1
Exhibit 10.6
AMENDED AND RESTATED CREDIT AGREEMENT
among
SPECTRASITE COMMUNICATIONS, INC., as Borrower;
SPECTRASITE HOLDINGS, INC., as a Guarantor;
CIBC WORLD MARKETS CORP. and
CREDIT SUISSE FIRST BOSTON, as Joint Lead Arrangers and Bookrunners;
CIBC WORLD MARKETS CORP., CREDIT SUISSE FIRST BOSTON,
BANK OF MONTREAL, CHICAGO BRANCH and TD SECURITIES (USA) INC.,
as Arrangers;
CREDIT SUISSE FIRST BOSTON, as Syndication Agent;
BANK OF MONTREAL, CHICAGO BRANCH and TD SECURITIES (USA) INC.,
as Co-Documentation Agents;
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent and Collateral Agent;
and
THE OTHER CREDIT PARTIES PARTY HERETO
Dated as of February 22, 2001
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TABLE OF CONTENTS
ARTICLE 1 - Definitions.......................................................................2
ARTICLE 2 - Loans............................................................................38
Section 2.1 The Loans.................................................................38
Section 2.2 Manner of Borrowing and Disbursement......................................39
Section 2.3 Interest..................................................................42
Section 2.4 Fees......................................................................44
Section 2.5 Optional Prepayment/Reduction of Commitment...............................45
Section 2.6 Repayment.................................................................47
Section 2.7 Mandatory Repayments......................................................49
Section 2.8 Notes; Loan Accounts......................................................52
Section 2.9 Manner of Payment.........................................................53
Section 2.10 Reimbursement.............................................................54
Section 2.11 Pro Rata Treatment........................................................54
Section 2.12 Capital Adequacy..........................................................55
Section 2.13 Taxes.....................................................................56
Section 2.14 Letters of Credit.........................................................58
Section 2.15 Swing Loans...............................................................63
Section 2.16 Incremental Facility Loans................................................65
ARTICLE 3 - Guarantee........................................................................67
Section 3.1 Guarantee.................................................................67
Section 3.2 Waivers and Releases......................................................67
Section 3.3 Miscellaneous.............................................................68
ARTICLE 4 - Conditions Precedent.............................................................69
Section 4.1 Conditions Precedent to Initial Advance of the Loans and to the Issuance of
the Initial Letter of Credit.........................................................69
Section 4.2 Conditions Precedent to Each Advance......................................72
Section 4.3 Conditions Precedent to Issuance of Each Letter of Credit.................72
Section 4.4 Conditions Subsequent to Agreement Date...................................72
ARTICLE 5 - Representations and Warranties...................................................73
Section 5.1 Representations and Warranties............................................73
Section 5.2 Survival of Representations and Warranties, etc...........................82
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ARTICLE 6 - General Covenants................................................................82
Section 6.2 Business; Compliance with Applicable Law..................................83
Section 6.3 Maintenance of Properties and Assets......................................83
Section 6.4 Accounting Methods and Financial Records..................................83
Section 6.5 Insurance.................................................................83
Section 6.6 Payment of Taxes and Claims...............................................84
Section 6.7 Visits and Inspections....................................................84
Section 6.8 Use of Proceeds...........................................................84
Section 6.9 Real Property.............................................................85
Section 6.10 Indemnity.................................................................85
Section 6.11 Interest Rate Hedging.....................................................86
Section 6.12 Environmental Matters.....................................................87
Section 6.13 ERISA.....................................................................87
Section 6.14 Further Assurances........................................................87
Section 6.15 Covenants Regarding Additional Collateral.................................87
Section 6.16 Tower Subsidiaries........................................................92
Section 6.17 Covenants Regarding the Designation of Subsidiaries and Investments.......92
ARTICLE 7 - Information Covenants............................................................94
Section 7.1 Quarterly Financial Statements and Information............................94
Section 7.2 Annual Financial Statements and Information...............................95
Section 7.3 Performance Certificates..................................................95
Section 7.4 Copies of Other Reports...................................................96
Section 7.5 Notice of Litigation and Other Matters....................................97
ARTICLE 8 - Negative Covenants...............................................................98
Section 8.1 Indebtedness..............................................................98
Section 8.2 Investments..............................................................100
Section 8.3 Limitation on Liens......................................................101
Section 8.4 Amendment and Waiver.....................................................101
Section 8.5 Liquidation; Merger; Acquisition or Disposition of Assets................101
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Section 8.6 Limitation on Guaranties.................................................105
Section 8.7 Restricted Payments and Purchases........................................106
Section 8.8 Affiliate Transactions...................................................106
Section 8.9 Corporate Name; Corporate Structure; Business............................107
Section 8.10 Negative Pledge..........................................................107
ARTICLE 9 - Financial Covenants.............................................................107
Section 9.1 Borrower Leverage Ratio..................................................107
Section 9.2 Borrower Interest Coverage Ratio.........................................108
Section 9.3 Total Interest Coverage Ratio............................................108
Section 9.4 Fixed Charge Coverage Ratio..............................................108
ARTICLE 10 - Default.........................................................................108
Section 10.1 Events of Default........................................................108
Section 10.2 Remedies.................................................................112
Section 10.3 Payments Subsequent to Acceleration or Maturity..........................113
Section 10.4 Remedies with Respect to FCC Authorizations..............................113
ARTICLE 11 - The Agents......................................................................114
Section 11.1 Appointment and Authorization............................................114
Section 11.2 Interest Holders.........................................................114
Section 11.3 Consultation with Counsel................................................114
Section 11.4 Documents................................................................114
Section 11.5 Agents' Affiliates.......................................................114
Section 11.6 Responsibility of the Agents.............................................115
Section 11.7 Security Documents.......................................................115
Section 11.8 Action by the Agents.....................................................115
Section 11.9 Notice of Default or Event of Default....................................116
Section 11.10 Responsibility Disclaimed................................................116
Section 11.11 Indemnification..........................................................116
Section 11.12 Credit Decision..........................................................117
Section 11.13 Successor Agents.........................................................117
Section 11.14 Agents...................................................................117
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ARTICLE 12 - Change in Circumstances Affecting Eurodollar Advances...........................118
Section 12.1 Eurodollar Basis Determination Inadequate or Unfair......................118
Section 12.2 Illegality...............................................................118
Section 12.3 Increased Costs..........................................................118
Section 12.4 Effect On Other Advances.................................................119
ARTICLE 13 - Miscellaneous...................................................................120
Section 13.1 Notices..................................................................120
Section 13.2 Expenses.................................................................121
Section 13.3 Waivers..................................................................122
Section 13.4 Set-Off..................................................................122
Section 13.5 Successors and Assigns; Participations and Assignments...................123
Section 13.6 Accounting Principles....................................................127
Section 13.7 Counterparts.............................................................127
Section 13.8 Governing Law............................................................127
Section 13.9 Severability.............................................................127
Section 13.10 Interest.................................................................127
Section 13.11 Headings.................................................................128
Section 13.12 Amendment and Waiver.....................................................128
Section 13.13 Entire Agreement.........................................................129
Section 13.14 Other Relationships......................................................129
Section 13.15 Loan Documents...........................................................129
Section 13.16 Reliance on and Survival of Various Provisions...........................129
Section 13.17 Confidentiality..........................................................129
Section 13.18 Delivery of Lender Addenda...............................................130
ARTICLE 14 - Waiver of Jury Trial; Consent to Jurisdiction...................................130
Section 14.1 Waiver of Jury Trial.....................................................130
Section 14.2 Consent to Jurisdiction..................................................130
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AMENDED AND RESTATED CREDIT AGREEMENT
among
SPECTRASITE COMMUNICATIONS, INC., as Borrower;
SPECTRASITE HOLDINGS, INC., as a Guarantor;
CIBC WORLD MARKETS CORP. and
CREDIT SUISSE FIRST BOSTON, as Joint Lead Arrangers and Bookrunners;
CIBC WORLD MARKETS CORP., CREDIT SUISSE FIRST BOSTON,
BANK OF MONTREAL, CHICAGO BRANCH and TD SECURITIES (USA) INC.,
as Arrangers;
CREDIT SUISSE FIRST BOSTON, as Syndication
Agent; BANK OF MONTREAL, CHICAGO BRANCH and TD
SECURITIES (USA) INC.,
as Co-Documentation Agents;
CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent and Collateral Agent;
and
THE OTHER CREDIT PARTIES PARTY HERETO
W I T N E S S E T H:
WHEREAS, SpectraSite Communications, Inc., a Delaware
corporation (the "Borrower"), SpectraSite Holdings, Inc., a Delaware corporation
("Holdco"), CIBC World Markets Corp. (formerly known as CIBC Oppenheimer Corp.)
and Credit Suisse First Boston, as arrangers, Credit Suisse First Boston, as
syndication agent, Bank of Montreal, Chicago Branch, The Bank of Nova Scotia,
Fleet National Bank (formerly known as BankBoston, N.A.), Dresdner Bank AG, New
York and Grand Cayman Branches, Toronto Dominion (Texas), Inc. and Union Bank of
California, N.A., as managing agents, Credit Lyonnais New York Branch, as
co-agent, Canadian Imperial Bank of Commerce, as administrative agent, Canadian
Imperial Bank of Commerce, as collateral agent and the other Credit Parties (as
defined therein) party thereto are parties to that certain Credit Agreement
dated as of April 20, 1999, as amended by that First Amendment to Credit
Agreement dated as of August 23, 1999, as further amended by that certain Second
Amendment to Credit Agreement dated as of December 22, 1999, as further amended
by that certain Third Amendment to Credit Agreement dated as of February 14,
2000, as further amended by that certain Fourth Amendment to Credit Agreement
dated as of March 9, 2000, as further amended by that certain Fifth Amendment to
Credit Agreement dated as of April 20, 2000, as further amended by that certain
Sixth Amendment to Credit Agreement dated as of September 27, 2000, and as
further amended by that certain Seventh Amendment to Credit Agreement dated as
of December 12, 2000 (as amended, the "Prior Credit Agreement"); and
WHEREAS, the Borrower desires that the Credit Parties (as
defined in the Prior Credit Agreement) modify the existing credit facilities to
provide, among other things, for an increase in the principal amount of the
Revolving Commitment to $350,000,000, an increase in the principal amount of the
Tranche A Commitment to $500,000,000 and an increase in the principal amount of
the Tranche B Commitment to $450,000,000 and for an incremental credit facility
of up to $250,000,000, and the Credit Parties (as defined in the Prior Credit
Agreement) are willing to do so in accordance with and subject to the terms and
conditions set forth herein; and
WHEREAS, the Borrower acknowledges and agrees that the
security interest granted to the Collateral Agent, in its capacity as collateral
agent for the Credit Parties (as defined in the Prior Credit Agreement),
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pursuant to the Prior Credit Agreement and the other Loan Documents (as defined
in the Prior Credit Agreement), shall remain outstanding and in full force and
effect in accordance with the Prior Credit Agreement and shall continue to
secure the Obligations (as defined herein); and
WHEREAS, each of the Borrower, Holdco and the Credit Parties
acknowledges and agrees that (a) the Obligations (as defined herein) represent,
among other things, the amendment, restatement, renewal, extension,
consolidation and modification of the Obligations (as defined in the Prior
Credit Agreement) arising in connection with the Prior Credit Agreement and
other Loan Documents (as defined in the Prior Credit Agreement) executed in
connection therewith; (b) the Borrower, Holdco and the Credit Parties intend
that the Prior Credit Agreement and the other Loan Documents (as defined in the
Prior Credit Agreement) executed in connection therewith and the collateral
pledged thereunder shall secure, without interruption or impairment of any kind,
all existing Indebtedness (as defined in the Prior Credit Agreement) under the
Prior Credit Agreement and the other Loan Documents (as defined in the Prior
Credit Agreement) executed in connection therewith as they may be amended,
restated, renewed, extended, consolidated and modified hereunder, together with
all other obligations hereunder; (c) all Liens (as defined in the Prior Credit
Agreement) evidenced by the Prior Credit Agreement and the other Loan Documents
(as defined in the Prior Credit Agreement) executed in connection therewith are
hereby ratified, confirmed and continued; and (d) the Loan Documents (as defined
herein) are intended to restate, renew, extend, consolidate, amend and modify
the Prior Credit Agreement and the other Loan Documents (as defined in the Prior
Credit Agreement) executed in connection therewith; and
WHEREAS, each of the Borrower, Holdco and the Credit Parties
intend that (a) the provisions of the Prior Credit Agreement and the other Loan
Documents (as defined in the Prior Credit Agreement) executed in connection
therewith, to the extent restated, renewed, extended, consolidated, amended and
modified hereby, be hereby superseded and replaced by the provisions hereof and
of the other Loan Documents (as defined herein); (b) the Notes (as defined
herein) restate, renew, extend, consolidate, amend, modify, replace, are
substituted for and supersede in its entirety, but do not extinguish, the
Indebtedness (as defined in the Prior Credit Agreement) arising under the Notes
(as defined in the Prior Credit Agreement) issued pursuant to the Prior Credit
Agreement; and (c) by entering into and performing their respective obligations
hereunder, this transaction shall not constitute a novation.
NOW, THEREFORE, for and in consideration of the premises and
the mutual covenants herein set forth, and in order to induce the Credit Parties
to increase the principal amount of existing credit facilities, as well as for
other good and valuable consideration, the receipt and adequacy of all of the
foregoing as legally sufficient consideration being hereby acknowledged, the
Borrower, Holdco and the Credit Parties each do hereby agree that the Prior
Credit Agreement is amended and restated to read as follows:
ARTICLE 1 - Definitions.
For the purposes of this Agreement:
"Acquisition" shall mean, with respect to any Person, any
transaction or series of related transactions for the direct or indirect
(whether by purchase, lease, exchange, issuance of stock or other equity or debt
securities, merger, reorganization or any other method) (a) acquisition by such
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Person of any other Person, which Person shall then become consolidated with the
acquiring Person in accordance with GAAP, (b) acquisition by such Person of all
or any substantial part of the assets of any other Person, or (c) acquisition by
such Person of any Towers, Tower Sites or other communications tower facilities,
communication tower management businesses or related contracts.
"Additional Amounts" shall have the meaning set forth in
Section 2.13 hereof.
"Adjustment Date" shall mean the second (2nd) Business Day
after the date on which the financial statements referred to in Section 7.1
hereof for the two (2) full fiscal quarters of the Borrower from and after the
Agreement Date have been delivered to the Arrangers.
"Administrative Agent" shall mean CIBC, as administrative
agent hereunder for the Credit Parties, together with any successor
Administrative Agent hereunder.
"Administrative Agent's Office" shall mean the office of the
Administrative Agent, located at 425 Lexington Avenue, New York, New York 10017,
or such other office as may be designated pursuant to the provisions of Section
13.1 of this Agreement.
"Advance" or "Advances" shall mean amounts advanced to the
Borrower pursuant to Article 2 hereof on the occasion of any borrowing.
"Affiliate" shall mean, with respect to a Person, (a) any
other Person directly or indirectly controlling, controlled by, or under common
control with, such first Person; and (b) any Person having direct or indirect
beneficial ownership of ten percent (10%) or more of the equity interest in such
first Person. For purposes of this definition, "control" when used with respect
to any Person includes, without limitation, power, whether direct or indirect,
to direct or cause the direction of the management and policies of such Person
whether through the ownership of voting securities or other equity interests, by
contract or otherwise. Unless otherwise specified, "Affiliate" as used herein
shall mean an Affiliate of the Borrower, and shall include, without limitation,
Holdco.
"Agents" shall mean, collectively, the Administrative Agent,
the Collateral Agent, the Co-Documentation Agents, the Syndication Agent, the
Managing Agents, the Arrangers and the Lead Arrangers.
"Agreement" shall mean this Amended and Restated Credit
Agreement.
"Agreement Date" shall mean the date as of which this
Agreement is dated.
"AirTouch" shall mean Verizon Wireless (VAW) LLC, a Delaware
limited liability company, formerly known as Vodafone, AirTouch Licenses LLC, as
successor to AirTouch Communications, Inc.
"AirTouch Acquisition" shall mean the Acquisition by CTI or
another Tower Subsidiary from AirTouch of certain Towers with respect to which
AirTouch is the anchor tenant and Tower Assets related thereto, pursuant to the
terms and conditions of the AirTouch Lease Documents for an aggregate cash
Purchase Price not to exceed $180,000,000.
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"AirTouch Lease Documents" shall mean, collectively, the
AirTouch Sublease, the AirTouch Master Site Lease Agreement, the AirTouch Site
Development and Build-to-Suit Agreement and all other documents executed in
connection with the AirTouch Acquisition.
"AirTouch Master Site Lease Agreement" shall mean that certain
Master Tower Site Lease Agreement dated as of August 15, 2000, among AirTouch,
CTI and Holdco.
"AirTouch Site Development and Build-to-Suit Agreement" shall
mean that certain Site Development and Build-to-Suit Agreement dated as of
August 15, 2000, among AirTouch, CTI and Holdco.
"AirTouch Sublease" shall mean that certain Sublease dated as
of August 15, 2000, among AirTouch, the other parties named therein as
"Sublessors," CTI and Holdco.
"Annualized EBITDA" shall mean, as of any calculation date,
the result of (a) the sum of (i) EBITDA (Other Operations), plus (ii) Annualized
EBITDA (Tower Operations), less (b) Corporate Overhead for the twelve (12)
calendar month period ended on the last day of the calendar month most recently
ended for which financial statements are then available.
"Annualized EBITDA (Tower Operations)" shall mean, as of any
calculation date, the product of (a) EBITDA with respect to the Tower Operations
for the calendar month most recently ended for which financial statements are
then available, times (b) twelve (12).
"Applicable Law" shall mean, in respect of any Person, all
provisions of constitutions, statutes, rules, regulations and orders of
governmental bodies or regulatory agencies applicable to such Person, including,
without limiting the foregoing, the Necessary Authorizations, the Communications
Act, zoning ordinances and all Environmental Laws, all rules, regulations and
published decisions of the FCC and the FAA, and all orders, decisions, judgments
and decrees of all courts and arbitrators in proceedings or actions to which the
Person in question is a party or by which it is bound.
"Applicable Margin" shall mean the interest rate margin
applicable to Advances hereunder as determined in accordance with Section 2.3(f)
hereof.
"Approved Fund" shall mean, with respect to any Lender that is
a fund that invests in commercial loans, any other fund that invests in
commercial loans and is managed or advised by the same investment advisor as
such Lender or by an Affiliate of such investment advisor.
"Arrangers" shall mean, collectively, CIBC World Markets
Corp., CSFB, Bank of Montreal, Chicago Branch and TD Securities (USA) Inc. in
their respective capacities as arrangers under this Agreement.
"Assets" shall mean any or all of the property and assets of
the Borrower and the Designated Subsidiaries.
"Assignment and Assumption Agreement" shall mean each
Assignment and Assumption Agreement, in substantially the form of Exhibit A
attached hereto, pursuant to which a Lender may, subject to Section 13.5 hereof,
sell or participate a portion of its Loans (other than Swing Loans) and
Commitments.
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"Assignment of Airtouch Lease Documents" shall mean that
certain Assignment of Contracts dated as of August 15, 2000, among Holdco, CTI
and the Collateral Agent, for the benefit of the Senior Credit Parties, pursuant
to which Holdco and CTI have collaterally assigned to the Collateral Agent, for
the benefit of the Senior Credit Parties, all of their interest in and rights
under each of the Airtouch Lease Documents.
"Assignment of Lodestar Acquisition Documents" shall mean that
certain Assignment of Acquisition Documents dated as of May 18, 2000, between
the Borrower and the Collateral Agent, for the benefit of the Senior Credit
Parties, pursuant to which the Borrower has collaterally assigned to the
Collateral Agent, for the benefit of the Senior Credit Parties, all of its
interest in and rights under each of the Lodestar Acquisition Documents.
"Assignment of Nextel Acquisition Documents" shall mean that
certain Assignment of Acquisition Documents dated as of April 20, 1999, among
Holdco, the Borrower, TAS and the Collateral Agent, for the benefit of the
Senior Credit Parties, pursuant to which Holdco, the Borrower and TAS have
collaterally assigned to the Collateral Agent, for the benefit of the Senior
Credit Parties, all of their interest in and rights under each of the Nextel
Acquisition Documents (other than the Nextel Subordinated Security Agreement).
"Assignment of NTA Investment Documents" shall mean that
certain Assignment of Contracts dated as of August 30, 1999, between the
Borrower and the Collateral Agent, for the benefit of the Senior Credit Parties,
pursuant to which the Borrower has collaterally assigned to the Collateral
Agent, for the benefit of the Senior Credit Parties, all of its interest in and
rights under each of the NTA Investment Documents.
"Assignment of SBC Lease Documents" shall mean that certain
Assignment of Contracts dated as of the Agreement Date, among Holdco, the
Borrower, STI and the Collateral Agent, for the benefit of the Senior Credit
Parties, pursuant to which Holdco, the Borrower and STI have collaterally
assigned to the Collateral Agent, for the benefit of the Senior Credit Parties,
all of their interest in and rights under each of the SBC Lease Documents.
"Assignments of Acquisition Documents" shall mean,
collectively, the Assignment of Nextel Acquisition Documents, the Assignment of
AirTouch Lease Documents, the Assignment of SBC Lease Documents, the Assignment
of Lodestar Acquisition Documents, the Assignment of NTA Investment Documents
and each other collateral assignment executed by Holdco, the Borrower or any of
the Subsidiary Guarantors, in form and substance reasonably satisfactory to the
Collateral Agent, of their respective interest in and rights under any other
Permitted Acquisition Documents.
"Authorized Signatory" shall mean such senior personnel of a
Person as may be duly authorized and designated in writing by such Person to
execute documents, agreements and instruments on behalf of such Person.
"Available Revolving Commitment" shall mean (a) as of any date
prior to the Revolving Loan Availability Date, the lesser of (i) $50,000,000 and
(ii) the amount of the Revolving Commitment, and (b) on and after the Revolving
Loan Availability Date, the amount of the Revolving Commitment.
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"Bankruptcy Code" shall mean the United States Bankruptcy Code
(11 U.S.C. Section 101 et seq.), as now or hereafter amended, and any successor
statute.
"Base Rate" shall mean, as of any date, a simple interest rate
per annum equal to the higher of (x) the Prime Rate, or (y) the sum of (A) the
Federal Funds Rate, plus (B) one-half of one percent (1/2%). The Base Rate shall
be adjusted automatically as of the opening of business on the effective date of
each change in the Prime Rate or the Federal Funds Rate, as the case may be, to
account for such change.
"Base Rate Advance" shall mean an Advance (other than a Swing
Loan) which the Borrower requests to be made as a Base Rate Advance or which is
converted to a Base Rate Advance in accordance with the provisions of Section
2.2 hereof.
"Borrower" shall have the meaning assigned thereto in the
recitals to this Agreement.
"Borrower Debt" shall mean, as of any calculation date, all
Funded Debt of the Borrower and the Designated Subsidiaries, on a consolidated
basis, in each case without duplication.
"Borrower Interest Coverage Ratio" shall mean, on any
calculation date, for the Borrower and the Designated Subsidiaries, on a
consolidated basis, the ratio of (a) Annualized EBITDA as at such date, to (b)
cash Borrower Interest Expense for the immediately preceding four (4) fiscal
quarter period.
"Borrower Interest Expense" shall mean, for any period, for
the Borrower and the Designated Subsidiaries on a consolidated basis, all
interest expense paid or accrued in respect of Borrower Debt (including, without
limitation, the interest component of payments for such period in respect of
Capitalized Lease Obligations), together with recurring fees (in any event,
including, without limitation, all fees due under Section 2.4 hereof) associated
therewith (other than fees payable on or prior to the Agreement Date), after
giving effect to any Interest Hedge Agreements, all as determined in accordance
with GAAP, excluding underwriting, arrangement and similar fees.
"Borrower Leverage Ratio" shall mean, on any calculation date,
the ratio of (a) Borrower Debt, to (b) Annualized EBITDA.
"Borrower Pledge Agreement" shall mean that certain Amended
and Restated Borrower Pledge Agreement between the Borrower and the Collateral
Agent, for the benefit of the Credit Parties, dated as of the Agreement Date, in
substantially the form of Exhibit B attached hereto.
"Broadcast Services Business" shall mean the services
component of the Borrower's and the Designated Subsidiaries' broadcast tower
business, but specifically excluding the ownership and leasing of Towers.
"Business Day" shall mean a day on which banks and foreign
exchange markets are open for the transaction of business required for this
Agreement in London and New York, as relevant to the determination to be made or
the action to be taken.
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"Canadian Subsidiaries" shall mean, collectively, Foreign
Subsidiaries organized under the laws of Canada.
"Capital Expenditures" shall mean, in respect of any Person,
expenditures in respect of capital assets which are required to be capitalized
in accordance with GAAP; provided, however, that expenditures in respect of
replacement assets made using any proceeds of casualty insurance policies to the
extent permitted under this Agreement shall not constitute Capital Expenditures.
"Capitalized Lease Obligation" shall mean that portion of any
obligation of a Person as lessee under a lease which is required to be
capitalized on the balance sheet of such lessee in accordance with GAAP.
"Certificate of Financial Condition" shall mean a certificate,
substantially in the form of Exhibit C attached hereto, signed by a Financial
Officer of the Borrower, together with any schedules, exhibits or annexes
appended thereto.
"Change of Control" shall mean any of the following:
(a) any `person' (as such term is used in Sections 13(d) and
14(d) of the Exchange Act), other than one or more Controlling Shareholders, is
or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that for purposes of this clause (a) such person shall be
deemed to have `beneficial ownership' of all shares that any such person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than thirty-five percent
(35%) of the total voting power of the Voting Stock of Holdco; provided,
however, that the Controlling Shareholders do not have the right or ability by
voting power, contract or otherwise, to elect or designate for election a
majority of the board of directors of Holdco (for the purposes of this clause
(a), such other person shall be deemed to beneficially own any Voting Stock of
an entity (the `specified entity') held by any other entity (the `parent
entity'), if such other person is the beneficial owner (as defined in this
clause (a)), directly or indirectly, of more than thirty-five percent (35%) of
the voting power of the Voting Stock of such parent entity and the Controlling
Shareholders `beneficially own' (as defined in this clause (a)), directly or
indirectly, in the aggregate a lesser percentage of the voting power of the
Voting Stock of such parent entity and do not have the right or ability by
voting power, contract or otherwise, to elect or designate for election of a
majority of the board of directors of such parent entity); or
(b) during any period of two (2) consecutive years (or, in the
case this event occurs within the two (2) year period following the Agreement
Date, such shorter period as shall have begun on the Agreement Date),
individuals who at the beginning of such period constituted the board of
directors of Holdco (together with any new directors whose election by such
board of directors or whose nomination for election by the shareholders of
Holdco was approved by a vote of a majority of the directors of Holdco then
still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the board of directors of Holdco then in
office; or
(c) Holdco's merger or consolidation with or into another
Person or the merger of another Person with or into Holdco if Holdco's
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securities that are outstanding immediately prior to such transaction and which
represent one hundred percent (100%) of the aggregate voting power of Holdco's
Voting Stock are changed into or exchanged for cash, securities or property,
unless pursuant to such transaction such securities are changed into or
exchanged for, in addition to any other consideration, securities of the
surviving corporation that represent immediately after such transaction, at
least a majority of the aggregate voting power of the Voting Stock of the
surviving corporation; or
(d) the sale of all or substantially all of Holdco's assets to
another Person, other than a Controlling Shareholder or a Person that is
controlled by the Controlling Shareholders; or
(e) the failure of Holdco to own and control, free of any Lien
or encumbrance other than Liens in favor of the Collateral Agent and Permitted
Liens, one hundred percent (100%) of the issued and outstanding Equity Interests
of the Borrower (other than any Permitted High-Yield Securities); or
(f) the failure of the Borrower to own and control, free of
any Lien or encumbrance other than Permitted Liens, one hundred percent (100%)
of the issued and outstanding Equity Interests of each of the Tower Subsidiaries
and at least fifty-one percent (51%) of the issued and outstanding Equity
Interests of each of the other Designated Subsidiaries.
"CIBC" shall mean Canadian Imperial Bank of Commerce acting by
or through one or more of its affiliates, branches or agencies, and any
successor thereof.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Co-Documentation Agents" shall mean, collectively, Bank of
Montreal, Chicago Branch and TD Securities (USA) Inc., in their respective
capacities as co-documentation agents under this Agreement.
"Co-Locator" shall mean any tenant on a Tower which is not an
anchor tenant.
"Co-Location Percentage" shall mean, with respect to the
Borrower and the Designated Subsidiaries on a consolidated basis, as of the last
day of any fiscal quarter, the percentage determined by dividing the total
number of co-location leases executed by the Borrower or any Designated
Subsidiary during the fiscal quarter then ended by the total number of Towers
owned or leased by the Borrower or a Designated Subsidiary as of the first day
of such fiscal quarter, multiplied by four (4).
"Collateral" shall mean all property pledged as collateral
security for the Obligations pursuant to the Security Documents or otherwise to
the extent set forth in the Security Documents, and all other property of the
Borrower or any of the Subsidiary Guarantors that is now or hereafter in the
possession or control of any Credit Party or in which any Credit Party has been
granted a Lien.
"Collateral Agent" shall mean CIBC, in its capacity as
collateral agent for the Credit Parties hereunder and under the Security
Documents, together with any successor Collateral Agent hereunder.
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"Commitment Ratio" shall mean, with respect to any Lender, the
ratio, expressed as a percentage, of (i) the Commitments of such Lender, divided
by (ii) the aggregate Commitments of all of the Lenders. As of the Agreement
Date, the Commitments of each Lender are set forth on Schedule 1 to the Lender
Addendum delivered by such Lender.
"Commitments" shall mean, collectively, the Revolving
Commitment, the Tranche A Commitment, the Tranche B Commitment and, if
applicable, the Incremental Facility Commitments.
"Communications Act" shall mean the Communications Act of
1934, and any similar or successor federal statute, and the rules and
regulations of the FCC thereunder, all as amended and as the same may be in
effect from time to time.
"Concourse Communications" shall mean Concourse Communications
Group LLC, a Delaware limited liability company all of the Equity Interests of
which are owned by the Borrower and NTA.
"Controlling Shareholders" shall mean, collectively, Welsh,
Whitney, Stephen H. Clark, David P. Tomick, Joe L. Finley, Waller-Sutton Media
Partners, L.P., Kitty Hawk Limited Partnership, III, Kitty Hawk Capital Limited
Partnership, IV, Eagle Creek Capital, L.L.C., The North Carolina Enterprise
Fund, L.P., Finley Family Limited Partnership, SBC and Nextel or any Person
directly or indirectly controlling, controlled by, or under common control with
any of the foregoing.
"Convertible Securities" shall mean, collectively, (a) any
Equity Interests of any Person which are convertible, at the option of the
holder thereof, into Funded Debt at any time on or before the date which is six
(6) months following the Final Maturity Date and (b) any Equity Interests of any
Person which are convertible, other than at the option of the Borrower, into
Funded Debt upon the occurrence of a triggering event, but such Equity Interests
shall only be deemed Convertible Securities upon the occurrence of such
triggering event.
"Corporate Overhead" shall mean, for any period, the result of
(a) the Borrower's selling, general and administrative expenses during such
period, less (b) any pro forma adjustments, which shall be satisfactory to each
of the Lead Arrangers, to the selling, general and administrative expense of any
Person that became a Designated Subsidiary or was merged with or consolidated
into the Borrower or a Designated Subsidiary during such period.
"Credit Parties" shall mean, collectively, the Agents, the
Lenders, the Issuing Bank, the Swing Loan Lender and, if applicable, the
Incremental Facility Lenders.
"Credit Support Provider" shall have the meaning set forth in
Section 13.5(k) hereof.
"CSFB" shall mean Credit Suisse First Boston acting by or
through one or more of its affiliates, branches or agencies, and any successor
thereof.
"CTI" shall mean California Tower, Inc., a Delaware
corporation and a wholly owned Restricted Subsidiary of the Borrower.
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"Default" shall mean any Event of Default, and any of the
events specified in Section 10.1, regardless of whether there shall have
occurred any passage of time or giving of notice, or both, that would be
necessary in order to constitute such event an Event of Default.
"Default Rate" shall mean a simple per annum interest rate
equal to the sum of (a) the Base Rate, (b) the Applicable Margin then in effect
with respect to Base Rate Advances, and (c) two percent (2%).
"Designated Subsidiaries" shall mean, collectively, the
Restricted Subsidiaries, the Foreign Subsidiaries, the Domestic SpectraSite
Mexico Subsidiaries, the Foreign SpectraSite Mexico Subsidiaries and, at such
time as the Borrower (directly or indirectly) shall own a majority of the Equity
Interests in Concourse Communications, Concourse Communications and its
Subsidiaries; provided, however, that, in the event the Majority Lenders agree
to the release of any Guaranties issued by or any Collateral pledged by any
Domestic SpectraSite Mexico Subsidiary or any Foreign SpectraSite Mexico
Subsidiary pursuant to Section 6.17(c) hereof, such Subsidiary shall thereafter
not constitute a Designated Subsidiary for purposes of this Agreement.
"Dollars" or "$" shall mean the basic unit of the lawful
currency of the United States of America.
"Domestic SpectraSite Mexico Investments" shall mean any
direct or indirect minority Investments by the Borrower in the Equity Interests
of Persons organized under the laws of the United States or any state thereof or
the District of Columbia which Investments comprise a portion of SpectraSite
Mexico to the extent not designated by the Borrower as Unrestricted Investments.
"Domestic SpectraSite Mexico Subsidiaries" shall mean
Subsidiaries of the Borrower organized under the laws of the United States or
any state thereof or the District of Columbia which Subsidiaries comprise a
portion of SpectraSite Mexico to the extent not designated by the Borrower as
Unrestricted Subsidiaries.
"EBITDA" shall mean, for any period, for the Borrower and the
Designated Subsidiaries on a consolidated basis, the sum of (a) Net Income, plus
(b) to the extent deducted in determining Net Income, the result of (i) the sum
of each of the following for such period: (A) Borrower Interest Expense, (B)
income tax expense, (C) depreciation and amortization, (D) extraordinary losses,
(E) all other non-cash interest or charges and (F) non-recurring charges,
restructuring charges, transaction expenses and underwriters' fees, less (ii)
extraordinary gains and cash payments (not otherwise deducted in determining Net
Income) made during such period with respect to non-cash charges that were added
back in a prior period; provided, however, (I) with respect to any Person that
became a Designated Subsidiary, or was merged with or consolidated into the
Borrower or any Designated Subsidiary, during such period, or the Acquisition by
the Borrower or any of the Designated Subsidiaries of a substantial part of the
assets of any Person, "EBITDA" shall also include (x) the EBITDA of such Person
or attributable to such assets, as applicable, during such period as if such
Acquisition, merger or consolidation had occurred on the first day of such
period, and (y) an amount equal to the projected expense savings to be realized
by the Borrower or such Subsidiary, as the case may be, in connection with such
Acquisition, as demonstrated to the satisfaction of and approved by the Lead
Arrangers, and (II) with respect to any Person that has ceased to be a
Designated Subsidiary during such period, or any material assets of the Borrower
or any of the Designated Subsidiaries sold or otherwise disposed of by the
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Borrower or any such Designated Subsidiary during such period, "EBITDA" shall
exclude the EBITDA of such Person or attributable to such assets, as applicable,
during such period as if such sale or disposition of such Designated Subsidiary
or such assets had occurred on the first day of such period; provided further,
however, that solely for purposes of determining Annualized EBITDA (Tower
Operations) and EBITDA (Other Operations), "EBITDA" shall be the sum of (I)
EBITDA as determined based on the foregoing calculation, plus (II) Corporate
Overhead for the relevant period.
"EBITDA (Other Operations)" shall mean, as of any calculation
date, EBITDA with respect to the Other Operations for the twelve (12) calendar
month period ended on the last day of the calendar month most recently ended for
which financial statements are then available.
"Eligible Assignee" shall mean (a) a Lender, (b) an Affiliate
of a Lender, (c) an Approved Fund, or (d) any other Person (other than a natural
Person) approved by the Administrative Agent and, unless a Default has occurred
and is continuing, the Borrower (such approval of the Administrative Agent and
the Borrower not to be unreasonably withheld or delayed).
"Eligible Debt Offering" shall mean that portion of any public
or private issuance of any Funded Debt or any Convertible Securities by Holdco
conducted after the Agreement Date with respect to which the Net Cash Proceeds
received by Holdco are Invested in the Borrower or any of the Restricted
Subsidiaries in the form of New Affiliated Equity.
"Eligible Equity Offering" shall mean that portion of any
public or private issuance of Permitted High-Yield Securities constituting
preferred equity securities by Holdco conducted after the Agreement Date with
respect to which the Net Cash Proceeds received by Holdco are Invested in the
Borrower or any of the Restricted Subsidiaries in the form of New Affiliated
Equity.
"Environmental Laws" shall mean, with respect to any Person,
all applicable federal, state, local and municipal laws, statutes, rules,
regulations and ordinances, codes, common law, consent agreements to which such
Person is a party or by which it is bound, orders, decrees, judgments,
injunctions, permits, licenses, authorizations and other requirements issued,
promulgated, approved or entered thereunder affecting such Person or its
property and relating to, or imposing liability or standards of conduct
concerning, public or occupational health, safety or the pollution or protection
of the environment, including, without limitation, those relating to releases,
discharges, emissions, spills, leaching, or disposals to, on, under, or in air,
water, land or ground water, to the withdrawal or use of ground water, to the
use, handling or disposal of polychlorinated biphenyls, asbestos or urea
formaldehyde, to the treatment, storage, disposal or management of hazardous
substances.
"Equity Interests" shall mean, as applied to any Person, any
capital stock (common or preferred), general or limited partnership interests,
limited liability company interests or other equivalents of such Person,
regardless of class or designation, and all warrants, options, purchase rights,
conversion or exchange rights, voting rights, calls or claims of any character
with respect thereto.
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"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as in effect from time to time.
"ERISA Affiliate" shall mean any "affiliate" of the Borrower
within the meaning of Section 414 of the Code.
"Eurodollar Advance" shall mean an Advance (other than a Swing
Loan) which the Borrower requests to be made as a Eurodollar Advance or which is
continued as or converted to a Eurodollar Advance in accordance with the
provisions of Section 2.2 hereof.
"Eurodollar Advance Period" shall mean, in connection with any
Eurodollar Advance, the term of such Advance selected by the Borrower, which may
be one (1), two (2), three (3) or six (6) months, and subject to the last
proviso of this definition, nine (9) or twelve (12) months, or otherwise
determined in accordance with this Agreement; provided, however, notwithstanding
the foregoing, (a) any applicable Eurodollar Advance Period which would
otherwise end on a day which is not a Business Day shall be extended to the
succeeding Business Day unless such Business Day falls in another calendar
month, in which case such Eurodollar Advance Period shall end on the preceding
Business Day, (b) any applicable Eurodollar Advance Period which begins on a day
for which there is no numerically corresponding day in the calendar month during
which such Eurodollar Advance Period is to end shall (subject to clause (i)
above) end on the last day of such calendar month, and (c) no Eurodollar Advance
Period shall extend beyond the applicable Maturity Date or such earlier date as
would interfere with the Borrower's repayment obligations under Sections 2.6 or
2.7 hereof; provided further, however, the Borrower may not select a Eurodollar
Advance Period in excess of six (6) months unless the Administrative Agent has
notified the Borrower that each applicable Lender has consented to such
Eurodollar Advance Period.
"Eurodollar Base Rate" shall mean, with respect to each day
during each Eurodollar Advance Period, the rate per annum determined by the
Administrative Agent to be the arithmetic mean (rounded, if necessary, to the
nearest 1/100th of 1%) of the offered rates for deposits in Dollars with a term
comparable to such Eurodollar Advance Period that appears on the Telerate
British Bankers Assoc. Interest Settlement Rates Page at approximately 11:00
a.m. (London time), on the second (2nd) full Business Day preceding such
Eurodollar Advance Period; provided, however, that if there shall at any time no
longer exist a Telerate British Bankers Assoc. Interest Settlement Rates Page,
"Eurodollar Base Rate" shall mean, with respect to each day during each
Eurodollar Advance Period, the rate per annum equal to the rate at which CIBC is
offered Dollar deposits at or about 11:00 a.m. (New York time), two (2) Business
Days prior to the beginning of such Eurodollar Advance Period in the interbank
eurodollar market where the eurodollar and foreign currency and exchange
operations in respect of its Eurodollar Advances are then being conducted for
delivery on the first day of such Eurodollar Advance Period for the number of
days comprised therein and in the amount comparable to the amount of its
Eurodollar Advance to be outstanding during such Eurodollar Advance Period. As
used herein, "Telerate British Bankers Assoc. Interest Settlement Rates Page"
shall mean the display designated as page 3750 on the Telerate System
Incorporated Service (or such other page as may replace such page on such
service for the purpose of displaying the rates at which Dollar deposits are
offered by leading banks in the London interbank deposit market).
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"Eurodollar Rate" shall mean, with respect to each day during
each Eurodollar Advance Period, a rate per annum determined for such day in
accordance with the following formula (rounded, if necessary, upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
1.00 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" shall mean, for any day as
applied to a Eurodollar Advance, the aggregate (without duplication) of the
rates (expressed as a decimal fraction) of reserve requirements in effect on
such day (including, without limitation, basic, supplemental, marginal and
emergency reserves under any regulations of the Board of Governors of the
Federal Reserve System or other Governmental Authority having jurisdiction with
respect thereto) dealing with reserve requirements prescribed for eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
such Board) maintained by a member bank of the Federal Reserve System.
"Event of Default" shall mean any of the events specified in
Section 10.1, provided that any requirement for notice or lapse of time or both
has been satisfied.
"Excess Cash Flow" shall mean, with respect to the Borrower
and the Designated Subsidiaries on a consolidated basis, as of the end of any
fiscal year of the Borrower and based on the audited financial statements
required to be provided under Section 7.2 hereof, the excess of (a) EBITDA
(without regard to either proviso in the definition of the term "EBITDA") for
such fiscal year, over (b) the sum of the following items for such fiscal year:
(i) Fixed Charges; (ii) non-maintenance Capital Expenditures; and (iii)
permanent, voluntary prepayments of the Loans (accompanied by permanent
reduction in a like amount of the Revolving Commitment, in the case of such
prepayment of the Revolving Loans) hereunder.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as it may be amended, and any successor act thereto.
"Exemption Certificate" shall have the meaning set forth in
Section 2.13 hereof.
"FAA" shall mean the Federal Aviation Administration, or any
other similar or successor agency of the federal government.
"FCC" shall mean the Federal Communications Commission, or any
other similar or successor agency of the federal government administering the
Communications Act.
"Federal Funds Rate" shall mean, as of any date, the weighted
average of the rates on overnight federal funds transactions with the members of
the Federal Reserve System arranged by federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding Business
Day) by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the quotations for
such day on such transactions received by the Administrative Agent from three
(3) federal funds brokers of recognized standing selected by the Administrative
Agent.
"Final Maturity Date" shall mean December 31, 2007, or such
earlier date on which the payment of all outstanding Obligations shall be due
(whether by acceleration or otherwise).
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"Financial Covenants" shall mean from time to time the
financial covenants applicable to the Borrower from time to time as set forth in
Article 9 hereof.
"Financial Officer" shall mean, with respect to any Person,
the chief financial officer, treasurer or vice president of finance of such
Person.
"Financial Statements" shall have the meaning assigned thereto
in Section 5.1(k) hereof.
"Fixed Charge Coverage Ratio" shall mean, on any calculation
date, for the Borrower and the Designated Subsidiaries on a consolidated basis,
the ratio of (a) Annualized EBITDA as at such date, to (b) the amount of Fixed
Charges during the immediately preceding four (4) fiscal quarter period.
"Fixed Charges" shall mean, for any period, for the Borrower
and the Designated Subsidiaries, on a consolidated basis, the sum of the
following for such period: (a) cash Borrower Interest Expense; (b) mandatory,
permanent scheduled principal repayments with respect to Borrower Debt; (c)
maintenance Capital Expenditures; (d) taxes payable; and (e) the amount of any
Restricted Payments made to Holdco or to the holders of minority interests in
any of the Designated Subsidiaries.
"Foreign Investments" shall mean direct or indirect minority
Investments by the Borrower in the Equity Interests of Persons (other than any
Foreign SpectraSite Mexico Investments) organized under the laws of a
jurisdiction other than the United States or any state thereof or the District
of Columbia to the extent not designated by the Borrower as an Unrestricted
Investment.
"Foreign Lender" shall have the meaning set forth in Section
2.13 hereof.
"Foreign SpectraSite Mexico Investments" shall mean direct or
indirect minority Investments by the Borrower in the Equity Interests of Persons
organized under the laws of a jurisdiction other than the United States or any
state thereof or the District of Columbia which Investments comprise a portion
of SpectraSite Mexico to the extent not designated by the Borrower as an
Unrestricted Investment.
"Foreign SpectraSite Mexico Subsidiaries" shall mean
Subsidiaries of the Borrower organized under the laws of a jurisdiction other
than the United States or any state thereof or the District of Columbia which
Subsidiaries comprise a portion of SpectraSite Mexico to the extent not
designated by the Borrower as an Unrestricted Subsidiary.
"Foreign Subsidiaries" shall mean the direct or indirect
Subsidiaries of the Borrower (other than any Foreign SpectraSite Mexico
Subsidiaries) that are organized under the laws of a jurisdiction other than the
United States or any state thereof or the District of Columbia to the extent not
designated by the Borrower as an Unrestricted Subsidiary.
"Fund" shall mean any Person (other than a natural Person)
that is (or will be) primarily engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit in the
ordinary course of its business.
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"Funded Debt" shall mean, with respect to any Person as of any
calculation date, the sum of the following as of such date: (a) the principal
amount of all outstanding Indebtedness for money borrowed of such Person; (b)
the principal amount of all Indebtedness for money borrowed Guaranteed by such
Person; (c) the stated amount of all letters of credit issued for the account of
such Person; (d) all Capitalized Lease Obligations of such Person; and (e) if a
Default or Event of Default then exists hereunder or a default then exists under
any Interest Hedge Agreements, the net termination payment obligations under
such Interest Hedge Agreements.
"GAAP" shall mean generally accepted accounting principles in
the United States, consistently applied.
"Governmental Authority" shall mean any government or
political subdivision of the United States or any other country or any agency,
authority, board, bureau, central bank, commission, department or
instrumentality thereof or therein, including, without limitation, any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic, or
any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to such government or political
subdivision.
"Granting Lender" shall have the meaning assigned thereto in
Section 13.5(k).
"Guarantors" shall mean, collectively, Holdco and each of the
Subsidiary Guarantors.
"Guaranty" or "Guaranteed," as applied to an obligation, shall
mean and include (a) a guaranty, direct or indirect, in any manner, of all or
any part of such obligation, and (b) any agreement, direct or indirect,
contingent or otherwise, the practical effect of which is to assure in any way
the payment or performance (or payment of damages in the event of
non-performance) of all or any part of such obligation, including, without
limiting the foregoing, any reimbursement obligations with respect to
outstanding letters of credit, but not including any endorsements of any
instrument for collection in the ordinary course of business.
"Hazardous Materials" shall mean any substances, materials,
compounds or wastes defined, listed, or subject to control under any
Environmental Law as being hazardous, toxic, extremely hazardous or dangerous.
"Holdco" shall have the meaning assigned thereto in the
recitals to this Agreement.
"Holdco 6-3/4% Convertible Notes (2010)" shall mean the
unsecured 6-3/4% Senior Convertible Notes due 2010 issued by Holdco in an
aggregate principal amount of $200,000,000, pursuant to the terms and conditions
of the applicable Holdco Notes Indenture.
"Holdco 10-3/4% Notes (2010)" shall mean the unsecured 10-3/4%
Senior Notes due 2010 issued by Holdco in an aggregate principal amount of
$200,000,000, pursuant to the terms and conditions of the applicable Holdco
Notes Indenture.
"Holdco 11-1/4% Notes (2009)" shall mean the unsecured 11-1/4%
Senior Discount Notes due 2009 issued by Holdco in an aggregate principal amount
at maturity of $586,800,000 (yielding $340,000,000 of gross proceeds to Holdco),
pursuant to the terms and conditions of the applicable Holdco Notes Indenture.
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"Holdco 12% Notes (2008)" shall mean the unsecured 12% Senior
Discount Notes due 2008 issued by Holdco in an aggregate principal amount at
maturity of $225,200,000 (yielding $125,000,000 of gross proceeds to Holdco),
pursuant to the terms and conditions of the applicable Holdco Notes Indenture.
"Holdco 12-1/2% Notes (2010)" shall mean the unsecured 12-1/2%
Senior Notes due 2010 issued by Holdco in an aggregate principal amount of
$200,000,000 (yielding $195,000,000 of gross proceeds to Holdco), pursuant to
the terms and conditions of the applicable Holdco Notes Indenture.
