public enemy, explosion, or natural disaster.

            “Governmental Approvals” has the meaning set forth in Section 10(a).

            “Governmental Authority” means, with respect to any Person or any Site, any foreign, domestic, federal, national, territorial, state, departmental, tribal or local governmental authority, administrative body, quasi-governmental authority, court, government or self-regulatory organization, commission, board, administrative hearing body, arbitration panel, tribunal or any regulatory, administrative or other agency, or any political or other subdivision, department or branch of any of the foregoing, in each case having jurisdiction over such Person or such Site.

            “Hazardous Material” or “Hazardous Materials” means and includes petroleum products, flammable explosives, radioactive materials, asbestos or any material containing asbestos, polychlorinated biphenyls or any hazardous, toxic or dangerous waste, substance or material defined as such (or any similar term) or regulated by, in or for the purposes of Environmental Laws, including Section 101(14) of CERCLA.

Exhibit A-3


            “Improvements” means, as to each Site, (i) one or more equipment pads or raised platforms capable of accommodating exterior cabinets or equipment shelters, huts or buildings, electrical service and access for the placement and servicing of NT Improvements and, if applicable, Tower Subtenant Improvements; (ii) buildings, huts, equipment shelters or exterior cabinets; (iii) batteries, generators and associated fuel tanks or any other substances, products, materials or equipment used to provide backup power; (iv) grounding rings; (v) fencing; (vi) signage; (vii) connections for telephone service or utility service up to the meter; (viii) hardware constituting a Tower platform to hold NT Communications Equipment and, if applicable, Tower Subtenant Communications Equipment or Tower Owner Equipment; (ix) access road improvements; (x) common shelters, if any; (xi) all marking/lighting systems and light monitoring devices; and (xii) such other equipment, alterations, replacements, modifications, additions and improvements as may be installed on or made to all or any component of a Site (including the rooftop or Land, as applicable, and the Tower). Notwithstanding the foregoing, Improvements do not include Communications Equipment (including NT Communications Equipment or Tower Subtenant Communications Equipment).

            “Indemnified Parties” has the meaning set forth in Section 14.

            “Initial Assignable Sites” means the Sites set forth on Exhibit C attached hereto (other than those Sites set forth on Exhibit D attached hereto on the Effective Date).

            “Initial Term” has the meaning set forth in Section 2(a).

            “Initial Tower Owner” has the meaning set forth in the Preamble.

            “Land” means the tract of land constituting a Tower Site, together with all easements and other rights appurtenant thereto.

            “Law” means any statute, rule, code, regulation, ordinance or Order of, or issued by, any Governmental Authority, including without limitation any standards (including but not limited to engineering standards or wind speed requirements) which are applied to a Site according to any such applicable law, statute, common law, rule, code, regulation, ordinance or order.

            “Leased Site” means the Assignable Sites that are occupied by Tower Owner and the Managed Sites that are occupied by NT Collocator, in either case, pursuant to a Site Lease, which Sites are identified on Exhibit C attached hereto as Leased Sites. If a Site is not a Leased Site, such Site is an Owned Site hereunder.

             “Lessor” means, as to a Leased Site, the “lessor,” “sublessor,” “landlord,” “licensor,” “sublicensor,” “grantor” or similar Person under the related Site Lease.

            “Like-for-Like Equipment Replacement” means removal of all or any portion of the applicable NT Communications Equipment installed on the Tower or rooftop, as applicable, and replacement of such NT Communications Equipment with the same or comparable NT Communications Equipment, as determined by NT Collocator, in its reasonable business judgment. For the avoidance of doubt, and without limiting the generality of the foregoing, any such removal and replacement that triggers or causes any of the following will not constitute a Like-for-Like Replacement: (i) additional permitting, zoning or regulatory requirements on Tower Owner; (ii) an increase in the fees or charges Tower Owner is obligated to pay under the Site Lease; (iii) a change in the structural loading of the NT Communications Equipment on the Tower or rooftop, as applicable; and/or (iv) an expansion of the installation of NT Communications Equipment beyond the NT Tower Space

            “Limited Revised Terms” has the meaning set forth in Section 4(d)(iii).