"Holdco 12-7/8% Notes (2010)" shall mean the unsecured 12-7/8%
Senior Discount Notes due 2010 issued by Holdco in an aggregate principal amount
at maturity of $559,800,000 (yielding $300,000,000 of gross proceeds to Holdco),
pursuant to the terms and conditions of the applicable Holdco Notes Indenture.
"Holdco EBITDA" shall mean, for any period, for Holdco and its
Subsidiaries on a consolidated basis, the sum of (a) Holdco Net Income, plus (b)
to the extent deducted in determining Net Income, the result of (i) the sum of
each of the following for such period: (A) Holdco Interest Expense, (B) income
tax expense, (C) depreciation and amortization, (D) extraordinary losses, (E)
all other non-cash interest or charges and (F) non-recurring charges,
restructuring charges, transaction expenses and underwriters' fees, less (ii)
extraordinary gains and cash payments (not otherwise deducted in determining
Holdco Net Income) made during such period with respect to non-cash charges that
were added back in a prior period; provided, however, (I) with respect to any
Person that became a Subsidiary of Holdco, or was merged with or consolidated
into Holdco or any Subsidiary of Holdco, during such period, or the Acquisition
by Holdco or any of its Subsidiaries of a substantial part of the assets of any
Person, "EBITDA" shall also include (x) the EBITDA of such Person or
attributable to such assets, as applicable, during such period as if such
Acquisition, merger or consolidation had occurred on the first day of such
period, and (y) with respect to any Acquisition by the Borrower or any
Designated Subsidiary, an amount equal to the projected expense savings to be
realized by the Borrower or any such Subsidiary that is a Designated Subsidiary,
as the case may be, in connection with such Acquisition, as demonstrated to the
satisfaction of and approved by the Lead Arrangers, and (II) with respect to any
Person that has ceased to be a Subsidiary of Holdco during such period, or any
material assets of Holdco or any of its Subsidiaries sold or otherwise disposed
of by Holdco or any such Subsidiary during such period, "EBITDA" shall exclude
the EBITDA of such Person or attributable to such assets, as applicable, during
such period as if such sale or disposition of such Subsidiary or such assets had
occurred on the first day of such period.
"Holdco Interest Expense" shall mean, for any period, for
Holdco and its Subsidiaries on a consolidated basis, all interest expense paid
or accrued in respect of Funded Debt (including, without limitation, the
interest component of payments for such period in respect of Capitalized Lease
Obligations), together with recurring fees (in any event, including, without
limitation, all fees due under Section 2.4 hereof) associated therewith (other
than fees payable on or prior to the Agreement Date), after giving effect to any
Interest Hedge Agreements, all as determined in accordance with GAAP, excluding
underwriting, arrangement and similar fees.
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"Holdco Net Income" shall mean, for Holdco and its
Subsidiaries on a consolidated basis, for any period, net income determined in
accordance with GAAP.
"Holdco Notes" shall mean, collectively, the Holdco 6-3/4%
Convertible Notes (2010), the Holdco 10-3/4% Notes (2010), the Holdco 11-1/4%
Notes (2009), the Holdco 12% Notes (2008), the Holdco 12-1/2% Notes (2010) and
the Holdco 12-7/8% Notes (2010).
"Holdco Notes Indentures" shall mean, collectively, (a) that
certain Indenture dated as of June 26, 1998, between Holdco, as issuer, and the
Indenture Trustee, in respect of the Holdco 12% Notes (2008), (b) that certain
Indenture dated as of April 20, 1999, between Holdco, as issuer, and the
Indenture Trustee, in respect of the Holdco 11-1/4% Notes (2009), (c) that
certain Indenture dated as of March 15, 2000, between Holdco, as issuer, and the
Indenture Trustee, in respect of the Holdco 10-3/4% Notes (2010), (d) that
certain Indenture dated as of March 15, 2000, between Holdco, as issuer, and the
Indenture Trustee, in respect of the Holdco 12-7/8% Notes (2010), (e) that
certain Indenture dated as of November 20, 2000, in respect of the Holdco 6-3/4%
Convertible Notes (2010), and (f) that certain Indenture dated as of December
20, 2000, in respect of the Holdco 12-1/2% Notes (2010).
"Holdco Pledge Agreement" shall mean that certain Amended and
Restated Stock Pledge Agreement between Holdco and the Collateral Agent, for the
benefit of the Credit Parties, dated as of the Agreement Date, in substantially
the form of Exhibit D attached hereto, pursuant to which Holdco has pledged to
the Collateral Agent all of the Equity Interests, whether now owned or hereafter
acquired by Holdco, in the Borrower.
"Incremental Facility Commitments" shall mean, collectively,
the aggregate commitments of the Incremental Facility Lenders to make Advances
of the Incremental Facility Loans to the Borrower in accordance with Section
2.16 hereof.
"Incremental Facility Indebtedness" shall mean all principal,
interest, fees, and other amounts from time to time due or accrued in connection
with the Incremental Facility Loans.
"Incremental Facility Lenders" shall mean any lenders having
an Incremental Facility Commitment or making Incremental Facility Loans pursuant
thereto.
"Incremental Facility Loans" shall mean the amounts advanced
by the Incremental Facility Lenders to the Borrower as Incremental Facility
Loans under the Incremental Facility Commitment, not to exceed the amount of the
Incremental Facility Commitment, and evidenced by the Incremental Facility
Notes.
"Incremental Facility Maturity Date" shall mean the maturity
date for the Incremental Facility Loans as set forth in the Notice of
Incremental Facility Commitment applicable thereto.
"Incremental Facility Notes" shall mean those certain
Incremental Facility Notes described in Section 2.16 hereof.
"Indebtedness" shall mean, with respect to any Person, and
without duplication, (a) all indebtedness for money borrowed of such Person, (b)
all obligations of such Person for the deferred purchase price (to the extent
determinable) of property or services (other than current trade payables
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incurred in the ordinary course of such Person's business), provided that to the
extent any such obligation is reflected as a liability on the balance sheet of
such Person, such obligation shall in any event be considered "Indebtedness",
(c) all obligations of such Person evidenced by notes, bonds, debentures or
similar instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (e) all obligations of such Person, contingent or
otherwise, as an account party or applicant under or in respect of acceptances,
letters of credit, surety bonds or similar arrangements, (f) the liquidation
value of all redeemable preferred Equity Interests of such Person, (g) all
direct or indirect obligations of any other Person secured by any Lien to which
any property or asset owned by such Person is subject, whether or not the
obligation secured thereby shall have been assumed, (h) to the extent not
otherwise included, any Guaranty and all Capitalized Lease Obligations of such
Person and all obligations of such Person with respect to leases constituting
part of a sale and lease-back arrangement and (i) net termination payments under
Interest Hedge Agreements.
"Indenture Trustee" shall mean United States Trust Company of
New York, in its capacity as trustee under the Holdco Notes Indentures.
"Indemnified Parties" shall mean those Persons eligible to be
indemnified by the Borrower and the Designated Subsidiaries pursuant to this
Agreement, and shall include each of the Credit Parties and each of their
respective employees, representatives, officers, agents, directors and
Affiliates.
"Initial Maturity Date" shall mean June 30, 2007, or such
earlier date on which the payment of all outstanding Obligations in respect of
the Revolving Commitment and the Tranche A Loans shall be due (whether by
acceleration or otherwise).
"Insolvency Proceeding" shall mean, with respect to any
Person, any insolvency, receivership, bankruptcy, dissolution, liquidation, or
reorganization proceeding, or any other proceeding, whether voluntary or
involuntary, by or against such Person, under any bankruptcy or insolvency law
or laws, federal or state, relating to the relief of debtors of any
jurisdiction, whether now or hereafter in effect, and in any out-of-court
composition, assignment for the benefit of creditors, readjustment of
Indebtedness, reorganization, extension or other debt arrangement of any kind.
"Intellectual Property Security Agreements" shall mean,
collectively, (a) that certain Amended and Restated Trademark Security Agreement
between the Borrower and the Collateral Agent, for the benefit of the Credit
Parties, dated as of the Agreement Date, in substantially the form of Exhibit
E-1 attached hereto, (b) that certain Subsidiary Trademark Security Agreement
between each of the Subsidiary Guarantors having any rights with respect to any
trademarks or trademark registrations and the Collateral Agent, for the benefit
of the Credit Parties, dated as of the Agreement Date, in substantially the form
of Exhibit E-2 attached hereto, (c) that certain Subsidiary Patent Security
Agreement between each of the Subsidiary Guarantors having any rights with
respect to any patents or patent registrations and the Collateral Agent, for the
benefit of the Credit Parties, dated as of the Agreement Date, in substantially
the form of Exhibit E-3 attached hereto, and (d) any similar agreements
delivered pursuant to Section 6.15 hereof.
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"Interest Hedge Agreements" shall mean any interest rate swap,
cap, collar, floor, caption or swaption agreements, or any similar arrangements
designed to hedge the risk of variable interest rate volatility or to reduce
interest costs, arising at any time between the Borrower, on the one hand, and
any one or more of the Lenders, or any other Person (other than an Affiliate of
the Borrower), on the other hand, as such agreement or arrangement may be
modified, supplemented and in effect from time to time.
"Investment" shall mean, with respect to any Person, any loan,
advance or extension of credit (other than to customers, lessees or licensees in
the ordinary course of business) by such Person to, or any Guaranty or other
contingent liability with respect to the Equity Interests, Funded Debt, or other
obligations of, or any contributions to the capital of, any other Person, or any
ownership, purchase or other acquisition by such Person of any interest in any
Equity Interests or other securities of any such other Person, other than an
Acquisition; and "Invest," "Investing" or "Invested" shall mean the making of an
Investment. "Investment" shall also include the total cost of any future
commitment or other obligation binding on any Person to make an Investment or
any subsequent Investment.
"Issuing Bank" shall mean the Administrative Agent, any Lender
or any of their respective Affiliates, in each case as issuer of any Letter of
Credit hereunder.
"L/C Obligations" shall mean, at any date, the sum of (a) the
aggregate amount then available to be drawn under all outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed by the Borrower pursuant to Section 2.14(e)
hereof.
"L/C Participants" shall mean with respect to any Letter of
Credit, collectively, all of the Lenders which have issued a Revolving
Commitment other than the Swing Loan Lender (in its capacity as a Swing Loan
Lender) or the applicable Issuing Bank.
"L/C Participating Interest" shall mean with respect to any
Letter of Credit (a) in the case of the Issuing Bank with respect thereto, its
interest in such Letter of Credit and any Letter of Credit Application relating
thereto after giving effect to the granting of participating interests therein,
if any, pursuant hereto and (b) in the case of each L/C Participant, its
undivided participating interest in such Letter of Credit and any Letter of
Credit Application relating thereto.
"Lead Arrangers" shall mean, collectively, CIBC World Markets
Corp. and CSFB in their respective capacities as lead arrangers under this
Agreement.
"Lender Addendum" shall mean, with respect to any initial
Lender, a Lender Addendum, substantially in the form of Exhibit F attached
hereto, to be executed and delivered by such Lender on the Agreement Date as
provided in Section 13.18 hereof.
"Lenders" shall mean the financial institutions or other
entities that from time to time become parties to this Agreement as Lenders
(including the Swing Loan Lender).
"Letter of Credit Application" shall mean an application in
such form as an Issuing Bank may specify from time to time requesting such
Issuing Bank to issue a Letter of Credit.
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"Letter of Credit Committed Amount" shall mean $50,000,000.
"Letters of Credit" shall mean any and all letters of credit
issued by any Issuing Bank for the account of the Borrower pursuant to Section
2.14 of this Agreement.
"Lien" shall mean, with respect to any property, any mortgage,
lien, pledge, negative pledge or other agreement not to pledge, assignment,
charge, security interest, title retention agreement, levy, execution, seizure,
attachment, garnishment or other similar encumbrance of any kind in respect of
such property, whether created by statute, contract, common law or otherwise,
and whether choate or inchoate, vested or perfected.
"Loan Documents" shall mean, without limitation, this
Agreement, the Notes, the Security Documents, the Nextel Intercreditor
Agreement, all Requests for Advance, all Requests for Issuance of Letters of
Credit, all Swing Loan Requests, the Certificate of Financial Condition, the Use
of Proceeds Letter, all Performance Certificates, all Letters of Credit issued
hereunder, all Interest Hedge Agreements with a Lender or any Affiliate of a
Lender, any fee letters executed by the Borrower in favor of the Administrative
Agent with respect to certain fees payable in connection with the administration
of this Agreement, and any other document or agreement or certificate
(including, without limitation, any legal opinion issued by counsel for the
Borrower or any of its Affiliates and any reliance letter issued with respect to
any such legal opinion) executed or delivered in connection with or contemplated
by this Agreement.
"Loans" shall mean, collectively, the Revolving Loans, the
Swing Loans, the Term Loans and, if applicable, the Incremental Facility Loans.
"Lodestar Acquisition Documents" shall mean that certain Stock
Purchase Agreement dated as of April 12, 2000, between the Borrower and LeBlanc
& Royale Enterprises, Inc., a corporation organized under the laws of Canada,
together with all exhibits and schedules thereto and all documents executed in
connection therewith.
"Majority Lenders" shall mean (i) prior to the occurrence of
an Event of Default and the termination of Unfunded Commitments, Lenders the sum
of whose Unfunded Commitments plus Loans outstanding equals or exceeds 50.1% of
the sum of such items for all Lenders, or (ii) at any time that there exists an
Event of Default hereunder, and Unfunded Commitments have been terminated,
Lenders the total of whose Loans (including, with respect to each Revolving
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Lender, such Lender's participating interest in the Swing Loans, and with
respect to each L/C Participant, the amount of its L/C Participating Interest)
outstanding equals or exceeds 50.1% of the total principal amount of the Loans
and the L/C Participating Interests then outstanding hereunder.
"Majority Pro Rata Lenders" shall mean (i) prior to the
occurrence of an Event of Default and the termination of Unfunded Commitments,
Lenders the sum of whose Unfunded Commitments (other than Incremental Facility
Commitments structured as an institutional tranche) plus Loans (other than
Tranche B Loans and Incremental Facility Loans structured as Tranche B Loans or
another institutional tranche) outstanding equals or exceeds 50.1% of the sum of
such items for all Lenders, or (ii) at any time that there exists an Event of
Default hereunder, and Unfunded Commitments have been terminated, Lenders the
total of whose Loans (other than Tranche B Loans and Incremental Facility Loans
structured as Tranche B Loans or another institutional tranche) (including, with
respect to each Revolving Lender, such Lender's participating interest in the
Swing Loans, and with respect to each L/C Participant, the amount of its L/C
Participating Interest) outstanding equals or exceeds 50.1% of the total
principal amount of the Loans (other than Tranche B Loans and Incremental
Facility Loans structured as Tranche B Loans or another institutional tranche)
and the L/C Participating Interests then outstanding hereunder.
"Majority Tranche B Lenders" shall mean (i) prior to the
occurrence of an Event of Default and the termination of Unfunded Commitments,
Lenders the sum of whose Unfunded Commitments consisting of Incremental Facility
Commitments structured as an institutional tranche plus Tranche B Loans and
Incremental Facility Loans structured as Tranche B Loans or another
institutional tranche outstanding equals or exceeds 50.1% of the sum of such
items for all Lenders, or (ii) at any time that there exists an Event of Default
hereunder, and Unfunded Commitments have been terminated, Lenders the total of
whose Tranche B Loans and Incremental Facility Loans structured as Tranche B
Loans or another institutional tranche outstanding equals or exceeds 50.1% of
the total principal amount of the Tranche B Loans and Incremental Facility Loans
structured as Tranche B Loans or another institutional tranche then outstanding
hereunder.
"Mandatory Borrowing" shall have the meaning given thereto in
Section 2.15(b) hereof.
"Managing Agents" shall mean, collectively, Barclays Bank plc,
Bank of New York, Deutsche Bank, Rabobank, General Electric Capital Corporation,
and The Bank of Nova Scotia.
"Material Contracts" shall have the meaning assigned thereto
in Section 5.1(y) hereof.
"Material Towers" shall mean, as of any date of determination,
any Tower or any group or set of Towers wheresoever located to which more than
ten percent (10%) of Annualized EBITDA for the twelve (12) month period most
recently ended is attributable.
"Materially Adverse Effect" shall mean (a) any material
adverse effect upon the business, operations, properties, condition (financial
or otherwise), capitalization, assets or liabilities or results of operations of
the Restricted Group taken as a whole, or upon the ability of the Restricted
Group, taken as a whole, to conduct the Tower Operations, or (b) any material
adverse effect upon the business, operations, properties, condition (financial
or otherwise), capitalization, assets or liabilities or results of operations of
the Borrower and the Designated Subsidiaries taken as a whole, or upon the
ability of the Borrower and the Designated Subsidiaries, taken as a whole, to
conduct the Tower Operations, or (c) a material adverse effect upon the binding
nature, validity, or enforceability of this Agreement, the Notes and the other
Loan Documents or upon the ability of the Borrower or any of the Designated
Subsidiaries to perform the payment obligations or other material obligations
under this Agreement or any other Loan Document, or upon the rights, benefits or
interests of the Lenders in and to the Loans or the rights of the Collateral
Agent in the Collateral; in any case, whether resulting from any single act,
omission, situation, status, event or undertaking, or taken together with other
such acts, omissions, situations, statuses, events or undertakings.
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"Maturity Date" shall mean, with respect to all amounts owing,
or Advances made, under (a) the Revolving Commitment or the Tranche A
Commitment, the Initial Maturity Date, (b) the Tranche B Commitment, the Final
Maturity Date and (c) any Incremental Facility Commitment, the Incremental
Facility Maturity Date applicable thereto.
"Mortgage" shall mean any mortgage, deed to secure debt, deed
of trust, or other instrument encumbering or transferring title (in fee simple
or leasehold) to real property, in form and substance reasonably satisfactory to
the Administrative Agent, by which the Borrower or any of the Subsidiary
Guarantors grants a mortgage to the Collateral Agent, for the benefit of the
Credit Parties, in real estate owned or leased by the Borrower or such
Subsidiary Guarantor, in each case to the extent delivered prior to the
Agreement Date or as otherwise required by this Agreement.
"Mortgage Default" shall have the meaning assigned thereto in
the Mortgages.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Necessary Authorizations" shall mean any local zoning
ordinances and any rights, whether based upon any agreement, statute, order or
otherwise, licenses, authorizations, permits, consents, approvals,
registrations, certificates, agreements, permits or other rights filed with,
granted by or entered into by a federal or state governmental authority
(including, without limitation, the FAA and the FCC) which permit or authorize
the construction or maintenance of a Tower or the use of a Tower by the Borrower
or any of the Designated Subsidiaries for wireless communications purposes,
together with any amendment, modification or replacement with respect thereto.
"Net Income" shall mean, for the Borrower and the Designated
Subsidiaries on a consolidated basis, for any period, net income determined in
accordance with GAAP.
"Net Cash Proceeds" shall mean, with respect to (i) any sale,
lease, transfer or other disposition (including, without limitation, by casualty
loss or condemnation) of Assets by the Borrower or any of the Designated
Subsidiaries, or (ii) any receipt from Holdco by the Borrower or any of the
Designated Subsidiaries of the proceeds from the issuance by Holdco of any
Equity Interests or other debt or equity securities (in any event, a "Sales
Transaction"), the aggregate amount of cash received by the Borrower or such
Designated Subsidiary for such Assets or securities (including, without
limitation, any payments received in respect of covenants not to compete,
consulting or management fees, and any portion of the amount received in cash
upon payment of a buyer promissory note or other evidence of Indebtedness), net
of (a) taxes payable with respect to any such Sales Transaction, (b)
contingencies with respect to any such Sales Transaction, appropriately reserved
for by the Borrower or the applicable Designated Subsidiary under GAAP, (c)
reasonable and customary transaction costs properly attributable to such Sales
Transaction and payable by the Borrower or any of the Designated Subsidiaries
(other than to an Affiliate) in connection with such Sales Transaction,
including, without limitation, sales commissions and underwriting discounts, and
(d) all payments made on any Indebtedness which is secured by any Assets subject
to such Sales Transaction in accordance with the terms of any Lien upon or other
security arrangement of any kind with respect to such Assets, or which must by
its terms, or in order to obtain a necessary consent to such Sales Transaction
or by Applicable Law be repaid out of the proceeds from such Sales Transaction.
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"New Affiliated Equity" shall mean the sum of any amounts
Invested by Holdco in the Borrower or any of the Designated Subsidiaries, in the
form of a common equity contribution or issuance, in connection with the
issuance of any Equity Interests or Permitted Debt by Holdco after the Agreement
Date.
"Nextel" shall mean Nextel Communications, Inc., a Delaware
corporation.
"Nextel Acquisition" shall mean the Acquisition of the Tower
Assets and certain build rights pursuant to the Nextel Acquisition Documents.
"Nextel Acquisition Documents" shall mean, collectively, the
Nextel Master Site Lease Agreement, the Nextel Master Site Commitment Agreement,
the Nextel Subordinated Security Agreement, the Nextel Merger Agreement, the
Nextel Partners Master Site Lease Agreement, the Real Estate Side Letter and the
Nonassignable Contracts Agreements.
"Nextel Collateral" shall mean the "Collateral," as that term
is defined in the Nextel Subordinated Security Agreement.
"Nextel Intercreditor Agreement" shall mean that certain
Intercreditor and Subordination Agreement among the Collateral Agent, Tower
Parent Corp., the Nextel Tenants (other than Nextel Partners), TAS and the
Borrower, dated as of the Original Closing Date, a copy of which is attached
hereto as Exhibit G.
"Nextel Master Site Commitment Agreement" shall mean that
certain Master Site Commitment Agreement, dated as of the Original Closing Date,
among Nextel, the Nextel Tenants (other than Nextel Partners), Tower Parent
Corp., Holdco and TAS.
"Nextel Master Site Lease Agreement" shall mean that certain
Master Site Lease Agreement, dated as of the Original Closing Date, among the
Nextel Tenants (other than Nextel Partners) and TAS.
"Nextel Merger Agreement" shall mean that certain Agreement
and Plan of Merger dated as of February 10, 1999, as amended on the Original
Closing Date, among Nextel, Tower Parent Corp., Tower Merger Vehicle, Inc., TAS,
the Nextel Tenants (other than Nextel Partners), Holdco, the Borrower and SHI
Merger Sub, Inc., a Delaware corporation.
"Nextel Partners" shall mean Nextel Partners Operating Corp.,
a Delaware corporation.
"Nextel Partners Master Site Lease Agreement" shall mean that
certain Master Site Lease Agreement dated as of January 4, 2000, among Nextel
Partners, TAS, the Borrower and the Landlord Parties (as defined therein).
"Nextel Related Parties" shall mean, collectively, Nextel, the
Nextel Tenants and their respective Subsidiaries.
"Nextel Subordinated Lien" shall mean that certain Lien
granted by TAS in favor of Tower Parent Corp., as secured party for itself and
on behalf of other beneficiaries thereof, on the Nextel Collateral pursuant to
the Nextel Subordinated Security Agreement, which Lien is subordinated pursuant
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to the terms and conditions of the Nextel Intercreditor Agreement to the Lien in
the Nextel Collateral in favor of the Collateral Agent, for the benefit of the
Credit Parties.
"Nextel Subordinated Security Agreement" shall mean that
certain Security and Subordination Agreement, dated as of the Original Closing
Date, between TAS, as assignor, and Tower Parent Corp., as secured party for
itself and on behalf of other beneficiaries thereof.
"Nextel Tenants" shall mean, collectively, Nextel of New York,
Inc., a Delaware corporation, Nextel Communications of the Mid-Atlantic, Inc., a
Delaware corporation, Nextel South Corp., a Georgia corporation, Nextel of
Texas, Inc., a Texas corporation, Nextel West Corp., a Delaware corporation, and
Nextel of California, Inc., a Delaware corporation, each d/b/a Nextel
Communications, Nextel Partners and each other Nextel Related Party that is a
tenant under the Nextel Master Site Lease Agreement or the Nextel Partners
Master Site Lease Agreement.
"Nonassignable Contracts Agreements" shall mean, collectively,
all Nonassignable Contracts Agreements, dated as of the Original Closing Date,
among a Nextel Tenant, Tower Parent Corp. and TAS.
"Non-Disturbance Agreement" shall mean any Subordination,
Non-Disturbance and Attornment Agreement, in form and substance reasonably
satisfactory to the Administrative Agent, among the Borrower or any of the
Designated Subsidiaries, the Collateral Agent and a tenant leasing space on any
Tower from the Borrower or such Designated Subsidiary.
"Notes" shall mean, collectively, the Revolving Notes, the
Swing Loan Notes, the Term Notes and, if applicable, the Incremental Facility
Notes.
"Notice of Conversion/Continuation" shall mean a notice in
substantially the form of Exhibit H attached hereto.
"Notice of Incremental Facility Commitment" shall have the
meaning set forth in Section 2.16(b) hereof.
"NTA" shall mean NTA, LLC, a Massachusetts limited liability
company.
"NTA Investment" shall mean the Investment by the Borrower in
Concourse Communications (including the staged purchase of the issued and
outstanding Equity Interests of, and the making of certain loans to, Concourse
Communications) pursuant to the NTA Investment Documents, in an aggregate amount
not to exceed during the term of this Agreement the sum of (a) $8,400,000, which
is the aggregate amount of the Borrower's Investment in Concourse Communications
as of the Agreement Date, plus (b) the amount of any New Affiliated Equity to
the extent allocated solely to this purpose, plus (c) $50,000,000.
"NTA Investment Documents" shall mean, collectively, (a) that
certain Operating Agreement dated as of August 30, 1999, between the Borrower
and NTA, (b) that certain Loan Agreement dated as of August 30, 1999, between
the Borrower and Concourse, together with all exhibits and schedules thereto,
(c) that certain Security Agreement dated as of August 30, 1999, between the
Borrower and Concourse Communications, together with all exhibits and schedules
thereto, (d) that certain Loan Agreement dated as of August 30, 1999, between
Concourse Communications and New York Telecom Partners, LLC, together with all
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exhibits and schedules thereto, (e) that certain Security Agreement dated as of
August 30, 1999, between Concourse and New York Telecom Partners, LLC, together
with all exhibits and schedules thereto, and (f) all other documents executed by
the Borrower in connection with the NTA Investment.
"Obligations" shall mean (a) all payment and performance
obligations of every kind, nature and description of Holdco, the Borrower, the
Designated Subsidiaries, and any other obligors to the Credit Parties (or their
respective Affiliates in the case of Interest Hedge Agreements), or any of them,
under this Agreement and the other Loan Documents (including, without
limitation, any interest, fees, costs, expenses and other charges accruing after
any Insolvency Proceeding of Holdco, the Borrower or any Designated Subsidiary
commences regardless of whether such interest, fees, costs, expenses or other
charges are deemed allowed or recoverable in such Insolvency Proceeding), as
they may be amended from time to time, or as a result of making the Loans,
whether such obligations are direct or indirect, absolute or contingent, due or
not due, contractual or tortious, liquidated or unliquidated, arising by
operation of law or otherwise, now existing or hereafter arising, and (b) the
obligation to pay an amount equal to the amount of any and all damage which the
Credit Parties (or their respective Affiliates in the case of Interest Hedge
Agreements), or any of them, may suffer by reason of a breach by Holdco, the
Borrower, any of the Designated Subsidiaries or any other obligor, of any
obligation, covenant or undertaking with respect to this Agreement or any other
Loan Document.
"Original Closing Date" shall mean April 20, 1999.
"Original Nextel Towers" shall mean those Towers acquired from
the Nextel Related Parties on the Original Closing Date as to which any of the
Nextel Tenants is the anchor tenant and which are subject to the Nextel
Subordinated Lien.
"Other Operations" shall mean all businesses (other than the
Tower Operations) of the Borrower and the Designated Subsidiaries, including,
without limitation, to the extent not included in the Tower Operations, their
Tower Site acquisition and Tower Site management businesses.
"Participants" shall have the meaning assigned thereto in
Section 13.5(b) hereof.
"Payment Date" shall mean the last day of any Eurodollar
Advance Period.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or
any successor thereto.
"Performance Certificate" shall mean a certificate of a
Financial Officer of the Borrower as to its financial performance, in
substantially the form attached hereto as Exhibit I.
"Permitted Acquisition Documents" shall mean all documents
executed by Holdco, the Borrower or any of the Subsidiary Guarantors in
connection with a Permitted Acquisition or a Permitted Investment.
"Permitted Acquisitions" shall mean Acquisitions made by the
Borrower or any of the Designated Subsidiaries as and to the extent permitted
under Section 8.5 hereof.
"Permitted Canadian Investments" shall mean, collectively,
Acquisitions of, and Investments in, Canadian Subsidiaries and Foreign
Investments, which Foreign Investments are Persons organized under the laws of
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Canada, made by the Restricted Group (directly or indirectly) after the
Agreement Date in an aggregate amount not to exceed during the term of this
Agreement the sum of (a) $10,000,000, plus (b) the amount of any New Affiliated
Equity to the extent allocated solely to this purpose.
"Permitted Debt" shall mean Indebtedness permitted to be
incurred and to remain outstanding by Holdco, the Borrower and the Designated
Subsidiaries, pursuant to Section 8.1 hereof.
"Permitted Dispositions" shall mean the sale or other
disposition of Assets by the Borrower or any of the Designated Subsidiaries as
and to the extent permitted under Section 8.5 hereof.
"Permitted High-Yield Securities" shall mean, collectively,
(a) preferred equity securities issued by the Borrower or Holdco, and (b) other
debt securities issued by Holdco (including, without limitation, any debt
securities convertible into Equity Interests of Holdco), as an "add-on" under
the Holdco Notes Indentures or otherwise, upon the Borrower's demonstration to
the Lead Arrangers of pro forma compliance with this Agreement through the Final
Maturity Date; provided, however, that if such equity securities are issued by
the Borrower, such equity securities shall have no creditor-like rights or
remedies; provided further, however, that in each case, the terms and conditions
of such securities (i) shall not be substantially more onerous (taken as a
whole) on Holdco or the Borrower than the terms of the Holdco Notes Indentures
(except for an increase in the interest rate payable thereon to the extent
provided in clauses (ii)(A)(II) and (ii)(B) below); and (ii) shall provide,
among other things, that (A) in the case of discount notes, neither dividends
nor interest shall be payable (I) in cash at any time prior to the third
anniversary of the Agreement Date or (II) at a coupon no greater than fifteen
percent (15%); (B) in the case of any such debt or equity securities with a cash
pay component thereof, the aggregate principal amount thereof and the interest
or dividend rate applicable thereto shall be no greater than the principal
amount and/or the interest or dividend rate with respect to which the Borrower
shall have provided the Credit Parties with revised Projections, satisfactory to
the Lead Arrangers, assuming issuance of such Permitted High-Yield Securities
and taking into account any Restricted Payments permitted to be made to make
interest or dividend payments with respect to such Permitted High-Yield
Securities and demonstrating pro forma compliance with this Agreement through
the Final Maturity Date; and (C) such securities shall have no required cash
redemptions (other than customary change of control and asset sale redemption
provisions) or principal maturities prior to the day after the first anniversary
of the Final Maturity Date.
"Permitted Investments" shall mean Investments described in
and permitted to be made under Section 8.2 hereof.
"Permitted Liens" shall mean, as applied to any Person:
(a) Any Lien in favor of the Collateral Agent given to
secure the Obligations;
(b) (i) Liens on real estate for real estate taxes not yet
delinquent and (ii) Liens for taxes, assessments, judgments, governmental
charges or levies or claims not yet delinquent or the non-payment of which is
being diligently contested in good faith by appropriate proceedings and for
which reserves in conformity with GAAP have been set aside on such Person's
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books, but only so long as no foreclosure, distraint, sale or similar
proceedings have been commenced with respect thereto;
(c) Liens of landlords, carriers, warehousemen, mechanics,
laborers, vendors (solely to the extent arising by operation of law) and
materialmen and other statutory Liens incurred in the ordinary course of
business for sums that are not more than sixty (60) days delinquent in
accordance with their terms or that are being diligently contested in good
faith, if reserves or appropriate provisions shall have been made therefor;
(d) Liens incurred in the ordinary course of business in
connection with worker's compensation and unemployment insurance or other social
security programs;
(e) Easements, rights-of-way, restrictions, survey exceptions,
zoning, land use and environmental restrictions, and other similar encumbrances
on the use of real property which do not materially interfere with the ordinary
conduct of the business of such Person or materially detract from the utility or
value of such real property, or Liens incidental to the conduct of the business
of such Person or to the ownership of its properties which were not incurred in
connection with Indebtedness or other extensions of credit and which do not in
the aggregate materially detract from the value of such properties or materially
impair their use in the operation of the business of such Person;
(f) the Nextel Subordinated Lien;
(g) Liens securing conditional sale, rental or purchase money
obligations permitted to be incurred pursuant to Section 8.1(i) hereof, but only
in the property that is the subject of such obligation;
(h) Liens granted to secure the performance of letters of
credit, bids, tenders, contracts, leases, public or statutory obligations,
surety, customs, appeal and performance bonds and other similar obligations
incurred in the ordinary course of business and not incurred in connection with
the borrowing of money;
(i) leasehold and license rights and interests granted to
third parties in respect of the Tower Assets;
(j) Liens in favor of the Borrower or any wholly owned
Restricted Subsidiary of the Borrower, and Liens of any Domestic SpectraSite
Mexico Subsidiary or any Foreign SpectraSite Mexico Subsidiary in favor of any
wholly owned Domestic SpectraSite Mexico Subsidiary or any wholly owned Foreign
SpectraSite Mexico Subsidiary, and Liens of any Foreign Subsidiary (other than
any Canadian Subsidiary) in favor of any wholly owned Foreign Subsidiary (other
than any Canadian Subsidiary), and Liens of any Canadian Subsidiary in favor of
any wholly owned Canadian Subsidiary;
(k) any interest in or title of a lessor to any property
subject to a Capitalized Lease Obligation permitted to be incurred pursuant to
Section 8.1(b) hereof;
(l) normal provisions in agreements and leases that
restrict the assignment of such agreement or lease;
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(m) negative pledges and other agreements not to create Liens
contained in the Holdco Notes Indentures, any Permitted High Yield Securities
and any other Permitted Debt;
(n) Liens on Tower Sites leased by the Borrower or any of
the Designated Subsidiaries granted by the fee owner thereof;
(o) rights of first refusal, options and related rights
set forth in any Tower Site Lease Agreement or Tower Space Lease Agreement;
(p) in the case of Holdco, Liens granted by Holdco on the
Equity Interests owned by Holdco in any of its Subsidiaries (other than the
Borrower and the Designated Subsidiaries);
(q) normal and customary rights of set-off upon deposits
of cash in favor of banks and other depository institutions;
(r) Liens attaching to cash earnest money deposits made in
connection with any letter of intent or purchase agreement entered into in
connection with a Permitted Acquisition;
(s) judgment Liens not giving rise to an Event of Default
; and
(t) Liens on the property or assets of a Person that becomes a
Designated Subsidiary, or on any property or assets of another Person acquired
by the Borrower or any Designated Subsidiary, in each case after the Agreement
Date, provided that (i) such Liens existed at the time such Person became a
Designated Subsidiary or at the time such property or assets were acquired, as
applicable, and were not created, incurred or assumed in anticipation of such
acquisition, (ii) any such Lien of a Person that becomes a Designated Subsidiary
is not expanded to cover any property or assets of such Person acquired after
the time such Person became a Designated Subsidiary (other than proceeds of the
existing collateral in accordance with the instrument creating such Lien), (iii)
any such Lien does not extend to any property or assets owned by the Borrower or
any of the other Designated Subsidiaries or any other property or assets of the
Designated Subsidiary acquiring the property or assets subject to such Lien, and
(iv) the aggregate fair market value of property and assets subject to all such
Liens shall not at any time exceed $10,000,000 during the term of this
Agreement.
"Permitted Mexican Investments" shall mean, collectively,
Investments made after the Agreement Date by the Restricted Group (directly or
indirectly) in SpectraSite Mexico in an amount not to exceed, in the aggregate
during the term of this Agreement, the sum of (a) $50,000,000, plus (b) the
amount of any New Affiliated Equity to the extent allocated solely to this
purpose.
"Person" shall mean an individual, corporation, limited
liability company, association, partnership, joint venture, trust or estate, an
unincorporated organization, a government or any agency or political subdivision
thereof, or any other entity.
"Plan" shall mean, with respect to any Person, an employee
benefit plan within the meaning of Section 3(3) of ERISA sponsored or maintained
by or contributed to by such Person for the benefit of employees of such Person,
but excluding any Multiemployer Plan.
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"Prime Rate" shall mean, at any time, the rate of interest
adopted by the Administrative Agent as its reference rate for the determination
of interest rates for loans of varying maturities in United States dollars to
United States residents of varying degrees of creditworthiness and being quoted
at such time by the Administrative Agent as its "prime rate." The Prime Rate is
not necessarily the lowest rate of interest charged to borrowers of the
Administrative Agent or its Affiliates.
"Prior Credit Agreement" shall have the meaning assigned
thereto in the recitals to this Agreement.
"Projections" shall have the meaning set forth in Section
4.1(d) hereof.
"Property" shall mean any real property or personal property,
plant, building, facility, structure, underground storage tank or unit,
equipment, inventory or other asset owned, leased or operated by Borrower or any
of the Designated Subsidiaries (including, without limitation, any surface water
thereon or adjacent thereto, and soil and groundwater thereunder).
"Purchase Price" shall mean, with respect to each Permitted
Acquisition and each Permitted Disposition, the total consideration payable in
connection with such Permitted Acquisition or Permitted Disposition, as the case
may be, whether payable in cash, securities, by a note or other property, or by
the assumption of Indebtedness (including, without limitation, all forms of
deferred compensation, such as non-compete, consulting and similar agreements).
"Real Estate Side Letter" shall mean that certain Letter
Agreement, dated as of the Original Closing Date, from Nextel and agreed to by
Tower Parent Corp., Tower Merger Vehicle, Inc., TAS, each of the Nextel Tenants,
the Borrower, Holdco and SHI Merger Sub, Inc.
"Register" shall have the meaning assigned thereto in Section
13.5(d) hereof.
"Reportable Event" shall have the meaning set forth in Section
4043 of ERISA, other than an event for which the reporting requirement has been
waived by regulations promulgated under such Section.
"Request for Advance" shall mean a certificate designated as a
"Request for Advance," signed by an Authorized Signatory of the Borrower
requesting an Advance (other than a Swing Loan) hereunder, which shall be in
substantially the form of Exhibit J attached hereto and shall, among other
things, (a) specify the date of the Advance, which shall be a Business Day, the
amount of the Advance, the type of Advance, and, with respect to a Eurodollar
Advance, the Eurodollar Advance Period selected by the Borrower, (b) state that
there shall not exist, on the date of the requested Advance both before and
after giving effect thereto, any Default or Event of Default, and (c) the use of
the proceeds of the Advance being requested.
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"Request for Issuance of Letter of Credit" shall mean any
certificate signed by an Authorized Signatory of the Borrower, which certificate
will be denominated a "Request for Issuance of Letter of Credit" and shall be in
substantially the form attached hereto as Exhibit K, and shall, among other
things, (a) specify the beneficiary of the proposed Letter of Credit, the
purpose of the Letter of Credit, the proposed date of issuance of the Letter of
Credit, which shall be a Business Day, and the documents which must be presented
to draw under such Letter of Credit (including, without limitation, any
documents which the Issuing Bank may require), (b) include, as an attachment, a
Letter of Credit Application, and (c) state that there shall not exist, on the
date of the request and after giving effect to the issuance of the Letter of
Credit, any Default or Event of Default hereunder.
"Restricted Group" shall mean, collectively, the Borrower and
the Restricted Subsidiaries.
"Restricted Investments" shall mean direct or indirect
minority Investments by the Borrower in the Equity Interests of Persons (other
than Concourse Communications or any Domestic SpectraSite Mexico Investments)
organized under the laws of the United States or any state thereof or the
District of Columbia, to the extent not designated by the Borrower as
Unrestricted Investments.
"Restricted Payment" shall mean (a) any direct or indirect
distribution, dividend, redemption or other payment to any Person on account of
any Equity Interests or other securities of the Borrower or any of the
Designated Subsidiaries; (b) any payment of principal of or interest on any
Indebtedness of any of the Borrower or any of the Designated Subsidiaries in
favor of any Affiliate other than pursuant to this Agreement or the other Loan
Documents; or (c) any payment under any management or consulting agreement or
other similar agreement or arrangement with an Affiliate of the Borrower not
entered into in the ordinary course of business.
"Restricted Purchase" shall mean any payment on account of the
purchase, redemption or other acquisition or retirement of any Equity Interests
or other securities of the Borrower or any of the Designated Subsidiaries,
including, without limitation, any warrants or other rights or options to
acquire Equity Interests of the Borrower or any of the Designated Subsidiaries.
"Restricted Subsidiaries" shall mean the direct or indirect
Subsidiaries of the Borrower (other than Concourse Communications and any
Domestic SpectraSite Mexico Subsidiaries) organized under the laws of the United
States or any state thereof or the District of Columbia to the extent not
designated by the Borrower as Unrestricted Subsidiaries.
"Revolving Commitment" shall mean the several obligations of
certain of the Lenders to advance the sum of up to $350,000,000 to the Borrower
in accordance with their respective Revolving Commitment Ratios and as reduced
from time to time, all pursuant to the terms hereof.
"Revolving Commitment Ratio" shall mean, with respect to any
Lender, the ratio, expressed as a percentage, of (i) the Revolving Commitment of
such Lender, divided by (ii) the aggregate Revolving Commitments of all of the
Lenders. As of the Agreement Date, the Revolving Commitment of each Lender is
set forth on Schedule 1 to the Lender Addendum delivered by such Lender under
the caption "Revolving Commitment."
"Revolving Loan Availability Date" shall mean the earlier of
(a) the date on which at least fifty percent (50%) of the Tranche A Commitment
shall be funded and (b) the Tranche A Commitment Reduction Date.
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37
"Revolving Loans" shall mean, collectively, the amount
advanced by certain of the Lenders to the Borrower under the Revolving
Commitment, not to exceed the amount of the Revolving Commitment, and evidenced
by the Revolving Notes.
"Revolving Notes" shall mean those certain revolving
promissory notes in the aggregate original principal amount of $350,000,000, one
issued by the Borrower to each of the Lenders issuing a Revolving Commitment in
accordance with each such Lender's Revolving Commitment Ratio, each one
substantially in the form of Exhibit L attached hereto, and any extensions,
modifications, renewals or replacements of or amendments to any of the
foregoing.
"Sales Transaction" shall have the meaning assigned thereto in
the definition of "Net Cash Proceeds".
"SBC" shall mean SBC Communications, Inc., a Delaware
orporation.
"SBC Agreement to Sublease" shall mean that certain Agreement
to Sublease dated August 25, 2000, among SBC Wireless (for itself and on behalf
of the Sublessor Entities referred to therein), Holdco and STI, as amended by
Amendment No. 1 thereto dated as of December 14, 2000.
"SBC Build-to-Suit Agreement" shall mean that certain
Agreement to Build To Suit dated as of December 14, 2000, among SBC Wireless
(for itself and as agent for certain "SBCW Parties" referred to therein), Holdco
and the Borrower.
"SBC Lease Documents" shall mean, collectively, (a) the SBC
Agreement to Sublease, (b) the SBC Build-to-Suit Agreement, (c) the SBC
Sublease, and (d) all other documents executed by Holdco, the Borrower or any of
the Subsidiary Guarantors in connection with the SBC Transaction.
"SBC Sublease" shall mean that certain Lease and Sublease
dated December 14, 2000, among SBC Wireless, SBC Tower Holdings (for itself and
on behalf of the "SBCW Group Members" referred to therein), Holdco and STI.
"SBC Tenants" shall mean, collectively, SBC Tower Holdings and
those legal entities which own or lease the tower assets leased to STI under the
SBC Lease Documents, those Persons which, directly or indirectly, control, are
controlled by or under common control with SBC Wireless, and those Persons with
respect to which SBC Wireless owns, directly or indirectly, at least fifty
percent (50%) of the Equity Interests thereof that is at the time entitled to
vote in the election of the board of directors thereof or which SBC Wireless
otherwise controls, which in each case are signatories to the SBC Sublease. For
purposes of this definition, "control" shall mean the ownership, directly or
indirectly, of sufficient voting shares of an entity, or otherwise the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of an entity, or the power to veto
major policy decisions of any such entity, whether through the ownership of
voting securities, by contract or otherwise.
"SBC Tower Holdings" shall mean SBC Tower Holdings LLC, a
Delaware limited liability company and an Affiliate of SBC.
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38
"SBC Towers" shall mean the Towers leased by STI in connection
with the SBC Transaction or constructed pursuant to the SBC Build-to-Suit
Agreement, and in any case having an SBC Tenant as the anchor tenant with
respect thereto.
"SBC Transaction" shall mean the leasing by STI from SBC Tower
Holdings of the economic rights with respect to certain Tower Assets pursuant to
the terms and conditions of the SBC Lease Documents for an aggregate amount
payable in cash and Equity Interests in a series of closings and with a cash
amount not to exceed $985,000,000.
"SBC Wireless" shall mean SBC Wireless, LLC, a Delaware
limited liability company (as successor in interest to SBC Wireless, Inc., a
Delaware corporation) and an Affiliate of SBC.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Security Agreement" shall mean that certain Amended and
Restated Security Agreement between the Borrower and the Collateral Agent, for
the benefit of the Credit Parties, dated as of the Agreement Date, in
substantially the form of Exhibit M attached hereto.
"Security Documents" shall mean, without limitation, the
Security Agreement, the Borrower Pledge Agreement, all Intellectual Property
Security Agreements, all Assignments of Acquisition Documents, the Subsidiary
Guaranty, the Subsidiary Pledge Agreement, the Subsidiary Security Agreement,
the Holdco Pledge Agreement, all Mortgages, all Non-Disturbance Agreements, and
any other agreement or instrument providing Collateral for the Obligations,
whether now or hereafter in existence, and any filings, instruments, agreements,
and documents related thereto or to this Agreement, and providing the Collateral
Agent with Collateral for the Obligations.
"Security Interest" shall mean all Liens in favor of the
Collateral Agent created hereunder or under any of the Security Documents.
"Senior Credit Parties" shall have the same meaning as "Credit
Parties," as defined herein.
"Senior Commitments" shall have the same meaning as
"Commitments," as defined herein.
"Senior Obligations" shall have the same meaning as
"Obligations," as defined herein.
"Shared Tenant Infrastructure Sites" shall mean those sites
constructed within enclosed areas, including, but not limited to, office
buildings, casinos, stadiums, shopping malls, airports and tunnels, and capable
of providing licensed or unlicensed wireless services within such enclosed
areas.
"SPC" shall have the meaning assigned thereto in Section
13.5(k).
"SpectraSite Mexico" shall mean, collectively, any direct or
indirect Subsidiary of the Borrower or other Person in which the Borrower has a
direct or indirect Investment, that in either case owns Towers, Tower Sites or
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39
Shared Tenant Infrastructure Sites located in Mexico or conducts a primary
portion of its tower management business in Mexico, and which has not been
designated by the Borrower as an Unrestricted Subsidiary or an Unrestricted
Investment.
"STI" shall mean Southern Towers, Inc., a Delaware corporation
and a wholly owned Restricted Subsidiary of the Borrower.
"Subsidiary" shall mean, as applied to any Person, any
corporation of which more than fifty percent (50%) of the outstanding stock
(other than directors' qualifying shares) having ordinary voting power to elect
its board of directors, regardless of the existence at the time of a right of
the holders of any class or classes of securities of such corporation to
exercise such voting power by reason of the happening of any contingency, or any
partnership or other entity of which more than fifty percent (50%) of the
outstanding partnership or other equity interests, is at the time owned directly
or indirectly by such Person, or by one or more Subsidiaries of such Person, or
by such Person and one or more Subsidiaries of such Person.
"Subsidiary Guarantors" shall mean, collectively, each of the
Restricted Subsidiaries and, to the extent constituting a Designated Subsidiary
hereunder, each of the Domestic SpectraSite Mexico Subsidiaries.
"Subsidiary Guaranty" shall mean that certain Amended and
Restated Subsidiary Guaranty Agreement issued by each Subsidiary Guarantor in
favor of the Collateral Agent, for the benefit of the Credit Parties, dated as
of the Agreement Date, in substantially the form of Exhibit N attached hereto,
and any similar guaranty or any guaranty supplement delivered pursuant to
Section 6.15 hereof.
"Subsidiary Pledge Agreement" shall mean that certain
Subsidiary Pledge Agreement among each Subsidiary Guarantor holding any Equity
Interests in any Designated Subsidiary or Restricted Investment, and the
Collateral Agent, for the benefit of the Credit Parties, dated as of the
Agreement Date, in substantially the form of Exhibit O attached hereto, and any
similar pledge agreement or any pledge agreement supplement delivered pursuant
to Section 6.15 hereof.
"Subsidiary Security Agreement" shall mean that certain
Amended and Restated Subsidiary Security Agreement among the Subsidiary
Guarantors and the Collateral Agent, for the benefit of the Credit Parties,
dated as of the Agreement Date, in substantially the form of Exhibit P attached
hereto, and any similar security agreement or any security agreement supplement
delivered pursuant to Section 6.15 hereof.
"Swing Loan Committed Amount" shall mean $10,000,000.
"Swing Loans" shall mean revolving loans made to the Borrower
by the Swing Loan Lender from time to time for the Swing Loan Lender's account,
which revolving loans shall be made in accordance with Sections 2.1(b) and 2.15.
"Swing Loan Lender" shall mean any Lender or the
Administrative Agent as agreed to at any time by the Borrower, the
Administrative Agent and, if applicable, such Lender, in either case as
designated in accordance with this Agreement, in its capacity as Swing Loan
Lender under this Agreement. The initial Swing Loan Lender shall be The Bank of
New York.
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"Swing Loan Note" shall mean that certain Swing Loan Note
dated as of the Agreement Date, in the principal amount of $10,000,000, issued
by the Borrower to the Swing Loan Lender, substantially in the form of Exhibit Q
attached hereto, and any amendments, replacements, extensions or renewals
thereof.
"Swing Loan Request" shall have the meaning set forth in
Section 2.15(a)(i).
"Syndication Agent" shall mean CSFB.
"TAS" shall mean Tower Asset Sub, Inc., a Delaware corporation
and a wholly owned Restricted Subsidiary of the Borrower.
"Taxes" shall have the meaning set forth in Section 2.9(b)
hereof.
"Term Loans" shall mean, collectively, the Tranche A Loans and
the Tranche B Loans.
"Term Notes" shall mean the Tranche A Notes and the Tranche B
Notes.
"Total Interest Coverage Ratio" shall mean, on any calculation
date, for the Borrower and the Designated Subsidiaries, on a consolidated basis,
the ratio of (a) Annualized EBITDA as at such date, to (b) cash Total Interest
Expense for the immediately preceding four (4) fiscal quarter period.
"Total Interest Expense" shall mean, for any period, the sum
of (a) Borrower Interest Expense, (b) the amount of any Restricted Payments made
by the Borrower or any of the Designated Subsidiaries to Holdco during such
period for the purpose of making payments of interest or dividends in respect of
the Holdco Notes or any other Permitted High-Yield Securities, and (c) the
amount of any Restricted Payments made by the Borrower during such period for
the purpose of making payments of dividends in respect of any Permitted
High-Yield Securities of the Borrower.
"Tower" shall mean any communications tower owned, leased or
managed by the Borrower or any of the Designated Subsidiaries.
"Tower Assets" shall mean assets and businesses constituting
Tower Sites, Shared Tenant Infrastructure Sites, Towers or "build to suit"
businesses owned by the Borrower or any Designated Subsidiary, and any and all
Assets relating thereto (including, without limitation, tower structures,
concrete pads, tower lighting and fences, interests in real property related
thereto, third party tenant leases and permits and documents related thereto).
"Tower Operations" shall mean the ownership, leasing,
management, shared tenant infrastructure, "build-out" and construction
businesses of the Borrower and the Designated Subsidiaries relating to the
Towers.
"Tower Parent Corp." shall mean Tower Parent Corp., a Delaware
corporation.
"Tower Site" shall mean each parcel of real property, owned,
leased or managed by the Borrower or any of the Designated Subsidiaries pursuant
to a Tower Site Lease Agreement or a Tower Site Management Agreement, on which
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the Borrower or any of the Designated Subsidiaries owns, operates or maintains a
Tower.
"Tower Site Lease Agreement" shall mean each lease or sublease
for real property to which the Borrower or any of the Designated Subsidiaries is
a party pursuant to which the Borrower or such Designated Subsidiary leases or
subleases a Tower Site.
"Tower Site Management Agreement" shall mean any agreement
pursuant to which the Borrower or any of the Designated Subsidiaries has the
right to substantially control Tower Assets and the revenues derived from the
rental or use thereof.
"Tower Space Lease Agreement" shall mean any lease or
sub-lease agreement to which the Borrower or any of the Designated Subsidiaries
is a party pursuant to which the Borrower or such Designated Subsidiary leases
or sub-leases platform space on Towers and space to a third party on other
communications sites and the right to use and/or benefit from related
improvements.
"Tower Subsidiaries" shall mean, collectively, TAS, CTI, STI
and each other Restricted Subsidiary that owns or leases any Towers.
"Tranche A Commitment" shall mean the several obligations of
certain of the Lenders to advance the sum of up to $500,000,000 to the Borrower
not later than the Tranche A Commitment Termination Date, in accordance with
their respective Tranche A Commitment Ratios, and as reduced from time to time,
all pursuant to the terms hereof.
"Tranche A Commitment Ratio" shall mean, with respect to any
Lender, the ratio, expressed as a percentage, of (i) the Tranche A Commitment of
such Lender, divided by (ii) the aggregate Tranche A Commitments of all of the
Lenders. As of the Agreement Date, the Tranche A Commitment of each Lender is
set forth on Schedule 1 to the Lender Addendum delivered by such Lender under
the caption "Tranche A Commitment."
"Tranche A Commitment Reduction Date" shall mean the first
anniversary of the Agreement Date.
"Tranche A Commitment Termination Date" shall mean the date
that is eighteen (18) months after the Agreement Date.
"Tranche A Loans" shall mean, collectively, the amounts
advanced by certain of the Lenders to the Borrower under the Tranche A
Commitment, not to exceed the amount of the Tranche A Commitment, and evidenced
by the Tranche A Notes.
"Tranche A Notes" shall mean those certain term notes in the
aggregate original principal amount of $500,000,000, one issued by the Borrower
to each of the Lenders issuing a Tranche A Commitment in accordance with each
such Lender's Tranche A Commitment Ratio, each one substantially in the form of
Exhibit R attached hereto, and any extensions, modifications, renewals or
replacements of or amendments to any of the foregoing.
"Tranche B Commitment" shall mean the several obligations of
certain of the Lenders to advance the sum of up to $450,000,000 to the Borrower
on the Agreement Date in accordance with their respective Tranche B Commitment
Ratios, all pursuant to the terms hereof.
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"Tranche B Commitment Ratio" shall mean, with respect to any
Lender, the ratio, expressed as a percentage, of (i) the Tranche B Commitment of
such Lender, divided by (ii) the aggregate Tranche B Commitments of all of the
Lenders. As of the Agreement Date, the Tranche B Commitment of each Lender is
set forth on Schedule 1 to the Lender Addendum delivered by such Lender under
the caption "Tranche B Commitment."
"Tranche B Loans" shall mean, collectively, the amount
advanced by certain of the Lenders to the Borrower under the Tranche B
Commitment, not to exceed the amount of the Tranche B Commitment and evidenced
by the Tranche B Notes.
"Tranche B Notes" shall mean those certain term notes in the
aggregate original principal amount of $450,000,000, one issued by the Borrower
to each of the Lenders issuing a Tranche B Commitment in accordance with each
such Lender's Tranche B Commitment Ratio, each one substantially in the form of
Exhibit S attached hereto, and any extensions, modifications, renewals or
replacements of or amendments to any of the foregoing.
"Transferee" shall have the meaning assigned thereto in
Section 13.5(e) hereof.
"Unfunded Commitment Percentage" shall mean, as of the end of
any quarter, the percentage equivalent of a fraction, the numerator of which is
equal to the sum of the average daily amount during such quarter, without
duplication, of (a) the Revolving Commitment, less the aggregate principal
amount of Revolving Loans outstanding, less the L/C Obligations outstanding,
less the aggregate principal amount of Swing Loans outstanding, and (b) the
Unfunded Tranche A Commitment, and the denominator of which is equal to the
average daily amount during such quarter of the sum of (i) the Revolving
Commitment and (ii) (x) prior to the Tranche A Commitment Termination Date, the
Tranche A Commitment, and (y) after the Tranche A Commitment Termination Date,
the principal amount of the Tranche A Loans outstanding.
"Unfunded Commitments" shall mean, as of any date of
determination, the sum of (a) the Revolving Commitment, less the aggregate
principal amount of Revolving Loans outstanding, less the L/C Obligations
outstanding, less the aggregate principal amount of Swing Loans outstanding, (b)
(i) as of any date of determination from the Agreement Date to the Tranche A
Commitment Termination Date, the Tranche A Commitment less the aggregate
principal amount of Tranche A Loans made from the Agreement Date to such date of
determination, or (ii) as of any date of determination after the Tranche A
Commitment Termination Date, zero (0), and (c) the undrawn amount of all
Incremental Facility Commitments.
"Unfunded Tranche A Commitment" shall mean, as of any date of
determination, the amount of the Tranche A Commitment less the aggregate
principal amount of the Tranche A Loans then outstanding.
"Uniform Customs" shall mean the Uniform Customs and Practice
for Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended, supplemented or otherwise
modified from time to time and, if applicable, the rules of the "International
Standby Practices 1998" (ISP98), as the same may be revised from time to time.
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"Unrestricted Group" shall mean, collectively, the
Unrestricted Subsidiaries and the Unrestricted Investments.
"Unrestricted Investments" shall mean, collectively, direct or
indirect minority Investments by the Borrower in the Equity Interests of Persons
(other than Concourse Communications, any Domestic SpectraSite Mexico
Investments, any Foreign SpectraSite Mexico Investments, Foreign Investments or
Restricted Investments) and which have been designated by the Borrower as
"Unrestricted Investments" pursuant to Section 6.17(a) hereof.
"Unrestricted Subsidiaries" shall mean the direct or indirect
Subsidiaries of the Borrower (other than Concourse Communications, any Domestic
SpectraSite Mexico Subsidiaries, any Foreign SpectraSite Mexico Subsidiaries,
Foreign Subsidiaries or Restricted Subsidiaries) which have been designated in
writing by the Borrower as "Unrestricted Subsidiaries" pursuant to Section
6.17(a) hereof.
"Use of Proceeds Letter" shall mean that certain Use of
Proceeds Letter, substantially in the form of Exhibit T attached hereto,
delivered to the Credit Parties on the Agreement Date pursuant to Article 4
hereof.
"Voting Stock" shall mean all classes of Equity Interests of a
Person then outstanding and normally entitled, without regard to the occurrence
of any contingency, to vote in the election of directors, managers, or trustee
thereof.
"WCAS" shall mean WCAS Capital Partners III, L.P., a Delaware
limited partnership.
"Welsh" shall mean, collectively, Welsh, Carson, Anderson &
Stowe VIII, L.P., a Delaware limited partnership, WCAS Information Partners,
L.P., a Delaware limited partnership, WCAS and each of their respective
individual partners.
"Whitney" shall mean, J. H. Whitney Mezzanine Fund, L.P., a
Delaware limited partnership, Whitney Equity Partners, L.P., a Delaware limited
partnership, J. H. Whitney III, L.P., a Delaware limited partnership, and
Whitney Strategic Partners III, L.P., a Delaware limited partnership.
Each definition of an agreement in this Article 1 shall
include such instrument or agreement as amended, restated, supplemented or
otherwise modified from time to time, and except where the context otherwise
requires, definitions imparting the singular shall include the plural and vice
versa. Except where otherwise specifically restricted, reference to a party to a
Loan Document includes that party and its successors and assigns. An Event of
Default shall "exist", "continue" or be "continuing" until such Event of Default
has been waived in writing in accordance with Section 13.12 hereof. All terms
used herein which are defined in Article 9 of the Uniform Commercial Code in
effect in the State of New York on the date hereof and which are not otherwise
defined herein shall have the same meanings herein as set forth therein. All
accounting terms used herein without definition shall be used as defined under
GAAP. All financial calculations hereunder shall, unless otherwise stated, be
determined for the Borrower on a consolidated basis with the Designated
Subsidiaries.
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ARTICLE 2 - Loans
Section 2.1 The Loans. Subject to the terms and conditions of, and in
reliance upon the representations and warranties made in, this Agreement and the
other Loan Documents, the Lenders have extended and agree, severally in
accordance with their respective Commitment Ratios and not jointly, to make
Loans to the Borrower in an aggregate principal amount not to exceed One Billion
Three Hundred Million Dollars ($1,300,000,000).
(a) The Revolving Loans. The Lenders that have issued a Revolving
Commitment agree, severally in accordance with their respective Revolving
Commitment Ratios and not jointly, upon the terms and subject to the conditions
of this Agreement, to lend and re-lend to the Borrower, on and after the
Agreement Date, but prior to the Initial Maturity Date, amounts which, in the
aggregate, do not exceed at any time the amount equal to the result of (i) the
Available Revolving Commitment, less (ii) the aggregate amount of L/C
Obligations then outstanding, less (iii) the aggregate principal amount of Swing
Loans then outstanding. Subject to the terms and conditions hereof and prior to
the Initial Maturity Date, Advances under the Revolving Commitment may be repaid
and reborrowed from time to time on a revolving basis or may be continued or
converted pursuant to a Notice of Conversion/Continuation as provided in Section
2.2 hereof.
(b) The Swing Loans. Subject to the terms and conditions
hereinafter set forth, including, without limitation, Section 2.15 hereof, the
Swing Loan Lender, in its individual capacity, agrees to make Swing Loans to the
Borrower from time to time on and after the Agreement Date, but prior to the
Initial Maturity Date; provided, however, that (i) the aggregate principal
amount of Swing Loans outstanding at any time shall not exceed the Swing Loan
Committed Amount, and (ii) the sum of (A) the aggregate principal amount of
Revolving Loans outstanding, plus (B) the aggregate amount of L/C Obligations
outstanding, plus (C) the aggregate principal amount of Swing Loans outstanding
shall not at any time exceed the Available Revolving Commitment. Swing Loans
hereunder may be repaid and reborrowed from time to time in accordance with the
provisions hereof.
(c) The Tranche A Loans. The Lenders that have issued a Tranche A
Commitment, severally in accordance with their respective Tranche A Commitment
Ratios and not jointly, upon the terms and subject to the conditions of this
Agreement, agree to lend to the Borrower, on and after the Agreement Date and on
or prior to the Tranche A Commitment Termination Date, in multiple Advances, an
aggregate amount not to exceed the Tranche A Commitment. After the Agreement
Date, Advances under the Tranche A Commitment may be continued or converted
pursuant to a Notice of Conversion/Continuation as provided in Section 2.2
hereof; provided, however, there shall be no increase in the aggregate principal
amount outstanding under the Tranche A Commitment at any time after the Tranche
A Commitment Termination Date. Amounts repaid under the Tranche A Commitment may
not be reborrowed.
(d) The Tranche B Loans. The Lenders that have issued a Tranche B
Commitment, severally in accordance with their respective Tranche B Commitment
Ratios and not jointly, upon the terms and subject to the conditions of this
Agreement, agree to lend to the Borrower on the Agreement Date an amount equal
to the Tranche B Commitment. After the Agreement Date, Advances under the
Tranche B Commitment may be continued or converted pursuant to a Notice of
Conversion/Continuation as provided in Section 2.2 hereof; provided, however,
there shall be no increase in the aggregate principal amount of the Tranche B
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Loans outstanding at any time after the Agreement Date. Amounts repaid under the
Tranche B Commitment may not be reborrowed.
(e) The Letters of Credit. Each Issuing Bank agrees, upon the
terms and subject to the conditions of this Agreement, to issue from time to
time, on and after the Agreement Date, but prior to the Initial Maturity Date,
for the account of the Borrower, Letters of Credit to such beneficiaries as
shall be designated in writing by the Borrower to such Issuing Bank, up to the
limit of the Letter of Credit Committed Amount.
Section 2.2 Manner of Borrowing and Disbursement.
(a) Choice of Interest Rate, Etc. Any Advance (i) under the Revolving
Commitment (except with respect to Swing Loans and Advances in reimbursement of
amounts advanced to beneficiaries under Letters of Credit, which Advances shall
in all cases be Base Rate Advances initially) shall, at the option of the
Borrower, be made as a Base Rate Advance or a Eurodollar Advance, (ii) under the
Tranche A Commitment shall, at the option of the Borrower, be made as a Base
Rate Advance or a Eurodollar Advance, and (iii) under the Tranche B Commitment
shall, at the option of the Borrower, be made as a Base Rate Advance or a
Eurodollar Advance; provided, however, that (A) if the Borrower fails to give
the Administrative Agent written notice specifying whether a Eurodollar Advance
is to be repaid, continued or converted on a Payment Date, such Eurodollar
Advance shall be converted to a Base Rate Advance on such Payment Date, and (B)
the Borrower may not select a Eurodollar Advance if, at the time of such
selection, a Default or Event of Default has occurred and is continuing. All
Advances of the Loans made on the Agreement Date shall bear interest as Base
Rate Advances. Any notice given to the Administrative Agent in connection with a
requested Advance hereunder shall be given to the Administrative Agent prior to
10:00 a.m. (New York time) in order for such Business Day to count toward the
minimum number of Business Days required.
(b) Base Rate Advances.
(i) Initial and Subsequent Advances. The Borrower shall give the
Administrative Agent in the case of Base Rate Advances, irrevocable prior
written notice not later than 10:00 a.m. (New York time) on the date of such
Advance in the form of a Request for Advance, or telephonic notice followed
immediately by a Request for Advance; provided, however, that the Borrower's
failure to confirm any telephonic notice with a Request for Advance shall not
invalidate any notice so given; and provided, further, that no such notice shall
be required in connection with the making of a Base Rate Advance to repay a draw
under a Letter of Credit.
(ii) Repayments and Conversions. The Borrower may (A) upon at
least one (1) Business Days' irrevocable prior written notice to the
Administrative Agent, repay or prepay a Base Rate Advance, or (B) upon at least
three (3) Business Days' irrevocable prior written notice to the Administrative
Agent in the form of a Notice of Conversion/Continuation, convert all or a
portion of the principal amount thereof to one or more Eurodollar Advances. On
the date indicated by the Borrower, such Base Rate Advance shall be so repaid or
converted.
(iii) Miscellaneous. Notwithstanding any term or provision of
this Agreement which may be construed to the contrary, each Base Rate Advance
(except any Base Rate Advance in reimbursement of amounts advanced to
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beneficiaries under Letters of Credit) shall be in a principal amount of at
least $3,000,000 and in integral multiples of $100,000 in excess thereof, or the
remaining amount of the Revolving Commitment or the Tranche A Commitment, as the
case may be.
(c) Eurodollar Advances.
(i) Initial and Subsequent Advances. The Borrower shall give
the Administrative Agent in the case of Eurodollar Advances at least three (3)
Business Days' irrevocable prior written notice in the form of a Request for
Advance, or telephonic notice followed immediately by a Request for Advance;
provided, however, that the Borrower's failure to confirm any telephonic notice
with a Request for Advance shall not invalidate any notice so given. The
Borrower shall promptly notify the Administrative Agent by telephone or
telecopy, and shall immediately confirm any such telephonic notice in writing,
of its selection of a Eurodollar Advance and Eurodollar Advance Period for such
Advance; provided, however, that the Borrower's failure to confirm any such
telephonic notice in writing shall not invalidate any notice so given.
(ii) Repayments, Continuations and Conversions. At least
three (3) Business Days prior to each Payment Date for a Eurodollar Advance, the
Borrower shall give the Administrative Agent written notice in the form of a
Notice of Conversion/Continuation specifying whether all or a portion of such
Eurodollar Advance outstanding on such Payment Date (A) is to be continued in
whole or in part as a new Eurodollar Advance, in which case such notice shall
also specify the Eurodollar Advance Period for such new Eurodollar Advance, (B)
is to be converted in whole or in part to a Base Rate Advance, or (C) is to be
repaid and not continued or converted. Upon such Payment Date, such Eurodollar
Advance will, subject to the provisions hereof, be so repaid, continued or
converted, as applicable. If the Borrower fails to give the Administrative Agent
written notice specifying whether a Eurodollar Advance is to be repaid,
continued or converted on a Payment Date, such Eurodollar Advance shall be
converted to a Base Rate Advance on such Payment Date.
(iii) Miscellaneous. Notwithstanding any term or provision
of this Agreement which may be construed to the contrary, each Eurodollar
Advance shall be in a principal amount of at least $5,000,000 and in integral
multiples of $100,000 in excess thereof, and at no time shall the aggregate
number of all Eurodollar Advances outstanding exceed twenty (20).
(d) Notification of Lenders. Upon receipt of a Request for Advance or
a notice from the Borrower with respect to any outstanding Advance prior to the
Payment Date for such Advance, or a request by the Issuing Bank for
reimbursement under Section 2.14 hereof, or a request or a deemed request by the
Swing Loan Lender for repayment of any outstanding Swing Loans under Section
2.15(b) hereof, the Administrative Agent shall promptly notify each Lender by
telephone or telecopy of the contents thereof and the amount of such Lender's
portion of the Advance. Each Lender shall, not later than 1:00 p.m. (New York
time) on the date of borrowing specified in such notice, make available to the
Administrative Agent at the Administrative Agent's Office, or at such account as
the Administrative Agent shall designate, the amount of its portion of any
Advance which represents an additional borrowing hereunder in immediately
available funds.
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(e) Disbursement.
(i) Prior to, with respect to Base Rate Advances, 3:00
p.m. (New York time), and, with respect to Eurodollar Advances, 2:00 p.m. (New
York time), in each case on the date of an Advance hereunder, the Administrative
Agent shall, subject to the satisfaction of any applicable conditions set forth
in Article 4 hereof, disburse the amounts made available to it by the Lenders in
immediately available funds by (A) transferring the amounts so made available by
wire transfer pursuant to the Borrower's instructions, (B) in the case of an
Advance representing the reimbursement of the Issuing Bank for a draw under a
Letter of Credit, transferring such amount to the Issuing Bank, or (C) in the
absence of such instructions referred to in clause (A) above and so long as the
provisions of clause (B) above do not apply to the requested Advance, crediting
the amounts so made available to the account of the Borrower maintained with the
Administrative Agent.
(ii) Unless the Administrative Agent shall have
received notice from a Lender, prior to 1:00 p.m. (New York time) on the date of
any Advance that such Lender will not make available to the Administrative Agent
such Lender's ratable portion of such Advance, the Administrative Agent may
assume that such Lender, has made or will make such portion available to the
Administrative Agent on the date of such Advance and the Administrative Agent
may, in its sole discretion and in reliance upon such assumption, make available
to the Borrower on such date a corresponding amount. If and to the extent a
Lender does not make such ratable portion available to the Administrative Agent,
such Lender, agrees to repay to the Administrative Agent on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, at the Federal Funds Rate.
(iii) If such Lender shall repay to the Administrative
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's portion of the applicable Advance for purposes of this Agreement. If
such Lender does not repay such corresponding amount immediately upon the
Administrative Agent's demand therefor, the Administrative Agent shall notify
the Borrower, and the Borrower shall promptly pay such corresponding amount to
the Administrative Agent, together with interest thereon. The failure of any
Lender to fund its portion of any Advance shall not relieve any other Lender of
its obligation hereunder to fund its respective portion of the Advance on the
date of such borrowing, but no Lender shall be responsible for any such failure
of any other Lender.
(iv) In the event that, at any time when the Borrower
is not in Default, a Lender for any reason fails or refuses to fund its portion
of an Advance, then, until such time as such Lender has funded its portion of
such Advance, or all other Lenders have received payment in full (whether by
repayment or prepayment) of the principal and interest due in respect of such
Advance, such non-funding Lender shall not have the right (A) to vote regarding
any issue on which voting is required or advisable under this Agreement or any
other Loan Document and, with respect to any such Lender, the amount of the
Revolving Commitment and Term Loans, as applicable, or Loans, as applicable,
held by such Lender shall not be counted as outstanding for purposes of
determining "Majority Lenders" hereunder, and (B) to receive payments of
principal, interest or fees from the Borrower in respect of its unfunded portion
of Advances. Notwithstanding the foregoing, within sixty (60) days of the
failure by any Lender to fund its portion of an Advance, so long as no Default
or Event of Default then exists, the Borrower may, in its discretion, provide a
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replacement lender or lenders for such non-funding Lender, which replacement
lender or lenders will be subject to the approval of the Lead Arrangers, which
shall not be unreasonably withheld, and the Administrative Agent, such Lender
and the Borrower shall take all necessary actions to transfer the rights, duties
and obligations of such non-funding Lender to such replacement lender or lenders
within such sixty (60) day period (including, without limitation, the payment in
full of all Obligations hereunder due to the non-funding Lender being replaced).
(f) Automatic Payment. Unless payment is otherwise timely made by the
Borrower, the becoming due of any amount required to be paid under this
Agreement or any of the other Loan Documents as principal, accrued interest,
fees or other charges in respect of the Loans shall be deemed irrevocably to be
a Request for Advance on the due date of, and in an aggregate amount required to
pay, such principal, accrued interest, fees or other charges, and the proceeds
of an Advance (i) under the Unfunded Tranche A Commitment, or (ii) in the event
that the Tranche A Commitment is fully funded or is no longer available, under
the Available Revolving Commitment, made pursuant thereto may be dispersed by
way of direct payment of the relevant Obligation and shall bear interest
initially as a Base Rate Advance. The Administrative Agent and the Lenders shall
have no obligation to the Borrower to honor any such deemed Request for Advance,
but may do so in their sole discretion and without regard to the existence of,
and without being deemed to have waived, any Default or Event of Default.
Section 2.3 Interest.
(a) On Base Rate Advances. Interest on each Base Rate Advance shall be
computed on the basis of a year of 365/366 days for the actual number of days
elapsed and shall be payable quarterly in arrears on the last Business Day of
each calendar quarter, commencing on March 31, 2001. Interest on Base Rate
Advances then outstanding shall also be due and payable on the date of any
repayment made on the Initial Maturity Date or the Final Maturity Date, as
applicable. Interest shall accrue and be payable on each Base Rate Advance at
the simple per annum interest rate equal to the sum of (A) the Base Rate and (B)
the Applicable Margin in effect from time to time and as more fully set forth in
Section 2.3(f) below.
(b) On Eurodollar Advances. Interest on each Eurodollar Advance shall
be computed on the basis of a 360-day year for the actual number of days elapsed
and shall be payable in arrears (i) on the applicable Payment Date for such
Advance, and (ii) if the Eurodollar Advance Period for such Eurodollar Advance
exceeds three (3) months, interest on such Eurodollar Advance shall be due and
payable in arrears on every three (3) month anniversary of such Eurodollar
Advance. Interest on Eurodollar Advances then outstanding shall also be due and
payable on the date of any repayment made under Sections 2.5, 2.6 or 2.7 hereof
and on the Initial Maturity Date or the Final Maturity Date, as applicable.
Interest shall accrue and be payable on each Eurodollar Advance at a rate per
annum equal to the sum of (A) the Eurodollar Rate applicable to such Eurodollar
Advance and (B) the Applicable Margin in effect from time to time and as more
fully set forth in Section 2.3(f) below.
(c) Interest if No Notice of Selection of Interest Rate. If the
Borrower fails to give the Administrative Agent timely notice of the selection
of a Eurodollar Advance, or if the Administrative Agent is unable to timely
determine a Eurodollar Rate for any Advance, the Base Rate shall apply to such
Advance. If the Borrower fails to elect to continue any Eurodollar Advance then
outstanding prior to the Payment Date applicable thereto in
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accordance with the provisions of Section 2.2 hereof, the Base Rate shall apply
to such Advance commencing on and after such Payment Date.
(d) Interest Upon Default. Immediately upon the occurrence of an Event
of Default under Section 10.1(b), (f) or (g) hereunder, interest on the
Obligations shall accrue at the Default Rate applicable thereto from the date of
such Event of Default. Interest accruing at the Default Rate on the Obligations
shall be payable on demand and in any event on the Initial Maturity Date or the
Final Maturity Date, as applicable, and shall accrue until the earliest to occur
of (A) waiver of the applicable Event of Default in accordance with Section
13.12 hereof, (B) agreement by the Majority Lenders to rescind the charging of
interest at the Default Rate, or (C) payment in full of the Obligations. The
Lenders shall not be required to (x) accelerate the maturity of their Loans, (y)
terminate their Commitments, or (z) exercise any other rights or remedies
available to them under the Loan Documents in order to charge interest hereunder
at the Default Rate.
(e) Computation of Interest. In computing interest on any Advance, the
date of making the Advance shall be included and the date of payment shall be
excluded; provided, however, that if an Advance is repaid on the date that it is
made, one (1) day's interest shall be due with respect to such Advance.
(f) Applicable Margins for Base Rate Advances and Eurodollar
Advances.
(i) Advances Under the Revolving Commitment or of the
Tranche A Loans. With respect to any Advance under the Revolving Commitment, or
any Advance of the Tranche A Loans, the Applicable Margin shall be (A) on and
after the Agreement Date to and including the Adjustment Date, (x) 2.75% with
respect to any Eurodollar Advance and (y) 1.50% with respect to any Base Rate
Advance, and (B) after the Adjustment Date, the interest rate margin based upon
the Borrower Leverage Ratio for the most recent fiscal quarter end, effective as
of the second (2nd) Business Day after the financial statements referred to in
Section 7.1 hereof are delivered by the Borrower to the Administrative Agent for
the fiscal quarter of the Borrower most recently ended, expressed as a per annum
rate of interest as follows:
If the Borrower Leverage Ratio is: Then the Base Rate Then the Eurodollar
---------------------------------
Advance Advance
Applicable Margin shall Applicable Margin shall
------------------------ -----------------------
be: be:
-- --
Greater than or equal to 5.00 to 1.00 1.50% 2.75%
Greater than or equal 4.50 to 1.00 1.25% 2.50%
but less than 5.00 to 1.00
Greater than or equal to 4.00 to 1.00 1.00% 2.25%
but less than 4.50 to 1.00
Greater than or equal to 3.50 to 1.00 0.75% 2.00%
but less than 4.00 to 1.00
Less than 3.50 to 1.00 0.50% 1.75%
In the event that the Borrower fails to timely provide (I) the financial
statements referred to above in accordance with the terms of Section 7.1 hereof
or (II) the Performance Certificate referred to in Section 7.3 hereof, and
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without prejudice to any additional rights under Section 2.3(d) or Section 10.2
hereof, no downward adjustment of the Applicable Margin in effect for the
preceding quarter shall occur until the actual delivery of such statements, and
from such failure and until such delivery, the Applicable Margin shall be (x)
2.75% with respect to each Eurodollar Advance, and (y) 1.50% with respect to
each Base Rate Advance.
(ii) Advances of the Tranche B Loans. With respect to any
Advance of the Tranche B Loans, the Applicable Margin shall be (A) 3.50% per
annum with respect to any Eurodollar Advance and (B) 2.25% per annum with
respect to any Base Rate Advance.
Section 2.4 Fees
(a) Commitment Fees. The Borrower agrees to pay to the
Administrative Agent, for the benefit of each of the Lenders in accordance with
their respective Revolving Commitment Ratios or Tranche A Commitment Ratios, as
applicable, a commitment fee on (i) the average daily amount during each quarter
ending during the period from the Agreement Date until the Initial Maturity Date
of (A) the Revolving Commitment, less (B) the aggregate principal amount of
Revolving Loans outstanding, less (C) the L/C Obligations outstanding, less (D)
the aggregate principal amount of Swing Loans outstanding, plus (ii) the average
daily amount during each quarter from the Agreement Date until the Initial
Maturity Date of the amount available to be drawn under the Tranche A
Commitment, at a rate of, (A) so long as the Unfunded Commitment Percentage is
greater than or equal to sixty-six and two-thirds percent (66-2/3%), one and
three-eighths percent (1.375%) per annum, (B) so long as the Unfunded Commitment
Percentage is greater than or equal to thirty-three and one-third percent
(33-1/3%) but less than sixty-six and two-thirds percent (66-2/3%), one percent
(1.00%) per annum, and (C) so long as the Unfunded Commitment Percentage is less
than thirty-three and one-third percent (33-1/3%), one-half of one percent
(0.50%) per annum. Such commitment fees shall be computed on the basis of a year
of 365/366 days for the actual number of days elapsed, shall be payable
quarterly in arrears on the last Business Day of each calendar quarter,
commencing on the last day of the first full fiscal quarter after the Agreement
Date, shall be fully earned when due, and shall be non-refundable when paid. A
final payment of any accrued and unpaid commitment fee shall also be due and
payable on the Initial Maturity Date.
(b) Letter of Credit Fee. The Borrower agrees to pay to the
Administrative Agent, for the benefit of the Lenders, in accordance with their
respective Revolving Commitment Ratios, a letter of credit fee equal to the
Applicable Margin for Eurodollar Advances under the Revolving Commitment per
annum (computed on the basis of a 360 day year for the actual number of days
elapsed), of the stated amount of each Letter of Credit issued by the Issuing
Bank hereunder. Such letter of credit fee shall be due and payable quarterly in
arrears on the last Business Day of each calendar quarter during which such
Letter of Credit is outstanding and any accrued and unpaid letter of credit fees
shall also be due and payable on the Initial Maturity Date. Such letter of
credit fee shall be fully earned when due and nonrefundable when paid. In the
event of any inconsistency between the terms of this Agreement and the terms of
any letter of credit reimbursement agreements or indemnification agreements
between the Borrower and the Issuing Bank with respect to Letters of Credit
issued hereunder, the terms of this Agreement shall control.
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(c) Issuing Bank Fee. The Borrower agrees to pay to each Issuing
Bank, for its own account, a fee in the amount of such Issuing Bank's customary
fee with respect to the issuance of a Letter of Credit on the face amount of
each Letter of Credit issued by such Issuing Bank hereunder, which fee shall be
due and payable quarterly in arrears commencing on the last Business Day of each
calendar quarter in which such Letter of Credit is outstanding. The foregoing
fee shall be fully earned when due and nonrefundable when paid. In the event of
any inconsistency between the terms of this Agreement and the terms of any
letter of credit reimbursement agreements or indemnification agreements between
the Borrower and any Issuing Bank with respect to the Letters of Credit issued
by such Issuing Bank hereunder, the terms of this Agreement shall control.
(d) Computation of Fees. In computing any fees payable under this
Section 2.4, the first day of the applicable period shall be included and the
date of payment shall be excluded.
Section 2.5 Optional Prepayment/Reduction of Commitment.
(a) Prepayment of Advances. The principal amount of any Base Rate
Advance under the Revolving Loan Commitment may be prepaid in full or in part at
any time, without penalty or premium, upon not less than one (1) Business Days'
prior written notice to the Administrative Agent; and the principal amount of
any Eurodollar Advance under the Revolving Loan Commitment may be prepaid prior
to the applicable Payment Date, without penalty or premium, upon not less than
three (3) Business Days' prior written notice to the Administrative Agent,
provided that the Borrower shall reimburse the Lenders and the Administrative
Agent, on demand, for any loss or out-of-pocket expense incurred by any of them
in connection with such prepayment of Eurodollar Advances as set forth in
Section 2.10 hereof. Each notice of prepayment given hereunder shall be
irrevocable. Upon receipt of any notice of prepayment, the Administrative Agent
shall promptly notify each Lender of the contents thereof by telephone or
telecopy and of such Lender's portion of the prepayment.
(b) Permanent Prepayment or Reduction.
(i) Terms of Prepayments or Reductions. Optional permanent
prepayments of principal of the Term Loans, and permanent reductions of the
Revolving Commitment hereunder, may be made at any time upon three (3) Business
Days' prior irrevocable written notice to the Administrative Agent, without
penalty or premium, provided that such prepayments or reductions shall be in
minimum amounts of $5,000,000 and integral multiples of $1,000,000; provided,
however, that if the Borrower prepays the Tranche B Loans in full on or before
the second (2nd) anniversary of the Original Closing Date, the Borrower hereby
agrees to pay to the Administrative Agent, on behalf of the Lenders in
accordance with their respective Tranche B Commitment Ratios, a premium in an
amount determined by multiplying the aggregate amount of the Tranche B
Commitment by three-quarters of one percent (0.75%) with respect to such
prepayment made after the first (1st) anniversary of the Original Closing Date
but on or before the second (2nd) anniversary of the Original Closing Date.
Notwithstanding the foregoing, the Borrower shall not be required to pay such a
premium in the event that the Tranche B Loans are required to be paid in full
pursuant to Section 2.6 hereof.
(ii) Application of Payments or Reductions.
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(A) In the event that the Borrower shall make a
prepayment of the Term Loans on or before the earlier of (I) the date on which
the Tranche A Commitment shall have been fully funded and (II) the Tranche A
Commitment Termination Date, the amount of such prepayment shall be applied to
permanently reduce, on a pro rata basis, the Tranche A Commitment (which, for
purposes of this sentence, shall include the aggregate principal amount of the
Tranche A Loans then outstanding), the Tranche B Loans and, to the extent then
outstanding, any Incremental Facility Loans which are term loans. To the extent
that the amount of any prepayment made hereunder is allocable to the Tranche A
Commitment pursuant to the preceding sentence, the unfunded portion of the
Tranche A Commitment shall be permanently reduced by a like amount and the cash
amount of such prepayment shall be applied to reduce, on a pro rata basis, the
Tranche A Loans then outstanding, the Tranche B Loans then outstanding and any
Incremental Facility Loans which are term loans then outstanding. In the event
that the Borrower shall make a prepayment of the Term Loans after the earlier of
(A) the date on which the Tranche A Commitment shall have been fully funded and
(B) the Tranche A Commitment Termination Date, such prepayment of the Term Loans
shall permanently reduce, on a pro rata basis, the Tranche A Loans, the Tranche
B Loans and, to the extent then outstanding, any Incremental Facility Loans
which are term loans. Each such reduction allocated to the Tranche A Loans shall
reduce, on a pro rata basis, the remaining scheduled installments of principal
due under the Tranche A Loans as set forth in Section 2.6(b)(ii) hereof. Each
such reduction allocated to the Tranche B Loans shall reduce, on a pro rata
basis, the remaining scheduled installments of principal due under the Tranche B
Loans as set forth in Section 2.6(c) hereof. Each such reduction of the
Incremental Facility Loans which are term loans shall be allocated to such
Incremental Facility Loans, on a pro rata basis, to the remaining scheduled
installments of principal due in respect of such Incremental Facility Loans.
Each prepayment hereunder of any Eurodollar Advances shall also be made together
with accrued interest on the amount so prepaid.
(B) As of the date of cancellation or reduction set
forth in any notice thereof, the Revolving Commitment shall be permanently
reduced to the amounts stated in the Borrower's notice for all purposes herein,
and the Borrower shall pay to the Administrative Agent, for the benefit of the
Lenders, the amount necessary to reduce the principal amount of the Revolving
Loans then outstanding to not more than the amount equal to the result of (I)
the Available Revolving Commitment as so reduced, less (II) the aggregate amount
of L/C Obligations then outstanding, less (III) the aggregate principal amount
of Swing Loans then outstanding, together with the accrued interest on any
Eurodollar Advances so prepaid. To the extent that any Incremental Facility
Loans outstanding as of the date of any cancellation or reduction of the
Revolving Commitment constitute revolving loans, the amount stated in the
Borrower's notice of cancellation or reduction of the Revolving Commitment shall
be applied to reduce, on a pro rata basis, the Revolving Commitment and the
Incremental Facility Commitment applicable to such Incremental Facility Loans,
and the Borrower shall pay to the Administrative Agent, for the benefit of the
Lenders, the amount necessary to reduce the principal amount of the Revolving
Loans then outstanding to not more than the amount equal to the result of (I)
the Available Revolving Commitment as so reduced, less (II) the aggregate amount
of L/C Obligations then outstanding, less (III) the aggregate principal amount
of Swing Loans then outstanding, together with the accrued interest on the
amount of any Eurodollar Advances so prepaid, and the amount necessary to reduce
the principal amount of the Incremental Facility Loans then outstanding which
are revolving loans to not more than the amount of the Incremental Facility
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Commitment applicable thereto as so reduced, together with the accrued interest
on the amount of any Eurodollar Advances so prepaid.
(C) In connection with any such permanent repayment,
the Borrower shall reimburse the Administrative Agent and the Lenders, on
demand, for any loss or out-of-pocket expense incurred by any of them in
connection with such repayment of any Eurodollar Advances as set forth in
Section 2.10. Upon receipt of any notice of prepayment or reduction, the
Administrative Agent shall promptly notify each Lender of the contents thereof
by telephone or telecopy and of such Lender's portion of the prepayment or the
reduction, as applicable. Notwithstanding the foregoing, the holders of the
Tranche B Loans shall have the right to decline any voluntary partial prepayment
of the Tranche B Loans, in which case the amount of such prepayment shall be
applied, on a pro rata basis, to prepay the Tranche A Loans and the Incremental
Facility Loans which are term loans, if any, then outstanding in the manner set
forth above, and thereafter, on a pro rata basis, to repay the amount of any
Revolving Loans then outstanding and any Incremental Facility Loans which are
revolving loans then outstanding, in each case with a corresponding permanent
reduction in the amount of the Commitments applicable to such Loans.
Section 2.6 Repayment.
(a) Revolving Commitment. Commencing on September 30, 2003, and at the end of
each calendar quarter thereafter, the Revolving Commitment shall be
automatically and permanently reduced by an amount equal to the percentage (for
such quarter and year) as set forth below:
Annual Percentage of
Percentage of Revolving Revolving Commitment
Commitment Outstanding as of Outstanding as of
September 30, 2003 to be September 30, 2003 to be
Quarters Ending Reduced Each Quarter Reduced
------------------- --------------------------- --------------------------
September 30, 2003 through 2.50% 5.00%
December 31, 2003
March 31, 2004 through December 5.00% 20.00%
31, 2004
March 31, 2005 through December 6.25% 25.00%
31, 2005
March 31, 2006 through December 6.25% 25.00%
31, 2006
March 31, 2007 through June 30, 12.50% 25.00%
2007
As of the date of each reduction of the Revolving Commitment as set forth above,
the Borrower shall pay to the Administrative Agent, for the benefit of the
Lenders, the amount necessary to reduce the principal amount of the Revolving
Loans then outstanding to not more than the amount equal to the result of (I)
the Available Revolving Commitment after giving effect to such reduction, less
(II) the aggregate amount of L/C Obligations then outstanding, less (III) the
aggregate principal amount of Swing Loans then outstanding, together with the
accrued interest on the amount so prepaid and the commitment fee set forth in
Section 2.4(a) accrued through the date of the reduction with respect to the
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amount reduced. Any unpaid principal of and accrued interest on the Revolving
Loans and any other outstanding Obligations under the Revolving Commitment shall
be due and payable in full on the Initial Maturity Date.
(b) Tranche A Loans.
(i) Tranche A Commitment Reduction. In the event that the
aggregate principal amount of Tranche A Loans outstanding as of the Tranche A
Commitment Reduction Date shall not be at least fifty percent (50%) of the
amount of the Tranche A Commitment as of the Agreement Date, the Tranche A
Commitment shall be automatically and permanently reduced on the Tranche A
Commitment Reduction Date by an amount equal to the excess of (A) the amount
equal to fifty percent (50%) of the amount of the Tranche A Commitment
outstanding as of the Agreement Date, over (B) the aggregate principal amount of
Tranche A Loans then outstanding. In the event that any portion of the Tranche A
Commitment shall remain unfunded as of the Tranche A Commitment Termination
Date, the Tranche A Commitment shall be automatically and permanently reduced on
the Tranche A Commitment Termination Date by the amount of such unfunded
portion.
(ii) Amortization of Tranche A Loans. Commencing on
September 30, 2003, and at the end of each calendar quarter thereafter, the
outstanding principal balance of the Tranche A Loans then outstanding shall be
repaid by an amount equal to the percentage (for such quarter and year) set
forth below:
Percentage of Tranche A Annual Percentage of
Loans Outstanding as of Tranche A Loans
September 30, 2003 to be Outstanding as of
Quarters Ending Reduced Each Quarter September 30, 2003 to be
--------------- --------------------
Reduced
September 30, 2003 through 2.50% 5.00%
December 31, 2003
March 31, 2004 through December 5.00% 20.00%
31, 2004
March 31, 2005 through December 6.25% 25.00%
31, 2005
March 31, 2006 through December 6.25% 25.00%
31, 2006
March 31, 2007 through June 30, 12.50% 25.00%
2007
Additionally, the Tranche A Loans shall be repaid as may be required by Section
2.7 hereof. Any unpaid principal and interest of the Tranche A Loans and any
other outstanding Obligations under the Tranche A Commitment shall be due and
payable in full on the Initial Maturity Date.
(c) Tranche B Loans. Commencing on September 30, 2003, and at the
end of each calendar quarter thereafter, the outstanding principal balance of
the Tranche B Loans then outstanding shall be repaid as set forth below:
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Annual Percentage of
Percentage of Tranche B Loans Tranche B Loans
Outstanding as of September Outstanding as of
Quarters Ending 30, 2003 to be Reduced Each September 30, 2003 to be
--------------- -------------------------
Quarter Reduced
September 30, 2003 through 0.25% 0.50%
December 31, 2003
March 31, 2004 through December 0.25% 1.00%
31, 2006
March 31, 2007 0.25% ---
June 30, 2007 0.25% ---
September 30, 2007 48.00% ---
December 31, 2007 48.00% ---
Additionally, the Tranche B Loans shall be repaid as may be required by Section
2.7 hereof. Any unpaid principal and interest of the Tranche B Loans and any
other outstanding Obligations shall be due and payable in full on the Final
Maturity Date.
(d) Letter of Credit Advances and Swing Loans. All Base Rate
Advances made pursuant to draws under the Letters of Credit and all Swing Loans
shall be deemed to be Advances under the Revolving Commitment and shall be due
and payable on the Initial Maturity Date.
(e) Incremental Facility Loans. Any unpaid principal and interest
of the Incremental Facility Loans and any other outstanding Obligations under
any of the Incremental Facility Commitments shall be due and payable in full on
the Incremental Facility Maturity Date applicable thereto.
Section 2.7 Mandatory Repayments. In addition to the repayments
provided for in Section 2.6 hereof, the Borrower shall, if required pursuant to
this Section 2.7, prepay the Loans, without any obligation to pay any prepayment
premium otherwise due, as follows:
(a) Excess Cash Flow. Commencing with respect to the fiscal year
of the Borrower ended December 31, 2003, and with respect to each fiscal year
thereafter during the term of this Agreement, on or prior to April 15th of the
immediately succeeding fiscal year, the Borrower shall make a prepayment of the
outstanding principal amount of the Loans in an amount equal to fifty percent
(50%) of Excess Cash Flow for such fiscal year; provided, however, that, in the
event that the Borrower shall have maintained a Borrower Leverage Ratio less
than or equal to 3.00 to 1.00 for the two (2) consecutive fiscal quarters
immediately preceding the date on which any prepayment of the Loans would
otherwise be due under this Section 2.7(a) for which the financial statements
referred to in Section 7.1 hereof have been delivered by the Borrower to the
Administrative Agent, the Borrower shall not be required to make such prepayment
of the Loans. The amount of any prepayment made by the Borrower pursuant to this
Section 2.7(a) shall be applied to prepay the Loans as set forth in Section
2.7(e) below.
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(b) Disposition of Assets.
(i) If, after the Agreement Date, the Borrower or any of the
Designated Subsidiaries shall sell, transfer or otherwise dispose of (including,
without limitation, by way of condemnation or casualty) any Assets with Net Cash
Proceeds in excess of $10,000,000 in the aggregate during the term of this
Agreement (other than (A) the sale of obsolete equipment (other than Towers),
(B) the sale of inventory in the ordinary course of business, (C) the sale,
transfer or other disposition of Assets that are replaced by property of
substantially equivalent value in the ordinary course of business, (D) the sale,
transfer or other disposition of any Equity Interests in any Unrestricted
Subsidiary or Unrestricted Investment, (E) the lease of space on Towers in the
ordinary course of business, and (F) if consummated within one (1) year after
the Agreement Date, the sale of the Broadcast Services Business) one hundred
percent (100%) of the Net Cash Proceeds received by the Borrower or such
Designated Subsidiary from such Sales Transaction shall be applied, on the date
of receipt thereof by the Borrower or such Designated Subsidiary, to prepay the
Loans as set forth in Section 2.7(e) below; provided, however, that, at the
Borrower's election, so long as no Default or Event of Default then exists or
would be caused thereby, up to $20,000,000 of such Net Cash Proceeds received by
the Borrower or any Designated Subsidiary in the aggregate during any year may
be used by the Borrower or such Restricted Subsidiary to purchase or construct
one or more Towers or otherwise to invest in capital assets, the aggregate
Purchase Price of which does not exceed such Net Cash Proceeds (or the sum of
such Net Cash Proceeds plus amounts otherwise available for Permitted
Acquisitions), so long as the Borrower or such Designated Subsidiary shall have
(A) entered into a definitive contract for purchase or construction no later
than six (6) months from the date of such sale or other disposition, and (B)
concluded such purchase or construction within twelve (12) months from the date
of such sale or other disposition.