            “Managed Site” means, for purposes of this MLA and until any such Site is converted to an Assignable Site as provided herein and in the APA, each Site that is (a) identified on Exhibit D and is therefore subject to this MLA and the Management Agreement as a Managed Site as of the Effective Date, until such Site is converted to an Assignable Site as provided in this MLA and the APA, and (b) each Deferred Site that becomes designated as a Managed Site in accordance with the APA as of the applicable Closing Date, and, as a result of such designation as a Managed Site, becomes subject to this MLA and the Management Agreement pursuant to an Amendment to this MLA that is to be entered into as provided for in Section 2.2(c)(iv)(A) of the APA.

Exhibit A-4


            “Management Agreement” has the meaning set forth in the APA.

            “Mandatory Bolivian Law Matters” has the meaning set forth in Section 32.

            “Material Modifications” has the meaning set forth in Section 10(b)(ii).

            “Monthly Fiscal Invoice” has the meaning set forth in Section 3(b).

            “MLA” has the meaning set forth in the preamble and includes all subsequent modifications and amendments hereof. References to this MLA in respect of a particular Site shall include the SLA therefor; and references to this MLA in general and as applied to all Sites shall include all SLAs.

            “Modifications” means the construction or installation of Improvements on any Site or any part of any Site after the Effective Date, or the alteration, replacement, modification or addition to all or any component of a Site after the Effective Date, whether Severable or Non-Severable.

            “New NT Communications Equipment” means, with respect to any Site, NT Communications Equipment that was not installed at such Site as of the Commencement Date and is not a Like-for-Like Equipment Replacement of NT Communications Equipment that was installed at such Site as of the Commencement Date.

            “Non-Severable” means, with respect to any Modification, any Modification that is not a Severable Modification.

            “Notice Date” has the meaning set forth in Section 4(d)(ii).

            “Notice to Proceed” has the meaning set forth in Section 10(a).

            “NT Collocation Space” has the meaning set forth in Section 9(a).

            “NT Collocator” has the meaning set forth in the Preamble.

            “NT Collocator Default” has the meaning set forth in Section 22(a).

            “NT Communications Equipment” means any Communications Equipment owned or leased and used by NT Collocator or one or more of its Affiliates at a Site.

            “NT Effective Date Amount of Tower Equipment” has the meaning set forth in Section 9(b).

            “NT Ground Space” has the meaning set forth in Section 9(a)(i).

            “NT Indemnitees” means NT Collocator and its parents, affiliates, subsidiaries, officers, directors, employees, managers, equity holders, agents, lenders and representatives.

            “NT Improvements” means any Improvements located at a Site that solely support, shelter, protect, enclose, or provide power or back-up power solely to, NT Communications Equipment or that also support, shelter, protect, enclose, or provide power or back-up power to, any Tower Subtenant Communications Equipment (in addition to NT Communications Equipment) pursuant to a Collocation Agreement entered into between such Tower Subtenant and NT Collocator or any of its Affiliates prior to the Effective Date, in each case other than a Tower at a Tower Site or a building at a Rooftop Site. All utility connections that provide service solely to NT Communications Equipment or that provide Backhaul Services shall be deemed NT Improvements.

Exhibit A-5


            “NT Reserved Amount of Tower Equipment” has the meaning set forth in Section 9(b).

            “NT Termination Right” has the meaning set forth in Section 2(b).

            “NT Tower Space” has the meaning set forth in Section 9(a)(iii).

            “NT-Comteco SLA Expiration Date” means with respect to each Comteco Site, the earlier of: (a) the first day as of which Comteco, NT Collocator and Tower Owner have entered into an agreement or agreements that provide for the simultaneous (i) termination of the rights and obligations of Tigo and NT Collocator under the sublease arrangement for such Site, (ii) the termination of the rights and obligations of NT Collocator and Tower Owner under the NT-Comteco SLA, and (iii) the commencement of a direct collocation agreement between Comteco and Tower Owner for collocation by Comteco at such Site, or (b) the Termination Date (as defined in Section 2(b)) next occurring after Tower Owner receives written notice from NT Collocator terminating the applicable NT-Comteco SLA as of such next occurring Termination Date as a result of the termination by Comteco of its use and occupancy of such Comteco Site.

            “NT-Tigo SLA Expiration Date” means with respect to each Tigo Site, the earlier of: (a) the first day as of which Tigo, NT Collocator and Tower Owner have entered into an agreement or agreements that provide for the simultaneous (i) termination of the rights and obligations of Tigo and NT Collocator under the sublease arrangement for such Site, (ii) the termination of the rights and obligations of NT Collocator and Tower Owner under the NT-Tigo SLA, and (iii) the commencement of a direct collocation agreement between Tigo and Tower Owner for collocation by Tigo at such Site, or (b) the Termination Date (as defined in Section 2(b)) next occurring after Tower Owner receives written notice from NT Collocator terminating the applicable NT-Tigo SLA as of such next occurring Termination Date as a result of the termination by Tigo of its use and occupancy of such Tigo Site.

            “Order” means an administrative, judicial, or regulatory injunction, order, decree, judgment, sanction, award or writ of any nature of any Governmental Authority of competent jurisdiction.

            “Owned Site” means each Site that is owned by Tower Owner in fee simple, which Site is identified on Exhibit C as an Owned Site (other than any Easement Site).

            “Party” or “Parties” has the meaning set forth in the Preamble.

            “Person” means any individual, corporation, limited liability company, partnership, association, trust or any other entity or organization, including a Governmental Authority.

            “Pre-Existing Conditions” has the meaning set forth in Section 12(a).

            “Pricing List” means the pricing list set forth on Exhibit E.

            “Qualified Appraiser” has the meaning set forth in Section 4(d)(ii).

            “Qualified Site Lease Extension” has the meaning set forth in Section 4(d)(ii).

            Relocation Site has the meaning set forth in Section 9(l).

            RAD Centermeans the center of each 2 meter vertical envelope on the Tower where the NT Collocator Equipment is located.

Exhibit A-6


            RAN Sharingmeans, with respect to any Site, sharing by NT Collocator of the use of the NT Communications Equipment within the NT Collocation Space with any third Person to allow such third Person provider to broadcast such third Person provider’s licensed spectrum from such Site using the NT Communications Equipment.

            Rent has the meaning set forth in Section 3(b).

            “Reserved Microwave Antennas and Dishes” means, with respect to each Site listed on Schedule 9 attached hereto, the applicable microwave antennas and dishes listed for such Site.

            “Revised Terms” has the meaning set forth in Section 4(d)(ii).

            “Relocation Request” has the meaning set forth in Section 9(l).

            “Right of Substitution” means the right of NT Collocator to remove all of NT Communications Equipment and NT Improvements from the NT Collocation Space on a Tower at a Site and move the same to Available Space at the same Site by relocation of NT Collocator’s Communications Facility in such space to such Available Space not larger than the NT Collocation Space on such Tower, in accordance with and subject to the limitations contained in Section 9(k).

            “Rooftop Site” means any Site identified as a Rooftop Site on Exhibit C attached hereto.

            RRU has the meaning set forth in Section 9(b).

            “Search Ring” means, the search area created by a circle which contains the Site that is subject to Early Termination at its center and a radius equal to 25% of the average distance between the neighboring Sites within the same geographical area (urban, suburban or rural).

            “Severable” means, with respect to any Modification, any Modification that can be readily removed from a Site or portion of such Site without damaging it in any material respect or without diminishing or impairing the value, utility, useful life or condition that the Site or portion of such Site would have had if such Modification had not been made (assuming the Site or portion of such Site would have been in compliance with this MLA without such Modification). Notwithstanding the foregoing, a Modification shall not be considered Severable if such Modification is necessary to render the Site or portion of such Site complete for its intended use by Tower Owner (other than Modifications consisting of ancillary items of Tower Owner Equipment of a kind customarily furnished by lessees or operators of property comparable to the Site or portion of such Sites).

            “Site” means each parcel of Land or rooftop subject to this MLA from time to time, all of which are identified on Exhibit C attached hereto, as such schedule may be amended or supplemented as provided in this MLA and the APA, and the Tower, if any, and Improvements located thereon. As used in this MLA, reference to a Site includes Non-Severable Modifications, but shall not include Severable Modifications, any NT Improvements, NT Communications Equipment, any Tower Subtenant Improvements or Tower Subtenant Communications Equipment.

            Site Engineering Applicationhas the meaning set forth in Section 9(f).