(ii) In the event the Borrower elects to exercise its right
to reinvest Net Cash Proceeds under Section 2.7(b)(i), the Borrower shall so
notify the Administrative Agent not less than five (5) Business Days prior to
the proposed date of the closing of the sale or other disposition of Assets and
shall, upon its or any Designated Subsidiary's receipt of any Net Cash Proceeds
with respect to such sale or other disposition of Assets, remit such Net Cash
Proceeds to the Administrative Agent to reduce the outstanding principal balance
of the Revolving Loans (but not the Term Loans nor the amount of the Revolving
Commitment). Any amount in excess of the then outstanding balance of the
Revolving Loans may be retained by the Borrower. The Borrower shall consummate
the Acquisition of the Towers or other capital assets not later than twelve (12)
months after the date of the applicable Sales Transaction. To the extent that
the Borrower shall not have consummated any such purchase as of twelve (12)
months after the date of such Sales Transaction (for whatever reason, including
the occurrence of a Default or Event of Default hereunder), or the cash Purchase
Price of such purchase shall be less than the Net Cash Proceeds of the
applicable Sales Transaction, the Borrower shall apply such Net Cash Proceeds,
or the amount of such Net Cash Proceeds remaining after giving effect to any
purchases made during the twelve (12) month reinvestment period, to prepay the
Loans as set forth in Section 2.7(e) below.
(iii) If the Borrower or the applicable Designated
Subsidiary or Designated Subsidiaries shall sell, transfer or dispose of the
Broadcast Services Business for Net Cash Proceeds of $100,000,000 or less in a
single transaction or a series of related transactions which are consummated on
or before the date which is one year after the Agreement Date, the Borrower may,
so long as no Default or Event of Default then exists or would be caused
thereby, elect to reinvest such Net Cash Proceeds received by the Borrower or
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any Designated Subsidiary to purchase or construct one or more Towers or
otherwise invest in assets, the aggregate Purchase Price of which does not
exceed such Net Cash Proceeds (or the sum of such Net Cash Proceeds plus amounts
otherwise available for Permitted Acquisitions), so long as the Borrower or such
Designated Subsidiary shall have (A) entered into a definitive contract for
purchase or construction no later than six (6) months from the date of such sale
or other disposition of Assets and (B) concluded such purchase or construction
within twelve (12) months from the date of such sale or other disposition of
Assets. If the Net Cash Proceeds from the sale, transfer or disposition of the
Broadcast Services Business exceeds $100,000,000 in a single transaction or a
series of related transactions which are consummated on or before the date which
is one year after the Agreement Date, one hundred percent (100%) of such excess
Net Cash Proceeds over $100,000,000 received by the Borrower or such Designated
Subsidiary from such transaction or series of transactions shall be applied, on
the date of receipt thereof by the Borrower or such Designated Subsidiary, to
prepay the Loans as set forth in Section 2.7(e) below.
(c) Debt Issuance. If, after the Agreement Date, Holdco
shall conduct any Eligible Debt Offering, and the Borrower Leverage Ratio on a
pro forma basis after giving effect to such Eligible Debt Offering shall be
greater than 4.50 to 1.00, the Borrower shall apply, on the date of receipt of
the Net Cash Proceeds of such Eligible Debt Offering by Holdco, an amount of up
to one hundred percent (100%) of the Net Cash Proceeds contributed to the
Borrower or any of the Designated Subsidiaries with respect to such Eligible
Debt Offering, to prepay the Loans as set forth in Section 2.7(e) hereof, to the
extent necessary to cause the Borrower Leverage Ratio to be less than or equal
to 4.50 to 1.00 after giving effect to such Eligible Debt Offering and such
prepayment.
(d) Termination of SBC Transaction. If, after the Agreement
Date, Holdco shall receive any amounts from SBC Wireless in connection with the
termination of the SBC Lease Documents pursuant to Section 14.1 (or any similar
provision) of the SBC Agreement to Sublease, Holdco shall contribute, on the
date of its receipt thereof but in any event within twenty (20) days of such
termination, one hundred percent (100%) of such amounts as New Affiliated Equity
to the Borrower, and the Borrower shall apply one hundred percent (100%) of such
amounts to prepay the Loans as set forth in Section 2.7(e) hereof.
(e) Application of Payments. Except as otherwise permitted
in Section 2.7(b) hereof, the amount of any prepayment required to be made
pursuant to this Section 2.7 shall be applied as follows: (i) first, (A) if such
prepayment is made on or before the earlier of (I) the date on which the Tranche
A Commitment shall have been fully funded and (II) the Tranche A Commitment
Termination Date, to permanently reduce, on a pro rata basis, the Tranche A
Commitment (including the aggregate principal amount of the Tranche A Loans then
outstanding), the outstanding principal amount of the Tranche B Loans and, to
the extent then outstanding, the outstanding principal amount of any Incremental
Facility Loans which are term loans, and (B) if such prepayment is made at any
time thereafter, to permanently reduce, on a pro rata basis, the outstanding
principal amount of the Tranche A Loans, the Tranche B Loans and, to the extent
then outstanding, any Incremental Facility Loans which are term loans, in each
case with the amount allocated to the Tranche A Loans being applied to reduce,
on a pro rata basis, the remaining scheduled installments of principal due under
the Tranche A Loans as set forth in Section 2.6(b)(ii) hereof, and the amount
allocated to the Tranche B Loans being applied to reduce, on a pro rata basis,
the remaining scheduled installments of principal due under the Tranche B Loans
as set forth in Section 2.6(c) hereof, and the amount allocated to the
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Incremental Facility Loans being applied to reduce, on a pro rata basis, the
remaining scheduled installments of principal due thereunder; and (ii)
thereafter, to prepay, on a pro rata basis, the outstanding principal amount of
the Revolving Loans, with a corresponding permanent reduction in the amount of
the Revolving Commitment and, to the extent that any Incremental Facility Loans
which are revolving loans are then outstanding, the outstanding principal amount
of such Incremental Facility Loans, with a corresponding permanent reduction in
the amount of the Incremental Facility Commitment applicable thereto; provided
however, that if an Event of Default has occurred and is continuing at the time
of any prepayment required to be made pursuant to this Section 2.7, the amount
of such prepayment shall be applied to prepay, on a pro rata basis, the Term
Loans, the Revolving Loans and any Incremental Facility Loans. To the extent
that the amount of any prepayment made pursuant to clause (i)(A) of the
preceding sentence is allocable to the Tranche A Commitment, the unfunded
portion of the Tranche A Commitment shall be permanently reduced by a like
amount and the cash amount of such prepayment shall be applied to reduce, on a
pro rata basis, the Tranche A Loans then outstanding, the Tranche B Loans then
outstanding and any Incremental Facility Loans which are term loans then
outstanding. Accrued interest on the principal amount of each Eurodollar Advance
of the Term Loans and the Incremental Facility Loans which are term loans being
prepaid, and accrued interest on the principal amount of each Eurodollar Advance
of the Tranche A Commitment, the Revolving Commitment and the amount of any
Incremental Facility Commitment applicable to Incremental Facility Loans which
are revolving loans being reduced, pursuant to this Section 2.7 to the date of
such prepayment or reduction shall be paid by the Borrower concurrently with
such principal prepayment or commitment reduction, as applicable. In connection
with any mandatory repayment due under this Section 2.7, the Borrower shall
reimburse the Administrative Agent and the Lenders, on demand, for any loss or
out-of-pocket expense incurred by any of them in connection with such repayment
of any Eurodollar Advances as set forth in Section 2.10. Notwithstanding the
foregoing, the holders of the Tranche B Loans shall have the right to decline
any mandatory partial prepayment of the Tranche B Loans, in which case the
amount of such prepayment shall be applied, on a pro rata basis, to prepay the
Tranche A Loans and the Incremental Facility Loans which are term loans, if any,
then outstanding in the manner set forth above, and thereafter, on a pro rata
basis, to reduce permanently the Revolving Commitment and the Incremental
Facility Commitment applicable to Incremental Facility Loans which are revolving
loans in the manner set forth above.
Section 2.8 Notes; Loan Accounts.
(a) The Loans shall be repayable in accordance with the
terms and provisions set forth herein, and shall be evidenced by the Notes. One
Revolving Note, one Tranche A Note and one Tranche B Note shall be issued by the
Borrower to the order of each Lender in accordance with its Commitment Ratios
with respect to such Loans. The Swing Loan Note shall be payable to the order of
the Swing Loan Lender in the amount of the Swing Loan Committed Amount. If
applicable, one Incremental Facility Note shall be issued by the Borrower to the
order of each Incremental Facility Lender in accordance with its pro rata share
of the Incremental Facility Commitments. Each Note shall be issued by the
Borrower to the order of a Lender or the Swing Loan Lender, as the case may be,
and shall be duly executed and delivered by one or more Authorized Signatories
of the Borrower.
(b) Each Lender may open and maintain on its books in the
name of the Borrower a loan account with respect to such Lender's portion of the
Loans and interest thereon. Each Lender which opens such a loan account shall
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debit such loan account for the principal amount of its portion of each Advance
made and accrued interest thereon and shall credit such loan account for each
payment on account of principal of or interest on its Loans. The records of a
Lender with respect to the loan account maintained by it shall be prima facie
evidence of the Loans of such Lender and accrued interest thereon, but the
failure of any Lender to maintain such records or to make any such notations, or
any error or mistake in such notations, shall not affect the Borrower's
repayment obligations with respect to such Loans.
Section 2.9 Manner of Payment
(a) Each payment (including any prepayment) by the Borrower
on account of the principal of or interest on the Loans, commitment fees, letter
of credit fees and any other amount owed to any of the Credit Parties under this
Agreement, any fee letters or the Notes shall be made not later than 2:00 p.m.
(New York time) on the date specified for payment under this Agreement to the
Administrative Agent at the Administrative Agent's Office, for the account of
the applicable Credit Party, in Dollars in immediately available funds. Any
payment received by the Administrative Agent after 2:00 p.m. (New York time)
shall, solely for the purpose of calculating interest, be deemed received on the
next Business Day. Receipt by the Administrative Agent of any payment hereunder
at or prior to 2:00 p.m. (New York time) on any Business Day shall be deemed to
constitute receipt on such Business Day. In the case of a payment for the
account of a Lender, the Administrative Agent will promptly thereafter
distribute the amount so received in like funds to such Lender. If the
Administrative Agent shall not have received any payment from the Borrower as
and when due, the Administrative Agent will promptly notify the Credit Parties
accordingly.
(b) The Borrower agrees to pay principal, interest, fees and
all other Obligations due hereunder, under any fee letters, under the Notes, or
under the other Loan Documents without set-off or counterclaim or any deduction
whatsoever (including, without limitation, any deduction or withholding for
present or future income, excise, stamp or franchise taxes and other taxes,
fees, duties, withholdings or other charges of any nature whatsoever imposed by
any taxing authority, excluding, however, taxes attributable to any Credit
Party's failure to comply with the requirements of Section 2.13(b) (but only
with respect to payments to be made to such Credit Party), franchise,
withholding, branch or other similar taxes, duties, fees or charges imposed on
or measured by any Credit Party's net income or receipts (such non-excluded
items being called "Taxes")).
(c) Prior to the acceleration of the Loans under Section
10.2 hereof or the Final Maturity Date (or, if applicable, the Incremental
Facility Maturity Date), and other than with respect to payments made pursuant
to Section 2.5 or Section 2.7 hereof (which shall, in each case, be applied as
set forth therein), if some but less than all amounts due from the Borrower are
received by the Administrative Agent, the Administrative Agent shall distribute
such amounts in the following order of priority to the Lenders on a pro rata
basis: (i) FIRST, to the payment of any fees, costs or expenses then due and
payable to any of the Credit Parties hereunder or under any other Loan Document;
(ii) SECOND, to the payment of interest then due and payable on the Loans; (iii)
THIRD, on a pro rata basis, to the payment of principal then due and payable on
the Term Loans and any Incremental Facility Loans which are term loans; (iv)
FOURTH, on a pro rata basis, to the payment of principal then due and payable on
the Revolving Loans and any Incremental Facility Loans which are revolving
loans, together with the principal amount of the Swing Loans; and (v) FIFTH, to
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the payment of all other amounts not otherwise referred to in this Section
2.9(c) then due and payable to the Credit Parties hereunder or under any other
Loan Document.
(d) Subject to any contrary provisions in the definition of
Eurodollar Advance Period, if any payment under this Agreement or any of the
other Loan Documents is specified to be made on a day which is not a Business
Day, it shall be made on the next Business Day, and such extension of time shall
in such case be included in computing interest and fees, if any, in connection
with such payment. Section 2.10 Reimbursement
(a) Whenever any Lender shall sustain or incur any losses or
out-of-pocket expenses in connection with (i) failure by the Borrower to borrow
any Eurodollar Advance after having given notice of its intention to borrow in
accordance with Section 2.2 hereof (whether by reason of the Borrower's election
not to proceed or the non-fulfillment of any of the conditions set forth in
Article 4), (ii) prepayment of any Eurodollar Advance in whole or in part for
any reason, or (iii) failure by the Borrower to prepay any Eurodollar Advance
after giving notice of its intention to prepay such Advance, the Borrower agrees
to pay to such Lender, upon demand, an amount sufficient to compensate such
Lender for all such losses and reasonable out-of-pocket expenses resulting
therefrom. Such Lender's good faith determination of the amount of such losses
or out-of-pocket expenses, as set forth in writing and accompanied by
calculations in reasonable detail demonstrating the basis for its demand, which
shall be delivered to the Borrower by the Administrative Agent on behalf of such
Lender, shall be presumptively correct.
(b) Expenses subject to reimbursement hereunder shall
include, without limiting the generality of the foregoing, expenses incurred by
any Lender or any participant of such Lender permitted hereunder in connection
with the re-employment of funds prepaid, repaid, not borrowed or paid, as the
case may be, and the amount of the expenses subject to reimbursement hereunder
shall be the excess, if any, of (i) the interest or other cost to such Lender of
the deposit or other source of funding used to make any such Eurodollar Advance
for the remainder of its Eurodollar Advance Period, over (ii) the interest
earned (or to be earned) by such Lender upon the re-lending or other
re-deployment of the amount of such Eurodollar Advance for the remainder of its
putative Eurodollar Advance Period.
Section 2.11 Pro Rata Treatment.
(a) Advances. Each Advance of any of the Loans from the
Lenders shall be made pro rata on the basis of their respective Commitment
Ratios.
(b) Payments Prior to Declaration of an Event of Default.
Except as provided in Section 2.2(e)(iv), prior to the declaration of an Event
of Default by the Administrative Agent on behalf of the Lenders under Section
10.2 hereof, each payment and prepayment of principal of the Loans, and each
payment of interest on the Loans, shall be made to the Lenders pro rata on the
basis of their respective Commitment Ratios. If any Lender shall obtain any
payment (whether involuntary, through the exercise of any right of set-off, or
otherwise) on account of the Loans made by it in excess of its ratable share of
the Loans under its Commitment Ratio with respect thereto, such Lender shall
forthwith purchase from the other Lenders such participations in the applicable
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Loans made by them as shall be necessary to cause such purchasing Lender to
share the excess payment ratably with each of the other Lenders; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender, such purchase from each Lender shall be
rescinded, and each such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery. The Borrower agrees that any
Lender so purchasing a participation from another Lender pursuant to this
Section 2.11(b) may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation. The provisions of this Section
2.11(b) set forth the rights of the Lenders with respect to payment, and are not
enforceable for the benefit of the Borrower.
(c) Payments Subsequent to Declaration of an Event of
Default. Subsequent to the declaration of an Event of Default by the
Administrative Agent on behalf of the Lenders under Section 10.2 hereof,
payments and prepayments made to any of the Credit Parties, or otherwise
received by any of the Credit Parties, shall be distributed as provided in
Section 10.3 hereof.
Section 2.12 Capital Adequacy. If any Lender shall have reasonably determined
that the adoption (after the Agreement Date) of any Applicable Law regarding the
capital adequacy of banks or bank holding companies, or any change in Applicable
Law after the Agreement Date or any change after the Agreement Date in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by such Lender with any directive issued or adopted after
the date hereof regarding capital adequacy (whether or not having the force of
law) of any such governmental authority, central bank or comparable agency, in
each case first promulgated after the Agreement Date, has or would have the
effect of reducing the rate of return on such Lender's capital as a consequence
of its obligations hereunder to a level below that which it could have achieved
but for such adoption, change or compliance (taking into consideration such
Lender's policies with respect to capital adequacy immediately before such
adoption, change or compliance and assuming that such Lender's capital was fully
utilized prior to such adoption, change or compliance) by an amount reasonably
deemed by such Lender to be material, then such Lender shall promptly notify the
Borrower of such adoption, compliance, or change. Within sixty (60) days of
written notice by such Lender, the Borrower shall, in its discretion, (i)
provide a replacement lender or lenders for such Lender, which replacement
lender or lenders will be subject to the approval of the Administrative Agent,
which, so long as no Default or Event of Default shall then exist, shall not be
unreasonably withheld, and the Administrative Agent, such Lender and the
Borrower shall take all necessary actions to transfer the rights, duties and
obligations of such Lender to such replacement lender or lenders within such
sixty (60) day period (including, without limitation, the payment in full of all
Obligations hereunder due to the Lender being replaced), or (ii) thereafter,
from time to time upon demand by such Lender, promptly pay to such Lender such
additional amounts as shall be sufficient to compensate such Lender for such
reduced return, together with interest on such amount from the fourth (4th) day
after the date of demand until payment in full thereof at the Base Rate plus the
Applicable Margin in effect for Base Rate Advances under the Revolving
Commitment; provided, however, that notwithstanding the foregoing, the Borrower
shall have no obligation to provide any such replacement bank or make any such
payment in the event that the first such demand in respect of any such
regulatory change, request or directive regarding capital adequacy was sent by
such Lender more than ninety (90) days after it became aware of the
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applicability of such regulatory change, request or directive to the Loans. Such
Lender will designate a different lending office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Lender, be otherwise materially disadvantageous to such Lender.
A certificate of such Lender setting forth the amount to be paid to such Lender
by the Borrower as a result of any event referred to in this paragraph and
supporting calculations in reasonable detail shall be conclusive, absent
manifest error.
Section 2.13 Taxes.
(a) If the Borrower shall be required by Applicable Law to
deduct any Taxes from or in respect of any amounts payable to the Administrative
Agent or any other Credit Party hereunder or under any Note, (i) except as
otherwise provided in this Section 2.13, the sum payable shall be increased
("Additional Amounts") as necessary so that, after making all required
deductions (including, without limitation, deductions applicable to additional
sums payable under Section 2.9(b)), the Administrative Agent or such other
Credit Party, as the case may be, shall receive an amount equal to the sum it
would have received had no deductions been made, (ii) the Borrower shall make
such deductions, and (iii) the Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with Applicable
Law. Moreover, if any Taxes (which for purposes of the remainder of this clause
(a) shall include, but not be limited to, taxes and charges imposed on or
measured by net income or receipts of any Credit Party by any jurisdiction to
the extent imposed on Additional Amounts) are directly asserted against any
Credit Party with respect to any payment received by such Credit Party
hereunder, such Credit Party may pay such Taxes, and, except as otherwise
provided in this Section, the Borrower will promptly pay such Additional Amount
(including, without limitation, any penalties, interest or expenses) as is
necessary in order that the net amount received and retained by such Credit
Party after the payment of such Taxes (including, without limitation, any Taxes
on such additional amount) shall equal the amount such Credit Party would have
received and retained had no such Taxes been asserted; provided, however, such
Credit Party shall promptly give written notice to the Borrower, accompanied by,
to the extent provided by the relevant taxing authority, a calculation in
reasonable detail of the amount demanded and evidence of the Taxes imposed on
such Credit Party, after such Credit Party has actual knowledge of the
imposition of any Taxes. Where notice is not given to the Borrower within ninety
(90) days after the Credit Party receives written notice of the assertion of
Taxes and the Borrower does not otherwise have notice of such assertion, the
Borrower shall not be required to pay penalties, additions to taxes, expenses,
and interest accruing on such Taxes from the date ninety (90) days after the
receipt by the Credit Party of written notice of the assertion of such Taxes
until the date that the Borrower receives such notice. The Borrower shall
furnish to such Credit Party within forty-five (45) days (or as soon thereafter
as available) after the date the payment of any Taxes is due pursuant to
Applicable Law true and correct copies of tax receipts evidencing payment by the
Borrower to the extent that such receipts are issued therefor. Except as
otherwise provided in this Section, if the Borrower fails to pay any Taxes that
it is required to pay pursuant to the terms of this Agreement when due to the
appropriate taxing authority or fail to remit to any of the Credit Parties the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Credit Parties for any incremental Taxes, interest or penalties
that may become payable by the Credit Parties primarily as a result of any such
failure.
(b) Each Lender that is a United States person that is not a
"domestic" corporation (as defined in Section 7701 of the Code) shall deliver to
the Borrower and the Administrative Agent, on or prior to the Agreement Date
(or, if such Lender becomes a party to this Agreement (whether by assignment or
otherwise) after the Agreement Date, the date upon which such Lender becomes a
party hereto) and on or prior to the first Business Day of each calendar year
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thereafter, and from time to time thereafter as reasonably requested in writing
by the Borrower, one complete, duly executed original IRS Form W-9, or any
successor form thereto. Each Lender that is not a United States person within
the meaning of Section 7701 of the Code (a "Foreign Lender") shall deliver to
the Borrower and the Administrative Agent, on or prior to the Agreement Date (or
if such Foreign Lender becomes a party to this Agreement (whether by assignment
or otherwise) after the date hereof, the date upon which such Foreign Lender
becomes a party hereto) and on or prior to the first Business Day of each
calendar year thereafter and from time to time thereafter as reasonably
requested in writing by the Borrower, either (i) two (2) complete, duly executed
original IRS Forms W-8ECI, W-8IMY or W-8BEN, as appropriate, or any successors
thereto, establishing that such Foreign Lender is on the date of delivery
thereof entitled to receive any and all payments from the Borrower under this
Agreement free from withholding of United States federal income tax or (ii) in
the case of such Foreign Lender that is not legally entitled to deliver any of
the forms listed in the foregoing clause (i), (A) a certificate of a duly
authorized officer of such Foreign Lender to the effect that such Foreign Lender
is not (I) a "bank" within the meaning of Section 881(c)(3)(A) of the Code, (II)
a "10 percent shareholder" of the Borrower within the meaning of Section
881(c)(3)(B) of the Code or (III) a controlled foreign corporation receiving
interest from a related person within the meaning of Section 881(c)(3)(C) of the
Code (such certificate, an "Exemption Certificate") and (B) two (2) complete,
duly executed original IRS Forms W-8BEN or W-8IMY, as appropriate, or any
successor thereto, certifying that such Foreign Lender is entitled to a complete
exemption from United States federal withholding tax on payments of interest.
Each Foreign Lender shall, from time to time, deliver updated or corrected IRS
Forms W-8ECI, IRS Forms W-8IMY, IRS Forms W-8BEN or Exemption Certificates, or
any successors thereto, to the Borrower and the Administrative Agent upon their
expiration or obsolescence to the extent and in the manner required under United
States federal tax law or after the occurrence of any event requiring a change
in the most recent forms or other documents delivered by such Lender. Such
Credit Party shall promptly provide written notice to the Borrower and the
Administrative Agent at any time it determines that it is no longer in a
position to provide any previously delivered form or other document (or any
other form or certification adopted by the IRS). The Borrower shall not be
required to pay any Additional Amounts under Section 2.9(b), Section 2.13(a) or
Section 6.10(a) hereof to a Lender if such Foreign Lender (x) fails to comply
with the requirements of this Section 2.13(b), (y) fails to qualify for a
complete reduction or exemption of United States federal tax withholding for any
reason other than a change in the United States federal tax law, or the official
interpretation thereof, in each case, after the delivery of IRS Forms W-8ECI,
IRS Forms W-8IMY, IRS Forms W-8BEN or an Exemption Certificate, or any
successors thereto, or (z) is treated as a "conduit entity" within the meaning
of U.S. Treasury Regulations Section 1.881-3 or any successor provision.
Notwithstanding the foregoing, if at the date of an assignment pursuant to which
a Foreign Lender becomes a party to this Agreement, the assignor was entitled to
payments under Section 2.13(a) hereof, then, to such extent, the assignee shall
not be required to deliver IRS Forms W-8ECI, IRS Forms W-8IMY, IRS Forms W-8BEN
or an Exemption Certificate, or any successors thereto, establishing a
withholding rate for such Foreign Lender that is less than the rate the assignor
was subject to, and the assignee shall be entitled to receive Additional Amounts
to such extent the assignor was so entitled.
(c) Each of the Credit Parties agrees that it will, to the extent reasonable and
without material cost or risk to it, (i) take all actions reasonably requested
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by the Borrower to maintain all exemptions, if any, available to it from United
States federal withholding taxes (whether available by treaty, statute, or
existing administrative waiver) and (ii) otherwise cooperate with the Borrower
to minimize any amounts payable by the Borrower under this Section 2.13.
(d) Any Credit Party that becomes aware that it is entitled
to receive a refund (whether by way of a direct payment or by offset) in respect
of Additional Amounts paid by the Borrower, which refund would reasonably be
considered allocable to or resulting from such payment or indemnification made
pursuant to this Section 2.13, shall promptly notify the Borrower of the
availability of such refund and shall, within thirty (30) days after the receipt
of a request from the Borrower, apply for such refund with the Borrower being
responsible for any incremental costs associated with such refund request;
provided, however, that (i) the Borrower shall not be entitled to any damages as
a result of the failure of such Credit Party to so notify the Borrower of the
availability of such refund and (ii) the Borrower shall not have the right to
examine the books or records of any Credit Party. If any Credit Party receives
any such refund (as described in the preceding sentence), so long as no Default
or Event of Default has occurred and is continuing, it shall promptly repay the
amount of such refund (together with any interest received thereon) to the
Borrower; provided, however, that the Borrower, upon the request of the
applicable Credit Party, shall repay the amount paid over to the Borrower in the
event such Credit Party is required to repay such refund to the applicable
authority.
(e) If the Borrower is or becomes required to pay any
Additional Amounts to a Credit Party pursuant to this Section 2.13, the Borrower
shall have the right, upon notice to the Administrative Agent and such Credit
Party, to (i) prepay without penalty, on non-pro rata basis, all or any portion
of a Loan held by such Credit Party plus all interest and Additional Amounts
owing to such Credit Party as of the date of such prepayment, (ii) require such
Credit Party to use reasonable efforts to designate a different lending office
for funding or booking its Loan under this Agreement or to assign its rights and
obligations under this Agreement to another of its offices, branches or
affiliates, or (iii) require such Credit Party to effect an assignment of all of
its rights and obligations under this Agreement to another Credit Party
designated by the Borrower if, in the case of the foregoing clauses (ii) and
(iii), such designation or assignment (A) would eliminate or reduce amounts
payable pursuant to Section 2.13 hereof in the future and (B) would not cause
the imposition on such Credit Party of any additional costs or legal or
regulatory burdens deemed by such Credit Party, in its reasonable judgment, to
be material or otherwise disadvantageous to such Credit Party.
Section 2.14 Letters of Credit.
(a) Letter of Credit Committed Amount.
(i) Subject to the terms and conditions hereof, each
Issuing Bank, in reliance on the agreements of the L/C Participants set forth in
Section 2.14(d)(i) hereof, agrees to issue Letters of Credit denominated in
Dollars for the account of the Borrower prior to the Initial Maturity Date, in
such form as may be approved from time to time by such Issuing Bank; provided
that no Issuing Bank shall issue any Letter of Credit if, after giving effect to
such issuance, (A) the aggregate amount of the L/C Obligations would exceed the
Letter of Credit Committed Amount, or (B) the sum of (I) the aggregate principal
amount of Revolving Loans then outstanding, plus (II) the aggregate principal
amount of Swing Loans then outstanding, plus (III) the aggregate amount of L/C
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Obligations then outstanding, would exceed the Available Revolving Commitment.
Schedule 2.14 lists all of the issued and outstanding Letters of Credit as of
the Agreement Date.
(ii) Each Letter of Credit shall (A) be either (x) a
standby letter of credit issued to support obligations of the Borrower or any of
the Designated Subsidiaries, contingent or otherwise, to finance the working
capital and business needs of the Borrower or any of the Designated Subsidiaries
in the ordinary course of business, or (y) if available to the applicable
Issuing Bank, a commercial letter of credit issued in respect of the purchase of
goods or services by the Borrower or any of the Designated Subsidiaries in the
ordinary course of business, and (B) expire no later than the earlier of (x) the
date that is twelve (12) months after the date of its issuance and (y) the fifth
(5th) Business Day prior to the Initial Maturity Date
(iii) Each Letter of Credit shall be subject to the
Uniform Customs and, to the extent not inconsistent therewith, the laws of the
State of New York or, in any case where the applicable Issuing Bank issues such
Letters of Credit from an office located outside of the United States, the laws
of the jurisdiction in which such office is located.
(iv) No Issuing Bank shall at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause such Issuing Bank or any L/C Participant to exceed any limits imposed by,
any Applicable Law.
(b) Procedure for Issuance of Letters of Credit. The
Borrower may request that an Issuing Bank issue a Letter of Credit, at any time
prior to the fifth (5th) Business Day prior to the Initial Maturity Date, by
delivering to such Issuing Bank at its address for notices specified herein,
with a copy to the Administrative Agent, a Request for Issuance of Letter of
Credit, completed to the satisfaction of such Issuing Bank, and such other
certificates, documents and other papers and information as such Issuing Bank
may request. Upon receipt of any Request for Issuance of Letter of Credit, the
applicable Issuing Bank will process the Letter of Credit Application
accompanying such Request for Issuance of Letter of Credit, and the
certificates, documents and other papers and information delivered to it in
connection therewith, in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall any
Issuing Bank be required to issue any Letter of Credit earlier than three (3)
Business Days after its receipt of any Request for Issuance of Letter of Credit
therefor and all such other certificates, documents and other papers and
information relating thereto) by issuing the original of such Letter of Credit
to the beneficiary thereof or as otherwise may be agreed by the applicable
Issuing Bank and the Borrower. The applicable Issuing Bank shall furnish a copy
of such Letter of Credit to the Borrower and the Administrative Agent promptly
following the issuance thereof.
(c) Fees, Commissions and Other Charges.
(i) The Borrower shall pay to the Administrative Agent,
for the account of each Issuing Bank and the L/C Participants, with respect to
each Letter of Credit issued by such Issuing Bank hereunder, a per annum letter
of credit fee as and to the extent set forth in Section 2.4(b) hereof. In
addition, the Borrower shall pay to each Issuing Bank, for its own account, an
issuing fee, as set forth in Section 2.4(c) hereof, with respect to each Letter
of Credit issued by such Issuing Bank hereunder.
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(ii) In addition to the foregoing fees and commissions,
the Borrower shall pay or reimburse each Issuing Bank for such normal and
customary costs and expenses as are incurred or charged by such Issuing Bank in
issuing, effecting payment under, amending or otherwise administering any Letter
of Credit issued by it.
(iii)The Administrative Agent shall, promptly following
its receipt thereof, distribute to each Issuing Bank and the L/C Participants
all fees and commissions received by the Administrative Agent for their
respective accounts pursuant to this Section 2.14(c).
(d) L/C Participations.
(i) Each Issuing Bank irrevocably agrees to grant and
hereby grants to each L/C Participant and, to induce such Issuing Bank to issue
Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept
and purchase and hereby accepts and purchases from such Issuing Bank, on the
terms and conditions hereinafter stated, for such L/C Participant's own account
and risk an undivided interest equal to such L/C Participant's Revolving
Commitment Ratio from time to time in effect in such Issuing Bank's rights and
obligations under each Letter of Credit issued by it hereunder and each Letter
of Credit Application and the amount of each draft paid by such Issuing Bank
thereunder. Each L/C Participant unconditionally and irrevocably agrees with
each Issuing Bank that, if a draft is paid under any Letter of Credit for which
such Issuing Bank is not reimbursed in full by the Borrower in accordance with
the terms of this Agreement, such L/C Participant shall pay to such Issuing Bank
upon demand at such Issuing Bank's address for notices specified herein an
amount equal to such L/C Participant's then Revolving Commitment Ratio of the
amount of such draft, or any part thereof, which is not so reimbursed. If such
demand is made prior to 12:00 noon (New York time) on a Business Day, such L/C
Participant shall make such payment to the applicable Issuing Bank prior to the
end of such Business Day and otherwise such L/C Participant shall make such
payment on the next succeeding Business Day.
(ii) If any amount required to be paid by any L/C
Participant to any Issuing Bank pursuant to Section 2.14(d)(i) in respect of any
unreimbursed portion of any payment made by such Issuing Bank under any Letter
of Credit is not paid on the date such payment is due but is paid to such
Issuing Bank within three (3) Business Days after the date such payment is due,
such L/C Participant shall pay to such Issuing Bank on demand an amount equal to
the product of (A) such amount, times (B) the daily average Federal Funds Rate,
as quoted by the applicable Issuing Bank, times (C) a fraction, the numerator of
which is the number of days that elapse during such period and the denominator
of which is 360. If any such amount required to be paid by any L/C Participant
pursuant to Section 2.12(d)(i) is not in fact made available to the applicable
Issuing Bank by such L/C Participant within three (3) Business Days after the
date such payment is due, such Issuing Bank shall be entitled to recover from
such L/C Participant, on demand, such amount with interest thereon calculated
from such due date at the rate per annum applicable to Base Rate Advances
hereunder. A certificate of the applicable Issuing Bank submitted to any L/C
Participant with respect to any amounts owing under this subsection shall be
conclusive in the absence of manifest error.
(iii) Whenever, at any time after an Issuing Bank has
made payment under any Letter of Credit issued by it and has received from any
L/C Participant its pro rata share of such payment in accordance with Section
2.14(d)(i), such Issuing Bank receives any payment related to such Letter of
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Credit (whether directly from the Borrower or otherwise, including proceeds of
Collateral applied thereto by such Issuing Bank), or any payment of interest on
account thereof, such Issuing Bank will, if such payment is received prior to
12:00 noon (New York time) on a Business Day, distribute to such L/C Participant
its pro rata share thereof prior to the end of such Business Day and otherwise
such Issuing Bank will distribute such payment on the next succeeding Business
Day; provided, however, that in the event that any such payment received by such
Issuing Bank shall be required to be returned by such Issuing Bank, such L/C
Participant shall return to the applicable Issuing Bank the portion thereof
previously distributed by such Issuing Bank to it.
(e) Reimbursement Obligation of the Borrower.
(i) The Borrower agrees to reimburse each Issuing Bank,
on the same Business Day on which a draft is presented under any Letter of
Credit and paid by such Issuing Bank, provided that such Issuing Bank provides
notice to the Borrower prior to 12 noon (New York time) on such Business Day,
and otherwise the Borrower will reimburse such Issuing Bank on the next
succeeding Business Day. The failure to provide such notice shall not affect the
Borrower's absolute and unconditional obligation to reimburse the applicable
Issuing Bank for any draft paid under any Letter of Credit issued by it. The
applicable Issuing Bank shall provide notice to the Borrower on such Business
Day as a draft is presented and paid by such Issuing Bank indicating the amount
of (A) such draft so paid and (B) any taxes, fees, charges or other costs or
expenses incurred by such Issuing Bank in connection with such payment. Each
such payment shall be made to the applicable Issuing Bank at its address for
notices specified herein in Dollars in immediately available funds.
(ii) Interest shall be payable on any and all amounts
remaining unpaid by the Borrower under this Section 2.14(e) from the date such
amounts are drawn until payment in full at the rate which would be payable on
any outstanding Base Rate Advances of Revolving Loans.
(iii) Each drawing under any Letter of Credit shall
constitute a request, with no further action required, by the Borrower to the
Administrative Agent for a borrowing pursuant to Section 2.2(b) in the amount of
such drawing. The funding date with respect to such borrowing shall be the date
of such drawing.
(f) Obligations Absolute.
(i) The Borrower's obligations under this Section 2.14
shall be absolute and unconditional under any and all circumstances and
irrespective of any set-off, counterclaim or defense to payment which the
Borrower may have or have had against any Issuing Bank, any L/C Participant or
any beneficiary of a Letter of Credit.
(ii) The Borrower also agrees with each Issuing Bank
and each L/C Participant that neither any Issuing Bank nor any L/C Participant
shall be responsible for, and the Borrower's reimbursement obligations under
Section 2.14(e)(i) shall not be affected by, among other things, (A) the
validity or genuineness of documents or of any endorsements thereon, even though
such documents shall in fact prove to be invalid, fraudulent or forged, or (B)
any dispute between or among the Borrower and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred, or
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(C) any claims whatsoever of Borrower against any beneficiary of such Letter of
Credit or any such transferee.
(iii) Neither any Issuing Bank nor any L/C Participant
shall be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit, except for errors or omissions caused by
the applicable Issuing Bank's gross negligence or willful misconduct.
(iv) The Borrower agrees that any action taken or
omitted by an Issuing Bank under or in connection with any Letter of Credit or
the related drafts or documents, if done in absence of gross negligence or
willful misconduct and in accordance with the standards of care specified in the
Uniform Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of such Issuing Bank or any L/C
Participant to the Borrower.
(g) Letter of Credit Payments. If any draft shall be
presented for payment under any Letter of Credit, the responsibility of the
applicable Issuing Bank to the Borrower in connection with such draft shall, in
addition to any payment obligation expressly provided for in such Letter of
Credit, be limited to determining that the documents (including each draft)
delivered under such Letter of Credit in connection with such presentment are in
conformity with such Letter of Credit.
(h) Application. To the extent that any provision of any
Request for Issuance of Letter of Credit or any Letter of Credit Application
related to any Letter of Credit is inconsistent with the provisions of this
Section 2.14, the provisions of this Section 2.14 shall apply.
(i) Change in Law. If any change after the Agreement
Date in Applicable Law, any change in the interpretation or administration
thereof, or any change after the Agreement Date in compliance with Applicable
Law by any Issuing Bank or any other Lender as a result of any request or
directive of any governmental authority, central bank or comparable agency
(whether or not having the force of law) shall (i) impose, modify or deem
applicable any reserve (including, without limitation, any imposed by the Board
of Governors of the Federal Reserve System), special deposit, capital adequacy,
assessment or other requirements or conditions against letters of credit issued
by any Issuing Bank or against participations by any L/C Participant in the
Letters of Credit or (ii) impose on any Issuing Bank or any L/C Participant any
other condition regarding any Letter of Credit or any participation therein, and
the result of any of the foregoing in the reasonable determination of such
Issuing Bank or such L/C Participant, as the case may be, is to increase the
cost to such Issuing Bank or such L/C Participant of issuing or maintaining any
Letter of Credit or purchasing or maintaining any participation therein, as the
case may be, by an amount (which amount shall be reasonably determined) deemed
by such Issuing Bank or such L/C Participant to be material, then, on the
earlier of (x) five (5) days following the date of demand (which demand shall be
made not later than three (3) months following such change) by such Issuing Bank
or such L/C Participant or (y) the Initial Maturity Date, the Borrower shall
immediately pay to such Issuing Bank or such L/C Participant, as the case may
be, such additional amount or amounts as such Issuing Bank or such L/C
Participant, as the case may be, determines will compensate it for such
increased costs. Within sixty (60) days of such written demand by such Issuing
Bank or such L/C Participant, the Borrower may, in its discretion, provide a
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replacement lender or lenders for such Issuing Bank or such L/C Participant,
which replacement lender or lenders will be subject to the approval of the
Administrative Agent, which, so long as no Default or Event of Default shall
then exist, shall not be unreasonably withheld, and the Administrative Agent,
such Lender and the Borrower shall take all necessary actions to transfer the
rights, duties and obligations of such Issuing Bank or such L/C Participant to
such replacement lender or lenders within such sixty (60) day period. A
certificate of such Lender or such Issuing Bank setting forth the amount, and in
reasonable detail, the basis for such Issuing Bank or such L/C Participant's
determination of such amount, to be paid to such Issuing Bank or such L/C
Participant by the Borrower as a result of any event referred to in this
paragraph shall, absent manifest error, be conclusive. Such certificate shall be
delivered to the Borrower with each written demand for payment referenced above.
Each Issuing Bank and each L/C Participant further agree that they shall use
their best efforts to give the Borrower thirty (30) days prior notice, and in
any event shall give prompt notice, of any event referred to in this paragraph
which may have the effect of materially increasing the cost to such Issuing Bank
or such L/C Participant of issuing or maintaining any Letter of Credit or
purchasing or maintaining any participation therein.
(j) Indemnity. The Borrower will indemnify and hold harmless
the Indemnified Parties from and against any and all claims, liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever (including, without
limitation, reasonable attorneys' fees) which may be imposed on, incurred by or
asserted against any such Indemnified Parties in any way relating to or arising
out of the issuance of a Letter of Credit, except that the Borrower shall not be
liable to any of the Indemnified Parties for any portion of such claims,
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the gross negligence or willful
misconduct of the Indemnified Parties as determined by a final, non-appealable
judicial order. This Section 2.14(j) shall survive termination of this
Agreement.
Section 2.15 Swing Loans.
(a) Swing Loan Advances.
(i) Notices; Disbursement. Whenever the Borrower
desires an Advance of the Swing Loans hereunder, it shall give irrevocable
notice to the Swing Loan Lender, with a copy to the Administrative Agent, not
later than 10:00 a.m. (New York time) on the date of the requested Advance by
telephone, followed immediately by a confirmation of such request in writing in
the form of Exhibit U hereto (a "Swing Loan Request"). Upon receipt of a copy of
the Swing Loan Request, the Administrative Agent shall promptly, and in any
event no later than 1:00 p.m. (New York time), notify the Swing Loan Lender of
the amount of the Available Revolving Commitment, the aggregate principal amount
of the Revolving Loans outstanding, and the aggregate amount of the L/C
Obligations outstanding. Subject to satisfaction of the conditions set forth
herein, the Swing Loan Lender shall initiate the transfer of funds representing
such Advance of the Swing Loans to the Borrower by 3:00 p.m. (New York time) on
the Business Day specified by the Borrower in the applicable Swing Loan Request.
(ii) Minimum Amounts. Each Advance of the Swing Loans shall
be in a minimum principal amount of $100,000 and integral multiples of $50,000,
in excess thereof.
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(b) Repayment of Swing Loans. Each Advance of the Swing Loans
shall be due and payable on the earliest of (i) thirty (30) days from the date
of such Advance, (ii) the date of the next Advance of the Revolving Loans, or
(iii) the Initial Maturity Date; provided, however, the Borrower may prepay any
Swing Loan Advance prior to the date it is due upon notice to the Swing Loan
Lender and the Administrative Agent not later than 10:00 a.m. (New York time) on
the date of prepayment of such Advance. If such notice is given by the Borrower,
the Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein, together with
accrued interest to such date on the amount prepaid. If, and to the extent, any
Swing Loans shall be outstanding on the date of any Advance of the Revolving
Loans, such Swing Loans shall be repaid from the proceeds of such Advance of the
Revolving Loans prior to any distribution of such proceeds to the Borrower. The
Swing Loan Lender may, at any time, in its sole discretion by written notice to
the Borrower and the Administrative Agent, require repayment of its Swing Loans
by way of a Revolving Loan, in which case the Borrower shall be deemed to have
requested a Base Rate Advance of the Revolving Loans in the amount of such Swing
Loans; provided, however, that any such demand shall be deemed to have been
given (A) one (1) Business Day prior to the Initial Maturity Date, (B) on the
last day of any thirty (30) day period following the date of any Advance of the
Swing Loans, or if such day is not a Business Day, on the Business Day
immediately preceding the last day of such thirty (30) day period, (C) upon the
occurrence of any Event of Default described in Section 10.1(f) or (g) hereof,
and (D) upon acceleration of the Obligations, whether on account of an Event of
Default described in Section 10.1(f) or (g) hereof or any other Event of
Default, in accordance with the provisions of Section 10.2 hereof following an
Event of Default (each such Revolving Loan made on account of any such deemed
request therefor as provided herein being hereinafter referred to as a
"Mandatory Borrowing"). Each Lender hereby irrevocably agrees to make Revolving
Loans based on its Revolving Commitment Ratio promptly upon any such request or
deemed request on account of each Mandatory Borrowing in the amount and in the
manner specified in the preceding sentence and on the same such date,
notwithstanding (I) the amount of Mandatory Borrowing may not comply with the
minimum amount for advances of Revolving Loans otherwise required hereunder,
(II) whether any conditions specified in Article 4 are then satisfied, (III)
whether a Default or an Event of Default then exists, (IV) failure for any such
request or deemed request for Revolving Loans to be made by the time otherwise
required in Section 2.2, (V) the date of such Mandatory Borrowing, or (VI) any
reduction in the Revolving Commitment or termination of the Revolving Commitment
relating thereto immediately prior to such Mandatory Borrowing or
contemporaneously therewith; provided, however, that no Lender shall be required
to make such Revolving Loans if, at the time that the Swing Loan Lender agreed
to fund any Swing Loan Request, the Swing Loan Lender had received written
notice from the Borrower or the Administrative Agent of the occurrence of a
Default or Event of Default or to the extent such Mandatory Borrowing would
cause a Lender to exceed its Revolving Commitment. In the event that any
Mandatory Borrowing cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement of any
Insolvency Proceeding with respect to the Borrower or any other obligor
hereunder or under any other Loan Document), then each Lender hereby agrees that
it shall forthwith purchase (as of the date the Mandatory Borrowing would
otherwise have occurred, but adjusted for any payments received from the
Borrower on or after such date and prior to such purchase) from the Swing Loan
Lender such participations in the outstanding Swing Loans as shall be necessary
to cause each such Lender to share in such Swing Loans ratably based upon its
respective Revolving Commitment Ratio (determined before giving effect to any
termination of the Commitments pursuant to Section 10.2), provided that (x) all
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interest payable on the Swing Loans shall be for the account of the Swing Loan
Lender until the date as of which the respective participation is purchased, and
(y) at the time any purchase of participations pursuant to this sentence is
actually made, the purchasing Lender shall be required to pay (to the extent not
paid by the Borrower) to the Swing Loan Lender interest on the principal amount
of participation purchased for each day from and including the day upon which
the Mandatory Borrowing would otherwise have occurred but excluding the date of
payment for such participation, at the rate equal to, if paid within two (2)
Business Days of the date of the Mandatory Borrowing, the Federal Funds Rate,
and thereafter at a rate equal to the Base Rate. Notwithstanding the foregoing,
no Lender shall be required to purchase participations in the outstanding Swing
Loans from the Swing Loan Lender if, at the time that the Swing Loan Lender
agreed to fund any Swing Loan Request, the Swing Loan Lender had received
written notice from the Borrower or the Administrative Agent of the occurrence
of a Default or Event of Default or if, and to the extent, the sum of such
Lender's Revolving Loans outstanding plus the amount of such participation would
exceed the Revolving Commitment of such Lender.
(c) Interest on Swing Loans. Swing Loans shall bear interest at a
per annum rate agreed to by the Borrower and the Swing Loan Lender as set forth
in the Swing Loan Note; provided, however, that (i) from and after any failure
to make any payment of principal or interest in respect of any of the Loans
hereunder when due (after giving effect to any applicable grace period), whether
at scheduled or accelerated maturity or on account of any mandatory prepayment
or (ii) while any Swing Loans in which the Lenders have acquired participations
pursuant to Section 2.15(b) remain outstanding, the principal of and, to the
extent permitted by law, interest on, Swing Loans shall bear interest, payable
on demand, at the Default Rate. Interest on each Swing Loan shall be payable in
arrears on the date payment of such Swing Loan is due pursuant to Section
2.15(b).
(d) Reporting. Unless the Swing Loan Lender is the Administrative
Agent, the Swing Loan Lender shall provide to the Administrative Agent, on
Friday of each week and on each date the Administrative Agent notifies the Swing
Loan Lender that the Borrower has made a Request for Advance or the
Administrative Agent otherwise requests the same, an accounting for the
outstanding Swing Loans in form reasonably satisfactory to the Administrative
Agent.
(e) Termination of Swing Loans; Designation of Swing Loan Lender.
Unless a Default or an Event of Default then exists, the Swing Loan Lender may
resign as Swing Loan Lender by giving the Borrower and the Administrative Agent
at least seven (7) days' prior written notice. The Borrower must give ten (10)
days' prior written notice to the Administrative Agent of any change in
designation of the Swing Loan Lender. The replaced Swing Loan Lender shall
continue to be a "Swing Loan Lender" for purposes of repayment of any Swing
Loans made prior to such replacement and outstanding after such replacement.