            “Site Expiration Date means, as to any Leased Site, if arrangements have not been entered into to secure the tenure of the relevant Site Lease pursuant to an extension, new Site Lease or otherwise, one day prior to the expiration of the relevant Site Lease (as the same may be amended, extended or renewed pursuant to the terms of this MLA); provided, however, that in the event Tower Owner continues remitting payment to a Lessor under a Site Lease as a holdover tenant, such Site shall not be deemed to have reached the Site Expiration Date until the earliest to occur of the following: (i) said Lessor has issued a notice of eviction to either Tower Owner or NT Collocator or any of its Affiliates, (ii) NT Collocator is unable to access such Site as permitted by this MLA and delivers notice of same to Tower or Tower Owner otherwise provides notice to NT Collocator that the Site Expiration Date has occurred.

Exhibit A-7


            “Site Lease” means, as to any Leased Site, the ground lease, rooftop lease, sublease, or any easement, license, sublicense, marketing or development right, co-marketing or co-development right, or other agreement or document pursuant to which Tower Owner as to an Assignable Site, or NT Collocator as to a Managed Site, holds a leasehold or subleasehold interest, leasehold or subleasehold estate, easement, license, sublicense, marketing or development right, co-marketing or co-development right, or other interest in such Site, together with any extensions of the term thereof (whether by exercise of any right or option contained therein or by execution of a new ground lease, rooftop lease, or other instrument providing for the use of such Site), and including all amendments, modifications, supplements, assignments, guarantees, side letters and other documents related thereto.

            “Site Rent” means, as to any Leased Site, all rents, fees and other charges payable by the ground lessee with respect to the Site Lease for such Site.

            “SLA” means, as to any Site, a supplement to this MLA, in substantially the form of Exhibit B attached to this MLA.

            “Subsequent Closing” means the conversion of a Managed Site or Deferred Site into an Assignable Site subsequent to the Effective Date following the satisfaction or cure of all Exceptions (as defined in the PSA) with respect to such Site as provided for in the PSA and as defined in the PSA as a “Subsequent Closing.”

            “Subsequent Closing Date” means, with respect to each Subsequent Closing, the date on which such Subsequent Closing occurs regardless of when the actual Documentary Subsequent Closing (as defined in the PSA) actually occurs with respect to the applicable Site.

            “Tax” means any and all impositions, fees (including license, documentation and registration fees), taxes (including income, gross receipts, gross margin, ad valorem, excise, value-added, sales, use, transfer, franchise, capital stock, doing business, license, stamp, business and occupation, withholding, employment, payroll, or property tax), levy or duty, or other charge, assessment, deduction or withholding of any nature whatsoever, together with any fee, assessment, penalty, fine, addition to tax or additional amount with respect to any of the foregoing, and interest on any of the foregoing, in each case imposed by any Governmental Authority (whether imposed directly by a Governmental Authority or indirectly through any other Person, or determined by reference to the Tax liability of another Person under applicable Law, as a transferee or successor, by contract or otherwise); provided, however, that Tax does not include any amount assessed as a result of any failure to comply with any regulatory, public safety or Environmental Law.

            “Term” means (i) as to each Site, the term during which this MLA is applicable to such Site as set forth in Section 2; and (ii) as to this MLA, the period from the Effective Date until the expiration or earlier termination of this MLA as to all Sites.

            “Termination Date” has the meaning set forth in Section 2(b).

            “Termination Notice” has the meaning set forth in Section 2(c).

            “Tigo” means Telefonica Celular de Bolivia S.A.

            “Tigo Sites” means each Site identified on Schedule 3(b) as being a Site on which Tigo occupies a portion of the Site as of the Effective Date.

            “Tigo Sublease Rights” means the rights of Tigo under the following agreements: (i) Contrato de Acceso y Uso Compartido de Infrastructura: Co-Ubicacion y/o Cosite, dated April 19, 2016; (ii) Oferta Basica de Interconexion, dated February 2013; and (iii) NT Collocator’s oral commitment to Tigo to provide collocation space on the ground and the related Tower at the Portfolio Sites listed on Section 5.6(a) of the Seller Disclosure Schedule (as defined in the APA).

Exhibit A-8


            “Tower” means the communications towers or other support structures on the Tower Sites from time to time.

            “Tower Owner” has the meaning set forth in the Preamble, together with its permitted successors and assigns hereunder, to the extent the same succeed to Tower Owner’s rights in accordance with this MLA.

            “Tower Owner Default” has the meaning set forth in Section 22(c).

            “Tower Owner Equipment” means all physical assets (other than real property, interests in real property, any NT Communications Equipment, any NT Improvements, any Tower Subtenant Communications Equipment and any Tower Subtenant Improvements), located at the applicable Site on or in, or attached to, the rooftop or Land, as applicable, Improvements or Towers leased to, owned by or operated by Tower Owner pursuant to this MLA.

            “Tower Owner Expiration Notice” has the meaning set forth in Section 4(d)(ii).

            “Tower Owner Parent” has the meaning set forth in the Preamble.

            “Tower Site” means any Site other than a Rooftop Site.

            “Tower Subtenant” means, as to any Site, any Person (other than NT Collocator and its Affiliates) that (i) is a “lessee”, “sublessee”, “licensee” or “sublicensee” under any Collocation Agreement affecting such Site; or (ii) leases, subleases, licenses, sublicenses or otherwise acquires from Tower Owner the right to use Available Space on such Site. For the avoidance of doubt, for the duration of the applicable NT-Tigo SLA, Tigo is not a Tower Subtenant on any of the Tigo Sites, but instead is a permitted sublessee of NT Collocator, and for the duration of the applicable NT-Cometco SLA, Comteco is not a Tower Subtenant on any of the Comteco Sites (but instead is a permitted sublessee of NT Collocator.

            “Tower Subtenant Communications Equipment” means any Communications Equipment owned or leased by a Tower Subtenant.

            “Tower Subtenant Improvements” means any Improvements located at a Site that solely support, shelter, protect, enclose or provide power or back-up power solely to Tower Subtenant Communications Equipment, other than a Tower at a Tower Site or a building at a Rooftop Site or any NT Improvements. All utility connections that provide service solely to Tower Subtenant Communications Equipment shall be deemed Tower Subtenant Improvements.

            “Transition Services Agreement” has the meaning set forth in the APA.

            “Unprofitable Site” means any Site for which the Site Rent is in excess of the Rent for the same period.

            “Vacated RAD Center” has the meaning set forth in Section 9(a)(i).

            “Wind Load Surface Area” means with respect to each antenna, RRU or other tower mounted equipment other than all mounts and Cables, the area in square centimeters calculated as follows: (i) adding together for each such piece of Tower equipment the height of each such piece of Tower equipment multiplied by the larger of (a) its width or (b) its depth; (ii) for cylinder shaped equipment use length x diameter to calculate surface area; and (iii) for round microwave dishes use a formula to calculate the area of a circle equal to A=π[(d/2)]^2 where “d” is the diameter of the dish antenna; provided, however, Wind Load Surface Area shall not take into account any RRU or other Tower mounted equipment that is located directly behind antennas or other Tower mounted equipment that is included within the Wind Load Surface Area calculation.

Exhibit A-9


            Any other capitalized terms used in this MLA shall have the respective meanings given to them elsewhere in this MLA.

Exhibit A-10


EXHIBIT B

FORM OF SITE LOCATION AGREEMENT

SITE LOCATION AGREEMENT (SLA)

PTI SITE ID BO-XX-XXXX/ NUEVATEL SITE ID                           

This Site Location Agreement ("SLA") is executed by and between SERVICIOS DE ALQUILERES PHOENIX TOWER S.A., ("Lessor" or "Tower Owner") and EMPRESA DE TELECOMUNICACIONES NUEVATEL (PCS DE BOLIVIA) S.A. ("Lessee" or " NT Collocator"), according to the following Clauses:

FIRST (SCOPE).- This SLA is subject to a Master Lease Agreement dated February _, 2019 (“MLA”), between Lessor and Lessee governing the rental by Lessee of space in and on facilities located on numerous properties owned or leased by Lessor. Lessor represents that it is the owner of a telecommunications tower located at the address shown and with technical and legal characteristics described in Annex A to this SLA ("Site"). In accordance with its interests, Lessor rents Lessee a Space within the Site ("Space") for its use in the telecommunications services it provides in Bolivia under the terms and conditions set forth in this SLA and its Annex.

SECOND (TERM).- This SLA will be valid for ten (10) years, following [•] ("Effective Date"), and will be subject to the renewal term(s) set forth in the MLA.