Section 2.16 Incremental Facility Loans.
(a) Subject to the terms and conditions of this Agreement, the
Borrower may request an Incremental Facility Commitment on any Business Day;
provided, however, that the Borrower may not request an Incremental Facility
Commitment or an Incremental Facility Loan during the continuance of a Default
or Event of Default, including, without limitation, any Default or Event of
Default that would result after giving effect to any Incremental Facility Loan;
and provided further, that the Borrower may request up to five (5) Incremental
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Facility Commitments (each of which commitments may be from more than one
Lender) which may be no less than $50,000,000 and no more than $250,000,000 in
the aggregate. The Incremental Facility Maturity Date applicable to any of the
Incremental Facility Loans shall be no earlier than the date which is three (3)
calendar months after the Final Maturity Date, unless such Incremental Facility
Commitments are used to increase the amount of any of the Commitments hereunder.
In requesting Incremental Facility Commitments, the Borrower shall offer each of
the Lenders an opportunity to provide an Incremental Facility Commitment;
provided that none of the Lenders shall be required to issue an Incremental
Facility Commitment and the decision of any Lender to issue or not issue an
Incremental Facility Commitment to the Borrower shall be at such Lender's sole
discretion. Persons not then Lenders may be included as Lenders having
Incremental Facility Commitments with the written approval, not to be
unreasonably withheld, of the Borrower and the Lead Arrangers. The Incremental
Facility Commitments (i) may be in the form of a revolving or a term credit
facility and may be structured as an institutional tranche, (ii) may be used to
increase the amount of any of the Commitments hereunder, provided that the
amount of such Incremental Facility Commitments is added on a pro rata basis to
the remaining scheduled amortization in the case of the Term Loans or commitment
reductions in the case of the Revolving Loan Commitment, (iii) must not (A)
have, (x) in the case of Incremental Facility Loans which are term loans (but
not Tranche A Loans), scheduled amortization providing for principal repayments
earlier than, or in amount on a percentage basis larger than, those dates or
amounts set forth in the repayment schedule for the Tranche B Loans set forth
herein, or (y) in the case of Incremental Facility Loans which are revolving
loans, scheduled amortization providing for commitment reductions earlier than,
or in an amount on a percentage basis larger than, those dates or amounts set
forth in the reduction schedule for the Revolving Commitment set forth herein,
or (B) be secured by more or different collateral than the Loans hereunder, and
(iv) must be governed by this Agreement and the other Loan Documents and be
subject to terms and conditions not more restrictive than those set forth for
the Loans herein and therein.
(b) Prior to the effectiveness of any Incremental Facility
Commitment, the Borrower shall (i) deliver to the Administrative Agent and the
Lenders a written notice (each a "Notice of Incremental Facility Commitment"),
in form and substance reasonably satisfactory to the Administrative Agent,
setting forth terms and provisions with respect to interest rates and scheduled
amortization with respect to the proposed Incremental Facility Loan and (ii)
provide revised Projections to the Credit Parties, which shall be in form and
substance reasonably satisfactory to the Lead Arrangers and which shall
demonstrate the Borrower's ability to timely repay such Incremental Facility
Commitment and any Incremental Facility Loans thereunder and to comply with the
terms and conditions of this Agreement and the other Loan Documents.
(c) No Incremental Facility Commitment shall by itself result in
any reduction of the Revolving Commitment, the Tranche A Commitment or the
Tranche B Commitment or of the Commitment Ratios of any Lender issuing such
Incremental Facility Commitment.
(d) Advances of the Incremental Facility Loans (i) shall bear
interest at the Base Rate or the Eurodollar Rate or such other rate agreed to by
the Lenders making such Advances; (ii) subject to Section 2.16(a) hereof, shall
be repaid as agreed to by the Borrower and the Lenders making such Advances;
(iii) shall for all purposes be Obligations hereunder and under the Loan
Documents; (iv) shall be represented by promissory notes which set forth terms
and provisions with respect to interest rates and scheduled amortization with
respect to such Incremental Facility Loans and are in form and substance
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acceptable to the Administrative Agent and the Borrower (each, an "Incremental
Facility Note"); and (v) shall rank pari passu with the Loans for purposes of
Sections 2.11 and 10.2 hereof and with respect to the Collateral (unless the
applicable Incremental Facility Lender shall otherwise agree in writing to have
its Incremental Facility Loans be junior to the Loans).
(e) Incremental Facility Loans shall be requested by the Borrower
pursuant to a request (which shall be substantially in the form of a Request for
Advance) delivered in the same manner as a Request for Advance, but shall be
funded pro rata only by those Lenders that hold the Incremental Facility
Commitments.
ARTICLE 3 - Guarantee
Section 3.1 Guarantee. Holdco hereby unconditionally guarantees to the
Credit Parties and their respective permitted successors and assigns and the
subsequent holders of the Obligations (including, without limitation, any
interest on the Loans accruing after the filing of a petition initiating any
Insolvency Proceeding with respect to Holdco, the Borrower or any Designated
Subsidiary, whether or not such interest accrues or is recoverable against the
Borrower after the filing of such petition for purposes of the Bankruptcy Code
or is an allowed claim in such proceeding), irrespective of the validity and
enforceability of this Agreement (other than this Article 3), the Notes or the
other Loan Documents or the Obligations of the Borrower or any of the other
Guarantors hereunder or thereunder, the value or sufficiency of any Collateral
or any other circumstance that might otherwise affect the liability of a
guarantor, that: (i) the principal of and interest on the Loans, the Notes and
all other Obligations of the Borrower and the other Guarantors to the Credit
Parties under this Agreement, the Notes and the other Loan Documents shall be
promptly paid in full when due, whether at stated maturity, by acceleration or
otherwise, in accordance with the terms hereof and thereof; and (ii) in case of
any extension of time of payment or renewal of any Notes or any of such other
Obligations, the same shall be promptly paid in full when due in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. The foregoing guaranty is a guaranty of payment and
not of collection. Failing payment when due of any amount so guaranteed for
whatever reason, Holdco will be obligated to pay the same immediately.
Section 3.2 Waivers and Releases. Holdco hereby waives notice of, and
consents to, any extension of time of payment, renewals, releases of collateral,
delays in obtaining or realizing upon or failures to obtain, perfect, or
maintain perfection of, or realize upon collateral or other indulgence from time
to time granted by any of the Credit Parties in respect of this Agreement, the
Notes or any other Loan Document. Until the Obligations have been paid in full
in cash or otherwise satisfied to the satisfaction of the Credit Parties, Holdco
hereby releases the Borrower from all, and agrees not to assert or enforce
(whether by or in a legal or equitable proceeding or otherwise) any, "claims"
(as defined in 11 U.S.C. ss. 101(4)), whether arising under Applicable Law or
otherwise, to which Holdco is or would be entitled by virtue of its obligations
hereunder, any payment made pursuant hereto or the exercise by the Credit
Parties of their rights with respect to any Collateral, including any such
claims to which Holdco may be entitled as a result of any right of subrogation,
exoneration or reimbursement. To the extent that the Borrower may not be
released by Holdco under this Article 3, Holdco agrees that, until the
Obligations have been paid in full in cash or otherwise satisfied to the
satisfaction of the Credit Parties, it shall not be entitled to any right of
subrogation, exoneration, reimbursement or contribution in respect of any
Obligations guaranteed hereby. With respect to this Agreement and the Notes,
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Holdco hereby waives presentment, protest, demand of payment, notice of dishonor
and all other notices and demands whatsoever. Holdco further agrees that, as
between Holdco, on the one hand, and the Credit Parties, on the other hand, (i)
the maturity of the Obligations guaranteed hereby may be accelerated as provided
in Section 10.2 hereof for the purposes of this Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the Obligations guaranteed hereby, and (ii) in the event of any declaration of
acceleration of such Obligations as provided in Section 10.2 hereof, such
Obligations (whether or not otherwise due and payable) shall forthwith become
due and payable by Holdco for purposes of this guarantee. The Obligations of
Holdco under this Article 3 shall be automatically reinstated if and to the
extent that for any reason any payment by or on behalf of the Borrower is
rescinded or must otherwise be restored by any holder of any of the Obligations
guaranteed hereunder, whether as a result of any Insolvency Proceeding with
respect to Holdco, the Borrower or any Designated Subsidiary or otherwise , and
Holdco agrees that it will indemnify the Credit Parties on demand for their
out-of-pocket costs and expenses (including, without limitation, reasonable fees
and expenses of counsel) incurred by the Credit Parties in connection with such
rescission or restoration.
Section 3.3 Miscellaneous.
(a) Upon the bankruptcy or winding up or other distribution
of Assets of the Borrower or any Designated Subsidiary or of any surety or
guarantor for any of Obligations of the Borrower to the Credit Parties, or any
of them, the rights of the Credit Parties against Holdco shall not be affected
or impaired by the omission of any Credit Party to prove its claim, or to prove
its full claim, and the Collateral Agent may prove such claims as it sees fit
and may refrain from proving any claim and in its discretion may value as it
sees fit or refrain from valuing any security held by it without in any way
releasing, reducing or otherwise affecting the liability to any Credit Party of
Holdco.
(b) Holdco absolutely, unconditionally and irrevocably
waives any and all right to assert any defense, set-off, counterclaim or
cross-claim of any nature whatsoever with respect to this Article 3 or the
obligations of Holdco hereunder or the obligations of any other Person or party
(including, without limitation, the Borrower) relating to this Article 3 or the
obligations of any other guarantor with respect to the Obligations (other than
payment in full) in any action or proceeding brought by any Credit Party to
collect the Obligations or any portion thereof, or to enforce the obligations of
Holdco under this Article 3.
(c) The Credit Parties, or any of them, may from time to
time, without exonerating or releasing Holdco in any way under this Guarantee,
(i) release, discharge, abandon or otherwise deal with or fail to deal with any
guarantor or surety of the Guaranteed Obligations or any security or securities
therefor or any part thereof now or hereafter held by the Administrative Agent
or (ii) amend, modify, extend, accelerate or waive in any manner any of the
provisions, terms, or conditions of the Loan Documents, all as they may consider
expedient or appropriate in their sole discretion or (iii) act or fail to act in
any manner referred to in this Article 3 without regard to whether such action
or inaction may deprive Holdco of its right to subrogation against the Borrower
to recover full indemnity for any payments made pursuant to this Article 3.
Without limiting the generality of this Article 3, it is understood that the
Credit Parties may, without exonerating or releasing Holdco, give up, or modify
or abstain from perfecting or taking advantage of any security for the
Obligations and accept or make any compositions or arrangements, and realize
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upon any security for the Obligations when, and in such manner, as such Person
may deem expedient, all without notice to Holdco.
(d) If a claim is ever made upon the Credit Parties for the
repayment or recovery of any amount or amounts received by such Person in
payment of any of the Obligations and such Person repays all or part of such
amount by reason of (i) any judgment, decree or order of any court or
administrative body having jurisdiction over such Person or any of its property,
or (ii) any settlement or compromise of any such claim effected by such Person
with any such claimant, including the Borrower, then in such event Holdco shall
be and remain obligated to such Person hereunder for the amount so repaid or
recovered to the same extent as if such amount had never originally been
received by such Person.
(e) Holdco expressly represents and acknowledges that any
financial accommodations by the Credit Parties, or any of them, to the Borrower,
including without limitation the extension of the Loans are and will be of
direct interest, benefit and advantage to Holdco.
ARTICLE 4 - Conditions Precedent
Section 4.1 Conditions Precedent to Initial Advance of the Loans and
to the Issuance of the Initial Letter of Credit. The obligation of the Lenders
to undertake their respective Commitments and to make the initial Advance of the
Loans, and of the Issuing Bank to issue the initial Letter of Credit, is subject
to the prior fulfillment of each of the following conditions:
(a) The Administrative Agent shall have received each of the
following (with copies for each of the Lenders which have requested same), in
form and substance satisfactory to the Arrangers and each of the Lenders, as
applicable:
(i) this duly executed Agreement;
(ii) the duly executed Notes;
(iii) the duly executed Borrower's Pledge Agreement,
together with appropriate original stock certificates and undated stock powers
with respect thereto executed in blank and appropriate UCC-1 financing statement
forms;
(iv) the duly executed Security Agreement, together
with evidence of the filing of appropriate UCC-1 financing statement forms;
(v) the loan certificate of the Borrower, in
substantially the form attached hereto as Exhibit V, including a certificate of
incumbency with respect to each Authorized Signatory of the Borrower, together
with the following items: (A) a copy of the certificate of incorporation of the
Borrower, certified to be complete and correct by the Secretary of State of the
State of Delaware, and a complete and correct copy of the by-laws of the
Borrower; (B) a certificate of good standing for the Borrower issued by the
Secretary of State of Delaware; and (C) a true, complete and correct copy of the
resolutions of the board of directors of the Borrower, authorizing the Borrower
to execute, deliver and perform this Agreement and the other Loan Documents to
which it is a party;
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(vi) the duly executed Subsidiary Guaranty;
(vii) the duly executed Subsidiary Security Agreement,
together with appropriate UCC-l financing statement forms;
(viii) the duly executed Subsidiary Pledge Agreement,
together with appropriate original stock certificates and undated stock powers
with respect thereto executed in blank and appropriate UCC-1 financing statement
forms;
(ix) a loan certificate from each Guarantor, in
substantially the form attached hereto as Exhibit W, including a certificate of
incumbency with respect to each Authorized Signatory of such Guarantor, together
with the following items: (A) a copy of the certificate or articles of
incorporation, certificate of limited partnership or certificate of organization
of such Guarantor, certified to be complete and correct by the Secretary of
State of the state of such Guarantor's organization; (B) a certificate of good
standing for such Guarantor issued by the Secretary of State or similar state
official in the state in which such Guarantor is organized; (C) a complete and
correct copy of the by-laws, partnership agreement or limited liability company
or operating agreement of such Guarantor; and (D) a complete and correct copy of
the resolutions of the board of directors, or other appropriate entity, of such
Guarantor authorizing such Guarantor to execute, deliver and perform the Loan
Documents to which it is a party;
(x) the duly executed Holdco Pledge Agreement, together
with appropriate original stock certificates and undated stock powers with
respect thereto executed in blank;
(xi) the duly executed Intellectual Property Security
Agreements, together with appropriate filing coversheets;
(xii) copies of insurance binders or certificates
covering the Assets of the Borrower and the Designated Subsidiaries, and
otherwise meeting the requirements of Section 6.5 hereof;
(xiii) a legal opinion, dated as of the Agreement Date,
of Dow, Lohnes & Albertson, PLLC, as special counsel to Holdco, the Borrower and
its Subsidiaries in connection with the transactions contemplated by this
Agreement and the other Loan Documents, addressed to the Arrangers and the other
Credit Parties, in form and substance reasonably satisfactory to the Lead
Arrangers and their counsel;
(xiv) a duly executed Request for Advance for the
initial Advance of the Loans;
(xv) the duly executed Use of Proceeds Letter;
(xvi) the duly executed Certificate of Financial
Condition for the Borrower and the Designated Subsidiaries on a consolidated
basis, given by a Financial Officer of the Borrower which shall include a
certification that, since December 31, 1999, no event has occurred which would,
with the passage of time, be reasonably likely to have a Materially Adverse
Effect;
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(xvii) copies of all consents of any Person, and
filings with any Governmental Authority made or obtained in connection with the
transactions contemplated by this Agreement and the other Loan Documents;
(xviii) a duly executed Lien termination agreement and
recordable Lien releases with respect to any Liens which are not Permitted Liens
hereunder upon the Assets of the Borrower and the Designated Subsidiaries, and
with respect to any other Indebtedness which is not Permitted Debt hereunder;
(xix) the duly executed Assignment of SBC Lease
Documents; and
(xx) all such other documents as either the
Administrative Agent or any Lender may reasonably request, certified by an
appropriate governmental official or an Authorized Signatory if so requested.
(b) The Lead Arrangers shall have received evidence
satisfactory to them that all Necessary Authorizations to the extent relating to
Material Towers, and all necessary consents to the execution, delivery and
performance by the Borrower of this Agreement and the other Loan Documents to
which it is a party and by Holdco and the Designated Subsidiaries of the Loan
Documents to which they are parties, have been obtained or made, are in full
force and effect and are not subject to any pending or threatened reversal or
cancellation, and the Administrative Agent shall have received a certificate of
an Authorized Signatory of the Borrower so stating.
(c) The Credit Parties shall receive payment of (i) all fees
and expenses due and payable on the Agreement Date in respect of the
transactions contemplated hereby and (ii) all interest and fees payable under
the Prior Credit Agreement accrued to and including the Agreement Date.
(d) The Lead Arrangers shall have received the Borrower's
financial projections, after giving effect to the SBC Transaction and the
transactions contemplated by this Agreement and the other Loan Documents on a
fiscal year basis through the Final Maturity Date, and on a fiscal quarter basis
through December 31, 2001 (together with any updates and revisions thereof, the
"Projections"), and in the event of any change in circumstances that in the
reasonable judgment of the Lead Arrangers would materially affect the
Projections, any revisions of such Projections requested by the Lead Arrangers,
in form and substance reasonably satisfactory to the Lead Arrangers.
(e) The Arrangers shall have received a certificate of a
Financial Officer of the Borrower, in substantially the form of the Performance
Certificate required to be delivered under Section 7.3 hereof, demonstrating, on
a pro forma basis as of the Agreement Date and after giving effect to the
initial Advance of the Loans hereunder, that the Borrower is in compliance with
each of the Financial Covenants.
(f) The Arrangers shall not be aware of any information or
other matters affecting the assets or rights to be acquired in connection with
the SBC Transaction, or the other transactions contemplated by this Agreement
and the other Loan Documents, which information is inconsistent in a material
and adverse manner with any information disclosed in the SBC Lease Documents and
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could reasonably be expected to have a Materially Adverse Effect.
(g) All legal matters incident to this Agreement and the
consummation of the transactions contemplated hereby shall be reasonably
satisfactory to the Lead Arrangers and their counsel.
Section 4.2 Conditions Precedent to Each Advance. The obligation of
the Lenders to make each Advance (including the initial Advance hereunder and
including any Advance of the Swing Loans) is subject to the fulfillment of each
of the following conditions immediately prior to or contemporaneously with such
Advance:
(a) All of the representations and warranties made by or
with respect to Holdco, the Borrower and the Designated Subsidiaries, or any of
them, under this Agreement and the other Loan Documents, which, pursuant to
Section 5.2 hereof, are made at and as of the time of such Advance, shall be
true and correct at such time in all material respects, both before and after
giving effect to the application of the proceeds of such Advance;
(b) There shall not exist, on the date of the making of such
Advance and after giving effect to the proceeds of such Advance, a Default or
Event of Default hereunder, and the Administrative Agent, or in the case of a
Swing Loan, the Swing Loan Lender, shall have received a Request for Advance or
Swing Loan Request, as applicable, signed by an Authorized Signatory of the
Borrower so certifying, which Request for Advance or Swing Loan Request, as
applicable, shall also (i) certify the Borrower's compliance with the Financial
Covenants, (ii) provide calculations demonstrating the Borrower's compliance
with Section 9.1 hereof before and after giving effect to such Advance and (iii)
certify that each of the SBC Lease Documents is in full force and effect or, if
any of SBC Lease Documents has been terminated, that Holdco has received all
amounts required to be paid to Holdco pursuant to Section 14.1 (or any similar
provision) of the SBC Agreement to Sublease and such amounts have been applied
to prepay the Loans as and to the extent required pursuant to Section 2.7(d)
hereof.
Section 4.3 Conditions Precedent to Issuance of Each Letter of Credit.
The obligation of any Issuing Bank to issue any Letter of Credit hereunder is
subject to the prior fulfillment of each of the following conditions:
(a) All of the representations and warranties made by or
with respect to Holdco, the Borrower and the Designated Subsidiaries, or any of
them, under this Agreement and the other Loan Documents, which, pursuant to
Section 5.2 hereof, are made at and as of the time of the issuance of such
Letter of Credit, shall be true and correct at such time in all material
respects, both before and after giving effect to the issuance of such Letter of
Credit; and
(b) There shall not exist, on the date of the issuance of
such Letter of Credit and after giving effect thereto, a Default or Event of
Default hereunder, and the Administrative Agent shall have received a Request
for Issuance of Letter of Credit so certifying.
Section 4.4 Conditions Subsequent to Agreement Date. As a condition
subsequent to the funding of the Tranche B Loans, and the making of the initial
Advance of the Tranche A Loans and the Revolving Loans hereunder, on the
Agreement Date, the Borrower shall perform or cause to be performed the
following (the failure by the Borrower to so perform or cause to be performed
constituting an Event of Default hereunder):
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(a) On or before the date thirty (30) days following the
Agreement Date, the Borrower shall deliver to the Collateral Agent a corrected
stock certificate for SpectraSite Communications, Ltd. and prior to such
delivery SpectraSite Communications, Ltd. shall have no material assets; and
(b) On or before the date one hundred twenty (120) days
following the Agreement Date, (i) the Borrower shall have delivered to the
Administrative Agent evidence reasonably satisfactory to the Administrative
Agent that the Borrower has used its commercially reasonable efforts to transfer
to a Tower Subsidiary all Tower Sites that are not held by a Tower Subsidiary as
of the Agreement Date, provided that such efforts shall not require the payment
of any material incremental amounts, and (ii) the Borrower shall have provided
to the Administrative Agent a report, in form and substance reasonably
satisfactory to Administrative Agent, summarizing the location of each Tower
Site and the holder thereof and shall have delivered to the Collateral Agent
such financing statements as shall be reasonably requested by the Collateral
Agent to perfect its security interest in the Collateral located at each Tower
Site.
ARTICLE 5 - Representations and Warranties
Section 5.1 Representations and Warranties. Each of Holdco and the
Borrower, for itself and on behalf of each of the Designated Subsidiaries,
hereby agrees, represents and warrants in favor of each of the Credit Parties
that:
(a) Organization; Ownership; Power; Qualification. Each of
Holdco, the Borrower and each of the Designated Subsidiaries is a corporation or
other legal entity duly organized, validly existing and in good standing under
the laws of the state of its incorporation or organization, has the corporate or
other organizational power and authority to own or lease and operate its
properties and to carry on its business as now being and hereafter proposed to
be conducted. Each of Holdco, the Borrower and each of the Designated
Subsidiaries is duly qualified, in good standing and authorized to do business
in each jurisdiction in which the character of its properties or the nature of
its businesses requires such qualification or authorization except where failure
to be so qualified, in good standing or authorized could not reasonably be
expected to have, individually or in the aggregate, a Materially Adverse Effect.
(b) Authorization; Enforceability. The Borrower has the
corporate power and has taken all necessary action, corporate or otherwise, to
authorize it to borrow hereunder, to execute, deliver and perform this Agreement
and each of the other Loan Documents to which it is a party in accordance with
their respective terms, and to consummate the transactions contemplated hereby
and thereby. Holdco has the corporate power and has taken all necessary action,
corporate or otherwise, to authorize it to execute, deliver and perform this
Agreement and each of the other Loan Documents to which it is a party in
accordance with their respective terms, and to consummate the transactions
contemplated hereby and thereby. Each of the Designated Subsidiaries has the
corporate or other organizational power and has taken all necessary action,
corporate or otherwise, to authorize it to execute, deliver and perform each of
the Loan Documents to which it is a party in accordance with their respective
terms and to consummate the transactions contemplated by this Agreement and by
such Loan Documents. This Agreement, and each of the other Loan Documents to
which any of Holdco, the Borrower or any of the Designated Subsidiaries is a
party, has been duly executed and delivered by Holdco, the Borrower or such
Designated Subsidiary, as the case may be, and is a legal, valid and binding
obligation of Holdco, the Borrower or such Designated Subsidiary, as applicable,
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enforceable against Holdco, the Borrower or such Designated Subsidiary, as the
case may be, in accordance with its terms, except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency, liquidation, reorganization,
reconstruction and other similar laws affecting enforcement of creditors' rights
generally and by the application of general equitable principles.
(c) Equity Interests, Corporate Organization and Related
Matters. Holdco owns all of the issued and outstanding Equity Interests of the
Borrower, and as of the Agreement Date, except as set forth on Schedule 5.1(c),
the Borrower owns all of the issued and outstanding Equity Interests of each of
the Designated Subsidiaries and has the unrestricted right to vote such Equity
Interests owned by it. As of the Agreement Date, the Borrower does not have any
Subsidiaries other than the Subsidiaries listed on Schedule 5.1(c) attached
hereto, which Subsidiaries are identified on such schedule as Restricted
Subsidiaries, Unrestricted Subsidiaries, Foreign Subsidiaries, Domestic
SpectraSite Mexico Subsidiaries or Foreign SpectraSite Mexico Subsidiaries. All
of the issued and outstanding Equity Interests of the Borrower and the
Designated Subsidiaries have been duly authorized and validly issued and are
fully paid and nonassessable, and are free and clear of all Liens (except for
Permitted Liens). None of such Equity Interests has been issued in violation of
the Securities Act, or the securities, "Blue Sky" or other Applicable Laws of
any applicable jurisdiction. As of the Agreement Date, except as set forth on
Schedule 5.1(c), neither the Borrower nor any of the Designated Subsidiaries has
outstanding any stock or securities convertible into or exchangeable for any of
its Equity Interests, nor are there any preemptive or similar rights to
subscribe for or to purchase, or any other rights to subscribe for or to
purchase, or any options for the purchase of, or any agreements providing for
the issuance (contingent or otherwise) of, or any calls, commitments, or claims
of any character relating to, any of such Equity Interests or any stock or
securities convertible into or exchangeable for any of such Equity Interests. As
of the Agreement Date, except as set forth on Schedule 5.1(c), neither the
Borrower nor any of the Designated Subsidiaries is subject to any obligation
(contingent or otherwise) to repurchase or otherwise acquire or retire any of
its Equity Interests or to register any of its Equity Interests, and there are
no agreements restricting the transfer of any Equity Interests of either the
Borrower or any of the Designated Subsidiaries or restricting the ability of any
Designated Subsidiary from making distributions, dividends or other Restricted
Payments to the Borrower. Except as set forth on Schedule 5.1(c), within the
five (5) year period immediately preceding the Agreement Date, neither the
Borrower nor any of the Designated Subsidiaries has changed its name nor has the
Borrower nor any of the Designated Subsidiaries transacted business under any
other name or trade name.
(d) Compliance with Other Loan Documents and Contemplated
Transactions. The execution, delivery and performance by each of Holdco, the
Borrower and each of the Designated Subsidiaries of this Agreement and each of
the other Loan Documents to which it is a party in accordance with their
respective terms, and the consummation of the transactions contemplated hereby
and thereby, do not and will not (i) with respect to any Material Towers,
require any consent or approval, governmental or otherwise, not already
obtained, (ii) violate in any material respect Applicable Law respecting Holdco,
the Borrower or any Designated Subsidiary (including, without limitation, the
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Communications Act or any rule, regulation or written policy of the FCC, the FAA
or any other grantor of a Necessary Authorization with respect to any Material
Towers), (iii) conflict with, result in a breach of, or constitute a default
under the certificate or articles of incorporation, by-laws or other governing
documents of Holdco, the Borrower or of any Designated Subsidiary, or, except as
set forth on Schedule 5.1(h) hereof, in any material respect under any material
indenture, agreement, or other instrument, to which Holdco, the Borrower or any
Designated Subsidiary is a party or by which any of them or their respective
properties may be bound, including, without limitation, the Holdco Notes
Indentures, (iv) subject to the filing of post-consummation name change notices
with the FCC, conflict with, result in a breach of, or constitute a default or
violation of, the terms and conditions of any Necessary Authorization with
respect to any Material Towers, or (v) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or
hereafter acquired by Holdco, the Borrower or any of the Designated
Subsidiaries, except for Permitted Liens.
(e) Business. The Borrower and each of the Designated
Subsidiaries are engaged in the Tower Operations and in the Other Operations,
and in business activities related thereto.
(f) Necessary Authorizations, Etc. The Borrower and each of
the Designated Subsidiaries have obtained all Necessary Authorizations, except
for such Necessary Authorizations the failure to obtain which would not
reasonably be expected to have, individually or in the aggregate, a Materially
Adverse Effect, and all of such Necessary Authorizations are in full force and
effect, and the Borrower and each of the Designated Subsidiaries are in
compliance in all material respects with the provisions thereof. Except as would
not reasonably be expected to have, individually or in the aggregate, a
Materially Adverse Effect, (i) no Necessary Authorization is the subject of any
pending or, to the best of the Borrower's knowledge, threatened attack or
revocation, and (ii) the Borrower is not aware of any fact or condition which
would constitute grounds for any governmental or other licensing authority
(including, without limitation, the FCC and the FAA) to deny any pending
application for any Necessary Authorization, to suspend, revoke, modify or annul
any Necessary Authorizations or to impose any financial penalty on the Borrower
or any of the Designated Subsidiaries.
(g) Compliance with Law; Absence of Default. Except where
such violation or the failure to be in compliance would not reasonably be
expected to have, individually or in the aggregate, a Materially Adverse Effect,
Holdco, the Borrower and each of the Designated Subsidiaries, and the
construction, ownership and operation of the Towers and the conduct of the Tower
Operations by the Borrower and the Designated Subsidiaries, are in compliance
with all, and do not violate any, (i) Applicable Laws (including, without
limitation, all rules and regulations promulgated by the FCC and/or the FAA)
and/or (ii) provisions of the certificates or articles of incorporation, by-laws
and other governing documents of Holdco, the Borrower or any of the Designated
Subsidiaries. No event has occurred or failed to occur (including, without
limitation, any matter which could create a Default or Event of Default
hereunder by cross-default) which has not been remedied or waived, the
occurrence or non-occurrence of which constitutes, or with the passage of time
or giving of notice or both would constitute, (x) an Event of Default or (y) a
material default by Holdco, the Borrower or any of the Designated Subsidiaries
under any material indenture, agreement or other instrument, including, without
limitation, the Holdco Notes Indentures, or any judgment, decree or order, to
which Holdco, the Borrower or any of the Designated Subsidiaries is a party or
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by which Holdco, the Borrower or any of the Designated Subsidiaries or any of
their respective properties may be bound or affected. None of Holdco, the
Borrower or any of the Designated Subsidiaries is a party to or bound by any
contract or agreement continuing after the Agreement Date, or bound by any
Applicable Law, that could reasonably be expected to have, individually or in
the aggregate, a Materially Adverse Effect.
(h) Title to Assets. The Borrower and the Designated
Subsidiaries each has good and legal title to, or a valid leasehold interest in,
all of its respective material Assets, and none of such Assets is subject to any
Liens, except for Permitted Liens. Except for financing statements evidencing
Permitted Liens, no financing statement under the Uniform Commercial Code as in
effect in any jurisdiction and no other filing which names Holdco, the Borrower
or any of the Designated Subsidiaries as debtor, or which covers or purports to
cover any of the Assets of the Borrower or any of the Designated Subsidiaries,
is currently effective and on file in any state or other jurisdiction, and none
of Holdco, the Borrower or any of the Designated Subsidiaries has signed any
such financing statement or filing or any security agreement authorizing any
secured party thereunder to file any such financing statement or filing. As of
the Agreement Date, except as set forth on Schedule 5.1(h), none of Holdco, the
Borrower or any of the Designated Subsidiaries is a party to any material
contract, instrument or agreement (including, without limitation, any of the
Necessary Authorizations) restricting the ability of Holdco, the Borrower or
such Designated Subsidiary, as applicable, to enter into an agreement by which
Holdco, the Borrower or such Designated Subsidiary, as applicable, agrees that
it shall not create, assume, incur or permit to exist or be created, directly or
indirectly, any Lien on its Assets.
(i) Litigation. As of the Agreement Date, except as set
forth on Schedule 5.1(i) attached hereto, there is no material action, suit,
application, complaint, petition, revocation, proceeding or investigation, at
law or in equity, or any material order, decree or judgment, in effect or
pending against, or, to the best of the Borrower's knowledge, threatened against
Holdco, the Borrower or any of the Designated Subsidiaries or any of their
respective properties and assets (including, without limitation, any Tower
Assets) in any court or before any arbitrator of any kind or before or by any
governmental body (including, without limitation, the FCC and/or the FAA). No
action, suit, proceeding or investigation, at law or in equity, or any material
order, decree or judgment, in effect or pending against, or, to the best of the
Borrower's knowledge, threatened against Holdco, the Borrower or any of the
Designated Subsidiaries or any of their respective properties and assets
(including, without limitation, any Tower Assets) in any court or before any
arbitrator of any kind or before or by any governmental body (including, without
limitation, the FCC and/or the FAA) (i) calls into question the validity of this
Agreement or any of the other Loan Documents, (ii) could reasonably be expected
to have a Materially Adverse Effect, or (iii) could reasonably be expected to
restrict in any material manner the ownership or operation of any Material
Towers.
(j) Taxes. All federal and material state, local and other
tax returns (including information returns), or any extensions thereof, of
Holdco, the Borrower and each of the Designated Subsidiaries required by law to
be filed have been duly filed and all federal and material state, local and
other taxes and impositions, including, without limitation, withholding taxes,
assessments and other governmental charges or levies required to be paid by
Holdco, the Borrower or any of the Designated Subsidiaries or imposed upon
Holdco, the Borrower or any of the Designated Subsidiaries or any of their
respective properties, income, profits or assets, which are due and payable,
have been paid, except any such taxes (i) the payment of which Holdco, the
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Borrower or any of the Designated Subsidiaries is diligently contesting in good
faith by appropriate proceedings, (ii) for which reserves in conformity with
GAAP have been provided on the books of Holdco, the Borrower or the applicable
Designated Subsidiary, and (iii) as to which no Lien, other than a Permitted
Lien, has attached and no foreclosure, distraint, sale or similar proceedings
have been commenced. The charges, accruals and reserves on the books of Holdco,
the Borrower and each of the Designated Subsidiaries in respect of any taxes or
other governmental charges are in conformity with GAAP.
(k) Financial Information. The Borrower has furnished or
caused to be furnished to the Credit Parties (i) audited financial statements
for Holdco on a consolidated basis with its Subsidiaries which are complete and
correct in all material respects and present fairly in all material respects in
accordance with GAAP the financial position of Holdco and its Subsidiaries on
and as at December 31, 1999 and the results of operations for the period then
ended and (ii) unaudited financial statements for Holdco on a consolidated basis
with its Subsidiaries which are complete and correct in all material respects
and present fairly in all material respects in accordance with GAAP (subject to
normal year end adjustments and the absence of footnotes) the financial position
of Holdco and its Subsidiaries on and as at September 30, 2000 and the results
of operations for the period then ended (the "Financial Statements"). As of the
Agreement Date, none of Holdco, the Borrower or any of the Designated
Subsidiaries has any material liabilities, contingent or otherwise, other than
(A) as disclosed in the Financial Statements, (B) as set forth or referred to in
this Agreement, (C) those which have been incurred in the ordinary course of
business since September 30, 2000, or (D) those permitted pursuant to Section
8.1. The Projections represent the Borrower's reasonable estimate of projected
future operations as of the Agreement Date, and as of the Agreement Date, to the
best of the Borrower's knowledge, there exist no facts or circumstances which
the Borrower believes could be reasonably likely to cause a materially adverse
change in the Projections.
(l) No Adverse Change. Since December 31, 1999, there has
occurred no event which has had or which could reasonably be expected to have a
Materially Adverse Effect.
(m) ERISA. Each Plan that is an "employee pension benefit
plan" within the meaning of ERISA Section 3(32) maintained, or contributed to,
by the Borrower or any of the Designated Subsidiaries, or any of their ERISA
Affiliates, as of the Agreement Date is listed on Schedule 5.1(m) attached
hereto. Each of such Plans is in compliance in all material respects with its
terms, ERISA and the Code. None of such Plans has a material `accumulated
funding deficiency' within the meaning of ERISA or the Code. Neither the
Borrower nor any of the Designated Subsidiaries nor any of their respective
ERISA Affiliates has incurred any material liability to the PBGC (other than the
payment of premiums imposed by Title IV of ERISA) in connection with any such
Plan. The assets of each such Plan which is subject to Title IV of ERISA are
sufficient to provide the benefits under such Plan if such Plan were terminated
on the date hereof. No Reportable Event has occurred with respect to any such
Plan. No party in interest, fiduciary, trustee or administrator of any such Plan
or trust created thereunder has engaged in a `prohibited transaction' (as such
term is defined in Section 406 of ERISA or Section 4975 of the Code) which would
subject the Borrower, the Designated Subsidiaries or any of their respective
ERISA Affiliates to a material tax on `prohibited transactions' imposed by
Section 4975 of the Internal Revenue Code. No party in interest, fiduciary,
trustee or administrator of any such Plan or trust created thereunder has
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committed a material breach of its fiduciary duty or knowingly participated in
any violation of ERISA which would subject the Borrower, the Designated
Subsidiaries or any of their respective ERISA Affiliates to a material penalty
under Section 502 of ERISA. As of the Agreement Date, none of the Borrower, the
Designated Subsidiaries or any of their respective ERISA Affiliates is a
participant in or obliged to make any payment to a Multiemployer Plan. As of the
Agreement Date, except as disclosed in any financial statements under Financial
Accounting Standard 106 or required by Sections 601 through 609 of ERISA,
neither the Borrower nor any of the Designated Subsidiaries has made any
material oral or written commitments to provide post-retirement health or life
insurance coverage with respect to any former or current employee. The Borrower
and the Designated Subsidiaries and ERISA Affiliates have properly classified
individuals providing services to the Borrower or any of the Designated
Subsidiaries or ERISA Affiliates as employees or non-employees, except to the
extent that a misclassification would not result in a Materially Adverse Effect.
(n) Compliance with Regulations U and X. Neither the
Borrower nor any of the Designated Subsidiaries is engaged principally in, or
has as one of its important activities, the business of purchasing or carrying,
or extending credit for the purpose of purchasing or carrying, any margin stock
within the meaning of Regulations U and X of the Board of Governors of the
Federal Reserve System.
(o) Investment Company Act; Public Utility Holding Company
Act. None of Holdco, the Borrower or any of the Designated Subsidiaries is
required to register under the provisions of the Investment Company Act of 1940,
as amended, and neither the entering into or performance by the Borrower of this
Agreement nor the issuance of the Notes violates any provision of such Act or
requires any consent, approval or authorization of, or registration with, the
Securities and Exchange Commission or any other governmental or public body or
authority pursuant to any provisions of such Act. None of Holdco, the Borrower
or any of the Designated Subsidiaries is a "public utility holding company"
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
(p) Securities Laws. Except as would not reasonably be
expected to have, individually or in the aggregate, a Materially Adverse Effect,
Holdco, the Borrower, each of the Designated Subsidiaries and, to the best
knowledge of Holdco, the Borrower and the Designated Subsidiaries, any
underwriters, sales agents, representatives or brokers representing or acting on
behalf of Holdco, the Borrower or any of the Designated Subsidiaries, have
complied with all federal and state securities laws in connection with the offer
and sale of stock or other equity interests in Holdco, the Borrower or any of
the Designated Subsidiaries.
(q) Intellectual Property. The Borrower and each of the
Designated Subsidiaries owns or possesses the valid right to use all material
patents, patent applications, patent and know-how licenses, inventions,
technology, permits, trademark registrations and applications, product designs,
applications, processes, trademarks, service marks, trade names, copyrights and
licenses and rights in respect of the foregoing, set forth on Schedule 5.1(q)
attached hereto, which are used or necessary for the conduct of its business as
now conducted or hereafter proposed to be conducted, without any known conflict
with the rights of others and free and clear of any Liens, other than Permitted
Liens. All such licenses and rights with respect to patents, trademarks,
trademark rights, trade names, trade name rights, service marks and copyrights
are in full force and effect in all material respects, and are not subject to
any pending or, to the best knowledge of the Borrower, threatened attack or
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revocation, in any case except as would not be reasonably expected to have
individually or in the aggregate, a Materially Adverse Effect.
(r) Accuracy and Completeness of Information. All
information, reports, prospectuses and other papers and data relating to Holdco,
the Borrower or any of the Designated Subsidiaries (other than the Projections
which are covered by item (k) above) furnished in writing by or on behalf of
Holdco, the Borrower or any of the Designated Subsidiaries to any of the Credit
Parties were, at the time furnished, complete and correct in all material
respects to the extent necessary to give the Credit Parties true and accurate
knowledge of the subject matter.
(s) Agreements with Affiliates and Management Agreements. As
of the Agreement Date, except as set forth on Schedule 5.1(s) attached hereto,
neither the Borrower nor any of the Designated Subsidiaries has (i) any material
written agreements or binding arrangements of any kind with any Affiliate or
(ii) any material management or consulting agreements of any kind, not entered
into in the ordinary course of business.
(t) Environmental Matters. Except as is described on
Schedule 5.1(t) attached hereto or as, individually or in the aggregate, could
not reasonably be expected to have a Materially Adverse Effect:
(i) None of the Properties contains, in, on or under,
any Hazardous Materials except (A) in such quantities as required for the
conduct in the ordinary course of the Borrower's business or, to the best of the
Borrower's knowledge, the business of the fee owner of such Property, and then
only in compliance with applicable Environmental Laws, or (B) in amounts or
circumstances that do not give rise to material liability under Environmental
Laws.
(ii) The Borrower and the Designated Subsidiaries are
in compliance with all applicable Environmental Laws, and there is no condition
which could interfere with the continued operation of any of the Properties in
compliance with Environmental Laws or impair the financial condition of the
Borrower.
(iii) Neither the Borrower nor any of the Designated
Subsidiaries has received from any Governmental Authority or any other Person
any written complaint, notice of violation, alleged violation, investigation or
advisory action or notice of potential liability regarding matters of
environmental protection or permit compliance under applicable Environmental
Laws with regard to the Properties, and neither the Borrower nor any of the
Designated Subsidiaries is aware that any Governmental Authority is
contemplating delivering to the Borrower or any of the Designated Subsidiaries
any such notice. There is no condition or circumstance currently or with the
passage of time that could reasonably be expected to present the basis of any
such notice. There has been no pending or, to the Borrower's knowledge,
threatened complaint, notice of violation, alleged violation, investigation or
notice of potential liability under Environmental Laws with regard to any of the
Properties.
(iv) Hazardous Materials have not been generated,
treated, stored, disposed of, at, on or under any of the Properties in material
violation of Environmental Laws, or in a manner that could give rise to
liability under Environmental Laws nor have any Hazardous Materials been
transported or disposed of from any of the Properties to any other location in
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violation of Environmental Laws nor in a manner that could reasonably be
anticipated to give rise to liability under Environmental Laws.
(v) Neither the Borrower nor any of the Designated
Subsidiaries is a party to any governmental administrative actions or judicial
proceedings pending under any Environmental Law with respect to any of the
Properties, nor are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or judicial
requirements outstanding under any Environmental Law with respect to any of the
Properties.
(vi) There has been no release of Hazardous Materials
into the environment at or from any of the Properties, or arising from or
relating to the operations of the Borrower or any of the Designated
Subsidiaries, in violation of Environmental Laws or in amounts that could give
rise to liability under Environmental Laws.
(u) Payment of Wages; Labor Matters. The Borrower and each
of the Designated Subsidiaries are in compliance with the Fair Labor Standards
Act, as amended, in all material respects, and the Borrower and each of the
Designated Subsidiaries have complied in all material respects with all minimum
and overtime wage requirements applicable to their respective employees. As of
the Agreement Date, except as disclosed on Schedule 5.1(u), except as would not
be reasonably expected to have, individually or in the aggregate, a Materially
Adverse Effect: (i) no labor contract to which the Borrower or any of the
Designated Subsidiaries is a party or is otherwise subject is scheduled to
expire during the term of this Agreement; (ii) neither the Borrower nor any of
the Designated Subsidiaries has, within the two (2) year period immediately
preceding the Agreement Date, taken any action which would have constituted or
resulted in a `plant closing' or `mass layoff' within the meaning of the Federal
Worker Adjustment and Retraining Notification Act of 1988 or any similar
applicable federal, state or local law, and the Borrower does not have any
reasonable expectation that it will incur any material liability under such Act
at any time during the term of this Agreement; (iii) all of the operations of
the Borrower and the Designated Subsidiaries are conducted in all material
respects in compliance with all applicable rules and regulations promulgated by
the Occupational Safety and Health Administration of the United States
Department of Labor; (iv) neither the Borrower nor any of the Designated
Subsidiaries is a party to any material labor dispute (other than any immaterial
disputes with the Borrower's or such Designated Subsidiary's employees as
individuals and not affecting the Borrower's or such Designated Subsidiary's
relations with any labor group or its workforce as a whole); and (v) there are
no pending or, to the Borrower's knowledge, threatened strikes or walkouts
relating to any labor contracts to which the Borrower or any of the Designated
Subsidiaries is a party or is otherwise subject. As of the Agreement Date, none
of the employees of the Borrower or any of the Designated Subsidiaries is a
party to any collective bargaining agreement with the Borrower or any of the
Designated Subsidiaries.
(v) Priority. The Security Interest is a valid and perfected
first priority (except for Permitted Liens) security interest in substantially
all of the Collateral in favor of the Collateral Agent, for the benefit of the
Credit Parties, securing, in accordance with the terms of the Security
Documents, the outstanding Obligations. The Collateral is not subject to any
Liens other than Permitted Liens. The Liens created by the Security Documents
are enforceable as security for the outstanding Obligations in accordance with
their terms with respect to the Collateral except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency, liquidation, reorganization,
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reconstruction and other similar laws affecting enforcement of creditors' rights
generally and to the application of general equitable principles.
(w) Indebtedness. Except for Permitted Debt, none of Holdco,
the Borrower or any of the Designated Subsidiaries has outstanding, as of the
Agreement Date, and after giving effect to the initial Advance of the Loans
hereunder on the Agreement Date, any Indebtedness.
(x) Investments. As of the Agreement Date, none of the
Borrower or any of the Designated Subsidiaries owns any Equity Interests in, or
has outstanding loans or advances to, or guaranties of the obligations of, any
Person except as reflected in the Financial Statements, or disclosed on Schedule
5.1(c) or Schedule 5.1(x) attached hereto. Schedule 5.1(x) sets forth, as of the
Agreement Date, whether each Investment identified thereon constitutes a
Restricted Investment, an Unrestricted Investment, a Foreign Investment, a
Domestic SpectraSite Mexico Investment or a Foreign SpectraSite Mexico
Investment and the amount that has been Invested by members of the Restricted
Group in each such Investment as of the Agreement Date.
(y) Material Contracts. Schedule 5.1(y) contains a complete
list, as of the Agreement Date, of each contract, agreement or commitment (the
"Material Contracts") to which the Borrower or any of the Designated
Subsidiaries is a party the termination of which could reasonably be expected to
have a Materially Adverse Effect, and, upon the request of the Arrangers, the
Borrower will provide the Arrangers with a copy of any such contract or
agreement. Schedule 5.1(y) further identifies, as of the Agreement Date, each
Material Contract which requires consent to the granting of a Lien in favor of
the Collateral Agent on the rights of the Borrower or any of the Designated
Subsidiaries thereunder.
(z) Broker's or Finder's Commissions. No broker's or
finder's fee or commission will be payable with respect to the issuance of the
Notes, and no other similar fees or commissions will be payable by the Borrower
or any of the Designated Subsidiaries for any other services rendered to any of
them ancillary to the transactions contemplated herein except to the Arrangers
and their respective Affiliates.
(aa) SBC Lease Documents; Holdco Notes Indentures. The
Borrower has provided to the Arrangers (i) correct and complete copies of the
SBC Lease Documents and (ii) a correct and complete copy of each of the Holdco
Notes Indentures and the notes and other agreements and documents executed and
delivered pursuant thereto. To the best of the Borrower's knowledge, none of the
representations and warranties made by or with respect to any of Holdco, the
Borrower and the Borrower's Subsidiaries as set forth in the SBC Lease Documents
is incorrect in any material respect.
(bb) Solvency. As of the Agreement Date and after giving
effect to the transactions contemplated by this Agreement and the other Loan
Documents, (i) the property of the Borrower, at a fair valuation on a going
concern basis, will exceed its debt; (ii) the capital of the Borrower will not
be unreasonably small to conduct its business; and (iii) the Borrower will not
have incurred debts, or have intended to incur debts, beyond its ability to pay
such debts as they mature. For purposes of this Section 5.1(bb), "debt" means
any liability on a claim, and "claim" means (i) the right to payment, whether or
not such right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, undisputed, legal, equitable, secured or
unsecured, or (ii) the right to an equitable remedy for breach of performance if
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such breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured,
undisputed, secured or unsecured.
(cc) Real Property and Tower Sites. To the best of the
Borrower's knowledge, each of the material leases of the Borrower or the
Designated Subsidiaries is valid, enforceable and in full force and effect. The
Borrower or a Designated Subsidiary, as applicable, is the sole holder of the
lessee's interests under each lease to which it is a party and, except to the
extent not reasonably likely to have, individually or in the aggregate, a
Materially Adverse Effect, has the right to pledge and assign the same. Neither
the Borrower nor any of the Designated Subsidiaries has made any pledge or
assignment of any of its rights under any such leases except pursuant to the
Security Documents and except for the Nextel Subordinated Lien, and there is no
default or condition which, with the passage of time or the giving of notice, or
both, would constitute a material default on the part of the Borrower or any of
the Designated Subsidiaries or, to the best of the Borrower's knowledge, any
other party, under such leases with respect to any Material Towers.
Section 5.2 Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement and the other Loan
Documents shall be deemed to be made, and shall be true and correct in all
material respects, at and as of the Agreement Date and on the date of each
Advance and on the date of issuance of each Letter of Credit, except to the
extent expressly applicable only to an earlier date or no longer true and
correct as a result of actions or changes in accordance with the terms hereof.
All representations and warranties made under this Agreement shall survive, and
not be waived by, the execution hereof by the Credit Parties, any investigation
or inquiry by any Credit Party, or the making of any Advance or the issuance of
any Letter of Credit under this Agreement.
ARTICLE 6 - General Covenants
So long as any of the Obligations (other than contingent
indemnification obligations) are outstanding and unpaid, or the Borrower shall
have the right to borrow hereunder (whether or not the conditions to borrowing
have been or can be fulfilled), or any Letter of Credit is outstanding, and
unless the Majority Lenders, or such greater number of Lenders as may be
expressly provided herein, shall otherwise consent in writing:
Section 6.1 Preservation of Existence and Similar Matters. Except as
permitted in Section 8.5 hereof, the Borrower will, and will cause each of the
Designated Subsidiaries to:
(i) preserve and maintain its existence, rights,
franchises, licenses and privileges in the state of its incorporation or
organization and in each other state in which it operates a material part of its
business, including, without limitation, all Necessary Authorizations, except as
would not reasonably be expected to have, individually or in the aggregate, a
Materially Adverse Effect; and
(ii) qualify and remain qualified and authorized to do
business in each jurisdiction in which the character of its properties or the
nature of its business requires such qualification or authorization except where
the failure to be qualified or authorized would reasonably be expected to have,
individually or in the aggregate, a Materially Adverse Effect.
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Section 6.2 Business; Compliance with Applicable Law. The Borrower
will, and will cause each of the Designated Subsidiaries to, engage solely in
the business of the Tower Operations, the Other Operations and in related
business activities. The Borrower will, and will cause each of the Designated
Subsidiaries to, comply with the requirements of all Applicable Laws (including,
without limitation, all tower marking and lighting requirements of the FAA and
the FCC) except where the failure to so comply would not reasonably be expected
to have, individually or in the aggregate, a Materially Adverse Effect.
Section 6.3 Maintenance of Properties and Assets. The Borrower will,
and will cause each of the Designated Subsidiaries to, (a) maintain or cause to
be maintained in the ordinary course of business in good repair, working order
and condition (reasonable wear and tear excepted) all properties (including,
without limitation, all Towers) used in their respective businesses (whether
owned or held under lease), and from time to time make or cause to be made all
needed and appropriate repairs, renewals, replacements, additions, betterments
and improvements thereto except where the failure to do so would not materially
adversely affect or apply to any Material Towers, and (b) obtain and maintain
and preserve in full force and effect, and renew and extend as necessary, all
Material Contracts and all Necessary Authorizations with respect to the Towers
except where the failure to do so would not reasonably be expected to have,
individually or in the aggregate, a Materially Adverse Effect.
Section 6.4 Accounting Methods and Financial Records. The Borrower
will maintain, on a consolidated basis with its Subsidiaries, a system of
accounting established and administered in accordance with GAAP consistently
applied, keep adequate records and books of account in which complete entries
will be made in accordance with such accounting principles consistently applied
and reflecting all transactions required to be reflected by such accounting
principles, and keep accurate and complete records of the Collateral. The
Borrower and the Designated Subsidiaries will maintain a fiscal year ending on
December 31.
Section 6.5 Insurance. The Borrower will, and will cause each of the
Designated Subsidiaries to:
(a) Maintain insurance, including, but not limited to, public
liability coverage insurance, from responsible companies in such amounts and
against such risks to the Borrower and each of the Designated Subsidiaries as is
prudent and customary for Persons in the Tower Operations business (including,
without limitation, larceny, embezzlement, employee fidelity, and other criminal
misappropriation insurance and insurance against claims for personal or bodily
injury, death or property damage);
(b) Keep their respective Assets (including, without limitation,
broadcast Towers, but excluding all other Towers and all motor vehicles) insured
by responsible companies against loss or damage by fire, theft, burglary,
pilferage, loss in transit, explosions and hazards insured against by extended
coverage, in amounts and scope of coverage which are prudent for the
communications tower industry, in accordance with industry standards, all
premiums thereon to be paid by the Borrower and the Designated Subsidiaries;
(c) Require that each casualty and liability insurance policy for
the Borrower and the Designated Subsidiaries provide for at least thirty (30)
days' prior written notice to the Collateral Agent of any termination of or
proposed cancellation or non-renewal of such policy, or material reduction in
coverage, and name the Collateral Agent (for the benefit of the Credit Parties)
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as additional named loss payee to the extent of the Obligations and additional
named insured; and
(d) In the event of a casualty loss covered by the insurance of
the Borrower or any Designated Subsidiary, Net Cash Proceeds of such insurance
of $10,000,000 or less paid in respect of such loss shall be paid directly to,
and may be retained by, the Borrower. Net Proceeds of insurance in excess of
$10,000,000 shall be paid to the Collateral Agent and shall be applied to repay
the Loans to the extent set forth in Section 2.7(b) or Section 10.3 hereof, as
appropriate, and (ii) thereafter be applied as provided in Section 2.7(b).
Section 6.6 Payment of Taxes and Claims. The Borrower will, and will
cause each of the Designated Subsidiaries to, pay and discharge all material
taxes, including, without limitation, withholding taxes, assessments and
governmental charges or levies required to be paid by them or imposed upon them
or their income or profits or upon any properties belonging to them, prior to
the date on which penalties attach thereto, and all lawful claims for labor,
materials and supplies which, if unpaid, might become a Lien or charge upon any
of their properties; except that no such tax, assessment, charge, levy or claim
need be paid which is being diligently contested in good faith by appropriate
proceedings and for which reserves in conformity with GAAP shall have been set
aside on the appropriate books, but only so long as such tax, assessment,
charge, levy or claim does not become a Lien or charge other than a Permitted
Lien and no foreclosure, distraint, sale or similar proceedings shall have been
commenced. The Borrower will, and will cause each of the Designated Subsidiaries
to, timely file all material information returns required by federal, state or
local tax authorities.
Section 6.7 Visits and Inspections. The Borrower will, and will cause
each of the Designated Subsidiaries to, permit representatives of any Credit
Party at its expense, during normal business hours, upon reasonable advance
notice to the Borrower or such Designated Subsidiary, as applicable, to (a)
visit and inspect the properties of the Borrower or such Designated Subsidiary,
(b) inspect and make extracts from and copies of their respective books and
records, and (c) discuss with their respective principal officers their
respective businesses, assets, liabilities, financial positions, results of
operations and business prospects; provided, however, that notwithstanding the
foregoing at any time after the occurrence and during the continuance of a
Default or Event of Default, any such visit or inspection by any Arranger shall
be at the expense of the Borrower. The Borrower and each of the Designated
Subsidiaries will also permit representatives of any of the Lead Arrangers to
discuss with their respective auditors their respective businesses, assets,
liabilities, financial positions, results of operations and business prospects.
Section 6.8 Use of Proceeds. The Borrower will use the aggregate
proceeds of all Advances (a) to finance the SBC Transaction, (b) to finance
Permitted Acquisitions and Permitted Investments, (c) to make Restricted
Payments to Holdco permitted under Section 8.7 hereof, (d) to provide funding
for the acquisition, leasing, construction/development, management and build-out
of Towers, Tower Sites, Shared Tenant Infrastructure Sites and other sites
related to the foregoing, in each case as permitted hereunder and (e) for
working capital and other general corporate purposes (including, without
limitation, fees and expenses relating to the SBC Transaction, any Permitted
Acquisitions and any Permitted Investments, and the transactions contemplated by
this Agreement and the other Loan Documents). No proceeds of Advances hereunder
shall be used for the purchase or carrying or the extension of credit for the
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purpose of purchasing or carrying any margin stock within the meaning of
Regulations U and X of the Board of Governors of the Federal Reserve System.
Section 6.9 Real Property. With respect to each parcel of real
property, whether owned or leased by the Borrower or any of the Subsidiary
Guarantors on the Agreement Date or at any time thereafter (including, without
limitation, any Tower Site), the Borrower shall, and shall cause each of the
Subsidiary Guarantors, promptly to:
(a) Execute and deliver to the Collateral Agent, a collateral
assignment of, to the extent permitted therein, any Tower Site Lease Agreements,
Tower Space Lease Agreements and/or Tower Site Management Contracts entered into
by the Borrower or any of the Subsidiary Guarantors as lessor with respect to
such real property. The Borrower shall also make available to the Collateral
Agent, upon request therefor, at the central location referred to in Section
6.9(c) hereof, copies of all Tower Site Lease Agreements, Tower Space Lease
Agreements and Tower Site Management Agreements entered into by the Borrower or
any of the applicable Subsidiaries, and to the extent that any consent is
required to the pledge or assignment of any Tower Site Lease Agreement, Tower
Space Lease Agreement or Tower Site Management Agreement by the Borrower or any
of the Subsidiary Guarantors to the Collateral Agent as security for the
Obligations, the Borrower shall use commercially reasonable efforts to obtain
such consent in writing to the extent reasonably requested by the Collateral
Agent.
(b) Execute and deliver to the Collateral Agent, a Mortgage (or,
in the case of real property acquired (or leased) prior to the Agreement Date,
an amendment to, or amendment and restatement of, any Mortgage delivered before
the Agreement Date) covering each such parcel of real property that has a fair
market value in excess of $15,000,000 and the principal use of which, in the
ordinary course of the Borrower's business, is not as a Tower Site or a Shared
Tenant Infrastructure Site; provided, however, neither the Borrower nor any of
the Subsidiary Guarantors shall be required to grant to the Collateral Agent a
Mortgage in respect of any parcel of real property owned by the United States
government or any agency thereof. All of the Mortgages shall be delivered by the
Borrower and the Subsidiary Guarantors to the Collateral Agent in recordable
form for the applicable jurisdiction.
(c) In connection with all Mortgages executed and delivered by
the Borrower or any of the Subsidiary Guarantors hereunder, grant to the
Collateral Agent and its designees access to all other documentation reasonably
requested by the Collateral Agent (all of which shall be compiled in one central
location) in connection with each such grant or assignment, including, without
limitation, policies of title insurance, copies of any Phase I or Phase II
environmental audits, flood zone certificates, financing statements and fixture
filings, surveys and appraisals, in each case to the extent available to or
otherwise reasonably obtainable by the Borrower or the Subsidiary Guarantors.
(d) The Collateral Agent will release a Mortgage upon receipt of
written notice from the Borrower that the Tower Site Lease Agreement for the
property subject to such Mortgage has expired, been terminated or such property
has been transferred in connection with a Permitted Disposition.
Section 6.10 Indemnity. The Borrower, for itself and on behalf of each
of the Designated Subsidiaries, agrees, jointly and severally, to indemnify and
hold harmless each Indemnified Party from and against any and all claims,
liabilities, losses, damages, actions, reasonable attorneys' fees and expenses
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(as such fees and expenses are incurred) and demands by any party, including the
costs of investigating and defending such claims (a) resulting from any breach
or alleged breach by Holdco, the Borrower or any of the Designated Subsidiaries
of any representation, warranty, or covenant made hereunder or under any other
Loan Document; (b) arising out of or in connection with (i) the Commitments, the
Loans or otherwise under this Agreement or any other Loan Document (including,
without limitation, the taking of collateral security for the Obligations),
including the use of the proceeds of Loans hereunder in any fashion by the
Borrower or any of its Subsidiaries or the performance of their respective
obligations under the Loan Documents by Holdco, the Borrower or any of the
Borrower's Subsidiaries, (ii) allegations of any participation by the Credit
Parties, or any of them, in the affairs of Holdco, the Borrower or any of the
Borrower's Subsidiaries, or allegations that any of them has any joint liability
with Holdco, the Borrower or any of the Borrower's Subsidiaries for any reason,
or (iii) any claims against the Credit Parties, or any of them, by any
shareholder, partner, or other investor in or lender to Holdco, the Borrower or
any of the Borrower's Subsidiaries, by any brokers or finders or investment
advisers or investment bankers retained by Holdco, the Borrower, any of the
Borrower's Subsidiaries or by any other third party, arising out of the
Commitments, the Loans or otherwise under this Agreement or any other Loan
Document; or (c) in connection with taxes (other than income taxes or any taxes
attributable to a Credit Party's failure to comply with the requirements of
Section 2.13(b) (but only with respect to such Credit Party)), fees, and other
charges payable in connection with the Loans, or the execution, delivery,
recording, and enforcement of this Agreement, the Security Documents (including,
without limitation, any Mortgage whenever filed or recorded), the other Loan
Documents, and any amendments thereto or waivers of any of the provisions
thereof; unless the Person seeking indemnification hereunder is determined in
such case to have acted with gross negligence or willful misconduct, in any case
by a final, non-appealable judicial order. The obligations of the Borrower and
the Designated Subsidiaries under this Section 6.10 are in addition to, and
shall not otherwise limit, any liabilities which the Borrower or any Designated
Subsidiary might otherwise have in connection with any warranties or similar
obligations of the Borrower or such Designated Subsidiary in any other agreement
or instrument or for any other reason. It is understood and agreed that, to the
extent not precluded by a conflict of interest, each Indemnified Party shall
endeavor to work cooperatively with the Borrower with a view to minimizing the
legal and other expenses associated with any defense and any potential
settlement or judgment. To the extent reasonably practicable and not
disadvantageous to any Indemnified Party, it is anticipated that a single
counsel shall be used. Settlement of any claim or litigation involving any
material indemnified amount shall be subject to the approval of the Borrower
(which approval shall not be unreasonably withheld).
Section 6.11 Interest Rate Hedging. Within one hundred eighty (180)
days from the Agreement Date, the Borrower shall have entered into one or more
Interest Hedge Agreements which fix or place a limit on the Borrower's interest
obligations at interest rates reasonably acceptable to the Administrative Agent
with respect to the Loans such that, at all times thereafter, not less than
fifty percent (50%) of the aggregate amount of Funded Debt of Holdco, the
Borrower and the Borrower's Subsidiaries outstanding shall be hedged or on a
fixed rate basis. Each Interest Hedge Agreement shall provide interest rate
protection for a period of the lesser of (a) three (3) years from the date of
such Interest Hedge Agreement, or (b) the period remaining until the Initial
Maturity Date with respect to Interest Rate Hedge Agreements entered into in
connection with the Revolving Loans and the Tranche A Loans and the Final
Maturity Date with respect to Interest Rate Hedge Agreements entered into in
connection with the Tranche B Loans. All obligations of the Borrower to any
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Lender, or any Affiliate of any Lender, pursuant to any Interest Hedge
Agreement, shall be deemed to be part of the Obligations.
Section 6.12 Environmental Matters. Except as would not reasonably be
expected to have, individually or in the aggregate, a Materially Adverse Effect,
the conduct of the Borrower's and each of the Designated Subsidiaries' business
operations will not violate any Environmental Laws (including, without
limitation, any rules and regulations applicable to the Borrower and the
Designated Subsidiaries relating to radiated power density maximum permissible
exposure levels), and neither the Borrower nor any of the Designated
Subsidiaries will use any Hazardous Materials at any of its places of business
except such materials as are incidental to the Borrower's or such Designated
Subsidiary's normal course of business, maintenance and repairs, and then only
in compliance with all applicable Environmental Laws. The Borrower and each of
the Designated Subsidiaries shall have, maintain, apply for and/or timely renew
all permits required for the Towers and other business operations at its places
of business or otherwise except where the failure to do so would reasonably be
expected to have, individually or in the aggregate, a Materially Adverse Effect.
The Borrower shall promptly notify the Lead Arrangers in writing of (a) any and
all material enforcement, cleanup, remedial, removal, or other governmental or
regulatory actions instituted, completed or threatened in writing pursuant to
any applicable Environmental Law; (b) the existence of any environmental
condition or circumstances known to the Borrower; and (c) all claims made or
threatened by any third party against the Borrower or any of the Designated
Subsidiaries relating to damages, contribution, cost recovery compensation, loss
or injury resulting from any Hazardous Materials, which, in any case, could
reasonably be expected to have, individually or in the aggregate, a Materially
Adverse Effect. The Borrower shall promptly notify the Lead Arrangers of any
material remedial action taken by the Borrower or any of the Designated
Subsidiaries pursuant to Environmental Laws with respect to the Borrower's or
such Designated Subsidiary's Towers or other business operations.
Section 6.13 ERISA. The Borrower shall, and shall cause each of the
Designated Subsidiaries to, at all times make, or cause to be made, prompt
payment of all material contributions required under the terms of their Plans
and to meet the minimum funding standards set forth in ERISA with respect to
such Plans. The Borrower shall maintain, and shall cause each of the Designated
Subsidiaries to maintain, each of the Plans of Borrower and the Designated
Subsidiaries in material compliance with their terms and applicable provisions
of ERISA and the Code.
Section 6.14 Further Assurances. Holdco and the Borrower will promptly
cure, or cause to be cured, defects in the creation and issuance of any of the
Notes and the execution and delivery of the Loan Documents (including, without
limitation, this Agreement), resulting from any act or failure to act by Holdco,
the Borrower or any of the Designated Subsidiaries or any employee or officer
thereof. Holdco and the Borrower, at their sole expense, will promptly execute
and deliver to the Credit Parties, or cause to be executed and delivered to the
Credit Parties, all such other and further documents, agreements, and
instruments in compliance with or accomplishment of the covenants and agreements
of Holdco, the Borrower and the Designated Subsidiaries in the Loan Documents
(including, without limitation, this Agreement), or to obtain any consents, all
as may be reasonably necessary or appropriate in connection therewith as may be
reasonably requested.
Section 6.15 Covenants Regarding Additional Collateral.
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(a) Concurrently with (x) the consummation of each Acquisition by
the Borrower (whether directly or indirectly) of any new Subsidiary Guarantor,
(y) the formation of any new Subsidiary Guarantor, or (z) the re-designation of
any Unrestricted Subsidiary as a Restricted Subsidiary, the Borrower will, and
will cause each of the applicable Subsidiaries to, provide to the Collateral
Agent the following:
(i) a completed questionnaire, in the form of Exhibit X
attached hereto, with respect to such new Subsidiary Guarantor;
(ii) a duly executed amendment to the Borrower Pledge
Agreement or the Subsidiary Pledge Agreement, as applicable, pursuant to which
all of the Equity Interests in such new Subsidiary Guarantor held directly or
indirectly by the Borrower shall be pledged to the Collateral Agent as
additional Collateral securing the Obligations to be held by the Collateral
Agent in accordance with the terms of the Borrower Pledge Agreement or the
Subsidiary Pledge Agreement, as applicable, together with all original share
certificates representing such Equity Interests and duly executed certificate
powers (or, in the case of uncertificated Equity Interests, any necessary UCC-1
financing statement forms);
(iii) a duly executed supplement to the Subsidiary Guaranty
for such new Subsidiary Guarantor, together with all schedules thereto;
(iv) a duly executed supplement to the Subsidiary Security
Agreement for such new Subsidiary Guarantor, together with all schedules thereto
and all necessary UCC-1 financing statement forms;
(v) in the case of any new Subsidiary Guarantor holding any
Equity Interests in any Designated Subsidiary or Restricted Investment, a duly
executed supplement to the Subsidiary Pledge Agreement, pursuant to which such
Subsidiary Guarantor shall pledge to the Collateral Agent all of the Equity
Interests held by it, whether now owned or hereafter acquired, in (A) each of
the Subsidiary Guarantors, the Restricted Investments and the Domestic
SpectraSite Mexico Investments and (B) each of the Foreign Subsidiaries, the
Foreign Investments, the Foreign SpectraSite Mexico Subsidiaries (to the extent
constituting Designated Subsidiaries hereunder) and the Foreign SpectraSite
Mexico Investments (but not to exceed sixty-six percent (66%) of the total
Equity Interests in any such Person);
(vi) a loan certificate from such new Subsidiary Guarantor,
in substantially the form attached hereto as Exhibit W, including a certificate
of incumbency with respect to each Authorized Signatory of such new Subsidiary
Guarantor, together with the following items: (A) a copy of the certificate or
articles of incorporation, certificate of limited partnership or certificate of
organization of such new Subsidiary Guarantor, certified to be complete and
correct by the Secretary of State of the state of such new Subsidiary
Guarantor's organization; (B) a certificate of good standing for such new
Subsidiary Guarantor issued by the Secretary of State or similar state official
for the state in which such Subsidiary Guarantor is organized; (C) a complete
and correct copy of the by-laws, partnership agreement or limited liability
company or operating agreement of such new Subsidiary Guarantor; and (D) a
complete and correct copy of the resolutions of the board of directors, or other
appropriate entity, of such new Subsidiary Guarantor authorizing such new
Subsidiary Guarantor to execute, deliver and perform the Loan Documents to which
it is a party;
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(vii) in the case of an Acquisition, a collateral assignment
of the Permitted Acquisition Documents with respect thereto in substantially the
form of the Assignments of Acquisition Documents; and
(viii) all other documentation, including, without
limitation, an Intellectual Property Security Agreement or any other security
agreement covering any additional intellectual property owned by such new
Subsidiary Guarantor and one or more opinions of counsel reasonably satisfactory
to the Collateral Agent, which in the reasonable opinion of the Collateral Agent
is appropriate with respect to such transaction.
(b) Concurrently with (x) the consummation of each Investment by
the Borrower (whether directly or indirectly) in any new Restricted Investment
or any Domestic SpectraSite Mexico Investment or (y) the re-designation of any
Unrestricted Investment as a Restricted Investment, the Borrower will, and will
cause each of the applicable Subsidiary Guarantors to, provide to the Collateral
Agent the following:
(i) a duly executed amendment to the Borrower Pledge
Agreement or the Subsidiary Pledge Agreement, as applicable, pursuant to which
all of the Equity Interests held by the Borrower (whether directly or
indirectly) in such new Restricted Investment or Domestic SpectraSite Mexico
Investment shall be pledged to the Collateral Agent as additional Collateral
securing the Obligations to be held by the Collateral Agent in accordance with
the terms of the Borrower Pledge Agreement or the Subsidiary Pledge Agreement,
as applicable, together with all original share certificates representing such
Equity Interests and duly executed certificate powers (or, in the case of
uncertificated Equity Interests, any necessary UCC-1 financing statement forms);
(ii) in the case of a new Investment, a collateral
assignment of the Permitted Acquisition Documents with respect thereto in
substantially the form of the Assignments of Acquisition Documents; and
(iii) all other documentation, including, without
limitation, one or more opinions of counsel reasonably satisfactory to the
Collateral Agent, which in the reasonable opinion of the Collateral Agent is
appropriate with respect to such transaction.
(c) Concurrently with (x) the consummation of each Acquisition by
the Borrower (whether directly or indirectly) of any new Foreign Subsidiary or,
to the extent constituting a Designated Subsidiary hereunder, any new Foreign
SpectraSite Mexico Subsidiary, (y) the formation of any new Foreign Subsidiary
or, to the extent constituting a Designated Subsidiary hereunder, any new
Foreign SpectraSite Mexico Subsidiary, or (z) the consummation of each
Investment by the Borrower (whether directly or indirectly) in any new Foreign
Investment or any new Foreign SpectraSite Mexico Investment, the Borrower will,
and will cause each of the Subsidiary Guarantors to, provide to the Collateral
Agent the following:
(i) a duly executed amendment to the Borrower Pledge
Agreement or the Subsidiary Pledge Agreement, as applicable, pursuant to which
all of the Equity Interests owned by the Borrower (whether directly or
indirectly) in such new Foreign Subsidiary, such new Foreign SpectraSite Mexico
Subsidiary, such new Foreign Investment or such new Foreign SpectraSite Mexico
Investment (but not to exceed sixty-six percent (66%) of the total Equity
Interests of any such Person) shall be pledged to the Collateral Agent as
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additional Collateral securing the Obligations to be held by the Collateral
Agent in accordance with the terms of the Borrower Pledge Agreement or the
Subsidiary Pledge Agreement, as applicable, together with all original share
certificates representing such Equity Interests and duly executed certificate
powers (or, in the case of uncertificated Equity Interests, any necessary UCC-1
financing statement forms);
(ii) in the case of an Acquisition, a collateral assignment
of the Permitted Acquisition Documents with respect thereto in substantially the
form of the Assignments of Acquisition Documents; and
(iii) all other documentation, including, without
limitation, one or more opinions of counsel reasonably satisfactory to the
Collateral Agent, which in the reasonable opinion of the Collateral Agent is
appropriate with respect to such transaction.
(d) At such time as the Borrower shall, directly or indirectly,
acquire a majority of the Equity Interests in Concourse Communications, the
Borrower will, and will cause each of the applicable Subsidiary Guarantors to,
provide to the Collateral Agent, subject to clause (f) below, the following:
(i) a completed questionnaire, in the form of Exhibit X
attached hereto, with respect to Concourse Communications and each of its
Subsidiaries;
(ii) a duly executed amendment to the Borrower Pledge
Agreement pursuant to which all of the additional Equity Interests in Concourse
Communications acquired by the Borrower shall be pledged to the Collateral Agent
as additional Collateral securing the Obligations to be held by the Collateral
Agent in accordance with the terms of the Borrower Pledge Agreement, together
with all original share certificates representing such Equity Interests and duly
executed certificate powers (or, in the case of uncertificated Equity Interests,
any necessary UCC-1 financing statement forms);
(iii) a duly executed supplement to the Subsidiary Guaranty
for Concourse Communications and each of its Subsidiaries, together with all
schedules thereto;
(iv) a duly executed supplement to the Subsidiary Security
Agreement for Concourse Communications and each of its Subsidiaries, together
with all schedules thereto and all necessary UCC-1 financing statement forms;
(v) in the case of Concourse Communications and any of its
Subsidiaries holding any Equity Interests in any other Person, a duly executed
supplement to the Subsidiary Pledge Agreement, pursuant to which Concourse
Communications and each such Subsidiary shall pledge to the Collateral Agent all
of the Equity Interests, whether now owned or hereafter acquired by it, in such
Person;
(vi) a loan certificate from Concourse Communications and
each of its Subsidiaries, in substantially the form attached hereto as Exhibit
W, including a certificate of incumbency with respect to each Authorized
Signatory of such new Guarantor, together with the following items: (A) a copy
of the certificate or articles of incorporation, certificate of limited
partnership or certificate of organization of such new Guarantor, certified to
be complete and correct by the Secretary of State of the state of such new
Guarantor's organization; (B) a certificate of good standing for such new
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Guarantor issued by the Secretary of State or similar state official for the
state in which such Guarantor is organized; (C) a complete and correct copy of
the by-laws, partnership agreement or limited liability company or operating
agreement of such new Guarantor; and (D) a complete and correct copy of the
resolutions of the board of directors, or other appropriate entity, of such new
Guarantor authorizing such new Guarantor to execute, deliver and perform the
Loan Documents to which it is a party; and
(vii) all other documentation, including, without
limitation, an Intellectual Property Security Agreement or any other security
agreement covering any additional intellectual property owned by Concourse
Communications or any of its Subsidiaries and one or more opinions of counsel
reasonably satisfactory to the Collateral Agent, which in the reasonable opinion
of the Collateral Agent is appropriate.
(e) In the event that the Borrower or any of the Designated
Subsidiaries shall be party to a merger permitted pursuant to Section 8.5
hereof, the Borrower will, and will cause each of the applicable Subsidiary
Guarantors to, provide to the Collateral Agent the following:
(i) duly executed copies of the documents executed by the
Borrower and the Designated Subsidiaries in connection with such transaction,
together with the filing evidence of such merger certified by the secretary of
state for the applicable jurisdiction; and
(ii) all such other documentation that would be otherwise
required hereunder with respect to the surviving Person of such merger,
including, without limitation, supplements to Security Documents (together with
applicable schedules and exhibits thereto), new Subsidiary questionnaires,
amendments to existing Security Documents and appropriate UCC-1 financing
statement forms, in each case which in the reasonable opinion of the Collateral
Agent is appropriate.
(f) Notwithstanding anything to the contrary contained in the
foregoing or elsewhere in this Agreement, the following shall apply: (i) with
respect to any non-wholly owned Restricted Subsidiaries and, to the extent
constituting Designated Subsidiaries hereunder, any non-wholly owned Domestic
SpectraSite Mexico Subsidiaries, the Borrower shall only be required to use its
commercially reasonable efforts to provide with respect to such Subsidiaries a
supplement to the Subsidiary Guaranty, a supplement to the Subsidiary Security
Agreement or any other documentation providing for a pledge of the Assets of
such Subsidiaries; (ii) with respect to the Equity Interests of any non-wholly
owned Foreign Subsidiary or any Foreign Investment, the Borrower shall only be
required to use its commercially reasonable efforts to pledge such Equity
Interests to the Collateral Agent; (iii) until such time as the Borrower shall,
directly or indirectly, own all of the issued and outstanding Equity Interests
of Concourse Communications, the Borrower shall cause the board of directors of
Concourse Communications to determine whether the issuance of a Guaranty (in the
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form of a supplement to the Subsidiary Guaranty), the grant of a blanket
security interest in substantially all of their respective assets and/or a
pledge of all Equity Interests owned by Concourse Communications and its
Subsidiaries in favor of the Collateral Agent to secure the Obligations would be
permitted under Applicable Law and under their respective organizational
documents, and if the board of directors determines that the issuance of such a
Guaranty (in the form of a supplement to the Subsidiary Guaranty), the grant of
such a security interest and/or such a pledge would not meet the foregoing
tests, the Borrower shall use its commercially reasonable efforts to obtain the
consent of the other holders of any Equity Interests in Concourse Communications
and its Subsidiaries to the issuance of such a Guaranty, the grant of such a
security interest and/or such pledge; (iv) at such time as the Borrower shall,
directly or indirectly, own all of the issued and outstanding Equity Interests
of Concourse Communications, the Borrower shall be required to provide all of
the documentation required under this Section 6.15 with respect to Concourse
Communications and its wholly owned Subsidiaries and shall use its commercially
reasonable efforts to provide such documentation with respect to any non-wholly
owned Subsidiaries of Concourse Communications; and (v) in the case of any
Permitted Acquisition Documents to which Holdco is a party, Holdco shall execute
and deliver a collateral assignment of its interests in and rights under such
Permitted Acquisition Documents with respect thereto in substantially the form
of the Assignments of Acquisition Documents;
(g) Any document, agreement or instrument executed or issued
pursuant to this Section 6.15 shall be a `Loan Document' for purposes of this
Agreement.
Section 6.16 Tower Subsidiaries. All Towers owned or leased by the
Borrower or any of the Restricted Subsidiaries after March 9, 2000 shall be held
in one or more Tower Subsidiaries; provided that all Original Nextel Towers
shall be held exclusively by TAS. The Borrower shall comply with the provisions
of Sections 6.15 and 6.17 in respect thereof. Notwithstanding anything to the
contrary contained in this Agreement, the following shall apply to the Tower
Subsidiaries: (a) none of the Tower Subsidiaries will engage in any activity
other than the owning or leasing of Towers and other Tower Assets or any other
activities directly related thereto; (b) none of the Tower Subsidiaries may
liquidate or dissolve itself (or suffer any liquidation or dissolution), or
enter into any merger, consolidation or other business combination (except with
another Tower Subsidiary) otherwise permitted to be made by Restricted
Subsidiaries of the Borrower pursuant to Section 8.5 hereof; (c) Tower
Subsidiaries may transfer Assets freely amongst themselves, but not to the
Borrower or any other Subsidiary of the Borrower that does not constitute a
Tower Subsidiary; and (d) none of the Tower Subsidiaries shall be obligated in
respect of any Guaranty of the performance obligations of the Borrower or any of
its Subsidiaries (other than under the Loan Documents). Tower Subsidiaries may
form and acquire Subsidiaries so long as such Subsidiaries are also Tower
Subsidiaries.
Section 6.17 Covenants Regarding the Designation of Subsidiaries and
Investments.
(a) Procedure for Designation. As of the Agreement Date, the
Borrower shall designate in writing to the Lead Arrangers (i) each of its direct
and indirect Subsidiaries (other than any Foreign Subsidiaries, any Domestic
SpectraSite Mexico Subsidiaries or any Foreign SpectraSite Mexico Subsidiaries)
as Restricted Subsidiaries or Unrestricted Subsidiaries for purposes of this
Agreement and (ii) each of the Investments (other than Concourse Communications,
any Foreign Investments, any Domestic SpectraSite Mexico Investments and any
Foreign SpectraSite Mexico Investments) made by the Borrower or any of its
Subsidiaries as Restricted Investments or Unrestricted Investments for purposes
of this Agreement. With respect to each Subsidiary of the Borrower formed or
acquired, and each Investment of the Borrower or any of its Subsidiaries made,
after the Agreement Date, the Borrower shall, promptly after the formation or
Acquisition of such Subsidiary or the making of such Investment, designate in
writing to the Lead Arrangers whether each such Subsidiary is a Restricted
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Subsidiary, an Unrestricted Subsidiary, a Foreign Subsidiary, a Domestic
SpectraSite Mexico Subsidiary or a Foreign SpectraSite Mexico Subsidiary and
whether each such Investment is a Restricted Investment, an Unrestricted
Investment, a Foreign Investment, a Domestic SpectraSite Mexico Investment or a
Foreign SpectraSite Mexico Investment. To the extent that the Borrower shall
fail to designate a Subsidiary or an Investment pursuant to the terms of this
Section 6.17(a), within thirty (30) days of the formation or Acquisition
thereof, each such Subsidiary shall be deemed to be a Restricted Subsidiary and
each such Investment shall be deemed to be a Restricted Investment. After the
Agreement Date, so long as no Default or Event of Default then exists or would
be caused thereby, the Borrower may, upon thirty (30) days' (or such shorter
period as may be acceptable to the Administrative Agent) prior written notice to
the Administrative Agent and subject to compliance with the requirements of this
Section 6.17 and Section 6.15 hereof, re-designate Unrestricted Subsidiaries as
Restricted Subsidiaries and Unrestricted Investments as Restricted Investments.
Members of the Restricted Group, Restricted Investments, Foreign Subsidiaries,
Foreign Investments, Domestic SpectraSite Mexico Subsidiaries, Domestic
SpectraSite Mexico Investments, Foreign SpectraSite Mexico Investments and
Foreign SpectraSite Mexico Subsidiaries may not be re-designated as Unrestricted
Subsidiaries or Unrestricted Investments. Notwithstanding anything to the
contrary contained herein, (x) no Unrestricted Subsidiary may be designated or
re-designated as a Restricted Subsidiary if not owned directly by a member of
the Restricted Group and (y) no Unrestricted Investment may be designated or
re-designated as a Restricted Investment if not owned directly by a member of
the Restricted Group.
(b) Concourse Communications. At such time as Concourse
Communications shall become a wholly-owned Subsidiary of the Borrower, Concourse
Communications and each of its wholly-owned Subsidiaries shall become Restricted
Subsidiaries for purposes of this Agreement. Subsidiaries of Concourse
Communications which are not wholly-owned Subsidiaries of the Borrower shall be
designated by the Borrower as Restricted Subsidiaries or Unrestricted
Subsidiaries and shall be subject to all provisions of this Agreement relevant
to such designation.
(c) Release of Collateral Relating to SpectraSite Mexico. So long
as no Default or Event of Default then exists or would be caused thereby, the
Borrower may request that the Majority Lenders agree, in their sole discretion,
to (i) the release of any Guaranties issued by or any Collateral pledged by any
Domestic SpectraSite Mexico Subsidiary and any Equity Interest in any Domestic
SpectraSite Mexico Subsidiary or Foreign SpectraSite Mexico Subsidiary pledged
as collateral under any of the Loan Documents, and (ii) the release of any
Collateral relating to any Domestic SpectraSite Mexico Investment or any Foreign
SpectraSite Mexico Investment; provided, however, so long as no Default or Event
of Default exists or would be caused thereby and so long as the investments by
the Borrower and the Designated Subsidiaries (other than the Domestic
SpectraSite Mexico Subsidiaries and the Foreign SpectraSite Mexico Subsidiaries)
in the Domestic SpectraSite Mexico Subsidiaries and the Foreign SpectraSite
Mexico Subsidiaries with respect to which a release has been requested have been
less than $25,000,000 in the aggregate since the Agreement Date, the consent of
the Majority Lenders or any other Credit Parties shall not be required for any
such release. The Borrower may further request that the Majority Lenders
consent, in their sole discretion, to the transfer to Holdco by the Borrower of
all or a portion of the Equity Interests held directly or indirectly by the
Borrower in each of the Persons comprising SpectraSite Mexico; provided,
however, so long as no Default or Event of Default exists or would be caused
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thereby and so long as the investments by the Borrower and the Designated
Subsidiaries (other than the Domestic SpectraSite Mexico Subsidiaries and the
Foreign SpectraSite Mexico Subsidiaries) in the Domestic SpectraSite Mexico
Subsidiaries and the Foreign SpectraSite Mexico Subsidiaries to be transferred
have been less than $25,000,000 in the aggregate since the Agreement Date, the
consent of the Majority Lenders or any other Credit Parties shall not be
required for any such transfer. To the extent that (A) any of the Collateral
pledged by or related to any Domestic SpectraSite Mexico Subsidiaries or any
Foreign SpectraSite Mexico Subsidiaries shall be released hereunder or (B) any
of the Domestic SpectraSite Mexico Subsidiaries or any of the Foreign
SpectraSite Mexico Subsidiaries shall be transferred to Holdco, none of such
Subsidiaries shall thereafter constitute Designated Subsidiaries for purposes of
this Agreement.
ARTICLE 7 - Information Covenants
So long as any of the Obligations (other than contingent
indemnification obligations) is outstanding and unpaid or the Borrower has a
right to borrow hereunder (whether or not the conditions to borrowing have been
or can be fulfilled), or any Letter of Credit is outstanding and unless the
Majority Lenders, or such greater number of Lenders as may be expressly provided
herein, shall otherwise consent in writing, the Borrower will furnish or cause
to be furnished to, in the case of Sections 7.1, 7.2 and 7.3, each Credit Party,
and in the case of Sections 7.4 and 7.5, each Arranger, at its offices:
Section 7.1 Quarterly Financial Statements and Information.
Within forty-five (45) days after the last day of each of the first three (3)
fiscal quarters, and within ninety (90) days after the last day of the fourth
fiscal quarter of each fiscal year of the Borrower, unaudited balance sheets of
(a) Holdco, on a consolidated basis with its Subsidiaries, and (b) the Borrower,
on a consolidated basis with its Subsidiaries, in each case as at the end of
such quarter, and the related statements of cash flows of such parties as set
forth in clauses (a) and (b) above, and the related statements of operations of
(i) Holdco, on a consolidated basis with its Subsidiaries, (ii) the Borrower, on
a consolidated basis with its Subsidiaries, (iii) the Borrower, on a
consolidated basis with the Restricted Subsidiaries, (iv) the Domestic
SpectraSite Mexico Subsidiaries and the Foreign SpectraSite Mexico Subsidiaries
on a consolidated basis, and (v) each Designated Subsidiary (other than the
Restricted Subsidiaries, the Domestic SpectraSite Mexico Subsidiaries and the
Foreign SpectraSite Mexico Subsidiaries) on a consolidated basis with its
Designated Subsidiaries, and a revenue and expense statement of the Borrower and
its Subsidiaries on a consolidated basis by Tower Operations and Other
Operations, in each case for such quarter and for the elapsed portion of the
year ended with the last day of such quarter, which, with respect to such
financial statements of (A) Holdco, on a consolidated basis with its
Subsidiaries, and (B) the Borrower on a consolidated basis with its
Subsidiaries, shall set forth in comparative form such figures as at the end of
and for such quarter and the corresponding quarter during the preceding fiscal
year, and against the figures set forth for such quarter, with respect to each
quarter ending prior to the first anniversary of the Agreement Date, in the
Projections delivered by the Borrower on the Agreement Date, and with respect to
each quarter ending thereafter, in the Borrower's business plan provided to the
Credit Parties pursuant to Section 7.4(d) hereof, and shall be certified by a
Financial Officer of the Borrower, to be, in his or her opinion, complete and
correct in all material respects and to present fairly in all material respects,
in accordance with GAAP (subject only to normal year-end adjustments and the
absence of footnotes), the financial position of (v) Holdco, on a consolidated
basis with its Subsidiaries, (w) the Borrower, on a consolidated basis with its
Subsidiaries, (x) the Borrower, on a consolidated basis with the Restricted
Subsidiaries, (y) the Domestic SpectraSite Mexico Subsidiaries and the Foreign
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SpectraSite Mexico Subsidiaries on a consolidated basis, and (z) each Designated
Subsidiary (other than the Restricted Subsidiaries, the Domestic SpectraSite
Mexico Subsidiaries and the Foreign SpectraSite Mexico Subsidiaries) on a
consolidated basis with its Designated Subsidiaries, as applicable, as at the
end of such period and the results of operations for such period, and for the
elapsed portion of the year ended with the last day of such period.
Section 7.2 Annual Financial Statements and Information. In
addition to the quarterly financial statements and information to be provided
pursuant to Section 7.1 with respect to the fourth fiscal quarter of the
Borrower, within ninety (90) days after the end of each fiscal year of the
Borrower, the audited balance sheet of (a) Holdco, on a consolidated basis with
its Subsidiaries, and (b) the Borrower, on a consolidated basis with its
Subsidiaries, in each case as at the end of such fiscal year, setting forth in
comparative form the figures as at the end of and for the previous fiscal year,
and the related audited statements of operations and the related statements of
cash flows of (i) Holdco, on a consolidated basis with its Subsidiaries, and
(ii) the Borrower, on a consolidated basis with its Subsidiaries, and the
related profit and loss statements of (A) Holdco, on a consolidated basis with
its Subsidiaries, and (B) the Borrower, on a consolidated basis with its
Subsidiaries, in each case for such fiscal year, setting forth in comparative
form the figures as at the end of and for the previous fiscal year and
certified, without any qualifications or explanatory paragraphs, by independent
certified public accountants of national recognized standing, whose opinion
shall be in scope and substance reasonably satisfactory to the Lead Arrangers,
and include a statement signed by such accountants to the effect that in
connection with their examination of such financial statements they have
reviewed the provisions of this Agreement and have no knowledge of any event or
condition which constitutes an Event of Default or, if they have such knowledge,
specifying the nature and period of existence thereof and that such accountants
have authorized the Borrower to deliver such financial statements and opinion
thereon to the Credit Parties pursuant to this Agreement; provided, however,
that in issuing such statement, such independent accountants shall not be
required to go beyond normal auditing procedures conducted in connection with
their opinion referred to above. Notwithstanding the foregoing, prior to any
fiscal year end in which either (a) EBITDA for the immediately preceding twelve
(12) months is less than ninety percent (90%) of Holdco EBITDA or (b) the total
assets of the Borrower and its Designated Subsidiaries is less than ninety
percent (90%) of the total assets of Holdco and its Subsidiaries as of such
fiscal year end, the Borrower shall only be required to provide the financial
statements referred to in this Section 7.2 for Holdco on a consolidated basis
with its Subsidiaries and thereafter the Borrower shall only be required to
provide the financial statements referred to in this Section 7.2 for the
Borrower on a consolidated basis with its Subsidiaries.
Section 7.3 Performance Certificates. At the time the financial
statements are furnished pursuant to Section 7.1 hereof, a Performance
Certificate:
(a) setting forth as at the end of such fiscal quarter, the
arithmetical calculations required to establish (i) the Applicable Margin, and
(ii) whether the Borrower was in compliance with the requirements of the
Financial Covenants;
(b) setting forth for the Borrower and the Designated
Subsidiaries, for each such fiscal quarter, a summary, in the form of Schedule 3
to the Performance Certificate, of (i) the number and type (i.e.
telecommunications or broadcast) of Towers built, acquired, leased or sold by
the Borrower or any of the Designated Subsidiaries during such period, (ii) the
location (by state and county) of each Tower Site built, acquired or leased by
the Borrower or any of the Designated Subsidiaries during such period
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(identifying the applicable Person owning or leasing each such Tower Site) to
the extent reasonably required by the Collateral Agent (it being understood that
such information shall be delivered only to the Collateral Agent), (iii) the
location (by state and county) of all other Collateral acquired by the Borrower
or any of the Designated Subsidiaries during such period (identifying the
applicable Person owning such Collateral) to the extent reasonably required by
the Collateral Agent (it being understood that such information shall be
delivered only to the Collateral Agent), (iv) a list of all Acquisitions,
Investments, Restricted Payments and dispositions of Assets from the Agreement
Date through the end of such period together with the total amount of each of
the foregoing categories, (v) an updated summary of the corporate organization
of the Borrower, its Subsidiaries and its Investments (identifying whether each
of such Subsidiaries constitutes a Restricted Subsidiary, an Unrestricted
Subsidiary, a Foreign Subsidiary, a Domestic SpectraSite Mexico Subsidiary or a
Foreign SpectraSite Mexico Subsidiary and whether each of such Investments
constitutes a Restricted Investment, an Unrestricted Investment, a Foreign
Investment, a Domestic SpectraSite Mexico Investment or a Foreign SpectraSite
Mexico Investment), and (vi) the Co-Location Percentage as at the end of such
quarter; and
(c) stating that, to the best of his or her knowledge, no
Default or Event of Default has occurred as at the end of such period, or, if a
Default or an Event of Default has occurred, disclosing each such Default or
Event of Default and its nature, when it occurred, whether it is continuing and
the steps being taken by the Borrower with respect to such Default or Event of
Default.
Section 7.4 Copies of Other Reports.
(a) Promptly upon receipt thereof, copies of all material
reports, if any, submitted to Holdco or the Borrower by their independent public
accountants regarding Holdco or the Borrower, including, without limitation, any
management report prepared in connection with the annual audit referred to in
Section 7.2. The Administrative Agent agrees to provide to the Lenders a copy of
any such report which the Administrative Agent receives from the Borrower.
(b) Promptly upon receipt thereof, copies of any material
notice or report received from the FCC or the FAA or any other Governmental
Authority, or regarding any Material Towers.
(c) Annually, a certificate of insurance indicating that the
requirements of Section 6.5 hereof remain satisfied for such fiscal year.
(d) Annually, and in no event later than January 31 of any
year, a copy of the Borrower's annual business plan on a quarterly basis and
updated Projections for such fiscal year. The Administrative Agent agrees to
provide to the Lenders a copy of any such plan which the Administrative Agent
receives from the Borrower.
(e) In connection with any proposed Acquisition or
Investment by the Borrower or any of the Designated Subsidiaries, and otherwise
from time to time and promptly upon each request, such data, certificates,
reports, statements, documents, or further information reasonably available to
the Borrower regarding the business, assets, liabilities, financial position,
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projections, results of operations, of the Borrower or any of the Designated
Subsidiaries as the Credit Parties through the Administrative Agent may
reasonably request.
(f) To the extent not covered elsewhere in this Article 7,
promptly after the sending thereof, copies of all material financial statements,
reports and other information which Holdco, the Borrower or any of the
Designated Subsidiaries sends to any holder of its Funded Debt or its securities
or which Holdco, the Borrower or any of the Designated Subsidiaries files with
the Securities and Exchange Commission or any national securities exchange;
provided, however, that with respect to filings with the Securities and Exchange
Commission copies of such filings shall be deemed to have been provided to the
Lenders upon the delivery of notice of such filing to the Administrative Agent.
The Administrative Agent agrees to provide to the Lenders any such notice of a
filing with the Securities and Exchange Commission which the Administrative
Agent receives from the Borrower.
Section 7.5 Notice of Litigation and Other Matters. Prompt notice
(and, in any event notice within five (5) Business Days of the Borrower's
receipt of notice of the occurrence thereof) of any of the following events
after the Borrower has received notice or otherwise becomes aware thereof.