THIRD (RENT).- In consideration for the lease of Space on the Site, Lessee shall pay Lessor a rent of [•] 00/100 US Dollars (US$ [•]), which will be paid monthly in US Dollars to the Lessor from the Effective Date. Each monthly payment of rent will be made according to the terms and conditions set forth in the MLA. The rent will be subject to the increases according to section ___ of the MLA.

FOURTH (OTHER AGREEMENTS).- For all other terms or conditions not included in this Site Location Agreement, the Parties refer to the provisions of the MLA as applicable, in the understanding that this SLA (including its Annex) together with the MLA constitutes the whole agreement and understanding of the Parties and supersedes any previous arrangement, understanding or agreement, both oral and written, between them relating to the Services to be provided by Lessor in connection with the Site of reference.

It is also agreed that the stipulations of this Agreement may be amended by mutual agreement between the Parties.

FIFTH (APPLICABLE LAW).- This Agreement is subject to Bolivian laws with respect to Mandatory Bolivian Law Matters as such term is used in the MLA to define those matters to be governed by Bolivian laws, without prejudice to the other applicable laws or regulations in Bolivia.

SIXTH (ACCEPTANCE).- We SERVICIOS DE ALQUILERES PHOENIX TOWER S.A. as Lessor, and EMPRESA DE TELECOMUNICACIONES NUEVATEL (PCS DE BOLIVIA) S.A. as Lessee, express our acceptance and conformity with the content of the aforementioned clauses, submitting to them.

La Paz, [•] [•], 201[•]

  _______________________________________________   _______________________________________________
  SERVICIOS DE ALQUILERES PHOENIX TOWER S.A.   EMPRESA DE TELECOMUNICACIONES NUEVATEL
                   Name: [•]   (PCS DE BOLIVIA) S.A.
   
                   Legal Representative                    Name: [•]
   
                     Legal Representative


ANNEX A

SCOPE OF THE LEASE OF SPACE IN THE SITE

1. SITE NUMBER AND NAME:
TOWER OWNER NAME: [•]
NT COLLOCATOR NAME: [•]
LOCATION: [•]
LATITUDE: [•]
LONGITUDE: [•]

2. ON SITE TOWER DESCRIPTION

Nuevatel RAD Center: ____________meters  
Top Elevation: ____________meters  
Bottom Elevation: ____________meters  

3. DESCRIPTION OF SITE SPACE

The detail and location of: (i) the ground space on the Site being leased to Lessee and the tower space on the Site being leased to Lessee as of the Effective Date; and (ii) the any additional space on the Site that may be leased to Lessee as of the Effective Date are as follows:

[•]

4. DESCRIPTION OF NUEVATEL EQUIPMENT

Description of Lessee’s telecommunications equipment, improvements on the Site, ancillary facilities and wind load surface area on the Site are described as follows:

[•]


CONTRATO DE ARRENDAMIENTO DE ESPACIO EN SITIO

Señor Notario de Fe Pública: en los registros de Escrituras Públicas que están a su cargo, sírvase insertar un Contrato de Arrendamiento de Espacio en Sitio, según el contenido de las siguientes cláusulas:

Primero (Las Partes): Son partes de este Contrato:

1.1 Servicios de Alquileres PhoenixTower S.A., registrada ante el Registro de Comercio, a cargo de FUNDEMPRESA, con el Número de Registro 00407738, con Número de Identificación Tributaria 375279029, legalmente representada por [•], facultado por Testimonio de Poder Nº [•], otorgado el [•] de 2019 por Notaria de Fe Publica Nº [•] a cargo del Dr. [•], en lo sucesivo, y para los fines de este Contrato, denominado “Arrendador”; y

1.2 Empresa de Telecomunicaciones Nuevatel PCS de Bolivia S.A., registrada ante el Registro de Comercio, a cargo de FUNDEMPRESA, con el Número de Registro 13626, con Número de Identificación Tributaria 1007173022, legalmente representada por [•], facultado mediante Testimonio de Poder No. [•], otorgado el [•] de [•] de 201[•] por Notaria de Fe Publica No. [•] a cargo de la Dra. [•] del Distrito Judicial de [•], en lo sucesivo, y para los fines de este Contrato, referido como el “Arrendatario”.