(a) the commencement of all proceedings and investigations
involving an amount in controversy in excess of $10,000,000 by or before any
governmental body and all actions and proceedings in any court or before any
arbitrator involving an amount in controversy in excess of $10,000,000 against,
Holdco, the Borrower or any of the Designated Subsidiaries, or any Material
Towers, or any Necessary Authorization regarding any Material Towers;
(b) any change with respect to the business, assets, liabilities,
financial position, results of operations of the Borrower or any of its
Subsidiaries that could reasonably be expected to have a Materially Adverse
Effect;
(c) any Default or Event of Default, or the occurrence or
non-occurrence of any event which constitutes, or which with the passage of time
or giving of notice or both would constitute a default by Holdco, the Borrower
or any of the Designated Subsidiaries under any material agreement, other than
this Agreement, to which Holdco, the Borrower or any of the Designated
Subsidiaries is a party or by which any of their respective properties may be
bound, which reasonably could be expected to have a Materially Adverse Effect,
giving in each case the details thereof and specifying the action proposed to be
taken with respect thereto;
(d) any material default under or misrepresentation in the Nextel
Acquisition Documents or the Nextel Partners Master Site Lease Agreement,
whether made or occurring before or after the Agreement Date, and copies of all
notices concerning defaults received or sent by the Borrower or any of the
Designated Subsidiaries thereunder;
(e) any material default under or misrepresentation in the SBC
Lease Documents, whether made or occurring before or after the Agreement Date,
and copies of all notices concerning defaults received or sent by Holdco, the
Borrower or any of the Designated Subsidiaries thereunder;
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(f) to the extent that any of the following would reasonably be
expected to have, individually or in the aggregate, a Materially Adverse Effect,
(i) the maintenance of, or contribution to, by the Borrower or any of the
Designated Subsidiaries, or any of their ERISA Affiliates, in any Plan not
listed on Schedule 5.1(m) attached hereto, or (ii) the occurrence of any
Reportable Event or a material non-exempt `prohibited transaction' (as such term
is defined in Section 406 of ERISA or Section 4975 of the Code) with respect to
any Plan of the Borrower or any of the Designated Subsidiaries or the
institution or threatened institution by PBGC of proceedings under ERISA to
terminate or to partially terminate any such Plan or the commencement or
threatened commencement of any litigation regarding any such Plan, other than
litigation involving a routine claim for benefits; and
(g) the occurrence of any event subsequent to the Agreement Date
which, if such event had occurred prior to the Agreement Date, would have
constituted an exception to the representation and warranty in Section 5.1(l) of
this Agreement.
The Administrative Agent agrees to provide the Lenders copies of any such items
in this Section 7.5 which the Administrative Agent receives from the Borrower.
ARTICLE 8 - Negative Covenants
So long as any of the Obligations (other than contingent indemnity
obligations) is outstanding and unpaid or the Borrower has a right to borrow
hereunder (whether or not the conditions to borrowing have been or can be
fulfilled), or any Letter of Credit is outstanding, and unless the Majority
Lenders (or such greater number of Lenders as may be expressly provided herein)
shall otherwise consent in writing:
Section 8.1 Indebtedness. Neither Holdco nor the Borrower shall, and
the Borrower shall cause each of the Designated Subsidiaries not to, create,
assume, incur or otherwise become or remain obligated in respect of, or permit
to be outstanding, any Indebtedness except:
(a) Indebtedness under this Agreement and the other Loan
Documents (including, without limitation, any Incremental Facility
Indebtedness);
(b) Capitalized Lease Obligations of the Borrower and the
Designated Subsidiaries (other than any of the Tower Subsidiaries) not to exceed
the sum of (i) an aggregate principal amount of $25,000,000 at any one time
outstanding over the remainder of the term of such obligations, less the amount
of any Indebtedness under Section 8.1(i) below, plus (ii) an aggregate amount of
$15,000,000 at any one time outstanding over the remainder of the term of such
obligation in respect of a Capitalized Lease Obligation of the Borrower
financing a second headquarters building to be located at 400 Regency Forest
Drive, Cary, North Carolina;
(c) Indebtedness of TAS in favor of the Nextel Tenants secured by
the Nextel Subordinated Lien pursuant to the Nextel Acquisition Documents;
(d) Net termination payments under Interest Hedge Agreements
required or permitted to be entered into pursuant to Section 6.11 hereof;
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(e) Indebtedness of the Borrower or any of the Designated
Subsidiaries to the Borrower or any wholly owned Restricted Subsidiary, and
Indebtedness that constitutes an Investment permitted under Section 8.2(a)
hereof;
(f) Guaranties permitted under Section 8.6 hereof;
(g) With respect to Holdco, (i) Indebtedness represented by the
Holdco Notes, (ii) Indebtedness represented by any Permitted High-Yield
Securities which are debt securities, (iii) accrual of interest, accrual of
dividends, the accretion of accreted value, the payment of interest in the form
of additional Indebtedness and the payment of dividends in the form of
additional shares in respect of the Holdco Notes or any other Permitted
High-Yield Securities, and (iv) other Indebtedness to the extent permitted to be
incurred under any of the Holdco Notes Indentures, as in effect on the Agreement
Date or as amended with the consent of the Majority Lenders;
(h) Indebtedness representing extensions, renewals, refinancings
or replacements (but not increases in principal amounts) of any of the
foregoing, and with respect to any extension, renewal, refinancing or
replacement of the Indebtedness described in Sections 8.1(c) and 8.1(g), so long
as such Indebtedness shall be subject to terms and conditions no more onerous
(including, without limitation, substantially similar subordination provisions)
than the original Indebtedness;
(i) Indebtedness of the Borrower and the Designated Subsidiaries
(other than any of the Tower Subsidiaries) in respect of conditional sale,
rental or purchase money obligations, together with any Capitalized Lease
Obligations incurred pursuant to Section 8.1(b)(i), in an aggregate amount not
to exceed $25,000,000 at any one time outstanding;
(j) Other unsecured Indebtedness incurred by the Borrower and the
Designated Subsidiaries (other than any of the Tower Subsidiaries) not to exceed
$15,000,000 in the aggregate at any one time outstanding;
(k) Indebtedness of (i) any Domestic SpectraSite Mexico
Subsidiary or Foreign SpectraSite Mexico Subsidiary to any wholly owned Domestic
SpectraSite Mexico Subsidiary or wholly owned Foreign SpectraSite Subsidiary,
(ii) any Foreign Subsidiary (other than any Canadian Subsidiary) to any wholly
owned Foreign Subsidiary (other than any Canadian Subsidiary), (iii) any
Canadian Subsidiary to any wholly owned Canadian Subsidiary, or (iv) Concourse
Communications or any of its Subsidiaries to Concourse Communications or any of
its wholly owned Subsidiaries; and
(l) Indebtedness of any Designated Subsidiary (other than the
Tower Subsidiaries) acquired in a transaction permitted by Section 8.5, provided
that (i) such Indebtedness existed at the time such Person became a Subsidiary
and was not incurred in anticipation thereof, (ii) no Person other than such
Subsidiary becomes an obligor in respect of such Indebtedness, (iii) to the
extent secured, the Liens securing such Indebtedness are permitted by clause (t)
of the definition of Permitted Liens, and (iv) such Indebtedness, together with
the Indebtedness of any other Subsidiary under this Section 8.1(l), does not
exceed $10,000,000 in the aggregate at any one time outstanding.
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Section 8.2 Investments. The Borrower shall not, and shall not permit
any of the Designated Subsidiaries to, make any loan or advance, or make any
Investment or otherwise acquire any evidences of Funded Debt, Equity Interests
or other securities of any Person, except that (x) the Borrower and the
Designated Subsidiaries (other than any of the Tower Subsidiaries) may (a) make
Investments in and loans to Restricted Subsidiaries; (b) purchase or otherwise
acquire and own (i) any Investment in direct obligations of the United States of
America or any agency thereof or obligations Guaranteed by the United States of
America or any agency thereof, (ii) Investments in time deposit accounts,
certificates of deposit and money market deposits maturing within one year of
the date of acquisition thereof issued by a bank or trust company which is
organized under the laws of the United States of America, any state thereof or
any foreign country recognized by the United States of America having capital,
surplus and undivided profits aggregating in excess of $500,000,000 (or the
foreign currency equivalent thereof) and whose long-term debt is rated "A" (or
such similar equivalent rating) or higher by at least one nationally recognized
statistical rating organization (as defined in Rule 436 under the Securities
Act) or any money market fund sponsored by a registered broker dealer or mutual
fund distributor, (iii) repurchase obligations with a term of not more than
thirty (30) days for underlying securities of the types described in clause (i)
above entered into with a bank meeting the qualifications described in clause
(ii) above, (iv) Investments in commercial paper, maturing not more than three
hundred sixty (360) days after the date of acquisition, issued by a corporation
(other than an Affiliate of the Borrower) organized and in existence under the
laws of the United States of America or any foreign county recognized by the
United States of America with a rating at the time as of which any Investment
therein is made of "P-1" (or higher) according to Moody's Investors Service,
Inc. or "A-1" (or higher) according to Standard & Poor's Rating Group, and (v)
Investments in securities with maturities of six (6) months or less from the
date of acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States of America, or by any political subdivision or
taxing authority thereof, and rated at least "A" by Standard & Poor's Ratings
Group or "A" by Moody's Investors Service, Inc.; (c) make Investments permitted
by Section 8.5 hereof; (d) make Investments existing as of the Agreement Date as
set forth on Schedule 5.1(x) attached hereto; (e) make loans or advances to
employees in the ordinary course of business in an aggregate amount not to
exceed $7,500,000 at any time outstanding; (f) acquire stock, obligations or
securities received in settlement of debts created in the ordinary course of
business or in satisfaction of judgments; (g) incur prepaid expenses, hold
negotiable instruments held for collection and lease, or make utility and
workers' compensation, performance and other similar deposits; (h) subject to
the requirements of Sections 2.7(b) and 2.7(e) hereof, make deposits of proceeds
from Permitted Dispositions with a "qualified intermediary," "qualified trustee"
or similar Person for purposes of facilitating a "like-kind" exchange made in
accordance with the applicable provisions of the Code; (i) make Investments
representing the non-cash portion of the Purchase Price of Permitted
Dispositions; and (j) extend trade credit in the ordinary course of the
Borrower's or such Designated Subsidiary's business and (y)(a) Domestic
SpectraSite Mexico Subsidiaries and Foreign SpectraSite Mexico Subsidiaries may
make Investments in and loans to wholly owned Domestic SpectraSite Mexico
Subsidiaries and wholly owned Foreign SpectraSite Mexico Subsidiaries, (b)
Foreign Subsidiaries (other than Canadian Subsidiaries) may make Investments in
and loans to wholly owned Foreign Subsidiaries (other than Canadian
Subsidiaries), (c) Canadian Subsidiaries may make Investments in and loans to
wholly owned Canadian Subsidiaries, and (d) Concourse Communications and its
Subsidiaries may make Investments in and loans to Concourse Communications and
its wholly owned Subsidiaries.
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Section 8.3 Limitation on Liens. Neither Holdco nor the Borrower
shall, and the Borrower shall cause each of the Designated Subsidiaries not to,
create, assume, incur or permit to exist or to be created, assumed, incurred or
permitted to exist, directly or indirectly, any Lien on any of their respective
properties or assets, whether now owned or hereafter acquired, except for
Permitted Liens.
Section 8.4 Amendment and Waiver. The Borrower shall not, and shall
cause each of the Designated Subsidiaries not to, without the prior written
consent of the Lead Arrangers, enter into any amendment of, or agree to or
accept any waiver of (i), which would materially adversely affect the rights of
the Borrower and the Credit Parties, or any of them, of any of the provisions
(including, without limitation, with respect to any of the Nextel Acquisition
Documents or the SBC Lease Documents, any of the closing conditions set forth
therein) of, (a) its organizational documents, including, without limitation,
its certificate or articles of incorporation (other than any increase in the
number of authorized shares) and by-laws, (b) the Nextel Acquisition Documents,
(c) the Holdco Notes Indentures, and (d) the SBC Lease Documents, or (ii) which
would reasonably be expected to have, individually or in the aggregate, a
Materially Adverse Effect, of any of the provisions (including, without
limitation, with respect to any Permitted Acquisition Documents, any of the
closing conditions set forth therein) of, (a) the NTA Investment Documents, (b)
the AirTouch Acquisition Documents, (c) the Lodestar Acquisition Documents or
(d) any Permitted Acquisition Documents.
Section 8.5 Liquidation; Merger; Acquisition or Disposition of Assets.
The Borrower shall not, and shall cause each of the Designated Subsidiaries not
to, at any time: (a) liquidate or dissolve itself (or suffer any liquidation or
dissolution) or otherwise wind up; (b) enter into any merger, consolidation or
other business combination; (c) issue any Equity Interests; (d) sell, abandon,
transfer, trade or otherwise dispose of, in a single transaction or in a series
of related transactions, any of its Assets, property or business outside of the
ordinary course of business; (e) acquire any Equity Interests or make any
Acquisition; (f) create or acquire any Subsidiary; or (g) acquire or construct
any Tower and Tower Sites without an anchor tenant under contract; provided,
however, that:
(i) so long as no Default or Event of Default then exists or
would be caused thereby the following are permitted, subject to the restrictions
on Tower Subsidiaries set forth in Section 6.16 hereof:
(A) a merger among the Borrower or one or more
Restricted Subsidiaries (other than TAS) with or into any
other Person, or, subject to Section 8.5(v) below, an
Acquisition permitted hereunder effected by a merger;
provided, however, that (I) with respect to any merger
involving the Borrower or one of the Restricted Subsidiaries
in which the Borrower is not the surviving entity, the
surviving entity shall assume all of the obligations of the
Borrower hereunder and under the other Loan Documents, as
applicable, and shall execute and deliver to the
Administrative Agent an assumption agreement, in form and
substance reasonably satisfactory to the Lead Arrangers,
(II) the surviving entity, at its sole expense, shall
promptly execute and deliver to the Credit Parties, or cause
to be executed and delivered to the Credit Parties, all such
other and further documents, agreements, and instruments as
may be reasonably requested by the Administrative Agent in
connection with the surviving entity's obligations hereunder
and under the other Loan Documents (including, without
limitation, (x) with respect to any merger involving the
Borrower in which the Borrower is not the surviving entity,
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renewal promissory notes in favor of each Lender, (y) a loan
certificate for such surviving entity, substantially in the
form of Exhibit V attached hereto, together with appropriate
attachments thereto, and (z) original UCC-1 financing
statements, signed by such surviving entity as debtor and
naming the Collateral Agent as secured party to be filed in
all appropriate jurisdictions, in such form and substance
and number as shall be reasonably satisfactory to the
Collateral Agent), and (III) the surviving entity shall
provide all other documentation, including, without
limitation, (x) an Intellectual Property Security Agreement
or any other security agreement covering any additional
intellectual property obtained by the Borrower, (y) lien
search results with respect to such surviving entity from
all appropriate jurisdictions and filing offices, together
with appropriate UCC-3 termination statements relating to
Liens which are not Permitted Liens, and (z) one or more
opinions of counsel reasonably satisfactory to the
Collateral Agent which in the reasonable opinion of the
Collateral Agent is appropriate with respect to such merger
and assumption (any document, agreement or instrument
executed or issued pursuant to this Section 8.5(i) shall be
a "Loan Document" for purposes of this Agreement);
(B) a merger between or among two or more Restricted
Subsidiaries or between or among two or more Designated
Subsidiaries that are not Restricted Subsidiaries; and
(C) a liquidation or dissolution of one or more
Designated Subsidiaries into its or their parent entity
(provided that, with respect to a liquidation or dissolution
of any Restricted Subsidiary, the Borrower or one of the
Restricted Subsidiaries is such parent entity);
(ii) subject to compliance with the mandatory prepayment
provision of Section 2.7(b), (x) the Borrower and the Designated Subsidiaries
may sell, transfer or dispose of, in a single transaction or a series of related
transactions, the Broadcast Services Business, (y) the Borrower and the
Designated Subsidiaries may sell, lease, abandon, transfer, trade or otherwise
dispose of, in a single transaction or in a series of related transactions,
Assets, at the fair market value thereof and, with respect to any disposition in
which the Purchase Price is equal to or greater than $10,000,000 (other than an
exchange or swap of Assets), at least seventy-five percent (75%) of the Purchase
Price shall be payable in cash, and (z) Designated Subsidiaries may issue
minority Equity Interests therein, and in connection with any such disposition
or issuance the Collateral Agent shall, upon the request of the Borrower,
release any Liens granted pursuant to any of the Security Documents with respect
to such Assets, subject to the following conditions:
(A) no Default or Event of Default shall then exist
before or after giving effect to such disposition;
(B) with respect only to clauses (y) and (z) above of
this Section 8.5(ii), the portion of Annualized EBITDA
attributable to such Assets in the aggregate, (I) together
with the portion of Annualized EBITDA attributable to all
other Assets disposed of during the immediately preceding
twelve (12) month period, shall not exceed fifteen percent
(15%) of the Borrower's Annualized EBITDA calculated as of
the last day of the fiscal quarter of the Borrower most
recently ended for which the financial statements referred
to in Section 7.1 hereof have been delivered by the Borrower
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to the Administrative Agent, and (II) together with the
portion of Annualized EBITDA attributable to all other
Assets disposed of during the term of this Agreement, shall
not exceed twenty-five percent (25%) of the Borrower's
Annualized EBITDA calculated as of the last day of the
fiscal quarter of the Borrower most recently ended for which
the financial statements referred to in Section 7.1 hereof
have been delivered by the Borrower to the Administrative
Agent; provided, however, that, in the case of an exchange
or swap of Assets, only the excess, if any, of (x) the
portion of Annualized EBITDA attributable to the Assets
being disposed of, over (y) the portion of Annualized EBITDA
attributable to the Assets being acquired, shall be included
in calculating Annualized EBITDA for purposes of the
Annualized EBITDA tests set forth above;
(C) for any single disposition or series of related
dispositions with respect to which the Purchase Price
exceeds $5,000,000, the Borrower shall provide to the
Arrangers and the Lenders calculations demonstrating pro
forma compliance with the Financial Covenants after giving
effect to such disposition or series of dispositions, as
applicable; and
(D) with respect only to clauses (y) and (z) above of
this Section 8.5(ii), each time that the Borrower and the
Designated Subsidiaries shall complete any single
disposition or a series of dispositions (whether related or
unrelated) having an aggregate Purchase Price with respect
to all such dispositions of greater than or equal to
$100,000,000 (with this basket being reset to zero (0)
following each delivery of Projections required hereunder),
the Borrower shall provide to the Arrangers and the Lenders
revised Projections assuming consummation of all
dispositions included in such set of dispositions and
demonstrating pro forma compliance with the Financial
Covenants through the Final Maturity Date;
(iii) (A) members of the Restricted Group (other than any of the
Tower Subsidiaries) may (I) make Investments as permitted under Section
8.2(x)(a) hereof, and (II) transfer Assets amongst themselves, (B) the Domestic
SpectraSite Mexico Subsidiaries and the Foreign SpectraSite Mexico Subsidiaries
may (I) make Investments as permitted under Section 8.2(y) hereof and (II) may
transfer Assets amongst themselves, (b) Foreign Subsidiaries (other than
Canadian Subsidiaries) may (I) make Investments as permitted under Section
8.2(y) hereof and (II) may transfer Assets amongst themselves, (c) Canadian
Subsidiaries may (I) make Investments as permitted under Section 8.2(y) hereof
and (II) may transfer Assets amongst themselves, and (d) Concourse
Communications and its Subsidiaries may (I) make Investments as permitted under
Section 8.2(y) hereof and (II) may transfer Assets amongst themselves;
(iv) the Borrower and the Designated Subsidiaries may make
Capital Expenditures in the ordinary course of their respective businesses;
(v) subject to compliance with Sections 6.9, 6.15 and 6.16
hereof, the Borrower and the Designated Subsidiaries may make the following
Acquisitions and Investments and form Subsidiaries with respect thereto:
(A) Acquisitions of (I) Tower Assets (other than Tower
Assets of the type described in the following clause (B))
located in the United States or (II) Persons organized under
the laws of the United States or any state thereof or the
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District of Columbia that are engaged primarily in the
business of holding or leasing Tower Assets of such type
which are located in the United States;
(B) Acquisitions of Tower management and rooftop
businesses located in the United States so long as the
aggregate Purchase Price for all such Acquisitions
consummated during the term of this Agreement shall not
exceed the sum of (I) $50,000,000, plus (II) the amount of
any New Affiliated Equity to the extent allocated solely to
this purpose;
(C) Investments (whether structured as a single
Investment or a series of related Investments) by the
Restricted Group in, and Acquisitions not otherwise
permitted under this Section 8.5(v) of, any member of the
Unrestricted Group, Restricted Investments and non-wholly
owned Restricted Subsidiaries in an amount not to exceed, in
the aggregate during the term of this Agreement, the sum of
(I) $100,000,000, plus (II) the amount of any New Affiliated
Equity to the extent allocated solely to this purpose;
provided, however, that the aggregate amount of any such
Investments made in members of the Unrestricted Group at any
time outstanding shall not exceed the sum of (x)
$25,000,000, plus (y) the amount of any New Affiliated
Equity to the extent allocated solely to this purpose;
(D) Acquisitions of, and Investments in, Foreign
Subsidiaries and Foreign Investments, in each case organized
in a jurisdiction other than Canada or Mexico, in an amount
not to exceed, in the aggregate during the term of this
Agreement, the sum of (I) $10,000,000, plus (II) the amount
of any New Affiliated Equity to the extent allocated solely
to this purpose;
(E) Permitted Canadian Investments;
(F) Permitted Mexican Investments;
(G) the NTA Investment; and
(H) Acquisitions with respect to which the portion of
the Purchase Price in excess of any monetary limitation set
forth in this Agreement is payable solely in Equity
Interests issued by Holdco or the proceeds of New Affiliated
Equity to the extent allocated solely to this purpose, with
the value of such Equity Interests and such New Affiliated
Equity being excluded from such monetary limitations;
provided that each of the foregoing Acquisitions and Investments shall be
subject to the following conditions:
(x) no Default or Event of Default shall then exist before
or after giving effect to any such Acquisition or Investment;
(y) each time that the Borrower and the Designated
Subsidiaries shall complete any single Acquisition or Investment or a series of
Acquisitions or Investments (whether related or unrelated) having an aggregate
Purchase Price with respect to all such Acquisitions and Investments of greater
than or equal to $100,000,000 (with this basket being reset to zero (0)
following each delivery of Projections required hereunder), the Borrower shall
provide to the Arrangers and the Lenders revised Projections assuming
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consummation of all Acquisitions and Investments included in such set of
Acquisitions and Investments and demonstrating pro forma compliance with the
Financial Covenants through the Final Maturity Date; and
(z) with respect to any Acquisition structured as an
exchange or swap of Tower Assets, the cash outlay by the Borrower or the
applicable Designated Subsidiary for such Acquisition must be within the dollar
limitations set forth with respect to such Acquisition in this Section 8.5(v);
(vi) the Borrower and the Designated Subsidiaries (other
than TAS) may acquire and construct Tower and Tower Sites without an anchor
tenant under contract, so long as the aggregate Investment for such Towers and
Tower Sites is at all times less than $15,000,000; provided, however, that if
the Borrower or the applicable Designated Subsidiary shall enter into a binding
contract with an anchor tenant with respect to any such Tower or Tower Site, the
book value of the Investment of the Borrower or the applicable Designated
Subsidiary in such Tower or Tower Site shall be thereafter excluded from the
Investments subject to the $15,000,000 limitation provided for herein;
(vii) so long as no Default or Event of Default then exists
or would be caused thereby, subject to compliance with Sections 6.9 and 6.15
hereof, the Borrower may consummate each of (A) the SBC Transaction and (B) the
Airtouch Acquisition;
(viii) so long as no Default or Event of Default then exists
or would be caused thereby, (A) subject to the consent of the Majority Lenders,
the Borrower may transfer to Holdco all or a portion of the Equity Interests
held directly or indirectly by the Borrower in each of the Persons comprising
SpectraSite Mexico pursuant to Section 6.17(c) hereof; provided, however, that
so long as the investments by the Borrower and the Designated Subsidiaries
(other than the Domestic SpectraSite Mexico Subsidiaries and the Foreign
SpectraSite Mexico Subsidiaries) in the Domestic SpectraSite Mexico Subsidiaries
and the Foreign SpectraSite Mexico Subsidiaries to be transferred have been less
than $25,000,000 in the aggregate since the Agreement Date, the consent of the
Majority Lenders or any other Credit Parties shall not be required for any such
transfer, and (B) the Borrower may transfer to Holdco all or a portion of the
Equity Interests held directly or indirectly by the Borrower in any of the
Unrestricted Subsidiaries or the Unrestricted Investments;
(ix) the Borrower may issue Permitted High-Yield Securities;
and
(x) subject to compliance with Sections 6.9 and 6.15 hereof,
the Borrower and the Designated Subsidiaries may form Subsidiaries.
Section 8.6 Limitation on Guaranties. Neither Holdco nor the Borrower
shall, and the Borrower shall cause each of the Designated Subsidiaries not to,
at any time Guaranty, assume, be obligated with respect to, or permit to be
outstanding any Guaranty of, any obligation of any other Person other than (a)
under any of the Loan Documents or as permitted under Section 8.1 hereof, (b) a
guaranty by endorsement of negotiable instruments for collection in the ordinary
course of business, (c) contingent obligations incurred in the ordinary course
of business with respect to surety and appeal bonds, performance and
return-of-money bonds and other similar obligations, (d) a guaranty by Holdco,
the Borrower or any of the Designated Subsidiaries of the obligations of the
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Borrower or any of the Restricted Subsidiaries, and (e) a guaranty by Holdco
permitted under the Holdco Notes Indentures.
Section 8.7 Restricted Payments and Purchases. The Borrower shall not,
and shall cause each of the Designated Subsidiaries not to, directly or
indirectly declare or make any Restricted Payment or Restricted Purchase, except
that, so long as no Default or Event of Default then exists or would result
therefrom, any of the Designated Subsidiaries may make pro rata distributions to
holders of Equity Interests in such Designated Subsidiaries, and the Borrower
may (a) subject to the consent of the Majority Lenders, transfer to Holdco all
or a portion of the Equity Interests held directly or indirectly by the Borrower
in each of the Persons comprising SpectraSite Mexico pursuant to Section 6.17(c)
hereof; provided, however, that so long as the investments by the Borrower and
the Designated Subsidiaries (other than the Domestic SpectraSite Mexico
Subsidiaries and the Foreign SpectraSite Mexico Subsidiaries) in the Domestic
SpectraSite Mexico Subsidiaries and the Foreign SpectraSite Mexico Subsidiaries
to be transferred have been less than $25,000,000 in the aggregate since the
Agreement Date, the consent of the Majority Lenders or any other Credit Parties
shall not be required for any such transfer, (b) transfer to Holdco all or a
portion of the Equity Interests (or dividend payments made in respect of the
Equity Interests) held directly or indirectly by the Borrower in each of the
Unrestricted Subsidiaries or the Unrestricted Investments, (c) make Restricted
Payments to Holdco to enable Holdco to make the following payments when due: (i)
interest payments on the Holdco Notes; (ii) at any time after the Borrower
Leverage Ratio shall have been less than 4.50 to 1.00 for two (2) consecutive
fiscal quarters before and after giving effect to such payment, dividend or
interest payments, as applicable, on Permitted High-Yield Securities issued
after the Agreement Date in connection with an Eligible Debt Offering or an
Eligible Equity Offering, in each case following expiration of any required
payment-in-kind period applicable thereto; (iii) to the extent that such
payments are required in the ordinary course of business and relate directly to
the Borrower or any of the Designated Subsidiaries, or to services provided for
or on behalf of the Borrower or any of the Designated Subsidiaries, payments, in
each case that are required to be paid in cash, when due of (A) corporate
franchise fees and taxes actually owed by Holdco, (B) legal and accounting fees
and expenses actually incurred by Holdco, (C) costs incurred to comply with
Holdco's reporting obligations under federal or state laws, including, without
limitation, reports filed with respect to the Securities Act, the Exchange Act
or the respective rules and regulations promulgated thereunder and (D) other
customary corporate overhead expenses; (iv) payments of `Additional Interest'
(as that term is defined in the Registration Rights Agreements entered into in
connection with the Holdco Notes) and any other comparable payments in respect
of other Permitted High-Yield Securities; and (v) payments to repurchase Equity
Interests in Holdco owned by employees, officers and directors of Holdco upon
their death, disability or termination of employment or service, in an aggregate
amount not to exceed $10,000,000 during any year or $15,000,000 during the term
of this Agreement, and (d) make dividend payments to holders of Permitted
High-Yield Securities of the Borrower following expiration of any required
payment-in-kind period applicable thereto at any time after the Borrower
Leverage Ratio shall have been less than 4.50 to 1.00 for two (2) consecutive
fiscal quarters before and after giving effect to such payment.
Section 8.8 Affiliate Transactions. The Borrower shall not, and shall
cause each of the Designated Subsidiaries not to, at any time engage in any
transaction with an Affiliate (other than the Borrower or any of the wholly
owned Restricted Subsidiaries), nor make an assignment or other transfer of any
of its Assets to any Affiliate (other than the Borrower or any of the wholly
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owned Restricted Subsidiaries), on terms less advantageous than would be the
case if such transaction had been effected with a non-Affiliate, except (a) with
respect to Investments and loans permitted under Section 8.2(a); (b) with
respect to the transactions contemplated in connection with the Nextel
Acquisition and the Acquisition of additional Towers from Nextel; (c) with
respect to the transactions contemplated in connection with the Airtouch
Acquisition, the NTA Investment and the SBC Transaction; (d) with respect to the
Loans and other transactions contemplated by this Agreement and the other Loan
Documents; and (e) with respect to the payment of customary commercial or
investment banking, underwriting, placement agent or financial advisor fees to
Affiliates of the Borrower for any such services rendered to the Borrower.
Section 8.9 Corporate Name; Corporate Structure; Business. The
Borrower shall not, and shall cause each of the Designated Subsidiaries not to,
change its corporate name or corporate structure without giving the Collateral
Agent thirty (30) days' (or such shorter period as may be acceptable to the
Collateral Agent) prior written notice of its intention to do so and complying
with all reasonable requirements of the Collateral Agent in regard thereto or
(b) engage in any businesses other than the Tower Operations and the Other
Operations and activities related or incident thereto.
Section 8.10 Negative Pledge. The Borrower shall not, directly or
indirectly, and shall not permit any of the Designated Subsidiaries to, enter
into any agreement (other than the Loan Documents) with any Person that
prohibits or restricts or limits the ability of the Borrower or any Designated
Subsidiary to create, incur, pledge, or suffer to exist any Lien upon any of its
respective Assets, or restricts the ability of any Designated Subsidiary to make
Restricted Payments to the Borrower except (a) any encumbrance or restriction
that restricts in a customary manner the subletting, assignment or transfer of
any property or asset that is subject to a lease, license or other contract or
the assignment, encumbrance or hypothecation of such lease, license or other
contract; (b) any limitation or restriction contained in any Permitted Lien to
the extent such limitation or restriction restricts the imposition of Liens on
or the transfer of the property subject to such Permitted Liens; and (c) any
restriction imposed on assets subject to a Permitted Disposition pursuant to an
agreement entered into in connection with such Permitted Disposition pending the
closing of such sale or disposition.
ARTICLE 9 - Financial Covenants
Section 9.1 Borrower Leverage Ratio. The Borrower shall not permit as
of the end of any fiscal quarter ended during the term of this Agreement, or as
of the date of any Advance under this Agreement, the Borrower Leverage Ratio (if
applicable, after giving effect to such Advance) to exceed the applicable ratio
for such date during the periods as set forth below:
Quarters Ending: Ratio:
--------------- -----
Agreement Date through June 30, 2002 6.00 to 1.00
July 1, 2002 through December 31, 2002 5.50 to 1.00
January 1, 2003 through June 30, 2003 5.00 to 1.00
July 1, 2003 through December 31, 2003 4.50 to 1.00
January 1, 2004 through December 31, 2004 4.00 to 1.00
January 1, 2005 and thereafter 3.50 to 1.00
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Section 9.2 Borrower Interest Coverage Ratio. The Borrower shall not
permit as of the end of any fiscal quarter ended during the term of this
Agreement, the Borrower Interest Coverage Ratio to be less than the ratio
specified below with respect to such fiscal quarter end:
Quarters Ending: Ratio:
--------------- -----
Agreement Date through June 30, 2003 2.00 to 1.00
July 1, 2003 through December 31, 2003 2.25 to 1.00
January 1, 2004 and thereafter 2.75 to 1.00
Section 9.3 Total Interest Coverage Ratio. The Borrower shall not
permit as of the end of any fiscal quarter ended during the term of this
Agreement, the Total Interest Coverage Ratio to be less than the ratio specified
below with respect to such fiscal quarter end:
Quarters Ending: Ratio:
--------------- -----
Agreement Date through June 30, 2002 1.15 to 1.00
July 1, 2002 through June 30, 2003 1.25 to 1.00
July 1, 2003 through December 31, 2003 1.50 to 1.00
January 1, 2004 through June 30, 2006 1.75 to 1.00
July 1, 2006 and thereafter 2.00 to 1.00
Section 9.4 Fixed Charge Coverage Ratio. The Borrower shall not permit
the Fixed Charge Coverage Ratio, as of the end of any fiscal quarter ended
during the term of this Agreement, to be less than 1.10 to 1.00.
ARTICLE 10 - Default
Section 10.1 Events of Default. Each of the following shall constitute
an Event of Default with respect to the Obligations, whatever the reason for
such event and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment or order of any court or any order,
rule or regulation of any governmental or non-governmental body:
(a) Any representation or warranty made under this Agreement or
any other Loan Document (other than any Mortgage) shall prove to be incorrect or
misleading in any material respect when made or deemed to be made pursuant to
Section 5.2 hereof;
(b) (i) The Borrower shall default in the payment of any
principal of the Notes or the Incremental Facility Notes when due, or (ii) the
Borrower shall default in the payment of any interest, fees or other amounts
payable to any of the Credit Parties when due and such Default shall not be
cured by payment in full of such amounts within three (3) days;
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(c) (i) the Borrower shall default in the performance or
observance of any agreement or covenant under Section 7.4 or 7.5, and such
default shall not be cured within the earlier of (A) a period of fifteen (15)
days from the date the Borrower knew of the occurrence of such default, or (B) a
period of fifteen (15) days after written notice of such default is given to the
Borrower or (ii) the Borrower shall default in the performance or observance of
any agreement or covenant under Article 7 (other than under Section 7.4 or 7.5),
Article 8 or Article 9;
(d) The Borrower shall default in the performance or observance
of any other agreement or covenant contained in this Agreement not specifically
referred to elsewhere in this Section 10.1, and such default, if curable, shall
not be cured within the earlier of (i) a period of thirty (30) days from the
date the Borrower knew of the occurrence of such default, or (ii) a period of
thirty (30) days after written notice of such default is given to the Borrower;
(e) There shall occur any default in the performance or
observance of any agreement or covenant contained in any of the Loan Documents
(other than this Agreement or any of the Mortgages) by the Borrower, any of the
Designated Subsidiaries, Holdco or any other obligor thereunder, which shall not
be cured within the cure period, if any, set forth in such Loan Document;
(f) There shall be entered and remain unstayed a decree or order
for relief in respect of Holdco, the Borrower or any of the Borrower's
Subsidiaries under Title 11 of the United States Code as now constituted or
hereafter amended, or any other applicable Federal or state bankruptcy law or
other similar law, or the appointment of a receiver, liquidator, assignee,
trustee, custodian, sequestrator or similar official of Holdco, the Borrower or
any of the Borrower's Subsidiaries, or of any substantial part of their
respective properties, or ordering the winding-up or liquidation of the affairs
of Holdco, the Borrower or any of the Borrower's Subsidiaries; or an involuntary
petition shall be filed against Holdco, the Borrower or any of the Borrower's
Subsidiaries and a temporary stay entered, and (i) such petition and stay shall
not be diligently contested, or (ii) such petition and stay shall remain
uncontroverted for a period of ten (10) consecutive days, or continue
undismissed for a period of sixty (60) consecutive days;
(g) Any of Holdco, the Borrower or any of the Borrower's
Subsidiaries shall file a petition, answer or consent seeking relief under Title
11 of the United States Code, as now constituted or hereafter amended, or any
other applicable Federal or state bankruptcy law or other similar law, or
Holdco, the Borrower or any of the Borrower's Subsidiaries shall consent to the
institution of proceedings thereunder or to the filing of any such petition or
shall seek or consent to the appointment or taking of possession of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of Holdco, the Borrower or any of the Borrower's Subsidiaries, or of any
substantial part of their respective properties, or Holdco, the Borrower or any
of the Borrower's Subsidiaries shall fail generally to pay their respective
debts as they become due, or Holdco, the Borrower or any of the Borrower's
Subsidiaries shall take any action in furtherance of any such action;
(h) One or more judgments (not paid or fully covered by insurance
as to which the relevant insurance company has acknowledged coverage) shall be
entered against the Borrower or any of the Designated Subsidiaries for the
payment of money which exceeds $10,000,000 in the aggregate, or a warrant of
attachment or execution or similar process shall be issued or levied against
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property of the Borrower or any of the Designated Subsidiaries which, together
with all other such property of the Borrower or any of the Designated
Subsidiaries subject to other such process, exceeds in value $10,000,000 in the
aggregate, and if, within thirty (30) days after the entry, issue or levy
thereof, such judgment, warrant or process shall not have been paid or
discharged or stayed pending appeal, or if, within thirty (30) days after the
expiration of any such stay, such judgment, warrant or process shall not have
been paid or discharged;
(i) (i) There shall occur a Mortgage Default, (ii) any Mortgage
or any material provision thereof shall at any time and for any reason cease to
be in full force and effect, or be declared by a court of competent jurisdiction
to be null and void, or a proceeding shall be commenced by Holdco, the Borrower,
any of the Borrower's Subsidiaries or by any Governmental Authority having
jurisdiction over the Borrower or any of the Designated Subsidiaries, seeking to
establish the invalidity or unenforceability thereof (exclusive of questions of
interpretation of any provision thereof), or (iii) any Mortgage shall for any
reason fail or cease to create a valid and first-priority Lien on or Security
Interest in the Collateral in favor of the Collateral Agent, for the benefit of
the Credit Parties, purported to be covered thereby, subject to any Permitted
Lien, or any such perfected Lien or Security Interest in favor of the Collateral
Agent shall cease to be perfected; provided that, with respect to any Mortgages
delivered prior to the Agreement Date, the foregoing shall only apply to the
extent applicable to Material Towers;
(j) There shall be at any time any "accumulated funding
deficiency," as defined in Section 302 of ERISA or in Section 412 of the Code,
with respect to any Plan maintained by the Borrower or any of its Subsidiaries,
or to which the Borrower or any of its Subsidiaries has any material
liabilities, or any trust created thereunder; or a trustee shall be appointed by
a United States District Court to administer any such Plan; or PBGC shall
institute proceedings to terminate any such Plan; or the Borrower or any of its
Subsidiaries shall incur any liability to PBGC in connection with the
termination of any such Plan; or any fiduciary of, or party in interest to, any
Plan or trust created under any Plan of the Borrower or any of its Subsidiaries
shall engage in a "prohibited transaction" (as such term is defined in Section
406 of ERISA or Section 4975 of the Code) which would subject the Borrower or
any of its Subsidiaries to a material tax on "prohibited transactions" imposed
by Section 4975 of the Code; or any fiduciary of, or party in interest to, any
Plan or trust created under any Plan of the Borrower or any of its Subsidiaries
shall engage in a breach of fiduciary responsibility or knowingly participate in
any violation of ERISA; or any Plan of the Borrower or any of its Subsidiaries
which is intended to qualify under Section 401(a) of the Code shall fail to meet
the qualification requirements under such Code section, or the Borrower or any
of the Designated Subsidiaries shall incur any withdrawal liability with respect
to any Multiemployer Plan, and, in each case, such event or condition, together
with other such events or conditions, if any, would be reasonably likely to
subject the Borrower and the Designated Subsidiaries to any tax, liability or
penalty in excess of $10,000,000;
(k) Any of the Unrestricted Subsidiaries shall fail to pay and
discharge all material taxes, including, without limitation, withholding taxes,
assessments and governmental charges or levies required to be paid by them or
imposed upon them or their income or profits or upon any properties belonging to
them, prior to the date on which penalties attach thereto, but excluding any
taxes that are being diligently contested in good faith by appropriate
proceedings and for which reserves in conformity with GAAP have been set aside
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on the books of the appropriate Unrestricted Subsidiary, or shall fail to timely
file all material information returns required by federal, state or local tax
authorities, and in each case, such failure, together with other such failures,
if any, would be reasonably likely to subject the Borrower and the Designated
Subsidiaries to any tax, liability or penalty in excess of $10,000,000;
(l) There shall occur any default under any mortgage, deed to
secure debt, note, loan agreement, indenture or other instrument of Holdco, the
Borrower or any of the Designated Subsidiaries evidencing Funded Debt in an
amount in excess of $10,000,000, which default would permit the acceleration of
such Funded Debt;
(m) There shall occur any default which would permit acceleration
of the Indebtedness evidenced thereby under any of the Holdco Notes Indentures
or any Permitted High-Yield Securities (or documents evidencing or relating to
the issuance of any Permitted High-Yield Securities);
(n) There shall occur an "Event of Default" as such term is
defined in the Nextel Subordinated Security Agreement, or any default under the
Master Site Lease Agreement or the Nextel Partners Master Site Lease Agreement,
if applicable, and as a result thereof Tower Sites equal to ten percent (10%) or
more of the aggregate number of Tower Sites then leased to the Nextel Tenants
shall cease to be leased pursuant to the Master Site Lease Agreement or, if
applicable, the Nextel Partners Master Site Lease Agreement;
(o) There shall occur events of default by STI under Section 30
of the SBC Sublease in respect of more than thirty-five (35) Tower Sites during
any consecutive two (2) year period or portion thereof;
(p) The Borrower and the Designated Subsidiaries shall, on a
consolidated basis, fail to own or lease at least that number of Towers equal to
ninety percent (90%) of the Towers owned or leased by them on the Agreement
Date;
(q) Any Security Document (other than any of the Mortgages) or
any Note or any other Loan Document or any material provision thereof
shall at any time and for any reason cease to be in full force and effect or be
declared by a court of competent jurisdiction to be null and void, or a
proceeding shall be commenced by Holdco, the Borrower, any of the Borrower's
Subsidiaries or by any Governmental Authority having jurisdiction over the
Borrower or any of the Designated Subsidiaries, seeking to establish the
invalidity or unenforceability thereof (exclusive of questions of interpretation
of any provision thereof), or Holdco, the Borrower or any of the Designated
Subsidiaries shall deny that it has any liability or obligation for the payment
of principal or interest or other obligations purported to be created under any
Loan Document;
(r) Any Security Document (other than any of the Mortgages) shall
for any reason fail or cease to create a valid and first priority Lien on or
Security Interest in the Collateral in favor of the Collateral Agent, for the
benefit of the Credit Parties, purported to be covered thereby, subject to any
Permitted Lien, or any such perfected Lien or Security Interest in favor of the
Collateral Agent shall cease to be perfected; provided, however, that if, in the
reasonable judgment of the Administrative Agent, such failure is curable, no
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such Event of Default shall be deemed to have occurred if the Borrower, promptly
following notice from the Collateral Agent, shall take such actions as may be
necessary to cure such failure or cessation; or
(s) There shall occur any Change of Control.
Section 10.2 Remedies.
(a) If an Event of Default specified in Section 10.1 (other than
an Event of Default under Section 10.1(f) or Section 10.1(g)) shall have
occurred and shall be continuing, the Administrative Agent, at the request of
the Majority Lenders, shall formally declare that an Event of Default has
occurred and (i) terminate the Revolving Commitment, any obligations of the
Swing Loan Lender to advance the Swing Loan Committed Amount and the Tranche A
Commitment, as applicable, and (ii) declare the principal of and interest on the
Loans and the Notes and all other amounts owed to the Credit Parties under this
Agreement and the Notes and any other Obligations to be forthwith due and
payable without presentment, demand, protest or notice of any kind, all of which
are hereby expressly waived, anything in this Agreement or in the Notes or any
other Loan Document to the contrary notwithstanding, and the Revolving
Commitment, the obligations of the Swing Loan Lender to advance the Swing Loan
Committed Amount and the Tranche A Commitment, as applicable, shall thereupon
forthwith terminate and all such amounts shall be immediately due and payable,
and during the continuance of an Event of Default specified in Section 10.1(b)
hereof, the principal amount of the Loans outstanding hereunder shall bear
interest at the Default Rate applicable thereto.
(b) Upon the occurrence and continuance of an Event of Default
specified in Section 10.1(f) or Section 10.1(g), all principal, interest and
other amounts due hereunder and under the Notes, and all other Obligations,
shall thereupon and concurrently therewith become due and payable and the
Revolving Commitment, the obligations of the Swing Loan Lender to advance the
Swing Loan Committed Amount and the Tranche A Commitment, as applicable, shall
forthwith terminate and the principal amount of the Loans outstanding hereunder
shall bear interest at the Default Rate applicable thereto, all without any
action by the Agents, the Lenders or the Majority Lenders or any of them, and
without presentment, demand, protest or other notice of any kind, all of which
are expressly waived, anything in this Agreement or in the other Loan Documents
to the contrary notwithstanding.
(c) With respect to any outstanding Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of
any acceleration of the Obligations pursuant to this Section 10.2, the Borrower
shall (i) upon the occurrence and continuance of an Event of Default specified
in Section 10.1(f) or Section 10.1(g), concurrently therewith, or (ii) upon the
occurrence and continuance of any other Event of Default, promptly upon demand
by any Issuing Bank, pay to such Issuing Bank an amount equal to one hundred two
percent (102%) of the aggregate undrawn and unexpired amount of each Letter of
Credit issued by such Issuing Bank then outstanding, which cash will be held as
cash collateral by such Issuing Bank for the L/C Obligations and applied to the
payment of drafts drawn under such Letters of Credit and the unused portion
thereof after such Letters of Credit shall have expired or been fully drawn
upon, if any, shall be applied to repay other Obligations hereunder in the
manner set forth in Section 10.3 hereof.
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(d) Upon acceleration of the Notes, as provided in subsection (a)
or (b) of this Section 10.2, the Agents and the Lenders shall have all of the
post-default rights granted to them, or any of them, under the Loan Documents
and under Applicable Law.
(e) Upon acceleration of the Notes, as provided in subsection (a)
or (b) of this Section 10.2, the Collateral Agent, upon request of the Majority
Lenders, shall have the right to the appointment of a receiver for the
properties and assets of the Borrower and the Designated Subsidiaries, both to
operate and to sell such properties and assets, and the Borrower, for itself and
on behalf of the Designated Subsidiaries, hereby consents to such right and such
appointment and hereby waives any objection the Borrower or any Designated
Subsidiary may have thereto or the right to have a bond or other security posted
by the Collateral Agent, on behalf of the Credit Parties, in connection
therewith.
(f) The rights and remedies of the Agents and the Lenders
hereunder shall be cumulative and not exclusive.
Section 10.3 Payments Subsequent to Acceleration or Maturity.
Subsequent to the acceleration of the Loans under Section 10.2 hereof or the
Final Maturity Date (or, if applicable, the Incremental Facility Maturity Date),
payments and prepayments under this Agreement made to any of the Credit Parties
or otherwise received by any of such Persons (from realization on Collateral for
the Obligations or otherwise) shall be paid over to the Administrative Agent (if
necessary) and distributed by the Administrative Agent as follows: FIRST, to the
reasonable costs and expenses, if any, incurred in connection with the
collection of such payment or prepayment including, without limitation, any
reasonable costs incurred by any of them in connection with the sale or
disposition of any Collateral for the Obligations; SECOND, to the Credit Parties
for any fees hereunder or under any of the other Loan Documents then due and
payable; THIRD, to the Lenders pro rata on the basis of their respective unpaid
principal amounts, to the payment of any unpaid interest which may have accrued
on the Obligations; FOURTH, to the Lenders pro rata until all Loans have been
paid in full (and, for purposes of this clause, obligations under Interest Hedge
Agreements with any of the Lenders shall be deemed to be Loans and shall be paid
on a pro rata basis with the Loans); FIFTH, to the Lenders pro rata on the basis
of their respective unpaid amounts, to the payment of any other unpaid
Obligations; SIXTH, to damages incurred by any Credit Party by reason of any
breach hereof or of any other Loan Document; and SEVENTH, upon satisfaction in
full of all Obligations, to the Borrower or as otherwise required by law.
Notwithstanding the foregoing, each Lender may allocate amounts received by it
pursuant to this Section 10.3 in its discretion to the various Obligations held
by it.
Section 10.4 Remedies with Respect to FCC Authorizations. In the event
that the Borrower or the Designated Subsidiaries should hold any authorizations
issued by the FCC, then notwithstanding anything to the contrary contained in
this Agreement or any of the Loan Documents, the Lenders and their agents shall
not take any action pursuant to this Agreement or the Loan Documents, which
would constitute or result in any assignment of any FCC authorizations or any
transfer of control of the holder of any FCC authorization if such assignment or
transfer of control would require under then existing law (including the
Communications Act) the prior approval of the FCC, without first obtaining such
approval. Notwithstanding the occurrence of an Event of Default, voting rights
in any of the Collateral, to the extent but only to the extent, it includes the
FCC authorizations, shall remain with the Borrower or the Designated
Subsidiaries unless and until all required consents of the FCC shall have been
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obtained for the exercise of voting rights by another entity, and prior to the
exercise of voting rights by a purchaser of such Collateral at a private or
public sale, the prior consent of the FCC pursuant to 47 U.S.C. Section 310(d)
or any successor provision of Applicable Law will, if required, be obtained.
Upon the occurrence and during the continuance of an Event of Default, the
Borrower and the Designated Subsidiaries agree to cooperate with each of the
Credit Parties and their agents in the preparation, execution and filing of any
applications and other documents and providing any information that may be
necessary or helpful in obtaining any consent of the FCC required for the
exercise of the Credit Parties' rights under the Loan Documents.
ARTICLE 11 - The Agents
Section 11.1 Appointment and Authorization. Subject only to Section
11.13 hereof, each of the Lenders hereby irrevocably appoints and authorizes,
and hereby agrees that it will require any transferee of any of its interest in
its Loans and in its Notes irrevocably to appoint and authorize, each of the
Agents to take such actions as its agent on its behalf and to exercise such
powers hereunder and under the Security Documents as are delegated to such
Agents by the terms hereof and thereof, together with such powers of such Agents
as are reasonably incidental thereto. None of the Agents nor any of their
respective directors, officers, employees or agents shall be liable for any
action taken or omitted to be taken by it or them hereunder or in connection
herewith, except for its or their own gross negligence or willful misconduct.
Each of the Credit Parties hereby authorizes the Collateral Agent to enter into
Non-Disturbance Agreements with tenants leasing space on any Tower from the
Borrower or any of the Designated Subsidiaries.
Section 11.2 Interest Holders. The Administrative Agent and the other
Agents may treat each Lender, or the Person designated in the last notice filed
with the Administrative Agent under this Section 11.2, as the holder of all of
the interests of such Lender in its Loans and in its Note or Notes until written
notice of transfer, signed by such Lender (or the Person designated in the last
notice filed with the Administrative Agent) and by the Person designated in such
written notice of transfer, in form and substance satisfactory to the
Administrative Agent, shall have been filed with the Administrative Agent.
Section 11.3 Consultation with Counsel. The Administrative Agent and
the Collateral Agent may consult with Paul, Hastings, Janofsky & Walker LLP,
special counsel to the Administrative Agent and the Collateral Agent, or with
other legal counsel selected by them and shall not be liable for any action
taken or suffered by them in good faith in consultation with such counsel, or at
the direction of the Majority Lenders and in reasonable reliance on such
consultations or direction.
Section 11.4 Documents. None of the Agents shall be under any duty to
examine, inquire into, or pass upon the validity, effectiveness or genuineness
of this Agreement, any Note, any other Loan Document, or any other instrument,
document or communication furnished pursuant hereto or in connection herewith,
and each of the Agents shall be entitled to assume (absent knowledge to the
contrary) that they are valid, effective and genuine, have been signed or sent
by the proper parties and are what they purport to be.
Section 11.5 Agents' Affiliates. With respect to the Commitments and
the Loans, the Agents and their respective Affiliates shall have the same rights
and powers hereunder and under the other Loan Documents as any other Lender, and
Affiliates of any of the Agents may accept deposits from, lend money to and
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generally engage in any kind of business with Holdco, the Borrower, any of the
Borrower's Subsidiaries or any Affiliates of, or Persons doing business with,
the Borrower, as if they were not affiliated with such Agent and without any
obligation to account therefor.
Section 11.6 Responsibility of the Agents. The duties and obligations
of each of the Agents under this Agreement and the Security Documents are only
those expressly set forth in this Agreement and the Security Documents. Each of
the Agents shall be entitled to assume that no Default has occurred and is
continuing unless it has actual knowledge, or has been notified by the Borrower,
of such fact, or has been notified by a Lender in writing that such Lender
considers that a Default has occurred and is continuing, and such Lender shall
specify in detail the nature thereof in writing. None of the Agents shall be
liable hereunder for any action taken or omitted to be taken except for its own
gross negligence or willful misconduct. The Administrative Agent shall provide
promptly each of the Lenders with copies of such documents received from the
Borrower as such Lender may reasonably request.
Section 11.7 Security Documents. The Collateral Agent, as collateral
agent hereunder and under the Security Documents, is hereby authorized to act on
behalf of the Lenders in its own capacity and through other agents and
sub-agents appointed by it with due care, under the Security Documents, provided
that, unless otherwise expressly provided in this Agreement, the Collateral
Agent shall not agree to the release of any Collateral, or any property
encumbered by any mortgage, pledge or security interests except in compliance
with the terms and conditions of this Agreement. In connection with its role as
secured party with respect to the Collateral hereunder, the Collateral Agent
shall act as collateral agent for itself and for the benefit of the Lenders, and
such role as collateral agent shall be disclosed on all appropriate accounts,
certificates, filings, mortgages, and other collateral documentation.
Section 11.8 Action by the Agents.
(a) Each of the Agents shall be entitled to use its discretion
with respect to exercising or refraining from exercising any rights which may be
vested in it by, and with respect to taking or refraining from taking any action
or actions which it may be able to take under or in respect of, this Agreement,
unless such Agent shall have been instructed by the Majority Lenders to exercise
or refrain from exercising such rights or to take or refrain from taking such
action; provided that the Administrative Agent shall not exercise any rights
under Section 10.2(a) of this Agreement except upon the request of the Majority
Lenders. None of the Agents shall incur any liability under or in respect of
this Agreement with respect to anything which it may do or refrain from doing in
the reasonable exercise of its judgment or which may seem to it to be necessary
or desirable in the circumstances for the protection of the interests of the
Lenders, except for its gross negligence or willful misconduct, or conduct in
breach of this Agreement as determined by a final, non-appealable order of a
court having jurisdiction over the subject matter.
(b) None of the Agents shall be liable to the Lenders or to any
Lender in acting or refraining from acting under this Agreement or any other
Loan Document in accordance with the instructions of the Majority Lenders (or
all of the Lenders where expressly required by this Agreement), and any action
taken or failure to act pursuant to such instructions shall be binding on all
Lenders.
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Section 11.9 Notice of Default or Event of Default. In the event that any
Agent or any Lender shall acquire actual knowledge, or shall have been notified,
of any Default (other than through a notice by one party hereto to all other
parties), such Agent or such Lender, as the case may be, shall promptly notify
the Administrative Agent and the Collateral Agent, and the Administrative Agent
and the Collateral Agent shall take such action and assert such rights under
this Agreement and the other Loan Documents as the Majority Lenders (or all of
the Lenders where expressly required by this Agreement) direct, and neither the
Administrative Agent nor the Collateral Agent shall be subject to any liability
by reason of its acting pursuant to any such request. If the Majority Lenders
shall fail to request the Administrative Agent or the Collateral Agent to take
action or to assert rights under this Agreement in respect of any Default within
ten (10) days after their receipt of the notice of any Default from any Agent or
any Lender, or shall request inconsistent action with respect to such Default,
the Administrative Agent and the Collateral Agent may, but shall not be required
to, take such action and assert such rights (other than rights under Article 10
hereof) as they deem in their discretion to be advisable for the protection of
the Lenders, except that, if the Majority Lenders have instructed the
Administrative Agent or the Collateral Agent not to take such action or assert
such right, in no event shall the Administrative Agent or the Collateral Agent,
as applicable, act contrary to such instructions.
Section 11.10 Responsibility Disclaimed. None of the Agents shall be under
any liability or responsibility whatsoever as an Agent:
(a) To the Borrower or any other Person as a consequence of any
failure or delay in performance by or any breach by, the Lenders, or any of
them, of any of its or their obligations under this Agreement;
(b) To the Lenders, or any of them, as a consequence of any failure or
delay in performance by, or any breach by, (i) Holdco or the Borrower of any of
their respective obligations under this Agreement or the Notes, as applicable,
or any other Loan Document, or (ii) any Subsidiary of the Borrower or any other
obligor under any other Loan Document; or
(c) To the Lenders, or any of them, for any statements,
representations or warranties in this Agreement, or any other document
contemplated by this Agreement or any other Loan Document, or any information
provided pursuant to this Agreement, any other Loan Document, or any other
document contemplated by this Agreement, or for the validity, effectiveness,
enforceability or sufficiency of this Agreement, the Notes, any other Loan
Document, or any other document contemplated by this Agreement.
Section 11.11 Indemnification. The Lenders agree to indemnify each of the
Administrative Agent and the Collateral Agent (to the extent not reimbursed by
the Borrower), pro rata in accordance with their respective Commitment Ratios,
from and against any and all liabilities, losses, damages, actions, and
reasonable fees and expenses of counsel (as such fees and expenses are
incurred), or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Administrative Agent or the
Collateral Agent in any way relating to or arising out of its role as
Administrative Agent or Collateral Agent, as the case may be, under this
Agreement, any other Loan Document, or any other document contemplated by this
Agreement or any action taken or omitted by the Administrative Agent or the
Collateral Agent under this Agreement, any other Loan Document, or any other
document contemplated by this Agreement in its role as Administrative Agent or
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Collateral Agent, as the case may be, except that none of the Lenders shall be
liable to the Administrative Agent or the Collateral Agent for any portion of
such liabilities, losses, damages, actions, reasonable fees and expenses of
counsel or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent or the Collateral Agent, as applicable,
as determined by a final, non-appealable order of a court having jurisdiction
over the subject matter.
Section 11.12 Credit Decision. Each of the Lenders represents and warrants
to each other Credit Party that:
(a) In making its decision to enter into this Agreement and to make
its Advances it has independently taken whatever steps it considers necessary to
evaluate the financial condition and affairs of Holdco, the Borrower and the
Borrower's Subsidiaries and that it has made an independent credit judgment, and
that it has not relied upon any other Credit Party or upon information provided
by any Agent (other than information provided to the Arrangers by the Borrower
and forwarded by the Arrangers to the Lenders); and
(b) So long as any portion of the Obligations remains outstanding, it
will continue to make its own independent evaluation of the financial condition
and affairs of Holdco, the Borrower and the Borrower's Subsidiaries.
Section 11.13 Successor Agents. Subject to the appointment and acceptance
of a successor Agent as provided below, any Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Majority Lenders shall have the right to appoint a successor
Agent with, so long as no Default or Event of Default then exists, the consent
of the Borrower. If no successor Agent shall have been so appointed by the
Majority Lenders with, so long as no Default or Event of Default then exists,
the consent of the Borrower, and shall have accepted such appointment within
thirty (30) days after the retiring Agent gives notice of resignation, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent which
shall be any existing Lender or a commercial bank organized under the laws of
the United States of America or any political subdivision thereof which has
combined capital and reserves in excess of $500,000,000. Upon the acceptance of
any appointment as an Agent hereunder by a successor Agent such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges, duties and obligations of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation hereunder as Agent, the provisions of this Article
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as an Agent. The resignation of an
Agent may not take effect until a successor Agent is appointed.
Section 11.14 Agents. None of the Lenders identified on the facing page of,
signature pages of or elsewhere in this Agreement as a "co-agent," "managing
agent," "co-documentation agent" or "syndication agent" shall have any right,
power, obligation, liability, responsibility or duty under this Agreement or any
other Loan Document other than those applicable to all Lenders as such. Without
limiting the foregoing, none of the Lenders so identified shall have or be
deemed to have any fiduciary relationship with any other Lender. Each Lender
acknowledges that it has not relied, and will not rely, on any of the Lenders so
identified in deciding to enter into this Agreement or any other Loan Document
or in taking or not taking action hereunder or thereunder.
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ARTICLE 12 - Change in Circumstances
Affecting Eurodollar Advances
Section 12.1 Eurodollar Basis Determination Inadequate or Unfair. If with
respect to any proposed Eurodollar Advance for any Eurodollar Advance Period,
the Administrative Agent determines after consultation with the Lenders that
deposits in Dollars (in the applicable amount) are not being offered to each of
the Lenders in the relevant market for such Eurodollar Advance Period, the
Administrative Agent shall forthwith give notice thereof to the Borrower and the
Lenders, whereupon until the circumstances giving rise to such situation no
longer exist, the obligations of any affected Lender to make Eurodollar Advances
shall be suspended.
Section 12.2 Illegality. If, after the Agreement Date, the adoption of any
Applicable Law, or any change in any Applicable Law, or any change in
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender with any directive (whether or not having
the force of law) of any such authority, central bank or comparable agency,
shall make it unlawful or impossible for any Lender to make, maintain or fund
Eurodollar Advances, such Lender shall so notify the Administrative Agent, and
the Administrative Agent shall forthwith give notice thereof to the other
Lenders and the Borrower. Before giving any notice to the Administrative Agent
pursuant to this Section 12.2, such Lender shall designate a different lending
office if such designation will avoid the need for giving such notice and will
not, in the sole judgment of such Lender, be otherwise materially
disadvantageous to such Lender. Upon receipt of such notice, notwithstanding
anything contained in Article 2 hereof, the Borrower shall repay in full the
then outstanding principal amount of each Eurodollar Advance of such Lender,
together with accrued interest thereon and any reimbursement required under
Section 2.10 hereof, on either (a) the last day of the then current Eurodollar
Advance Period applicable to such affected Eurodollar Advances if such Lender
may lawfully continue to maintain and fund such Eurodollar Advances to such day
or (b) immediately if such Lender may not lawfully continue to fund and maintain
such affected Eurodollar Advances to such day. Concurrently with repaying each
affected Eurodollar Advance of such Lender, notwithstanding anything contained
in Article 2 or Article 4 hereof, the Borrower may borrow a Base Rate Advance
from such Lender, and such Lender shall make such Advance, if so requested, in
an amount such that the outstanding principal amount of the Note held by such
Lender shall equal the outstanding principal amount of such Note immediately
prior to such repayment.
Section 12.3 Increased Costs.
(a) If, after the Agreement Date, the adoption of any Applicable Law,
or any change in any Applicable Law, or any interpretation or change in
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof or compliance by any Lender with any directive (whether or not having
the force of law) of any such authority, central bank or comparable agency:
(i) shall subject any Lender to any tax, duty or other charge
with respect to its obligation to make Eurodollar Advances, or shall change the
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basis of taxation of payments to any Lender of the principal of or interest on
its Eurodollar Advances or in respect of any other amounts due under this
Agreement, in respect of its Eurodollar Advances or its obligation to make
Eurodollar Advances (except for changes in the rate or method of calculation of
tax on the overall net income of such Lender); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of the
Federal Reserve System, but excluding any included in an applicable Eurodollar
Reserve Percentage), special deposit, capital adequacy, assessment or other
requirement or condition against assets of, deposits with or for the account of,
or commitments or credit extended by, any Lender in respect of Eurodollar
Advances or shall impose on any Lender or the London interbank borrowing market
any other condition affecting its obligation to make Eurodollar Advances or its
Eurodollar Advances;
and the result of any of the foregoing is to increase the cost to such Lender of
making or maintaining any such Eurodollar Advances, or to reduce the amount of
any sum received or receivable by such Lender under this Agreement or under its
Note with respect thereto, then, within five (5) days after demand by such
Lender, the Borrower agrees to pay to such Lender such additional amount or
amounts as will compensate such Lender for such increased costs; provided,
however, that notwithstanding the foregoing, the Borrower shall have no
obligation to make any such payment in respect of any such costs incurred more
than ninety (90) days prior to its receipt of notice from such Lender. Each
Lender will promptly notify the Borrower and the Administrative Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Lender to compensation pursuant to this Section 12.3 and will
designate a different lending office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the sole
judgment of such Lender, be otherwise disadvantageous to such Lender.
(b) Any Lender claiming compensation under this Section 12.3
shall provide the Borrower with a written certificate setting forth the
additional amount or amounts to be paid to it hereunder and calculations
therefor in reasonable detail. Such certificate shall be conclusive, absent
manifest error. In determining such amount, such Lender may use any reasonable
averaging and attribution methods. If any Lender demands compensation under this
Section 12.3, the Borrower may at any time, upon at least five (5) Business
Days' prior notice to such Lender, prepay in full the then outstanding
Eurodollar Advances of such Lender, together with accrued interest thereon to
the date of prepayment, along with any reimbursement required under Section 2.10
hereof. Concurrently with prepaying such Eurodollar Advances and notwithstanding
anything to the contrary contained in Article 2 or Section 4.2 hereof, the
Borrower may borrow a Base Rate Advance from such Lender, and such Lender shall,
if so requested, make such Advance in an amount such that the outstanding
principal amount of the Note held by such Lender shall equal the outstanding
principal amount of such Note immediately prior to such prepayment.
Section 12.4 Effect On Other Advances.
(a) If notice has been given pursuant to Section 12.1, 12.2 or 12.3
suspending the obligation of any Lender to make Eurodollar Advances, or
requiring Eurodollar Advances of any Lender to be converted, repaid or prepaid,
then, unless and until the circumstances giving rise to such repayment no longer
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apply, all Advances which would otherwise be made by such Lender as Eurodollar
Advances affected shall be made instead as Base Rate Advances.
(b) Within sixty (60) days after written notice pursuant to Section
12.1, 12.2 or 12.3 by any Lender, the Borrower may, in its discretion, provide a
replacement lender or lenders for such Lender, which replacement lender or
lenders will be subject to the approval of the Administrative Agent, which, so
long as there exists no Default or Event of Default, shall not be unreasonably
withheld, and the Administrative Agent, such Lender and the Borrower shall take
all necessary actions to transfer the rights, duties and obligations of such
Lender to such replacement lender or lenders within such sixty (60) day period
(including, without limitation, the payment in full of all Obligations hereunder
due to the Lender being replaced).
ARTICLE 13 - Miscellaneous
Section 13.1 Notices.
(a) Unless otherwise specifically provided herein, all notices and
other communications under this Agreement shall be in writing and shall be
deemed to have been given five (5) days after deposit in the mail, designated as
certified mail, return receipt requested, postage-prepaid, or one (1) Business
Day after being entrusted to a reputable commercial overnight delivery service,
or when sent by telecopy addressed to the party to which such notice is directed
at its address determined as provided in this Section 13.1. All notices and
other communications under this Agreement shall be given to the parties hereto
at the following addresses:
(i) If to the Borrower, to it at:
SpectraSite Communications, Inc.
100 Regency Forest Drive, Suite 400
Cary, North Carolina 27511
Attention: David Tomick and Steven Lilly
Telecopy No.: (919) 465-2325
with a copy to:
Dow, Lohnes & Albertson, PLLC
1200 New Hampshire Avenue, N.W. Suite 800
Washington, D.C. 20036-6802
Attention: Timothy J. Kelley, Esq.
Telecopy No.: (202) 776-2222
(ii) If to the Administrative Agent or the Collateral Agent, to
each of them at:
Canadian Imperial Bank of Commerce
425 Lexington Avenue
New York, New York 10017
Attention: Agency Services
Telecopy No.: (212) 856-3763
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with a copy to:
Paul, Hastings, Janofsky & Walker LLP
600 Peachtree Street, Suite 2400
Atlanta, Georgia 30308-2222
Attention: Chris D. Molen, Esq.
Telecopy No.: (404) 815-2424
(iii) If to any Lead Arranger, to each of them at:
Canadian Imperial Bank of Commerce
425 Lexington Avenue
New York, New York 10017
Attention: Keith Labbate
Telecopy No.: (212) 856-3558
and to:
Credit Suisse First Boston
Eleven Madison Avenue
New York, New York 10010
Attention: Nancy Sheridan
Telecopy No.: (212) 325-8228
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
600 Peachtree Street, Suite 2400
Atlanta, Georgia 30308-2222
Attention: Chris D. Molen, Esq.
Telecopy No.: (404) 815-2424
(iv) If to the Lenders, to them at the addresses set forth beside
their names on the Lender Addendum with respect thereto or in an Assignment and
Assumption Agreement.
(b) Copies shall be provided to Persons other than the parties
hereto only in the case of notices under Article 10 hereof.
(c) Any party hereto may change the address to which notices
shall be directed under this Section 13.1 by giving ten (10) days' written
notice of such change to the other parties.
Section 13.2 Expenses. The Borrower shall promptly pay or reimburse:
(a) all reasonable legal expenses of the Administrative Agent and
the Collateral Agent and all reasonable other out-of-pocket expenses of the Lead
Arrangers incurred in connection with the preparation, negotiation, execution
and delivery of this Agreement and the other Loan Documents, and the
transactions contemplated hereunder and thereunder and the making of the initial
Advance hereunder (whether or not such Advance is made), including, but not
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limited to, the reasonable fees and disbursements of Paul, Hastings, Janofsky &
Walker LLP, special counsel for the Administrative Agent and the Collateral
Agent;
(b) all reasonable legal expenses of the Administrative Agent and
the Collateral Agent and all other reasonable out-of-pocket expenses of the Lead
Arrangers in connection with the syndication of the Loans;
(c) all reasonable legal expenses of the Administrative Agent and
the Collateral Agent and all other reasonable out-of-pocket expenses of the Lead
Arrangers in connection with the administration of the transactions contemplated
in this Agreement or the other Loan Documents, and all other reasonable expenses
of the Lead Arrangers customarily reimbursed by borrowers for transactions of
similar size, type and purpose as such transactions; and
(d) from and after the occurrence of an Event of Default, all
reasonable legal and other out-of-pocket expenses of the Arrangers and the
Lenders incurred in connection with any restructuring or "work out" of, or
Insolvency Proceeding of Holdco, the Borrower or any Designated Subsidiary
relating to, the transactions contemplated by this Agreement or the other Loan
Documents, and the preparation, negotiation, execution and delivery of any
waiver, amendment or consent by the Arrangers and the Lenders relating to this
Agreement or the other Loan Documents, including, but not limited to, the fees
and disbursements of any experts, agents or consultants and of counsel for the
Administrative Agent and the Collateral Agent, and any exercise by any of the
Arrangers or the Lenders of their respective remedies provided for in this
Agreement or the other Loan Documents.
Section 13.3 Waivers. The rights and remedies of the Agents and the Lenders
under this Agreement and the other Loan Documents shall be cumulative and not
exclusive of any rights or remedies which they would otherwise have. No failure
or delay by the Agents, the Majority Lenders or the Lenders, or any of them, in
exercising any right shall operate as a waiver of such right. The Agents and the
Lenders expressly reserve the right to require strict compliance with the terms
of this Agreement in connection with any future funding of a request for an
Advance. In the event the Lenders decide to fund an Advance at a time when the
Borrower is not in strict compliance with the terms of this Agreement, such
decision by the Lenders shall not be deemed to constitute an undertaking by the
Lenders to fund any further Advances or to preclude the Lenders or the Agents
from exercising any rights available to them under the Loan Documents or at law
or equity. Any waiver or indulgence granted by the Agents, the Majority Lenders
or Lenders shall not constitute a modification of this Agreement, except to the
extent expressly provided in such waiver or indulgence, or constitute a course
of dealing at variance with the terms of this Agreement such as to require
further notice of their intent to require strict adherence to the terms of this
Agreement in the future.
Section 13.4 Set-Off. In addition to any rights now or hereafter granted
under Applicable Law and not by way of limitation of any such rights, upon the
occurrence of an Event of Default and during the continuation thereof, the
Agents and the Lenders are hereby authorized by Holdco and the Borrower at any
time or from time to time, without notice to Holdco, the Borrower or to any
other Person, any such notice being hereby expressly waived, to set-off and to
appropriate and to apply any and all deposits (general or special, time or
demand, including, but not limited to, Indebtedness evidenced by certificates of
deposit, in each case whether matured or unmatured) and any other Indebtedness
at any time held or owing by any Lender or any Agent to or for the credit or the
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account of Holdco, the Borrower or any of the Designated Subsidiaries against
and on account of the Obligations irrespective of whether (a) the Lenders and
the Agents, or any of them, shall have made any demand hereunder or (b) the
Administrative Agent shall have declared the principal of and interest on the
Loans and other amounts due hereunder to be due and payable as permitted by
Section 10.2 hereof and although all or any of such Obligations shall be
contingent or unmatured. The Agent or Lender which has effected such set-off and
application of proceeds shall endeavor to promptly notify the Borrower thereof,
but the failure to give such notice shall not affect the validity of such
set-off or application. Upon direction by the Administrative Agent, with the
consent of the Majority Lenders, each Lender holding deposits of Holdco, the
Borrower or any of the Designated Subsidiaries shall exercise its set-off rights
as so directed.
Section 13.5 Successors and Assigns; Participations and Assignments.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of Holdco, the Borrower and the Credit Parties and their
respective successors and assigns, except that neither the Borrower nor Holdco
may assign or transfer any of its rights or obligations under this Agreement
without the prior written consent of each Lender (and any attempted assignment
or transfer by Holdco or the Borrower without such consent shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns and, to the extent expressly contemplated hereby, the
Affiliates of each of the Credit Parties) any legal or equitable right, remedy
or claim under or by reason of this Agreement.
(b) Any Lender (other than the Swing Loan Lender) may, without the
consent of the Borrower or the Administrative Agent, at any time sell, to one or
more banks or other entities ("Participants") participating interests in all or
a portion of the rights and obligations of such Lender under this Agreement
(including, without limitation, all or a portion of such Lender's Loans, L/C
Obligations and Commitments outstanding hereunder). In the event of any such
sale by a Lender of a participating interest to a Participant, (i) such Lender's
obligations under this Agreement to the other parties to this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible for the
performance thereof, (iii) such Lender shall remain the holder of any such Loan
for all purposes under this Agreement and the other Loan Documents, and (iv) the
Borrower and the other Credit Parties shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement and the other Loan Documents. No Lender shall be entitled to
create in favor of any Participant, in the participation agreement pursuant to
which such Participant's participating interest shall be created or otherwise,
any right to vote on, consent to or approve any matter relating to this
Agreement or any other Loan Document except for those matters specified as
requiring the consent of all Lenders in Section 13.12 hereof. The Borrower
agrees that upon the occurrence and during the continuance of an Event of
Default, each Participant shall, to the maximum extent permitted by Applicable
Law, be deemed to have the right of set-off in respect of its participating
interest in amounts owing under this Agreement to the same extent as if the
amount of its participating interest were owing directly to it as a Lender under
this Agreement; provided that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in Section 2.11(b) as fully as if it were a Lender
hereunder. The Borrower also agrees that each Participant shall be entitled to
the benefits of Section 2.12 and Article 12 of this Agreement with respect to
its participation in the Commitments and the Loans outstanding from time to time
as if it were a Lender; provided, further, that, in the case of Section 2.12,
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such Participant shall have complied with the requirements of such Section, and
provided, further, that no Participant shall be entitled to receive any greater
amount pursuant to any such Section than the transferor Lender would have been
entitled to receive in respect of the amount of the participation transferred by
such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (other than the Swing Loan Lender) may assign to one or
more Lenders or Affiliates of a Lender or Approved Funds of any Lender, or, with
the consent of the Administrative Agent and, so long as no Default exists
hereunder, the Borrower (which in each case shall not be unreasonably withheld
or delayed), to one or more other Eligible Assignees, all or a portion of its
rights and obligations under this Agreement (including, without limitation, all
or a portion of such assigning Lender's Loans, L/C Obligations and Commitments
outstanding hereunder); provided that (i) except in the case of an assignment of
the entire remaining amount of the assigning Lender's Loans, L/C Obligations and
Commitments hereunder or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund of any Lender, (A) the aggregate
amount of the Loans, L/C Obligations and Commitments of the assigning Lender
subject to each such assignment (determined as of the date the Assignment and
Assumption Agreement with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $2,500,000, in the case of any
assignment of the Tranche B Loans, and $5,000,000, in the case of any assignment
of the other Loans, L/C Obligations and Commitments, and (B) after giving effect
to any such assignment, the aggregate amount of the assigning Lender's Loans,
L/C Obligations and Commitments hereunder shall not be less than $2,500,000 in
the case of Tranche B Loans, and $5,000,000, in the case of the other Loans, L/C
Obligations and Commitments, unless each of the Administrative Agent and, so
long as no Default exists hereunder, the Borrower otherwise consent (each such
consent not to be unreasonably withheld or delayed, (ii) each partial assignment
shall be made as an assignment of a proportionate part of all of the assigning
Lender's rights and obligations under this Agreement with respect to the type of
Commitment or Loan being assigned, except that this clause (ii) shall not
prohibit any Lender from assigning all or a portion of its rights and
obligations among separate types of Commitments or Loans on a non-pro rata
basis, and (iii) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption Agreement executed by the
applicable Assignee and assigning Lender (and, in the case of an Assignee that
is not then a Lender or an Affiliate of a Lender or an Approved Fund with
respect to a Lender, by the Administrative Agent and, so long as no Default
exists hereunder, the Borrower), together with a processing and recordation fee
of $1,000 (except that in the case of assignments on the same day by a Lender to
more than one fund managed or advised by the same investment advisor, only a
single $1,000 fee shall be payable for all such assignments by such Lender to
such funds), and each Eligible Assignee shall deliver to the Administrative
Agent a completed administrative questionnaire in the form required by the
Administrative Agent and all tax forms, certifications and other documents
required to be provided by such Eligible Assignee as a Lender hereunder. Subject
to acceptance and recording thereof by the Administrative Agent pursuant to
paragraph (d) of this Section 13.5, from and after the effective date specified
in each Assignment and Assumption Agreement, (x) the Eligible Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
under such Assignment and Assumption Agreement, have the rights and obligations
of a Lender under this Agreement with respect to the Loans and Commitments set
forth in such Assignment and Assumption Agreement, and (y) the assigning Lender
thereunder shall, to the extent of the interest assigned under such Assignment
and Assumption Agreement, be released from its obligations under this Agreement
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(and, in the case of an Assignment and Assumption Agreement covering all of the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such assigning Lender shall cease to be a party hereto but shall
nonetheless continue to be entitled to the benefits of, and subject to the
obligations set forth in, Sections 2.11, 2.13, 2.14, 6.10, 11.11, 12.3 and 13.2
hereof). Any assignment or transfer by a Lender of its rights or obligations
under this Agreement that does not comply with this Section 13.5(c) shall be
treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (b) of
this Section 13.5.
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in Section 13.1,
a copy of each Assignment and Assumption Agreement delivered to it and a
register (the "Register") for the recordation of the names and addresses of the
Lenders and the Commitments of, and principal amounts of the Loans owing to,
each Lender from time to time (whether or not evidenced by a Note). Any
assignment or transfer of all or part of a Loan evidenced by a Note shall be
registered on the Register only upon surrender for registration of assignment or
transfer of the Note evidencing such Loan, accompanied by a duly executed
Assignment and Assumption Agreement, and thereupon one or more new Notes in the
same aggregate principal amount shall be issued to the designated Assignee and
the old Note shall be returned by the Administrative Agent to the Borrower
marked "canceled". The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower and the Credit Parties shall treat
each Person whose name is recorded in the Register as the owner of a Loan or
other obligation hereunder as the owner thereof for all purposes of this
Agreement and the other Loan Documents, notwithstanding any notice to the
contrary. Any assignment of any Loan or other obligation (whether or not
evidenced by a Note) hereunder shall be effective only upon appropriate entries
with respect thereto being made in the Register. The Register shall be available
for inspection by the Borrower or any Credit Party at any reasonable time and
from time to time upon reasonable prior notice.
(e) The Borrower hereby authorizes each Lender to disclose to any
Participant or Eligible Assignee (each a "Transferee") and any prospective
Transferee, subject to such Person agreeing to comply with the provisions of
Section 13.17 of this Agreement, any and all financial and other information in
such Lender's possession concerning the Borrower and its Affiliates which has
been delivered to such Lender by or on behalf of the Borrower in connection with
such Lender's credit evaluation of the Borrower and its Affiliates prior to
becoming a party to this Agreement.
(f) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure the obligations
of such Lender, including, without limitation, any pledge or assignment to
secure obligations to a Federal Reserve Bank; provided that no such pledge or
assignment of a security interest shall release a Lender from any of its
obligations under this Agreement or substitute any such pledgee or assignee for
such Lender as a party hereto. In the case of any Lender that is a fund that
invests in bank loans, such Lender may, without the consent of the Borrower or
the Administrative Agent, assign or pledge all or any portion of its Notes or
any other instrument evidencing its rights as a Lender under this Agreement to
any trustee for, or any other representative of, holders of obligations owed or
securities issued, by such fund, as security for such obligations or securities;
provided that any foreclosure or similar action by such trustee or
representative shall be subject to the provisions of this Section 13.5 regarding
assignments.
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(g) Any Person purchasing a participation or an assignment of Loans
from any Lender shall be required to represent and warrant that its purchase
shall not constitute a "prohibited transaction" (as defined in Section 5.1(m)
hereof).
(h) Each Lender agrees to provide the Administrative Agent and the
Borrower with prompt written notice of any issuance of assignments of its
interests hereunder.
(i) No assignment, participation or other transfer of any rights by
any Lender hereunder or under the Notes shall be affected that would result in
any interest requiring registration under the Securities Act, or qualification
under any state securities law.
(j) No such assignment may be made to any Lender or other financial
institution (x) with respect to which a receiver or conservator (including,
without limitation, the Federal Deposit Insurance Corporation or the Office of
Thrift Supervision) has been appointed or (y) that is not "adequately
capitalized" (as such term is defined in Section 131(b)(1)(B) of the Federal
Deposit Insurance Corporation Improvement Act as in effect on the Agreement
Date).
(k) Notwithstanding anything to the contrary contained herein, any
Lender (a "Granting Lender") may grant to a special purpose funding vehicle
("SPC"), identified as such in writing from time to time by the Granting Lender
to the Administrative Agent and the Borrower, the option to provide to the
Borrower all or any part of any Advance that such Granting Lender would
otherwise be obligated to make to the Borrower pursuant to this Agreement;
provided that, at the time such transfer is made, one of the Agents or the
Lenders shall be the liquidity provider and/or the administrator of such SPC;
provided further that (i) nothing herein shall constitute a commitment by any
SPC to make any Advance; (ii) if an SPC elects not to exercise such option or
otherwise fails to provide all or any part of such Advance, the Granting Lender
shall be obligated to make such Advance pursuant to the terms hereof, and the
Granting Lender shall be liable hereunder generally for all acts and omissions
of such SPC as if such acts and omissions were committed by the Granting Lender;
(iii) an SPC shall have no rights or benefits under this Agreement or any Note
or any other Loan Document, with its rights against the Granting Lender being as
set forth in any agreements between such SPC and the Granting Lender, and an SPC
shall not constitute a "Lender" hereunder; (iv) all amounts payable by any
Credit Party to the Granting Lender shall be determined as if the Granting
Lender had not granted such option, and as if the Granting Lender were funding
each of its Advances and its share of the Commitments in the same way that it is
funding the portion of such Advances and its share of the Commitments in which
no such option has been granted; and (v) in no event shall the Granting Lender
agree with an SPC to take or refrain from taking any action under this Agreement
or any Note or any other Loan Document, except that the Granting Lender may
agree with an SPC that it will not, without the consent of such SPC, agree to
any modification, supplement or waiver of this Section 13.5(k). The making of an
Advance by an SPC hereunder shall utilize the Commitment of the Granting Lender
to the same extent, and as if, such Advance were made by such Granting Lender.
Each party hereto hereby agrees that no SPC shall be liable for any indemnity or
similar payment obligation under this Agreement (all liability for which shall
remain with the Granting Lender). In furtherance of the foregoing, each party
hereto hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior Indebtedness
of any SPC, it will not institute against, or join any other person in
instituting against, such SPC any Insolvency Proceeding. In addition,
notwithstanding anything to the contrary in this Section 13.5, any SPC may (I)
with notice to, but without the prior written consent of, the Borrower and the
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Administrative Agent and without paying any processing fee therefor, assign all
or a portion of its interests in any Advances to the Granting Lender or to any
financial institutions (consented to by the Borrower and the Administrative
Agent) providing liquidity and/or credit support to or for the account of such
SPC to support the funding or maintenance of Advances, and (II) disclose on a
confidential basis any non-public information relating to its Advances to any
rating agency, commercial paper dealer or provider of any surety, guarantee or
credit or liquidity enhancement to such SPC (each, a "Credit Support Provider"),
provided that the applicable rating agency or Credit Support Provider agrees in
writing for the benefit of the Borrower to keep such information confidential.
As this Section applies to any particular SPC, this Section may not be amended
without the written consent of such SPC.
Section 13.6 Accounting Principles. Except as set forth in the following
sentence, references in this Agreement to GAAP shall be to such principles as in
effect from time to time, and all accounting terms used herein without
definition shall be used as defined under GAAP. All financial calculations
hereunder shall, unless otherwise stated, be determined for the Borrower on a
consolidated basis with the Designated Subsidiaries.
Section 13.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
In proving this Agreement or any other Loan Document in any judicial
proceedings, it shall not be necessary to produce or account for more than one
such counterpart signed by the party against whom such enforcement is sought.
Any signatures delivered by a party by facsimile transmission shall be deemed an
original signature hereto.
Section 13.8 Governing Law. THIS AGREEMENT AND THE NOTES SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN NEW YORK AND WITHOUT
REFERENCE TO THE CONFLICTS OR CHOICE OF LAWS PRINCIPLES THEREOF.
Section 13.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 13.10 Interest.
(a) In no event shall the amount of interest due or payable hereunder
or under the Notes exceed the maximum rate of interest allowed by Applicable
Law, and in the event any such payment is inadvertently made by the Borrower or
inadvertently received by any Lender then such excess sum shall be credited as a
payment of principal, unless the Borrower shall notify the Administrative Agent
or such Lender, as applicable, in writing that it elects to have such excess
returned forthwith. It is the express intent hereof that the Borrower not pay
and the Lenders not receive, directly or indirectly in any manner whatsoever,
interest in excess of that which may legally be paid by the Borrower under
Applicable Law.
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(b) Notwithstanding the use by the Lenders of the Base Rate and the
Eurodollar Rate as reference rates for the determination of interest on the
Loans, the Lenders shall be under no obligation to obtain funds from any
particular source in order to charge interest to the Borrower at interest rates
related to such reference rates.
Section 13.11 Headings. Headings used in this Agreement are for convenience
only and shall not in any way modify or amend any of the terms or provisions
hereof nor be used in connection with the interpretation of any provision
hereof.
Section 13.12 Amendment and Waiver. Neither this Agreement nor any other
Loan Document (other than Interest Hedge Agreements), nor any term hereof or
thereof, may be amended orally, nor may any provision hereof or thereof be
waived orally, but only by an instrument in writing signed by (or, in the case
of Security Documents executed by the Collateral Agent signed by the Collateral
Agent and approved by) the Majority Lenders and, in the case of an amendment, by
the Borrower, except that (a)(i) any increase in the amount of the Commitments
of any Lender shall require the consent of such Lender; (ii) any amendment to
the application of payments set forth in Section 2.7(e) shall require the
consent of the Majority Pro Rata Lenders and the Majority Tranche B Lenders; and
(iii) in the event of (A) any delay or extension in the terms of repayment or
change in the order of application of repayment of the Loans provided in Section
2.6 hereof or any change in the scheduled reductions in the Revolving Commitment
or the Tranche A Commitment under Sections 2.6(a) and (b) or any change in the
reimbursement obligations under any Letter of Credit, (B) any reduction in
principal, interest or fees due hereunder or any delay in paying interest or
fees hereunder, (C) any release of any substantial portion of the Collateral for
the Loans other than a release of any portion of the Collateral related to
SpectraSite Mexico or a release of any portion of the Collateral in connection
with a Permitted Disposition, (D) any waiver of any Default due to the failure
by the Borrower to pay any sum due to any of the Lenders hereunder, (E) any
release of any Guaranty (or any guarantor thereunder) of all or any portion of
the Obligations other than a release of any Guaranty provided by any Domestic
SpectraSite Mexico Subsidiary or a release of any other Guaranty in connection
with a Permitted Disposition, (F) any amendment, whether direct or indirect, of
this Section 13.12, or of the definition of "Majority Lenders", or, except in
connection with the implementation of the Incremental Facility to the extent
necessary to accord the various types of Incremental Facility Loans treatment
similar to the treatment accorded Loans of a similar type thereunder, of any
portion of Sections 2.9(c), 6.10, 10.3 or Article 12 as they relate to the
relative priority of payment among the Obligations, or (G) any other provision
of this Agreement or any of the other Loan Documents specifically requiring the
consent or approval of each of the Lenders, any amendment or waiver or consent
may be made only by an instrument in writing signed by (or, in the case of
Security Documents executed by the Collateral Agent, signed by the Collateral
Agent and approved by) each of the Lenders and, in the case of an amendment, by
the Borrower. Any amendment to any provision hereunder, or any waiver or consent
with respect thereto, governing the rights, obligations, or liabilities of the
Administrative Agent in its capacity as such, may be made only by an instrument
in writing signed by the Administrative Agent and by each of the Lenders.
Notwithstanding the foregoing, in the event that any amendment to any provision
hereunder, or any waiver or consent with respect thereto, shall require the
approval of each of the Lenders and any Lender fails to provide such approval,
so long as no Default or Event of Default then exists, the Borrower may, in its
discretion, provide a replacement lender or lenders for such non-approving
Lender, which replacement lender or lenders will be subject to the approval of
the Lead Arrangers, which shall not be unreasonably withheld, and the
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Administrative Agent, such non-approving Lender and the Borrower shall take all
necessary actions to transfer promptly the rights, duties and obligations of
such non-approving Lender to such replacement lender or lenders (including,
without limitation, the payment in full of all Obligations hereunder due to the
non-approving Lender being replaced).
Section 13.13 Entire Agreement. Except as otherwise expressly provided
herein, this Agreement and the other documents described or contemplated herein
embody the entire agreement and understanding among the parties hereto and
thereto and supersede all prior agreements and understandings relating to the
subject matter hereof and thereof.
Section 13.14 Other Relationships. No relationship created hereunder or
under any other Loan Document shall in any way affect the ability of any Credit
Party or any of their respective Affiliates to enter into or maintain business
relationships with the Borrower or any of its Affiliates beyond the
relationships specifically contemplated by this Agreement and the other Loan
Documents.
Section 13.15 Loan Documents. The Indebtedness of the Borrower evidenced by
the Notes is secured by the Security Documents and is intended by the parties
hereto to be in parity with the Interest Hedge Agreements in effect from time to
time between the Borrower and any Lender and senior in right of payment to all
other Borrower Debt except to the extent expressly contemplated hereby. All
references to this Agreement or to any other Loan Document whether herein or in
any other Loan Document shall refer to this Agreement or such other Loan
Document as the same may be amended, restated, supplemented or otherwise
modified from time to time. To the extent that any of the Loan Documents
executed in connection with the closing of the Prior Credit Agreement have not
been amended or amended and restated in connection with the transactions
contemplated by this Agreement, the parties hereby acknowledge that all
references contained therein to the "Credit Agreement" shall be references to
this Agreement and that all references contained therein to the "Senior Credit
Parties" shall be deemed to include all of the Credit Parties.
Section 13.16 Reliance on and Survival of Various Provisions. All
covenants, agreements, statements, representations and warranties made herein or
in any certificate delivered pursuant hereto (i) shall be deemed to have been
relied upon by each of the Agents and each of the Lenders notwithstanding any
investigation heretofore or hereafter made by them, and (ii) shall survive the
execution and delivery of the Notes and shall continue in full force and effect
so long as any Note is outstanding and unpaid. Any right to indemnification
hereunder, including, without limitation, rights pursuant to Sections 2.10,
2.12, 2.13, 2.14, 6.10, 11.11, 12.3 and 13.2 hereof, shall survive the
termination of this Agreement and the payment and performance of all of the
Obligations.
Section 13.17 Confidentiality. All agreements, instruments, documents and
other information received pursuant to this Agreement or any other Loan Document
by the Credit Parties shall be held in confidence by the Credit Parties, except
for disclosures made (a) in connection with assignments of or participations in
the Loans made pursuant to Section 13.5 hereof (provided that such assignees or
participants shall agree in writing to keep such information confidential as
provided herein), (b) as otherwise required to be disclosed by banking
regulations, process of law or other Applicable Law, or to government
regulators, (c) of information received by a Credit Party without restriction as
to its disclosure or use from a Person who, to such Credit Party's knowledge or
reasonable belief, was not prohibited from disclosing it by any duty of
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confidentiality, (d) in connection with litigation arising from this Agreement
or any other Loan Document to which a Credit Party is a party, (v) of
information which is or has become public (other than through unauthorized
disclosure by any Credit Party), (vi) to the attorneys, accountants, and other
expert consultants (including rating agencies) for any Credit Party (who shall
be requested to similarly hold such information in confidence), (vii) to any
direct or indirect contractual counterparty of a Lender in connection with a
swap agreement or such contractual counterparty's professional advisor so long
as such contractual counterparty or professional advisor, as the case may be,
agrees in writing to be bound by the provisions of this Section 13.17, (viii) to
the National Association of Insurance Commissioners or any similar organization
or any nationally recognized rating agency that requires access to information
about a Lender's investment portfolio in connection with ratings issued with
respect to such Lender, or (ix) as otherwise permitted hereunder.
Section 13.18 Delivery of Lender Addenda. Each initial Lender shall become
a party to this Agreement by delivering to the Administrative Agent a Lender
Addendum duly executed by such Lender, the Borrower and the Administrative
Agent.
ARTICLE 14 - Waiver of Jury Trial; Consent to Jurisdiction.
Section 14.1 Waiver of Jury Trial. HOLDCO AND THE BORROWER, FOR ITSELF AND
ON BEHALF OF EACH OF THE DESIGNATED SUBSIDIARIES, AND EACH OF THE CREDIT PARTIES
HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY COURT AND IN ANY ACTION OR
PROCEEDING OF ANY TYPE IN WHICH HOLDCO, THE BORROWER, ANY OF THE DESIGNATED
SUBSIDIARIES OR ANY OF THE CREDIT PARTIES, OR ANY OF THEIR RESPECTIVE SUCCESSORS
OR ASSIGNS, IS A PARTY, AS TO ALL MATTERS AND THINGS ARISING DIRECTLY OR
INDIRECTLY OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS AND THE
RELATIONS AMONG THE PARTIES LISTED IN THIS SECTION 14.1.
Section 14.2 Consent to Jurisdiction. THE BORROWER AND EACH OF THE
ADMINISTRATIVE AGENT, THE OTHER AGENTS AND THE LENDERS AGREE THAT ANY SUIT FOR
THE ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT SITTING
THEREIN AND EACH CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY CERTIFIED OR
REGISTERED MAIL AT THE ADDRESS SPECIFIED IN SECTION 13.1. THE BORROWER HEREBY
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
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The following exhibits and schedules have been omitted and will be submitted to
the SEC upon request.
EXHIBITS
Exhibit A - Form of Assignment and Assumption Agreement
Exhibit B - Form of Borrower Pledge Agreement
Exhibit C - Form of Certificate of Financial Condition
Exhibit D - Form of Holdco Pledge Agreement
Exhibit E-1 - Form of Amended and Restated Borrower
Trademark Security Agreement
Exhibit E-2 - Form of Subsidiary Trademark Security Agreement
Exhibit E-3 - Form of Patent Security Agreement
Exhibit F - Form of Lender Addendum
Exhibit G - Copy of Nextel Intercreditor Agreement
Exhibit H - Form of Notice of Conversion/Continuation
Exhibit I - Form of Performance Certificate
Exhibit J - Form of Request for Advance
Exhibit K - Form of Request for Issuance of Letter of Credit
Exhibit L - Form of Revolving Note
Exhibit M - Form of Security Agreement
Exhibit N - Form of Subsidiary Guaranty
Exhibit O - Form of Subsidiary Pledge Agreement
Exhibit P - Form of Subsidiary Security Agreement
Exhibit Q - Form of Swing Loan Note
Exhibit R - Form of Tranche A Note
Exhibit S - Form of Tranche B Note
Exhibit T - Form of Use of Proceeds Letter
Exhibit U - Form of Swing Loan Request
Exhibit V - Form of Borrower's Loan Certificate
Exhibit W - Form of Guarantor's Loan Certificate
Exhibit X - Form of New Subsidiary Questionnaire
SCHEDULES
Schedule 1 - Allocation of Commitments among Lenders
and Lenders' Addresses for Notice
Schedule 2.14 - Letters of Credit as of the Agreement Date
Schedule 5.1(c) - Capitalization
Schedule 5.1(h) - Title to Assets
Schedule 5.1(i) - Litigation
Schedule 5.1(m) - ERISA
Schedule 5.1(q) - Intellectual Property
Schedule 5.1(s) - Agreements with Affiliates
Schedule 5.1(t) - Environmental Matters
Schedule 5.1(u) - Labor Matters
Schedule 5.1(x) - Investments
Schedule 5.1(y) - Material Contracts