Los sujetos descritos en los numerales 1.1 y 1.2 anteriores, serán denominados en conjunto como las “Partes”.

Segunda (Objeto): La Arrendadora declara ser propietaria de una torre de telecomunicaciones ubicada y con las características técnicas y legales descritas en el Anexo A de este Contrato (“Sitio”). Por así convenir a sus intereses, la Arrendadora da en calidad de arrendamiento un Espacio dentro del Sitio (“Espacio”) a favor de la Arrendataria para su uso en los servicios de telecomunicaciones que provee en Bolivia bajo los términos, condiciones y modalidades que se determinan en el presente Contrato y su Anexo.

Tercera (Plazo): El presente Contrato tendrá una vigencia de diez (10) años, computable a partir de [•] de [•] de 2019 (“Fecha Inicial”).

Cuarta (Canon de Arrendamiento).- Como contraprestación por el arrendamiento del Espacio en el Sitio, la Arrendataria se obliga a pagar a la Arrendadora un canon de arrendamiento de [•] 00/100 Dólares Americanos (US$ [•].-), que se cancelará cada mes en Dólares Americanos a la Arrendadora conforme a los términos de un Contrato de Maestro de Alquiler (en lo sucesivo el “CMA”), suscrito entre las Partes el 15 de febrero de 2019, mismo que forma parte integral de este Contrato. El canon de arrendamiento estará sujeto a los incrementos acordados por las Partes en el CMA.


Cuarta (Otros Acuerdos): Respecto a cualquier otro término o condición que no se hubiera incluido en este Contrato, las Partes refieren a los términos y condiciones del CMA, cuando sea aplicable, en el entendimiento que este Contrato y su anexo, junto con el CMA, constituyen un solo contrato y entendimiento entre las Partes, y reemplaza a cualquier acuerdo anterior, tanto oral como escrito, entre ellos, en relación con los servicios que proporcionará el Arrendador a través de este Contrato.

Quinta (Ley Aplicable): El presente Contrato se encuentra sujeto a las leyes bolivianas, en especial aquellas establecidas en el Código Civil y Código Procesal Civil, sin perjuicio de las demás normas aplicables e Bolivia.

Sexta (Aceptación): Nosotros, Servicios de Alquileres PhoenixTower S.A., como Arrendadora, y la Empresa de Telecomunicaciones Nuevatel PCS de Bolivia S.A., como Arrendataria, manifestamos nuestra aceptación y conformidad al tenor y contenido de las cláusulas que anteceden, sometiéndonos a las mismas.

La Paz, [•] de [•] de 2019

 

Alquileres PhoenixTower S.A.   Empresa de Telecomunicaciones
Nombre: [•]   Nuevatel PCS de Bolivia S.A.
Representante legal   Nombre: [•]
    Representante legal


ANEXO A

ALCANCES DEL ARRENDAMIENTO DEL SITIO

1. DATOS DEL SITIO
NOMBRE: [•]
UBICACIÓN: [•]
LATITUD: [•]
LONGITUD: [•]

2. DESCRIPCIÓN DE LA TORRE EN EL SITIO

Centro RAD Nuevatel: ____________metros  
Elevación Superior: ____________metros  
Elevación Inferior: ____________metros  

3. DESCRIPCIÓN DEL ESPACIO Y DEL SITIO

El detalle de (i) el espacio de terreno y el espacio en la torre de telecomunicaciones que se encuentra en el Sitio desde la Fecha de Inicio; y (ii) cualquier espacio adicional que pueda existir en la torre que se encuentra en el Sitio en la Fecha de Inicio, se encuentran detallados a continuación:
[•]

4. DESCRIPCIÓN DE EQUIPOS DE NUEVATEL

Les equipos de telecomunicaciones de la Arrendataria, mejoras en el Sitio, instalaciones auxiliares y área de superficie de carga de viento de la torre que compone el Sitio, se describen a continuación:
[•]


EXHIBIT C

LIST OF SITES

 

[Omitted]


EXHIBIT D

LIST OF MANAGED SITES

 

[Omitted]


EXHIBIT E

PRICING LIST

 

[Omitted]


EXHIBIT F

SAMPLE WIND LOAD SURFACE AREA CALCULATION FOR HYPOTHETICAL EQUIPMENT CONFIGURATION

 

[Omitted]


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